109 P. 724 | Idaho | 1910
Tbis action was brought on tbe 12th-of August, 1909, in tbe name of tbe state, against tbe defendant, under tbe provisions of see. 1835 of tbe Rev. Codes, to-recover a license tax and damages for sales of intoxicating liquor made by tbe respondent during the year ending August. 12, 1909, in tbe town of Midvale, Midvale precinct, Washington county.
It is alleged in tbe complaint that said defendant did beep ■ for sale large quantities of intoxicating, spirituous, malt and fermented liquors and wines, and did during said year sell and carry on tbe business of selling said liquors and wines-to divers and many persons; that during said time said defendant was without any license or proper authority to make-said sales or to carry on tbe business of selling such liquors, and wines; that thereby and by reason of tbe premises, tbe-sum of $750 became and was due from said defendant, and payable to tbe collector of license taxes for tbe sale of intoxicating, spirituous, malt and fermented liquors and wines in said county; that no part of said $750 has been paid, and that tbe same is now due, and prays for judgment for $750 and for damages in tbe sum of $20 and for costs of suit.
To said complaint tbe defendant interposed what was in effect a general demurrer, wbicb was sustained, and tbe plaintiff refused to plead further, and judgment of dismissal was entered. From that judgment tbis appeal was taken.
This action is brought under the provisions of se,c. 1835, Rev. Codes of 1909, which is the same as see. 1637, Rev. Statutes of 1887, and is as follows:
“Against any person required to take out a license who fails, neglects or refuses to take out such license, or who carries on, or attempts to carry on, business without such license, the collector may direct suit in the name of the state of Idaho as plaintiff, to be brought for the recovery of the license tax, and in such case either the collector or prosecuting attorney may make the necessary affidavit for a writ of attachment, which may issue without any bonds being given on behalf of the plaintiff. . In case of a recovery by the plaintiff, twenty dollars damages must be included in the .judgment and costs to be collected from the defendant, and when collected five dollars thereof must be paid to the collector and) fifteen dollars to the prosecuting attorney prosecuting the suit.”
The court, in sustaining said demurrer, in effect held that the provisions of said see. 1835 are not applicable to this case, and that this action cannot be maintained under its provisions. It is contended by counsel for respondent that at the time sec. 1835 was adopted the statute in regard to licensing the business of selling intoxicating liquors was enacted for the purpose of revenue only, and not for the purpose of regulating business, and that the laws of this state now governing and controlling the business of selling intoxicating liquors are for the purpose of regulating said business and not for the purpose of revenue; that since they are for the purpose of regulation, the provisions of said see. 1835 are not applicable, and the license tax cannot be collected by an action thereunder; that the only remedy of the state under the present law is a criminal action against the party selling intoxicating liquor without a license, under the provisions of see. 6983 of the Rev. Codes.
There is nothing in those contentions. It is clear that our present license law, so far as the selling of intoxicating liquors
It is alleged in the complaint that the respondent had conducted said business for a year prior to the commencement of this action. He has therefore had the benefit or profit of ■conducting said business for a year without a license, and is liable to the state for the amount of the license tax. The license tax is not imposed as a penalty, but is a debt due the ■county or state for doing or conducting the business. The penalty for doing the business without a license is provided for by the criminal law.
In San Luis Obispo v. Hendricks, 71 Cal. 242, 11 Pac. 682, the court said: “The license tax sought to be recovered in this action is not a penalty, but in the nature of a debt due from the defendant to the county, or, what is the same thing for present purposes, a duty devolved upon the defendant personally, which can be enforced precisely as though he had contracted with the county to pay such sum of money.” In City of Sacramento v. Dillman, 102 Cal. 107, 36 Pac. 385, the court cites and quotes with approval from the case above cited, and holds that the license tax sought to be recovered in that action was not a penalty, but in the nature of a debt due from the defendant, which could be enforced precisely as
In Bingham Co. v. Fidelity Co., 13 Ida. 34, 88 Pac. 829, this court held that a license must be procured before the commencement of any business, the conducting of which required a license, and that if the party pays the tax to the sheriff and engages in the business before the board grants him the license, and the board finally refuses to grant the license, he cannot recover the license tax so paid. If a person commences such business without a license, he is not only liable to the county for the license tax, but also may be prosecuted criminally for doing the business without a license. It is contended that the rule there laid down is dictum in that ease. Be that as it may, it is a correct rule of law as applied to the question here involved.
It is contended by counsel for respondent that since the license law of this state has been changed to one of regulation instead of one to raise revenue, the only action now authorized against one who sells intoxicating liquors without a license is a criminal action under the provisions of see. 6983, Rev. Codes, and that no civil action can be maintained now for the recovery of a license tax under the provisions of sec. 1835. We are unable to concur in that contention. See. 1836, Rev. Codes, provides' that upon a trial of any action authorized by the chapter of the code in which said section is found, chap. 2, title 10, of the Political Code, the defendant is deemed not to have procured the proper license unless he either produce it or proves that he did procure it. But he may plead in bar of the action a recovery against him and the payment by him in a civil action of the proper license tax, together with damages and costs. The only action authorized by said chapter is the action provided for in said section 1835 to recover
The complaint states a cause of action and the court erred in sustaining the demurrer. The judgment is reversed and the cause remanded for further proceedings. Costs are awarded to the appellant.