62 A. 1044 | N.H. | 1905
Lead Opinion
The right to sell intoxicating liquor is neither a "natural, essential, and inherent" inalienable right, nor a constitutional one. The state may absolutely forbid or may license such sale. The license, when granted, is not a contract or vested right, but a mere permission which may be revoked at any time. State v. Holmes,
The record does not contain the condition of the bond. It is therefore assumed that the bond complied with the statute; that it was a joint bond, in the language of the act "conditioned upon constant adherence to the terms of said license and the provisions of this act." Laws 1903, c. 95, s. 8, cl. 9. The only question presented at the trial was as to the competency and conclusive force in this suit of the action of the commissioners in revoking and cancelling Corron's license. The competency of the fact of his acquittal upon an indictment charging the violation of law of which the commissioners found him guilty has also been argued by agreement of counsel. It is convenient first to consider the connection, if any, between the criminal proceedings authorized by the act and cases like the present. The defendants contend (1) that this suit cannot be maintained because Corron has not been convicted of the charge alleged as a breach of the bond, and (2) that his acquittal upon an indictment therefor is an answer to this suit. *446
Upon the first contention, the language of the section of the act referred to above seems conclusive. The bond is "recoverable in an action of debt to be brought by county solicitors upon complaint of said board" of license commissioners. It is manifest that the commissioners may make complaint, in the absence of prior action by prosecuting officers of the state. Upon such complaint, it is the duty of county solicitors to bring the suit. If it was the intention that the suit should be brought only after a forfeiture of the bond upon conviction, or not until after an adjudication in a criminal proceeding of facts constituting a breach of the bond, there would be no occasion for a complaint by any person to inform the solicitor or set him in motion. The criminal proceedings in his charge would give him full information. Section 10, chapter 117, Laws 1905, prescribes the manner of bringing actions for the enforcement of bonds given by licensees and for the recovery of sums due the state on account of the forfeiture of such bonds. As a declaratory statute, these provisions are evidence of the legislative understanding that under the act of 1903 suits were maintainable upon such bonds without the prior conviction of the licensee. The liquor tax law of New York (N.Y. Laws 1897, c. 312, ss. 17, 18), which is claimed to have been the model upon which the New Hampshire statute was drafted, permits the maintenance of a suit without prior conviction of the licensee. Lyman v. Kurtz,
By section 14 of the act, a license after being issued may be revoked and cancelled by the commissioners "if any provision of this act is violated at the place designated in the said license by the holder of the same, or by his agents, servants, or any person whomsoever in charge of said premises." One of the terms of the license, either expressed therein or understood from the language the act, was, therefore, that the provisions of the act should not be violated at the place designated in the license, by the holder himself or by any of the persons named above. Such violation by any of these persons would constitute a breach of the bond conditioned upon constant adherence to the terms of the license. The licensee could not be convicted of crime because of violation of the act by his servant not authorized or ratified by him. State v. Wiggin,
The defendants' second contention is that the judgment of acquittal upon an indictment against Corron charging the offence alleged as a breach of the bond is an answer to this suit. If the other defendants are privy with Corron, they could take the same advantage of this judgment that Corron could. If the state is bound as against them by the judgment, it would seem to follow that they would be bound by any judgment the state may have obtained against Corron — a proposition which the defendants deny, but which it is not necessary to consider at this point. "As a general rule, a verdict and judgment in a criminal case *448
. . . cannot be given in evidence in a civil action, to establish the facts on which it was rendered. . . . The same principles render a judgment in a civil action inadmissible evidence in a criminal prosecution." 1 Gr. Ev., s. 537. The rule is stated by Greenleaf to be based on three grounds. (1) The same parties are not admissible as witnesses in both cases. This rule has been changed to a considerable extent. The parties are compellable now to testify in a civil case; the respondent may testify in a criminal case, and the defendant can be compelled to testify in a civil case. To make the decision of a court in such a case evidence in a criminal proceeding would be to compel the defendant in the criminal case to be a witness against himself. (2) Lack of mutuality of the parties. This rule does not apply where the state is plaintiff in both proceedings. (3) The proof required is generally different in the two cases. To this there is an exception in some jurisdictions, that in actions strictly penal the rule is the same as in criminal cases. If in such jurisdictions the rule that the defendant cannot be compelled to be a witness against himself is enforced, there would be no logical objection, where the parties are the same, to the reciprocal application of the doctrine of res judicata or estoppel by verdict between civil and criminal cases; for the rule applies in criminal as well as in civil cases. Commonwealth v. Ellis,
The material inquiry, therefore, is: What was the legislative purpose in authorizing the civil action granted the state? Did the legislature intend thereby to provide for the infliction of punishment upon the licensee who violated the provisions of the statute and the terms of his license, or did they intend to secure to the state compensation for loss sustained in consequence of such wrongdoing? Usually punishment follows conviction of crime. No one can be convicted of crime except upon proof beyond a reasonable doubt, or even be put upon trial, except for trifling offences, without information, or presentment by a grand jury (State, v. Gerry,
For nearly fifty years the policy of the state, as evidenced by its legislation, was the suppression of intemperance by the absolute prohibition of the sale of intoxicating liquor for use as a beverage. Such was the avowed purpose of the act of 1855, which was the original stock upon which all subsequent legislation was engrafted. Laws 1855, c. 1658; Laws 1858, c. 2080; G.S., c. 99; G.L., c. 109; P.S., c. 112; Laws 1895, c. 87; Laws 1899, c. 71. There is no foundation for the conclusion that the legislature intended by the legislation of 1903 to change the policy of the state as to the suppression of intemperance, for there is no evidence from which it can be found that intemperance had become to be considered less of a menace to the public welfare than it was thought to be in 1855, or that it had been discovered that the evils resulting therefrom to the state are now less serious. The law of 1903 appears to constitute a change of method — not of principle. For *450 nearly half a century the state sought to prevent the intemperate use of intoxicating liquor as a beverage by stopping by law the supply of liquor by sale for that purpose. The theory of the law was perfect: if liquors could not be obtained by purchase for such use, the amount which could otherwise be secured would be inconsiderable, and the use to any extent of such liquor so as to produce intemperance with its attendant evils would cease. But the sentiment of the state was not entirely uniform in support of the prohibitory principle. It was claimed that is some sections of the state the law was not and could not be enforced, and that the practical result of the law was in many places not prohibition, but unrestricted sale — the worst form of the evil. Advocates of change were not wanting, who claimed that regulation of the traffic which could not be successfully stopped would better subserve the general governmental purpose of the suppression of intemperance. This sentiment found effect in the license law of 1903, with its provisions that the change should be in force only where adopted by vote of the local community (s. 31).
One great argument against the unrestricted sale of liquor, or its sale at all, is that its use directly causes pauperism and crime, thereby increasing the necessary expenditure of the state for the maintenance of police, almshouses, and jails. Advocates of the prohibitory principle claim that it is impossible to so regulate the sale as to prevent additional expense to the taxpayers as the inevitable result of any sale. If the legislature were influenced at all by this argument, it would naturally be expected that some measures would be found in the act to save the taxpayers harmless from such additional burden. We should expect to find the sale of liquor permitted under such restrictions only as would be likely to diminish the probability of the legal sale resulting in intemperance. Many such are found in the act. See ss. 14, 15, 16, 17, 19. One most obviously for this purpose, which forbids the sale to a person in a state of intoxication, is the foundation of this controversy. The claim of increased expense to the taxpayers is also apparently sought to be answered by the division of the sums received from license fees between counties and towns, the municipal agencies upon which the expense of supporting paupers and criminals and providing police administration is mainly thrown. It is clear that one part of the legislative purpose in these provisions was to compensate the state for any increased expenditure which might become necessary because of the restricted sale permitted by the act. If there was a possibility that the sale as permitted might cause expense to the state, there was great probability that sales in violation of the restrictions imposed would do so. Nothing would be more apt to promote intemperance, with its *451 attendant evils and expense to the state, than the sale of intoxicating liquor to any person already in a state of intoxication from its use, or to an habitual drunkard, or "in case of riot or great public excitement."
In view of the general provisions of the act above referred to, it would be reasonable to expect to find therein some provision by which the expense so occasioned should be met, not by the taxpayers, but by the person responsible therefor, who alone profited by such violation. Where there is probability that one who wishes permission to engage in a particular enterprise may, if permitted to proceed, do damage to another, a bond to respond in damages is usually required as a condition of granting the desired permission. If the legislature, having determined what ought to be paid a license fee to insure the state against loss from the sale of liquor in the manner permitted, desired to further protect the state against loss from sales beyond those for which permission was granted, the natural method of securing such protection would be to require a bond enforceable in a civil action. That such course was pursued is evidence that by the civil action compensation, and not punishment, was intended. The bond required by the liquor-tax law of New York, before referred to, includes as one of its conditions the payment of all fines and penalties imposed thereunder. The law of Massachusetts (R. L., c. 100, s. 42) makes the payment of fines incurred by a violation of the law one of the conditions of the bond. The omission of these provisions from the New Hampshire statute must have been intentional, if these statutes, as claimed, furnished a guide for the drafting of our statute. An intent to avoid inserting anything tending to establish a punitive purpose in the civil action is fairly inferable from such omission. The collection of fines and costs in criminal proceedings is usually enforced by imprisonment until the sentence of the court is performed. If the object of the law were to enforce payment of such fines and costs, we should expect to find the purpose declared in express language, as it is in the New York and Massachusetts statutes. The state sustains the same injury when liquor is sold in a licensed place so as specially to promote intemperance, whether it is so sold by the licensee's direction or in violation of his commands. The liability on the bond exists in either case, as has already been seen, and in the latter case can be enforced only by a civil suit. If the purpose of the legislature was to secure compensation to the state, there is good reason why the licensee should be held by the bond to his civil responsibility for the acts of his servants while in his employment. There is no good reason why he should be punished for the unauthorized acts of others, even if they are his servants. It is not probable that *452 the legislature used the language of the act in disregard of the familiar distinction between the civil and criminal responsibility of a master for the acts of his servants, and intended to make the unauthorized acts of the servant the crime of the master. If they could legally do so, such intent cannot be found from language importing merely security for the master's civil liability for the acts of his servants.
It is plain that the opportunity to promote intemperance and cause expense to the state by the increase of pauperism and crime by the sale of liquor would vary greatly in different parts of the state, and would be greatest in the most thickly settled communities. Accordingly, the license fees prescribed by the act are graded by the population of the towns and cities (s. 7). The amount of the bond required is determined by the amount of the license fee, being at least double the amount of the fee in all cases (s. 8, d. 9). If the bond is punishment, then a licensee's violation of the act is an offence punishable by different penalties according to the population of the town or city in which the offence is committed. As to the first, sixth, and eighth classes, the commissioners fix the fee and, as a result, the amount of the bond. If the Legislature has power to make the violation of general law punishable by a fine or penalty of different amounts in different parts of the state and of different amounts in the same place according to the discretion of another body, — questions not now necessary to decide, — such purpose cannot be inferred from language fairly importing merely an intent to secure the state against loss naturally and probably varying as the amount of the bond is made to vary. Section 10 of the original act provides that all fees collected and forfeitures incurred under the act shall be paid to the treasurer of the board and by him paid over, one half to the city or town where the license was granted and one half to the county in which such town is located. It would seem to be clear from this language that the proceeds of suits for the collection of defaulted bonds were to be disposed of in the same way as the license fees, and were understood to subserve the same purpose. If doubt could exist, it is settled by section 10, chapter 117, Laws 1905, which distinctly provides that all sums of money collected under the bonds required by the license law "shall be paid to the treasurer of the state board of license commissioners, to be accounted for in the same manner as money paid for license fees." This section, as a declaratory statute, furnishes evidence of the legislative understanding that the funds arising from fees and from the bonds were intended to subserve the same purpose — the protection of the state from loss by the sale of liquor.
The only evidence which tends to controvert the conclusion *453 that the bond was intended to secure compensation, and not to inflict punishment, is the tendency that liability under such a bond would have to secure obedience to the law, and the probability that this tendency may have had some weight in inducing the legislature to give the state both the civil remedy of section 28 and the criminal remedy found in several sections. But the mere fact that a liability tends to secure obedience to law does not render such liability criminal, or its enforcement a punishment. By section 27, a civil liability to third persons is established under certain circumstances for sales in violation of the act; but it could not be contended that the enforcement of such liability was the infliction of punishment. Contractors with the state and state officials are required to give bonds for the due performance of their contracts or the faithful performance of the duties of their offices. These bonds tend to secure the performance of the contracts and the official duties to which they relate; but it could not be contended that their purpose was punishment of the obligors failure to perform their contractual or official duties. The usual purpose of such bonds is compensation or security. No sufficient reason appears for a different conclusion as to the bond in suit. If the fact that by sections 21 and 28 provision is made for the forfeiture of the bond, as the result of criminal proceedings under those sections, has any tendency to show that as to such violations of law the state's remedy should be criminal rather civil, or if in such cases an election to pursue one method is bar to a subsequent procedure by the other, these questions need not now be discussed, because, as has already been seen, they have no application to the present case. Upon all the competent evidence, it appears more probable that the purpose of the civil action now before the court was compensation and not punishment. It follows, therefore, that the prior conviction of the licensee is not essential to the maintenance of a suit on the bond, and that his previous acquittal is not a defence.
Corron's contract, as evidenced by his bond, was that he would constantly adhere to the terms of his license and the provisions of the act (s. 8, cl. 9). One of these provisions forbade the sale to intoxicated persons. Hence, he agreed that he would not sell to such persons and, as the bond was intended to secure to the state the damages sustained by it if he did, that if he did so sell, he would pay the state the damages thereby occasioned to it. Whether the sum named in a bond is to be treated as a penalty or as liquidated damages is a question of intent, to be ascertained from the language of the instrument and the circumstances of the parties. The difficulty of ascertaining accurately the amount of damages arising to the obligee upon a breach of the condition of *454
the bond by the obligor is evidence sufficient, in the absence of other evidence, to establish that the parties intended the sum named in the bond should be treated as liquidated damages. Hurd v. Dunsmore,
The other defendants are sureties on Corron's bond. Their contract with the state is not that Corron should comply with the, law, but that if the state recovers a judgment against him for a breach of his agreement to comply with its provisions, they will pay the state's damages if Corron does not. Hence, if the state entitled to a judgment against Corron, it is entitled to one against the other defendants. In short, the agreement of the defendants is collateral security given the state by Corron for the payment of any judgment which may be recovered by it against him, enforceable by the state upon Corron's failure to perform his agreement to pay. If, therefore, the state is entitled to recover of Corron, it is entitled to recover of them. The defendant sureties must defend the issue of his compliance with the law through him, and therefore can make only such defence to the state's case as he can make. Judge of Probate v. Sulloway,
It is a general rule that a party to a judicial proceeding which there has been final judgment on the merits cannot be compelled *455
by the parties to that action to again litigate any of the matters that were there in issue, if the tribunal had jurisdiction of the parties to and the subject-matter of the suit. Towns v. Nims,
The controversy between Corron and the state was tried between the parties upon notice to Corron, and a finding was made against him. The cancellation of his license "being for cause and after due hearing, the proceedings authorized by the statute are necessarily of a judicial character; and as the mode of procedure is not specified in the act, the substantial principles of the common law, recognized and enforced in proceedings affecting private rights, are to be observed." Gibbs v. Manchester, ante, pp. 265, 267. has been repeatedly decided in this state that where an officer or a board is called upon to pass upon evidence and decide, their conclusion cannot be collaterally attacked, and that they are not liable to answer in a suit for their action. The reason given the cases is that such action is judicial. Sherburne v. Portsmouth,
If the functions of the commissioners in passing upon the question litigated before them by the state and Corron were judicial, the same result must follow as would attend similar action by any judicial body. If it does not, their action is not judicial. That such action by the commissioners is judicial has recently been decided by this court. Sargent v. Little,
Any matter that was "in issue" in that proceeding is res judicata so far as the state and Corron are concerned, whether that was a proceeding in personam or in rem; for in proceedings in rem not only the status of the person or property in respect to which the inquiry is made becomes res judicata, but also, so far as the actual parties to the litigation are concerned, all the matters that were in issue. Morgan v. Dodge,
If it can be reasonably contended that, because sections 21 and 28 provide that a conviction of the acts denounced in those sections shall work a forfeiture of the bond, while section 14 contains no such provision, the legislature intended that the matters in issue before the commissioners should be again litigated in a suit on the bond, no such inference can be drawn as to violations of the act punishable criminally under section 33, which contains, no such provision. The fact that the adjudication in the criminal suit could not be used in the civil suit on the bond would be a sufficient reason for the provision in sections 21 and 28; and that existing law makes the adjudication of the commissioners evidence in the suit on the bond would seem to be a sufficient reason for the omission to refer to it in section 14.
There is no force in the defendants' claim that the ruling of the court deprived them of a jury trial. As the minimum amount for which a licensee's bond can be accepted is $500, the defendants in all actions brought thereon have a right to a jury trial — "a proceeding in which the jury are the judges of the facts, and the court are the judges of the law." State v. Saunders,
It is said that the legislature could not have intended that the commissioners' decision should be evidence in this suit, because. thereby the defendants would be deprived of a jury trial in a matter relating to property — meaning that they are thereby deprived of the opportunity to contest before a jury the question of Corron's violation of law. If the bond had been conditioned in terms upon the failure of the commissioners to find Corron guilty of a violation of the law in the exercise of his license, there would have been no question to try by a jury. The use of language which, under existing law and the circumstances of this case, has in practical effect the same meaning cannot be explained away or altered by mere supposition. The right to a jury trial of matters previously adjudicated in a court without a jury did not exist when the constitution was adopted, and cannot now be given except by a legislative act. To overturn a rule so well known and established, express language of the law-making power is required, unless the court is to usurp the province of the legislature. Though a license is technically not property in the sense that it can be taken away by the state without compensation, yet under the statute it is a valuable right and possesses all other characteristics of property. It cannot be obtained except upon payment of price, or fee, in cash. If the owner dies during the term, the unexpired portion is assets in his estate (s. 13). It is assignable by the licensee, or his administrator, to any person capable of holding a license (s. 12; Laws 1905, c. 49, s. 8). It can be taken from the licensee during the year, except for his breach of the conditions upon which it was issued, only by legislative action. Except for the latter possibility, the license is property. It is not probable that such action was thought by the legislature to be so probable that, for that reason, they omitted to *460 express their intention that the findings of the commissioners upon matters committed to and litigated before them should not be elsewhere conclusive, if such was the intention with which judicial duties were imposed upon them. Neither can any inference be properly drawn from the character or composition of the tribunal. It cannot be inferred that the legislature doubted the competency of the executive to appoint as commissioners persons capable of performing the judicial as well as the other duties assigned to them, or that in so acting the persons appointed will violate legal rules, or that, if they do, the law does not afford a remedy.
It is also said that the lack of an appeal is evidence that the legislature did not intend that the commissioners' decision upon matters litigated before and submitted to them should be conclusive. But the presence or absence of an appeal in matters constitutionally committed to the determination of a tribunal without a jury is not material upon the character of their action as judicial or otherwise. Manchester v. Furnald,
The general purpose of the act was to secure to the state prompt and efficient remedies for action beyond or without its provisions. These include, in the case of licensees, the cancellation of licenses, the enforcement of the liability on the bond, and proceedings strictly criminal. To attempt by construction to diminish a remedy given by the ordinary meaning of the language used is to do violence to the purpose of the law to permit the sale of liquor only under such restrictions as would prevent as much as possible the increase of intemperance. There was no error in the ruling, in substance, that the evidence required a verdict for the state.
Exceptions overruled.
PARSONS, C.J., and WALKER and BINGHAM, JJ., concurred. *461
Dissenting Opinion
I agree with the court that the acquittal of Corron in the criminal action is not an answer to this action; but I dissent from that part of the opinion which holds that the, decision of the license commissioners revoking Corron's license is competent evidence in this action conclusively establishes the fact that he did not adhere to the terms of his license and the provisions of the statutes, and that he thereby violated the condition of his bond. It does not seem to me more probable than otherwise that the legislature so intended, and for the following reasons: Because of (1) the absence of a provision in the statute distinctly stating such intent, especially in view of the fact that in sections 21 and 28 the intent is expressly stated that the bond shall be forfeited if the licensee is convicted of the offences therein mentioned; (2) the very limited extent and character of the judicial power granted to the commissioners; (3) the very general and extensive powers and duty of an executive or administrative character delegated to them; (4) the fact that they are custodians of licensees' bonds and are charged by the statute with the executive or administrative duty of putting a bond in suit whenever they think there has been a breach of its condition — a duty that naturally disqualifies them to act as final judges upon the question of breach; (5) the peculiar nature of the subject-matter of their limited jurisdiction, namely, the question of the continuance of the permission conditionally granted to the licensee by the state in the exercise of police power; (6) the wide distinction there is between a question of this kind and a question that concerns property, such as the question in this action; (7) the authority to act in respect to first-class licenses without notice to, or hearing of, the licensee; (8) the absence of authority in the commissioners to decide whether the condition of the bond has been violated in other cases than those in which the license is revoked; (9) the great improbability that the legislature would attempt to provide for the forfeiture of the condition of a licensee's bond, and the consequent charging him and his sureties with damages, without giving them an opportunity to submit the issue involved to a jury for determination; and (10) the absence of any necessity or substantial reason for such course of procedure, — the courts of law being accessible to the state for the enforcement of liability upon a licensee's bond, the same as for the punishment of his offences under the statute.
After the filing of the foregoing opinion, the defendants moved for a rehearing, alleging that no trial was in fact had in the superior court, but that the case transferred was merely an agreed statement of facts; that Corron was notified of the complaint *462 against him at four o'clock in the afternoon of April 28, 1904, and to appear for a hearing thereon, to be held at eleven o'clock in the forenoon of April 30; that the hearing before the commissioners was had at that time, and that Corron had no other notice thereof. In their motion the defendants asked leave to apply for an amendment showing these facts and for a further hearing upon the questions presented, if such amendment should be allowed.
Addendum
If the reserved case, which purports to be the record of a trial before the court, was an agreed statement of facts, the court has no power to amend it. The only remedy of one wrongfully prejudiced thereby is an application to discharge the case and for at new trial. Dame v. Woods, ante, p. 391. No insufficiency appears upon the record in this court, and application for relief must be made to the superior court. If the proceeding in the superior court was in substance a trial, — the facts being ascertained from the statements of counsel conceded to be correct, instead of from the testimony of witnesses, — the only amendment that could be made would be to include in the record omitted facts which were before the court at the trial. But the purpose of the suggested amendment may be to introduce into the case facts which were not presented to the court at the trial. This would also be an application for a new trial, and should be addressed to the superior court.
The commissioners had authority to cancel Corron's license by an exercise of administrative power, without notice or hearing. Reasonable notice is essential to a valid adjudication. The statute implies that less than five days is not reasonable. If such notice was not given, and Corron did not waive the insufficiency of the notice, the proceeding before the commissioners was not a judicial trial. If a new trial should be granted, and it should appear that the cancellation of Corron's license was an exercise of administrative instead of judicial power, evidence of the action of the commissioners should be excluded. If at the trial which the case states was had in the superior court this fact appeared, the admission of the evidence of the commissioners' action and the exclusion of all other evidence upon the question of Corron's guilt were both erroneous, and the verdict should be set aside.
As the defendants in their motion do not controvert any matter of law heretofore decided in the case, there is no occasion for further argument at this time. If new questions are raised by further proceedings in the case, they can be considered when presented. That such further proceedings may be had in the superior *463 court as justice may require, in accordance with the rules of law stated in the opinion, the order previously made is revoked and the entry now is,
Case discharged.
All concurred.
