103 S.W. 210 | Tex. App. | 1907
This is a suit instituted in the District Court of Lamar County by the appellant, M. N. Kerr, against the appellee, C. A. Mohr, and his codefendants, as principal and sureties on a liquor dealer's bond, to recover the statutory penalties, or liquidated damages, as termed by the statute, for selling liquor and beer to appellant's minor son, and for permitting said minor to enter and remain in the saloon or place of business of appellee. The suit was filed on the 13th day of February, 1906. The appellees answered by general demurrer and general denial, and by plea in abatement, alleging that on the 14th day of April, 1906, local option became effective throughout the limits of Lamar County, and has since that time been in full force and effect in said county. The same facts were pleaded specially by the appellees. Appellant, by supplemental petition, excepted to the plea in abatement, and to so much of the special answer of the appellees as pleaded and relied on the adoption of local option in Lamar County on the 14th day of April, 1906, because the same constituted no defense to this action. Appellant's exceptions were by the court overruled. It was then admitted by the appellant, in open court, that the facts set forth in the appellees' plea in abatement were true. Whereupon the court rendered judgment in favor of the appellees, and dismissed plaintiff's suit, to which action plaintiff duly excepted and perfected an appeal.
Did the trial court err in sustaining the plea in abatement and dismissing the suit? It is held that the sum recoverable against a liquor dealer and his sureties for a violation of his bond is a penalty. Johnson v. Rolls,
It was contended by appellee, and the trial court must have so held, that the effect of putting in force the local option statute in Lamar County was to repeal the then existing law licensing liquor dealers, in compliance with which law the bond sued on was executed. The local option statute does not, interms, repeal the general law relating to licensing liquor dealers, and if the putting of the statute into effect repeals it at all it is only by implication. Before any provision or law can be held to be repealed by implication, it must clearly appear to be so repealed. We are of the opinion that it does not clearly appear that the putting in force of the local option statute had this effect. The effect on existing laws of putting *3
the statute in force is correctly stated by Presiding Judge Davidson in the case of Atkinson v. The State,
The existing law governing the sale of liquor not having been repealed by the adoption of local option, but only suspended, a repeal of the local option statute would revive the former law. Rev. Stats. (1895), art. 3257. The suspension of the law providing for licensing of liquor dealers, under which the bond sued on was executed, did not have the effect to prevent a recovery thereon by one aggrieved by a violation of such bond. This ruling is not in accord with the opinion of the Court of Appeals for the Third District in Long v. Green, 95 S.W. Rep., 79. But the Supreme Court did not agree with the opinion in that case and granted a writ of error which was subsequently dismissed because the Supreme Court was without jurisdiction, 101 S.W. Rep., 786.
The violations of the bond upon which this cause of action is based occurred, and the suit was instituted, months prior to the putting the local option statute in force in Lamar County. The suit could be maintained, notwithstanding local option was in force when the parties went to trial.
It follows from these remarks that the trial court erred in sustaining the plea in abatement and in dismissing the case. The judgment is therefore reversed and the cause remanded.
Reversed and remanded.
