18 N.Y.S. 654 | N.Y. Sup. Ct. | 1892
Lead Opinion
The complaint in this action is based upon an alleged breach of the condition of a bond given by the defendants to the people of the state of New York upon the issuance to the defendant Eckman of a license to sell strong and spirituous liquors upon premises. The bond is in the sum of $'230, and the condition reads: “That if, during the time for which the said license shall be granted, he shall not suffer his place to be disorderly, nor suffer any gambling, or keep a gambling table of any description, within the premises so kept by him, or in any outhouse, yard, or garden belonging thereto, nor suffer said premises to be used for immoral or unlawful purposes, and that if during the time for which the undersigned shall be licensed he shall keep and observe the provisions of the acts of the legislature known as ‘ Chapter 628 of the Laws of 1857,’ and supplementary thereto, and amendatory thereof, then this obligation shall be void, otherwise to remain in full force and effect.” A violation of the condition of the bond is charged against Eckman, in this: that on a day specified he sold, and permitted his agent and servant to sell, strong and spirituous liquors to a minor under the age of 14 years.' The demurrer admits the facts, and therefore the three questions of law arising upon this appeal open for discussion are: First, as to the plaintiffs’ right to maintain this action; second, as to the commissioners’ power to demand the bond as a condition of granting the license to Eckman; third, was there a violation of the condition of said bond by the sale of intoxicating liquor to a minor under the age of 14 years?
In disposing of these questions relied upon by the appellants, it should be remembered, as stated by the learned judge below, that “the instrument was exacted, but voluntarily executed and delivered, to obtain the desired license. ” The learned judge was also of the opinion that the obligors should not be permitted to question the validity of an obligation thus assumed. Apart, therefore, from any statutory provision requiring a bond to be given, the conclusion reached by the learned judge below, it seems to us, can be sustained. It is discretionary with the commissioners as to the persons to whom and the conditions upon which the license shall be issued. Where, therefore, in the exercise of a discretion conferred by law, a bond is required as a condition precedent to the issuance of a license, it can be enforced if its conditions are violated. This results from the fact that it is a good common-law bond. We have not overlooked in this connection the fact that a failure to wisely exercise their discretion can be remedied by an application to the court for a mandamus, and upon such an application the court undoubtedly would have the right to determine whether the conditions imposed by the commissioners were reasonable and just. In this case the commissioners required a bond, and no objection was made to giving one, nor was any resort had to the court by mandamus for the purpose of determining their right to exact the same. Under such circumstances, the bond, being executed, became, as stated, a good bond at common law, and can' be enforced. In addition, however, we are of opinion that statutory authority can be found for a determination of the questions presented upon this appeal favorable to the commissioners.
1. As to plaintiffs’ right to maintain the action, it must be conceded at the outset that, unless some authority is found in the statutes, the obligee of the bond being the people of the state, an action on their behalf could only be maintained by the attorney general or district attorney. This view is enforced by reference to section 1962 of the Code, which requires such actions to be brought by the officers named, where provision is not otherwise specially made. The act of 1857, c. 628, provides, by sections 22 and-24, by whom and in whose names actions shall be maintained. This question has been discussed in the two cases of People v. Groat, 22 Hun, 165, and in Board v. Burtis, 103 N. Y. 140, 8 N. E. Rep. 482. The latter case decided that for penalties imposed by the act the commissioners of excise were the proper parties to maintain the action. Besides actions to recover penalties imposed by
2. Had the commissioners the legal power to demand the bond as a condition of granting the license to Eckman? There are two classes of bonds authorized to be taken and required to be given before a license can be granted to an applicant—one from applicants who desire to sell liquors to be drunk on the premises, Commonly known as “hotel and saloon licenses;” the other to applicants who sell liquors not to be drunk on the premises. The license granted in this case is known as a “saloon license, ” and with that alone we have to deal upon this appeal. Many changes by amendments and new enactments have taken place in the excise laws since the adoption of .the general scheme in 1857. Laws 1870, e. 175; Laws 1873, c. 820; Laws 1878, c. 109; Laws 1883, c. 340; Laws 1886, c. 496. None of these laws in express terms repeals the general scheme or act of 1857, and except so far as the subsequent acts may be inconsistent with or repugnant to certain sections thereof, which to that extent would be abrogated, what remains of the act of 1857 would still be of binding force and effect.
By section 4 of the act of 1857 the board of excise was given the power to fix the conditions before granting licenses. By section 6 it was provided that the licenses should not be granted to any persons to sell liquors to be drank on the premises, unless a person proposed to keep an inn, tavern, or hotel. Section 7, Laws 1857, makes provision for the bond as follows: “Nor shall such license to keep an inn, tavern, or hotel be granted until the applicant shall have executed and delivered to the board of commissioners of excise a bond, * * * with the condition that such applicant, during the time that he shall keep an inn, tavern, or hotel, will not suffer it to be disorderly, or suffer any gambling, or keep a gambling table of any description, within the inn, tavern, or hotel so kept by him, or in any outhouse, yard, or garden belonging thereto. ” Section 15 provides that any person who shall sell liquors to a minor shall be deemed guilty of a misdemeanor, and upon conviction shall be liable to a fine of $25 for each and every offense, and provides by whom such penalty can be recovered.
It will thus be seen that the act of 1857 made no provision for a saloon license, the board of commissioners being restricted to the granting of licenses to persons keeping an inn, tavern, or hotel. It is contended, further, that, because a specific penalty is prescribed for the violation of the law of selling liquors to a minor, a recovery cannot be had on the bond. Our answer is that the legislature, having the power to regulate the sale of intoxicating liquors, could impose dual penalties for the same offense. When the statute fixes both the penalty, and declares it a misdemeanor for doing any act, such as selling liquor without a license, they are entirely independent of each other, and the conviction for the misdemeanor is no bar to an action for the penalty. People v. Stevens, 13 Wend. 341; Blatchley v. Moser, 15 Wend. 215. An •examination of the laws referred to will show, that no act of the legislature
3. Was there a violation of the condition of said bond by the sale of intoxicating liquor to a minor under the age of 14 years? The appellants contend that the licensee, by selling liquor to a minor, did not commit a breach of the condition of the bond, and that the sale of liquor to a minor is not such a violation as would entitle the commissioners of excise to recover upon the bond. This contention is sought to be upheld by a rigid construction of the act of 1857, as to the purposes for which a bond can be exacted. It is insisted that the sale of liquor to a minor is not a violation of any of the conditions expressly fixed by section 7, and that section 15, by affixing a penalty, and prescribing the manner in which the person guilty of selling liquor to a minor shall be punished, has thus indicated in what manner, and in what manner only, shall an offense of that character be visited. There can be no doubt that selling to minors is a violation of the law, and it is equally clear that the appellants violated the express condition of the bond by failing to “keep and observe the provisions of the act of the legislature known as • Chapter 628 of the Laws of 1857, and supplementary thereto and amendatory thereof.’ ”
It is insisted, however, that the commissioners exceeded their power in inserting in the bond the language last quoted, and it is claimed that, even though a bond could be exacted, its terms should be restricted to imposing conditions which are expressly prescribed by the act itself. The conditions
We do not think, however, that it is necessary to strain the construction of the statute in the present case to uphold the power of the commissioners in maintaining their action upon the bond for a violation of any of the provisions of the excise law not expressly enumerated in section 7 of the act of 1857, for the reason that the breach assigned in the present case seems to be covered by the conditions in section 7 mentioned. One of the conditions so expressed is that the obligor will not suffer his place of business to become disorderly. In determining the construction or meaning to be given to the word “disorderly,” it will not do to resort to the Penal Code, as claimed by appellant, and take the definition therein given as to what would constitute a disorderly house. As defined by Webster, it means “not regulated by the restraints of morality; not complying with the restraints of order and law.” This definition, coupled with the one given by Bishop on Criminal Law, (sections 1111,1119,) in defining what is meant by “disorderly” inns, etc., goes far to support the contention that the sale of intoxicating liquor to a minor under 14 years of age is a disorderly act, and a breach of the condition of the bond. Moreover, as all the questions raised upon this appeal have been examined in the cases of People v. Burget,
Notreported.
Dissenting Opinion
(dissenting.) The plaintiffs in this action are the ex-
■ else commissioners of the city of Hew York, and this action is based upon -.an alleged breach of the condition of a bond given by the defendants to the
Three points were raised upon the argument: The first as to the plaintiffs’ right to maintain the action; the second as to the commissioners’ power to receive a bond from the defendant Eekman upon the granting of a license to him; and the third as to the violation of the condition of the bond.
The last question, as has already been intimated, it is not necessary to discuss. If the bond has any validity whatever, and can be enforced by anybody, it is plain that the commissioners of excise have the power to maintain this action, because section 24, c. 628, Laws 1857, which is still in force, provides that, if there shall be a breach in the condition of such bond given upon the granting of any license, it shall be the duty of the commissioners to prosecute the same, and recover the penalty therefor. There seems to be no question, therefore, but that the commissioners may maintain an action to recover for a breach of the bond, provided any recovery at all can be had thereon.
One of the grounds upon which the decision of the court below rested, as appears by the opinion, was that the instrument was exacted, but voluntarily executed and delivered, to obtain the desired license, and that the obligors should not be permitted to question the validity of an obligation thus assumed; and it has been claimed, therefore, that, even if there is no statutory provision requiring a bond to be given, it being discretionary with the commissioners as to the person to whom and the conditions upon which a license should be issued, if said commissioners require a bond as a condition pecedent- to the issuance of a license, it can be enforced if its conditions are violated. It seems to me that a very plain answer to this proposition is that there is no allegation in the complaint that this bond was exacted as a condition of issuing a license in the exercise of any discretion upon the part of the commissioners; but, on the contrary, it is alleged to have been a bond delivered as required by the statutes of the state; and therefore, unless its delivery was required by the statutes of the state, it never had any legal existence; and, as will be seen hereafter, the commissioners have no power to exact additional obligations to those mentioned in the statutes as conditions of issuing a license. They have a discretion to refuse to issue a license, but, when they issue the license, the licensee is under no obligation, except those which the statutes impose.
It has been suggested that the excise board have an absolute discretion in reference to the conditions exacted, because of the provisions contained in section 4 of the chapter above referred to, which provides that all licenses shall be signed by the commissioners granting the same, but they shall not be issued until the requirements fixed "by the act shall have been complied with. But this provision evidently refers to the rules which the board shall adopt in ref
Thus it would appear that there were two classes of persons to whom the commissioners might issue licenses. The one was those who proposed to keep an inn, tavern, or hotel, who should give a bond in the penal sum of $250; and the other class of licenses being issued to those persons who proposed to sell liquors and wines, less than five gallons, not to be drunk upon the premises, who were required to give a bond in the penal sum of $500. The foregoing law remained substantially unchanged until the year 1870, when, by chapter 175 of the Laws of that year, the legislature greatly extended the power of the commissioners to issue licenses. Section 4 of that act provided that the board of excise shall have the power to grant licenses to any person of good moral character, approved of by them, permitting him to sell and dispose of, at any
The question is presented whether, under this act of 1870, the board of commissioners can exact a bond as a condition of granting a license, except from a person who proposed to keep an inn, tavern, or hotel. It seems to me clearly that no such right exists. The provisions of the act of 1857, in respect to the giving of a bond, are totally inapplicable to the case of a license issued to sell liquor to be drunk upon the premises, unless the person keeps an inn, tavern, or hotel. It is to be observed that under the act of 1857 two classes of licenses are mentioned, and under the act of. 1870 but one is referred to. The restriction upon licensees who do not propose to keep an inn, tavern, or hotel, that they shall not sell liquor in quantities less than five gallons to be drunk upon the premises, is abolished. And we have a general power to grant licenses to any proper persons who apply for the same, to sell liquor in quantities less than five gallons to be drunk upon the premises; the conditions being that the persons shall be approved by the commissioners, and be of good moral character, with certain details in regard to the method of. application.
How, if such an applicant, who does not propose to keep an inn, tavern, or hotel, is chargeable with the duty of furnishing a bond, which bond is it? The bond which the hotel keeper is bound to give under the act of 1857, or the bond which the other licensees are required to give where they sell liquor in quantities less than five gallons, but which cannot be drunk upon the premises? The new licensees, under the act of 1870, are certainly more nearly allied to the latter class than they are to the former; and the act of 1870 is evidently intended to be a removal of the restriction placed by the act of 1857 upon the second class of licensees, that no part of the liquor sold by them shall be drunk upon the premises; and, such restriction being removed, the provisions of section 12 of the act of 1857, in regard to that class of licensees, became absolutely inapplicable, because one of the conditions of the bond which they are required to give is that the licensee will not sell, or suffer to be sold, any strong or spirituous liquor to be drunk in bis shop or house,—a tiling which he is expressly authorized to do by the act of 1870, Therefore the provisions of the act of 1857, in reference to such licensee giving a bond, are in conflict with the provisions of the act of 1870, and inconsistent therewith, and were not re-enacted by the provisions of section 6 of said act above referred to. It is clear that the provisions in regard to bonds to be given by hotel keepers cannot apply to saloon keepers, because the condition of that bond, as fixed by the statute, is that such applicant, during the time he shall keep such inn, tavern, or hotel, will not suffer it to become disorderly; and, as has already been seen, the commissioners of excise have no power to alter the statutory condition of a bond in any particular. The next legislation upon the subject is by chapter 549 of the Laws of 1873, under which section 4
It has been urged that the use of the language in this section, “if all other requirements of the law have been complied with,” is a recognition of the duty of such an applicant to give a bond under the act of 1857. But, as already seen, if any bond is to be given, it was a bond such as a storekeeper was required by that act to give, and not the bond which the hotel keeper was required to give; and that the condition of such a bond, as required by the act of 1857, was absolutely incompatible with the provisions of the act of 1870. We next have chapter 496 of the Laws of 1586, purporting to amend chapter 340 of the Laws of 1883, entitled “An act to regulate the sale of intoxicating liquors in cities having a population of over 300,000.” By this act the limit was reduced to 150,000, and provision was made for application to the court in case a license should be arbitrarily refused. The words, “if all other requirements of the law have been complied with,” are also inserted in this act; but, as already seen, this evidently cannot refer to the giving of the bond required by the act of 1857. It may be said that it is a harsh condition to compel an innkeeper to give a bond, and not other persons. But the courts cannot be responsible for the omissions of the legislature; neither can we complete by judicial decision that which the legislature has left unfinished. It seems to me it was evidently the intention of the legislature to abolish the exaction of bonds, trusting for the enforcement of discipline to the additional powers which were given to the board of excise .to revoke licenses,—a power which did not exist in them under the act of 1857. I am of the opinion, therefore, that there was no power in the board of commissioners to exact the bond in question, and therefore there can be no recovery thereon, and that the demurrer should have been sustained. The judgment appealed from should be reversed, and the demurrer sustained, with costs.
Concurrence Opinion
1 concur with Justice O’Brien in affirming the judgment rendered at the special term, on these grounds; First. That the defendants are estopped from questioning the validity of the bond upon which the action is brought. Having obtained the license for Eckman on the faith and strength of that bond, the defendants should not be permitted to repudiate .their obligation, nor aided by the court in escaping the consequences of a ■violation of its condition. Second. Iam further of the opinion that there was a violation of the condition of the bond in selling liquor to a minor under the age of 14 years, for the reason that by such sale the obligor suffered his place of “business to be disorderly,” within the fair and proper construction of that term as used in the bond. In other words, that the term “disorderly” should not be limited, in its construction or application, to the definition contained in the Penal Code, but should receive the broad and general signification given to it at common law and by the lexicographers.