Abbott v. Sartori

57 Iowa 656 | Iowa | 1882

Day, J.

I. The first point presented in the demurrer, and insisted upon in argument, is that the defendant does not in his answer so confess the facts, averred in the petition, as to permit him to plead matters in avoidance. It is insisted that the defendant does not admit that he executed a bond or sold under a permit. The first count of the petition avers: “That the defendant at said county and State, from the 1st until the 22d day of February, 1870, under and by virtue of said permit, did engage in, and continue .the sale at retail, of intoxicating liquors, and did then and there sell to divex-s persons, ixxtoxicating liquors.” The other counts of the petition contain the same averments as to the other months in question. The first count of the answer states that defendant “admits that he made the sales of intoxicating liquors, substantially, as stated in the first count of the petition.” The other counts of the answer contain the same admission as to other counts of the petition. Hex-e is a clear admission that the sale was under a permit. To the suggestion that the answer does not adxnit the exécution of a bond, it may be said that the several counts of the petition do not allege the execution of a boxid, xmless what precedes the portion of the petition designated as count 1st, and which is indicated in the statement in italics, be incorpox-ated into and regarded as a part of the several counts of the petition; and, if it be so incorpox-ated and considex-ed, it is admitted in the answex-, for the admission is as broad as the allegation. .We think this position of the appellant is not tenable.

II. The principal question in the case is whether the answer of the defendant shows that he has substantially com plied with the statute. Section 1537 of the Code provides that every person having a permit for the sale of intoxicating liquors “ shall make on the last Saturday of every month, a return in writing to the auditor of the county, showing the kind and quantify of the liquors purchased by him since the date of his last report, the price paid aud the amount of freights paid on the same; also the kind and quantity of liquors sold by him since the date of his last report, to whom sold, for what purpose, and what price; also the kind and quantity of liqours remaining on hand, which report shall be sworn to by the person having the said permit, and shall be kept by the auditor, subject at all tixues to the ixispeetion of the public.”

Section 1538 is as follows: “Any person having such permit, who shall sell intoxicating liquors at a greater profit than is herein allowed, or who shall fail to make monthly return to the auditor as herein required, or shall make a false return, shall forfeit and pay to the school fund of the county the sum of one hundred dollars for each and every violation of the provisions of this chapter, to be collected by civil action upon his bond by any citizen of the county, before any court having jurisdiction of the amount claimed, and for the second conviction, under the provisions of this chapter, the person convicted shall forfeit his permit to sell.” It is claimed by the appellant that this statute, so far as the time for filing the report is concerned is mandatory, whilst the appellee insists that it is merely directory.

The cases upon the question, under what circumstances a provision in a statute may be declared directory, and when it must be regarded as mandatory, are very numerous, and they are, perhaps, not all capable of reconciliation. In Cooley’s Constitutional Limitations, page 73, it is said: “In respect to statutes it has long been settled that particular provisions may be regarded as directory merely; by which is meant that they are to be considered as giving directions which ought to be followed, but not as so limiting the power in respect to which the directions are given, that it cannot be effectually exercised without observing them. The force of many of the decisions on this subject will be readily assented to by all; while others are sometimes thought to go to the extent of nullifying the intention of the legislature in essential particulars.” And upon page 77, the following language is employed: “Those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly and prompt, conduct of the business, and by a failure to obey which, the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory; and if the act is performed, but not in the time or in the precise mode indicated, it may still be sufficient, if that which is done accomplishes the substantial purpose of the statute. But this rule presupposes that no negative words are employed in the statute which expressly, or by necessary implication, forbid the doing of the act at any other time or in any other manner than as directed.” In Hinford v. The City of Omaha, Grant, J., after a full review of the authorities upon the subject, lays down the rule of construction substantially as above indicated. In a note to Potter’s Dwarris ob Statutes, page 223, it is said: “ When a statute directs a person to do a thing in a certain time, without any negative words restraining him from doing it afterwards, the naming of the time will be considered as directory to him, and not as a limitation of his authority.”

This proposition is sustained by the following authorities: The People v. Board of Supervisors, 33 Cal., 487; Pond v. Meyrs, 3 Mass., 230; Ex parte Heath, 3 Hill, 42; The People v. Cook, 14 Barb., 290; The People v. Allen, 6 Wend., 486; see, also, Dawson v. The People, 25 N. Y., 399; Toney v. The Inhabitants of Milbury, 2 Pick., 64. In Hinford v. The City of Omaha, 4 Neb., 336 (350), it is said: “When the particular provision of the statute relates to some immaterial matter, where compliance is a matter of convenience rather than substance, or when the directions of the statute are given with a view to the proper, orderly, and prompt conduct of business merely, the provision may generally be regarded as directory.”

Applying the foregoing authorities to the question in hand, we are of opinion that the provision of the statute as to the time of filing the report designated is not mandatory, and that the statute may be substantially complied with, by filing the report after the time indicated. It is true that section 1538 of the Code provides for a forfeiture for the failure “ to make monthly return to the auditor as herein required.” But this, we think, applies to a failure in matters of substance, and not merely as to time. The primary object and substantial purpose of section 1537 are to guard against sales for an unlawful purpose, and at a greater rate of profit than the law authorizes, and to furnish to the public the means of detecting violations of the law. Any person examining the reports in the auditor’s office, after the last Saturday of a given month, and finding that anyone selling liquors under a permit had failed to make return of the liquors bought and sold by him, as required in section 1537, would be authorized at once to institute a suit for the collection of the penalty prescribed in section 1538, and, it is probable that the action could not be defeated by making a report after the commencement of the action. Eut if, before the commencement of the action, the report required in section 1537 is deposited with the auditor, though not deposited upon the very day required by the statute, theie is, we think, a compliance with the statute in all matters of substance.

A report deposited after the day fixed in the statute furnishes the means of detecting violations of the law, -and if in the meantime no action has been commenced, no one has suffered any substantial prejudice by the delay. The liability to action during the period that the report is wanting, will always furnish an incentive to make the report as promptly as possible. When this action was commenced the defendant had made report for every month for which the forfeiture is claimed, and had furnished all the information which the statute required. The object of the statute had been fully attained. The only complaint is that the reports were not filed on the last Saturday of each month. The statute, we think, is so far directory as to authorize the report to be made at any time before an action is commenced for the recovery of the forfeiture. It follows that, in our opinion, the demurrer was properly overruled. v

Aeeirmed.

Adams, J., dissents as to last point.