Lyman v. . Perlmutter

Landon, J. In cases between the government and a private party, in which the purpose of the bond is to secure an observance of the law in pursuance of which the bond is given, and punishment or satisfaction for its non-observance, then the penalty named in the bond is the measure of damages for its breach, unless the statute under which the bond is given or the bond itself, read in the light of the statute, indicates a less or different measure. In such cases in which the statute fixes the measure of damages the courts cannot relieve against it, unless authorized by statute to do so. The remission of the forfeiture of bail in criminal cases may be cited as one instance of the power to afford relief. (Code Criminal Procedure, sec. 597.) There may be other instances, but few and the exceptions seem to prove the rule. Where the breach *414 of the condition is an offense against public law or policy, pecuniary damages, if they follow, are usually a minor incident ; the affront is to the state and its sovereign will; but some sort of satisfaction should be exacted, and when the statute has fixed its measure in money, the courts must award it. (Story Eq. sec. 1326; 4 Am. & Eng. Eney. of Law [2d ed.], 700; Clark v. Barnard, 108 U. S. 436, and cases cited.) The contention of the appellant is that the statute under which this bond is given fixes a penalty of $50 for the particular violation of the Liquor Tax Law, found hy the trial court to be the offense of the principal in the bond, and, therefore, that that sum, and not $500, the penalty in the bond, is the measure of damages. That the plaintiff might have sued upon the bond as collateral security for the statutory penalty for the single offense need not be questioned; the question is, does the statute give him the right to recover the entire penalty because of the single offense? When the bond was delivered section 18 of the Liquor Tax Law as amended by chapter 312 of the Laws of 1897 was in force. The bond in form substantially covers all its requirements, and must be construed as if it literally embraced them. Its condition read in the language of the section is, that the principal will not permit gambling upon the premises, or allow them to become disorderly, “ and will not violate any of the provisions of the liquor tax law; and that all fines and penalties which shall accrue * * * and any judgment or judgments recovered therefor, will be paid. * * * The state commissioner of excise may at any time without previous prosecution or conviction for violation of any provision of the liquor tax law, or for the breach of any condition of said bond, commence and maintain an action, in his name, as such commissioner, in any court of record in any county of the state, for the recovery of the penalty for the breach of any condition of any bond, or for any penalty or penalties incurred or imposed for a violation of the liquor tax law.” Thus the state commissioner may maintain his action either *415 “ for the recovery of the penalty for the breach of any condition of any bond, or for any penalty or penalties incurred or imposed for a violation of the liquor tax law.” This action is under the first of these alternatives, namely, “ for the recovery of the penalty for the breach of any condition of any bond,” meaning, of course, the penalty of the breach of any condition of any bond. The action is not to recover any fine imposed upon conviction, or penalty previously recovered in a civil action, and the bond is not limited to its collateral quality in either respect. It seems to be the intent of the section, as amended in 1897, to give to the bond a broader scope, namely, to subject the offender to the larger penalty in case the state commissioner of excise, the special administrator of the law, should think fit to bring the action for that purpose.- It is common knowledge that the temptation to violate this and previous excise laws has developed a fertility and variety of abuses, evasions and violations that in default of rigorous treatment weaken the efficiency of the law, both as a revenue measure and as a regulator of the liquor traffic. Recourse to the penalty named in the bond, instead of the fine or penalty named in any section of the act for a specific violation, was no doubt thought to be necessary in order to secure observance of the provisions of the act.' If the surety thereby suffers and the offender sometimes escapes, the public may benefit by inducing the surety to become more watchful of the character of the vendor for whose fidelity he engages, and thus violations will be lessened by making it more difficult for lawless men to obtain their bonds, and when they obtain them to make them more circumspect in regard to the obligations they have assumed. Such, we think, is one of the purposes of the section providing for this bond, and the recovery is within its letter and spirit. The judgment should be affirmed, with costs. O’Brien, Bartlett, Haight, Martin and Tann, JJ., concur ; Parker, Ch. J., not sitting. Judgment affirmed.