Inhabitants of Dexter v. Blackden

Peters, C. J. These cases, in all respects alike, present by agreement of parties the single question whether certain clauses of the liquor-statutes, taken singly or combined, are, so far as applicable to the facts stated, constitutional or not. Section 2 chapter 27, R. S., provides that no person shall receive a license as an innholder or victualler until he has given bond with one or more sureties with the condition annexed that the licensee shall conform to the provisions of law relating to the business for which he is licensed.....“ and shall not violate any law of the state in relation to intoxicating liquors.” Section 14 of the same chapter reads as follows: “ The licensing board shall prosecute for the violation of the foregoing sections (of ch. 27) that come to their knowledge by complaint, indictment, or action of — 484 — debt: and all penalties recovered shall inure to the town where the offense is committed. Section 1, chapter 132, Laws of 1891, enacts that “ any citizen of the state may prosecute for a violation of any of the preceding sections (of ch. 27) in the same manner as the licensing board may prosecute.” The counsel for the defendant in an exhaustive argument strongly urges the reasons why in his view these statutes are unconstitutional, while to our minds his objections are in effect merely an argument as to the expediency of the statutes rather than as to their want of constitutionality. It is virtually admitted in behalf of the defendant that all the statutory requirements contained in chapter 27 of the revised statutes relating to innkeepers, however extreme and severe they may be, might not be regarded as tainted with unconstitutionality, were it not for the one imposing on the innholder the necessity of giving a bond with sureties for his observance of the liquor enactments as a condition of his being granted an innholder’s license. We apprehend that the fallacy of this position is, in what we believe to be, an erroneous assumption by the defendant that the business of keeping a hotel is a private and natural right of which a person cannot be directly or indirectly deprived. If this foundation proposition be wrong, then all the superstructure built upon it falls to the ground. Of course, we must admit that the position thus assumed would be a sound one as to very many private employments, and perhaps as to all the usual employments in ordinary business life. But innholding has always been regarded in this country as a public or quasi-public business over which the legislature may rightfully exercise an unusual control. Judge Cooley strikes the true key in stating the general rule and its exceptions. “ The general rule,” he says, “ undoubtedly is that any person is at liberty to pursue any lawful calling, and to do so in his own way, not encroaching on the rights of others. This general right cannot be taken away. But here, as elsewhere, it is proper to recognize distinctions that exist in the nature of things, and proper under some circumstances to inhibit employ — 485 — ments to some one class while leaving them open to others. And some employments in which integrity is of vital importance it may be proper to treat as privilege merely, and to refuse a license to follow them to any who are not reputable.” Cooley Con. Lim. 5th ed. 745. The author places stress upon the reasonableness of restraining rules and regulations, where the occupations, though proper in themselves, may be subject to special evils, and affording peculiar opportunities for imposition and fraud. The business of marketmen, draymen, pilots, brokers, auctioneers and others, comes within this category. The persons engaged in such employments are often required by law to take out licenses and submit to such rules and regulations in their business as may seem to be important for the public convenience and protection. We are not, however, forgetting that the great point of objection to the validity of the statute, as urged by the defense, is the feature of requiring the bond with sureties. But we must at the same time remember, as before declared, that the innholder has no natural right to pursue the business of innholding, and that it is an exceptional privilege which may or may not be conferred upon him by the public authority, and that his chance for obtaining a license is dependent upon whether the licensing board decides his appointment to be necessary and that he sustains a good moral character. By section 1, chapter 27, B. S., the licensing board may license “as many persons of good moral character . as they deem necessary to be innholders.” This authority involves questions to be determined by the board and not by the applicant. This idea of limiting the number of innholders in a place has always prevailed in most if not all of the states. In Colonial days the General Court of Massachusetts annually prescribed how many each town in the colony should be entitled to, especially naming the towns that should be entitled to more than one, and the business of innholding was regulated with exacting restraints and impositions which would perhaps be regarded as oppressive at the present day. It is, therefore, not easy to see that this question of constitutionality in its present aspect is a practical one between these parties. Colonial Laws, Mass. 1660-1686. (Whitmore, Boston, 1889, — 486 — 1890.) As a merely academical question we cannot indulge in its discussion. The .penal sum of the bond ($300) cannot be regarded as extreme at all when it is considered that the accompanying license would confer a right and privilege where none existed before. The statute requirement certainly cannot be regarded as prohibitory in its nature or effect. There is nothing indicating that the defendant could not have easily furnished the bond had he been disposed to do so. There are many instances in the statutes where bonds are required of officials and quasi-officials for the faithful discharge of their duties, even where no money is necessarily to pass through their hands as officers, but where honest conduct is to be ensured. In Lunt's case, 6 Maine, 412, it was held not unconstitutional to require a common seller of liquors to purchase a license and pay certain duties before entering on his business. There cannot be very much difference in principle between requiring pre-payment of money and requiring security for the payment of money for damages if afterwards incurred. In Day v. Frank, 127 Mass. 497, a licensee was required to give a bond with sureties to pay all costs, fines and damages recoverable against him under the Massachusetts statute of 1875, ch. 99, § 9, and while the main question here arose in another form there, it was not noticed by counsel or court, while other questions were discussed and considered. Upon another ground is the constitutionality of the statutes in question attacked by the defense. It is contended that an action cannot be lawfully instituted “ by any citizen of the state ” in the name of a town, and the burden of an expensive litigation be imposed on the town without its consent; and that any statute authorizing such a thing is null and void. The first obvious answer to this proposition is that the counsel for the defense cannot represent the plaintiffs in order to raise such a question. He is defending against the plaintiffs and not acting in their behalf. The only legitimate controversy on the record of the case is whether the town can maintain this particular action while it is apparently at least striving to do so, and all else in this connection is illusory and theoretical merely. But there is much more answer — 487 — than this. The position of the defense misappreciates the true position of the plaintiffs. The town has the entire control of the action and can repudiate it if it pleases, although the presumption is that it acquiesces in the proceedings, nothing appearing to the contrary. This is not technically a qui tarn action. The town sues for a penalty because the penalty belongs to the town; it sues to recover its own. Carrie H. Foster, who claims to prosecute the suit as a citizen of Maine, can only do so by the plaintiffs’ consent. She is not plaintiff, but stands rather in the position of an informer for the state or town, somewhat in the position of a complainant who obtains an indictment, — an aid and promoter of the pi-osecution. She informs the town of the penalty due them, and they sue for it. Section 14 of the chapter, 27, says the licensing board shall prosecute for any violations by complaint, indictment, or action of debt, implying the institution of proceedings in the name of the state which perhaps is the better and more satisfactory kind of remedy. But the town can sue directly for the penalty because it owns all of it. So held in Wiscasset v. Trundy, 12 Maine, 204, an action whei-e the facts and pleadings were essentially the same as in the present case. The writ here is in all essential respects, as far as form goes, like the writ there. Even were this a qui tam action, the principle would be the same. The action would be under the control and direction of the town as the actual plaintiff. In a qui tam action at common law, a plaintiff may abandon or continue his action at his pleasure. If, however, he becomes nonsuited without the consent of the court, any other person interested in the penalty may sue again as if no action had been brought before. Wheeler v. Groulding, 15 Gray, 539; Colburn v. Swett, 1 Metc. 232; Smith v. Look, 108 Mass. 139; State v. Johnson, 65 Maine, 262; Dunn v. Framingham, 132 Mass. 430. Where only a moiety of a penalty goes to an informer he cannot sue for it in his own name, although it is otherwise, as before seen, if he is entitled to all of the penalty. As part owner of the penalty the informer does not control the action, but receives his share when recovered. Same authorities as before. — 488 — What would have been the position and legal rights of the parties had the informer or prosecutor instituted the proceedings in her own name as plaintiff we need not directly inquire. She has not done so. We think the penalty to be assessed against the defendant should not be large as there are several actions and full costs are to be recovered in each case. Judgment for plaintiffs in each action for ten dollars and full costs.