29 Kan. 739 | Kan. | 1883
The opinion of the court was delivered by
This' was an action brought in the name of the state of. Kansas, by the county attorney of Franklin county, against C. H. Estabrook, A. R. Hamilton and Mary S. Estabrook, upon a penal bond executed by the defendants under §2 of the prohibition act of 1881. The bond reads as follows:
“Know all men by these presents, that we, C. H. Estabrook as principal, A. R. Hamilton and Mary S. Estabrook as sureties, are held and firmly bound unto the state of Kansas in the sum of one thousand dollars, to the'payment of which sum, well and truly to be made, we jointly and severally bind ourselves, our heirs, executors, administrators and assigns, firmly by these presents. Sealed with our seals, and dated this 21st day of June, 1881.
“The condition of this obligation is such, that whereas the said C. H. Estabrook has presented a petition to the probate judge of Franklin county, Kansas, praying that a permit be granted him to sell intoxicating liquors for medical, scientific, and mechanical purposes only, in the city of Ottawa, county of Franklin, state of Kansas: now if the said C. H. Estabrook shall neither use, sell, barter nor give away any of the liquors mentioned in section one of an act of the legislature of the state of Kansas entitled ‘An act to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes,’ approved February 19, 1881, in violation of any of the provisions of said act, then this obligation to be null and void, else in full force and effect.
C. H. Estabrook. [Seal.]
A. R. Hamilton. [Seal.]
Mary S. Estabrook. [Seal.]”
That portion of the plaintiff’s petition which alleges the
“4. That on the 8th day of February, 1882, the said C. H. Estabrook was arrested and brought before William H. Clark, a justice of the peace of the city of Ottawa, in said Franklin county, in a certain criminal action therein,'entitled The State of Kansas v. C. H. Estabrook, upon the complaint in writing of W. Littlefield, county attorney of said Franklin county, charging that the said C. H. Estabrook, on the — day January, 1882, at the county of Franklin, state of Kansas, in a certain two-story building, known as ‘ Estabrook’s drug store,’ situated upon lot No. 34, in block No. 58, in the city of Ottawa, being then and there a druggist, and having a permit to sell intoxicating liquors for medical, scientific and mechanical purposes only, did directly and indirectly sell and barter spirituous, malt, vinous, fermented, and other intoxicating liquors, in manner other than that provided by law, and for purposes other than medical, or scientific, or mechanical, and-without any authority of law.
“5. That the said C. H. Estabrook, on the 13th day of February, 1882, at one o’clock p. M., (the day and hour to which said criminal action had been postponed,) did then and there in said justice court personally appear, and having been duly arraigned and said criminal charge having been distinctly read to him, did then and there plead guilty thereto, which said plea was by said justice duly entered in his docket; whereupon he, said C. H. Estabrook, was then and there by said court adjudged to pay a fine to the state of Kansas, of $100 and the costs of the prosecution, taxed at $18.50, which said fine and costs were then and there paid by said C. H. Estabrook; and it was then and there by said justice’s court further ordered and adjudged that the said druggists’ permit, granted as aforesaid to the said C. H. Estabrook, be and stand forfeited to the state of Kansas, and the same was by the judgment of said court then and there declared null and void from that date.
“And it was then there further ordered and adjudged by said justice’s court that the bond above mentioned be forfeited to the state of Kansas, and the moneys in said bond mentioned were thereby declared and held to accrue to and belong to the state of Kansas.
“Wherefore, the said plaintiff prays judgment against said defendants for the said sum of $1,000, and the costs of this action.”
The statutes necessary to be considered in deciding this case are as follows: Section 2 of the prohibition act of 1881 provides, among other things, that—
“He [the applicant for a druggists’ permit to sell intoxicating liquors] shall also file with such petition a good and sufficient bond to the state of Kansas, in the sum of twenty-five hundred dollars, conditioned that such applicant will neither use, sell, barter, nor give away any of the liquors mentioned in section 1 of this act, in violation of any of the provisions of this act; and on such violation, said bond shall thereby become forfeited. Such bond must be signed by the applicant, and by at least two of the persons signing such petition as sureties, and such sureties must jointly or severally justify, in writing, under oath, in the sum of five thousand dollars' over and above all their debts, legal exemptions and liabilities: Provided, That in cities, towns, and places of less than five thousand, population, said bond may be in the sum of one thousand dollars, and the sureties shall justify, as provided above, in the sum of two thousand dollars.”
Section 9 of said act provides that every person having a permit to sell intoxicating liquors, or to manufacture the same, who shall violate the act, shall be punished by fine or, imprisonment in the county jail, and shall forfeit his permit; and further provides as follows:
“In all cases where forfeitures are provided in this act, the court, in rendering judgment in the action, shall declare such forfeiture in fixing the punishment.”
And § 12 of said act provides, among other things, as follows:
“The county attorney shall bring suit upon all bonds forfeited under the provisions of this act, immediately upon the happening of such forfeiture, to recover the penalty thereof; and all moneys collected thereon shall be paid into the school*743 fund of the proper county. The county attorney shall be allowed a fee of ten per cent, upon all moneys so collected by him, to be paid out of the same.”
Counsel for.defendants also refer us to § 12 of the bill of rights of the constitution of Kansas, which reads as follows:
“No person shall be transported from the state for any offense committed within the same, and no conviction in the state shall work a corruption of blood or forfeiture of estate.”
Counsel for defendants claim that if the penalty of the bond was strictly and literally enforced, it would work a “forfeiture of estate,” contrary to the above provsion of the constitution. With the view, however, that we have taken of this case, it will not be necessary for us at this time to construe this provision of the constitution. We have already had occasion, in the case of The State v. Pierce, 26 Kas. 777, to consider the nature and character of a druggists’ bond, given under § 2 of the prohibition act of 1881, and in that ease we held that the bond is “a civil contract, like other official bonds or quasi official bonds of those holding public offices or discharging public duties;” and that it is to be construed like other bonds of that character, and governed by the same principles of law. It is certainly not in form or in substance like a criminal recognizance; for a criminal recognizance is not only a contract like a druggists’ bond, but it is more than a contract — it is an obligation of record in a criminal action, and the acknowledgment of a preexisting debt, which cannot be claimed for a druggists’ bond, or for any mere penal bond. With reference to the form and character of recognizances, see The State v. Weatherwax, 12 Kas. 463, and Gay v. The State, 7 Kas. 394. Neither can the penalty of a druggists’ bond be considered as liquidated damages. Indeed, the bond must be considered just as other penal bonds are, and the penalty of the bond must be considered just the same as the penalty of all other penal bonds. It cannot be considered as a preexisting debt, as the amount stated in a recognizance is, nor as liquidated damages, as the amount stated in some contracts' is. In the case of