Welch v. McKane

| Conn. | Feb 4, 1887

Loomis, J.

This action is brought to recover for the breach of a bond given to the county treasurer by the defendants McKane as principal and Tynan as surety, to secure on the part of McKane, a liquor licensee, the performance of the requirements of the statute regulating the sale of intoxicating liquors by licensed persons.

The complaint alleges the application of McKane for a license, the tender of the bond in suit duly executed by the defendants, the granting of the license to sell spirituous and intoxicating liquors at a place specified, and that after-wards, at a criminal term of the Superior Court held at Waterbury on the last Tuesday of September, 1884, the defendant McKane was duly prosecuted for and convicted of keeping open his saloon in violation of one of the provisions of part sixth of the act relating to the sale of spirituous and intoxicating liquors, making, by reference, a copy of the conviction and proceedings therein a part of the complaint.

To this complaint the defendants demurred, upon the grounds that the conviction of McKane in the criminal suit was not conclusive, and that the facts stated would not entitle the plaintiff to recover.

The Waterbury District Court, where this suit was first brought, held the complaint sufficient, and rendered judgment for the amount of the bond. The defendants appealed to the Superior Court, upon the ground that there was error in holding the judgment of the criminal court conclusive, and in deciding that the legislature had power to determine the weight of evidence in a judicial proceeding. The Superior Court reserved the questions for this court.

The right to recover upon the bond iu suit is predicated upon “ an act to regulate and restrain the sale of spirituous liquors,” approved May 9th, 1888, section five of which provides that “ whenever a person so licensed shall be convicted of a violation of any of the provisions of part six of this act, and no appeal is pending, said bond shall thereupon become forfeited, and the treasurer of said county shall, in his own name, institute a suit upon said bond for the benefit of said county; and upon due proof of said conviction the court before which said suit is brought shall render judgment in favor of said treasurer for the entire amount of said bond with costs.”

Under this statute it is clear that the conviction of the principal constitutes a breach of the bond. The undertaking of the surety is that his principal shall not be guilty of violating the statute. And it would seem more just and reasonable even toward the surety that the guilt of the principal would be established in a criminal prosecution, where he would have the benefit of a reasonable doubt and other advantages that would be denied him in a mere civil proceeding. The question as to the guilt of the principal might be decided differently in the two proceedings, occasioning great complexity and difficulty in administering the law.

But we concede that this reasoning, founded upon inconvenience, does not meet the objection that the statute, in making conviction in the criminal proceeding conclusive as to the breach of the bond, transcends the limits of valid legislation. Does the statute then in any way violate the constitutional guaranty of due process of law, which requires, not only that a party shall be properly brought into court, but that he shall have the opportunity when in court to establish any fact which, according to the usages of the common law or the provisions of the constitution, would be a protection to him or his property ?

We are prepared to answer the question in the negative, for the reason that this is a case where the parties entered into a contract obligation in view of the provisions of the statute as to what should constitute a breach of the bond and give the right to sue upon it. In this way the provisions of the statute became part of the contract, so that both principal and surety in the bond are made liable upon the conviction of the principal, provided there is no appeal.

In confirmation of this position we cite the following authorities, where the same principle was applied to cases arising under statutes providing for the taking of certain bonds or security, and which authorize judgment to be rendered against both principal and surety upon mere motion, without notice or process. Lewis v. Garrett's Adm., 6 Miss., 434; Chappee v. Thomas, 5 Mich., 53" court="Mich." date_filed="1858-05-12" href="https://app.midpage.ai/document/chappee-v-thomas-6631730?utm_source=webapp" opinion_id="6631730">5 Mich., 53; Gildersleeve v. The People, 10 Barb., 35" court="N.Y. Sup. Ct." date_filed="1850-10-15" href="https://app.midpage.ai/document/gildersleeve-v-people-5457958?utm_source=webapp" opinion_id="5457958">10 Barb., 35; Philadelphia v. The Commonwealth, 52 Penn. St., 451; Whitehurst v. Coleen, 53 Ill., 247" court="Ill." date_filed="1870-01-15" href="https://app.midpage.ai/document/whitehurst-v-coleen-6953963?utm_source=webapp" opinion_id="6953963">53 Ill., 247; Pratt v. Donovan, 10 Wis., 378" court="Wis." date_filed="1860-01-04" href="https://app.midpage.ai/document/pratt-v-donovan-6597961?utm_source=webapp" opinion_id="6597961">10 Wis., 378. We think also the principles laid down by this court in Levick v. Norton, 51 Conn., 461" court="Conn." date_filed="1884-02-01" href="https://app.midpage.ai/document/levick-v-norton-6581660?utm_source=webapp" opinion_id="6581660">51 Conn., 461, may apply. In Quintard v. Knoedler, 53 Conn., 485" court="Conn." date_filed="1885-11-24" href="https://app.midpage.ai/document/quintard-v-knoedler-6581948?utm_source=webapp" opinion_id="6581948">53 Conn., 485, it was held that a verdict which fixed the liability of the principal (there having been no appeal) was a breach of the bond. The counsel for the accused claimed that the verdict must be followed by a sentence or judgment, but did not suggest a doubt that the latter would establish conclusively a breach of the bond. In the case at bar final judgment was rendered and was satisfied on the part of the accused, so that there could have been no appeal.

One part of the argument in behalf of the surety, Tynan, seems to assume that he was denied the right to contest the execution and delivery of the bond and the granting of the license, but the special demurrer did not raise these questions j but these facts were admitted, as they were alleged in the complaint and not demurred to. The defendants could of course contest these facts, and also the fact that the principal had been convicted, but, as to the latter fact, it must be determined by the record.

The Superior Court is advised that there was no error in the judgment of the District Court.

In this opinion the other judges concurred.