Crawley v. Commonwealth

123 Pa. 275 | Pa. | 1889

Opinion,

Mr. Justice Stebbett :

The averments contained in the statement and affidavit of claim filed by plaintiff below, are substantially as follows, viz.: That on January 31, 1887, Crawley, one of the defendants, was licensed to keep a tavern in the city of Pittsburgh for one year, and gave the bond in suit, with the other defendants as sureties, conditioned for the faithful observance of the duties relating to that business, and for the payment of “ all damages, fines, costs, and penalties that may be recovered against him,” ■which bond was then approved by the county treasurer, and filed in his office as required by the law under which the license was granted; that seven separate actions, specified in the statement, were brought against Crawley at divers times between September, 1887, and April, 1888, under the provisions of the act of February 26, 1855, for alleged violations of said act by selling liquor on Sunday, during the continuance of said license, and said suits were so prosecuted that judgments for certain penalties, provided by the act, were recovered against him, all of which judgments are now final and remain unpaid.

This suit, on the license bond, was brought against the licensee and his sureties to recover the aggregate amount of those judgments, $750, and interest.

The general ground of defence, disclosed by the affidavit of defendants below, is that the license bond does not embrace judgments for penalties under the act of 1855, because that act was not in force in Allegheny county when the bond was given, but more especially because it was given in pursuance of the act of April 8, 1872, P. L. 843, and its supplements, under which the license was granted; and, by the supplement of 1873, proceedings on the license bond are expressly limited to judgments recovered against the licensee for violations of said act of 1872 and its supplements.

The act last mentioned, entitled “ An act to regulate the sale of intoxicating liquors in the county of Allegheny,” repealed all laws and parts of laws in force relative to the sale of vinous, spirituous, malt, or brewed liquors or any admixture thereof in said county; and, in connection with, its supplements, substituted a new and independent system regulating the sale of intoxicating liquors in that county. The supplement of April 10, 1873, prescribes the form of bond to be given by licensees under the act, viz.: bond in $2,000 with two sufficient sureties to be approved by the county treasurer, conditioned that he “ shall well and faithfully observe and fulfil all the duties relating to the business, and pay all fines and forfeitures that may be recovered against him; and then, as explanatory of what fines and forfeitures are intended, it declares : “ Said bond shall be filed in the office of the county treasurer, and whenever judgment for any forfeiture or fine shall have been recovered.....for any violation of the laws aforesaid, the same proceedings shall be had,” etc. The “laws aforesaid” are the act of April 3, 1872, and its supplements. The 27th section of the act prohibits selling on Sunday, and the penalty therefor is prescribed by the 31st section. It is very evident that the clause of the supplement, above quoted, declaring when, and under what circumstances, proceedings on the license bond should be had, was intended to restrict and limit the operation of the bond to the collection of judgments recovered against the licensee and fines imposed on him for violations of the act of 1872 and its supplements, and nothing else. The act might have been so drawn as to embrace any judgment that might have been recovered against him under the law then in force, or, as it might be changed by subsequent legislation, but the law-making power did not see (it to do so. The measure of the sureties’ liability must, therefore, be determined by the law under which the license was granted and bond given. To do anything else would be to increase their obligation without their consent. It follows, therefore, that inasmuch as the judgments sought to be recovered in this suit were obtained in proceedings under the act of 1855, for violations of its provisions, and not for violations of the act under which the bond in suit was given, the judgment for want of a sufficient affidavit of defence was erroneous.

It has been urged with great plausibility that because the condition of the bond in suit differs from that prescribed by the supplement of 1873, it should be treated- as a voluntary common law obligation and not as a bond given in pursuance of the act. This position is more plausible than sound. The only discrepancy is in the phraseology of a single clause in the condition. That of the bond in suit is, “ shall pay all damages, fines, costs, and penalties,” while the other is, “ shall pay all fines and forfeitures.” The word “ penalties,” as employed in the former, is the synonym of “ forfeitures ” in the latter. In the sense in' which they are respectively used, both words mean liability to pay a certain sum of money, a forfeiture or penalty of so many dollars. The words “damages” and “ costs ” are not required by the statutory form and may therefore be treated as surplusage. Utile per inutile non vitiatur. In form, as well as substance, the bond in suit may be regarded as a substantial compliance with tbe requirements of the supplement. It cannot be doubted that it was tendered and accepted as such; and, if it meets the requirements of the statute, it would be grossly unjust to treat it as a voluntary bond having no reference to the provisions of the supplement, and, therefore, unaffected by the restricted liability impressed upon it by that act.

Whatever may have been the effect of the act of May 18, 1887, P. L. 108, on the liability of the licensee, outside the bond, it did not increase that of his sureties. In Sanders v. Commonwealth, 117 Pa. 293, this court held that the effect of the third section of that act “ is to permit the granting of licenses under former laws up to the 30th of June, 1887. This necessarily keeps in full force all the provisions and penalties connected with the granting of such licenses, not only up to the time aforesaid but until the expiration of such licenses. It would be a curious legal anomaly to hold that the liquor vender might have his license under the former act and yet be exempt from the conditions to which, by the same act, it was made subject.” The license in this case was granted, before the passage of the act of 1887, for one year from February 1st of that year. During that year there was nothing to exempt the licensee from the provisions and penalties of the law under which his license was granted; and, if he incurred any penalty, covered by the condition of his license bond, and had been prosecuted to judgment for the same, his sureties would doubtless have been liable in accordance with the provisions of the law under which the license was granted. The sum claimed in this case is the aggregate amount of judgments recovered under the provisions of an act not in force until after the license was granted. Other questions, of subordinate importance, are suggested by the record, but it is unnecessary to notice them.

Judgment reversed.