People ex rel. Meakim v. Eckman

O’Brien, J. The complaint in this action is based upon an alleged breach of the condition of a bond given by the defendants to the people of the state of New York upon the issuance to the defendant Eckman of a license to sell strong and spirituous liquors upon premises. The bond is in the sum of $'230, and the condition reads: “That if, during the time for which the said license shall be granted, he shall not suffer his place to be disorderly, nor suffer any gambling, or keep a gambling table of any description, within the premises so kept by him, or in any outhouse, yard, or garden belonging thereto, nor suffer said premises to be used for immoral or unlawful purposes, and that if during the time for which the undersigned shall be licensed he shall keep and observe the provisions of the acts of the legislature known as ‘ Chapter 628 of the Laws of 1857,’ and supplementary thereto, and amendatory thereof, then this obligation shall be void, otherwise to remain in full force and effect.” A violation of the condition of the bond is charged against Eckman, in this: that on a day specified he sold, and permitted his agent and servant to sell, strong and spirituous liquors to a minor under the age of 14 years.' The demurrer admits the facts, and therefore the three questions of law arising upon this appeal open for discussion are: First, as to the plaintiffs’ right to maintain this action; second, as to the commissioners’ power to demand the bond as a condition of granting the license to Eckman; third, was there a violation of the condition of said bond by the sale of intoxicating liquor to a minor under the age of 14 years? In disposing of these questions relied upon by the appellants, it should be remembered, as stated by the learned judge below, that “the instrument was exacted, but voluntarily executed and delivered, to obtain the desired license. ” The learned judge was also of the opinion that the obligors should not be permitted to question the validity of an obligation thus assumed. Apart, therefore, from any statutory provision requiring a bond to be given, the conclusion reached by the learned judge below, it seems to us, can be sustained. It is discretionary with the commissioners as to the persons to whom and the conditions upon which the license shall be issued. Where, therefore, in the exercise of a discretion conferred by law, a bond is required as a condition precedent to the issuance of a license, it can be enforced if its conditions are violated. This results from the fact that it is a good common-law bond. We have not overlooked in this connection the fact that a failure to wisely exercise their discretion can be remedied by an application to the court for a mandamus, and upon such an application the court undoubtedly would have the right to determine whether the conditions imposed by the commissioners were reasonable and just. In this case the commissioners required a bond, and no objection was made to giving one, nor was any resort had to the court by mandamus for the purpose of determining their right to exact the same. Under such circumstances, the bond, being executed, became, as stated, a good bond at common law, and can' be enforced. In addition, however, we are of opinion that statutory authority can be found for a determination of the questions presented upon this appeal favorable to the commissioners. 1. As to plaintiffs’ right to maintain the action, it must be conceded at the outset that, unless some authority is found in the statutes, the obligee of the bond being the people of the state, an action on their behalf could only be maintained by the attorney general or district attorney. This view is enforced by reference to section 1962 of the Code, which requires such actions to be brought by the officers named, where provision is not otherwise specially made. The act of 1857, c. 628, provides, by sections 22 and-24, by whom and in whose names actions shall be maintained. This question has been discussed in the two cases of People v. Groat, 22 Hun, 165, and in Board v. Burtis, 103 N. Y. 140, 8 N. E. Rep. 482. The latter case decided that for penalties imposed by the act the commissioners of excise were the proper parties to maintain the action. Besides actions to recover penalties imposed by [656] the act for violations of the excise law, a cause of action exists in favor of some one for a breach of the condition of a bond. This has been specially provided for by section 24 of the Laws of 1857, as construed in the case of People v. Groat, supra, wherein it was held that an action to recover the penalty incurred by the breach of-the condition of such a bond must be prosecuted by the officers named in section 24, which specially names the commissioners of excise as the persons to prosecute in the name of the people! In view, therefore, of the express authority given by the statute as construed in the cases cited, it seems reasonably free from doubt that the commissioners of excise, as they have done here, could, in the name of the people, bring and maintain this action. However, we do not think that the appellants are in a position to urge such an objection upon this appeal, for the reason that it does not appear upon the face of the complaint that the plaintiffs have not legal capacity to sue, and therefore, under sections 488 and 498 of the Code, the objection should be taken by answer, and not by demurrer. 2. Had the commissioners the legal power to demand the bond as a condition of granting the license to Eckman? There are two classes of bonds authorized to be taken and required to be given before a license can be granted to an applicant—one from applicants who desire to sell liquors to be drunk on the premises, Commonly known as “hotel and saloon licenses;” the other to applicants who sell liquors not to be drunk on the premises. The license granted in this case is known as a “saloon license, ” and with that alone we have to deal upon this appeal. Many changes by amendments and new enactments have taken place in the excise laws since the adoption of .the general scheme in 1857. Laws 1870, e. 175; Laws 1873, c. 820; Laws 1878, c. 109; Laws 1883, c. 340; Laws 1886, c. 496. None of these laws in express terms repeals the general scheme or act of 1857, and except so far as the subsequent acts may be inconsistent with or repugnant to certain sections thereof, which to that extent would be abrogated, what remains of the act of 1857 would still be of binding force and effect. By section 4 of the act of 1857 the board of excise was given the power to fix the conditions before granting licenses. By section 6 it was provided that the licenses should not be granted to any persons to sell liquors to be drank on the premises, unless a person proposed to keep an inn, tavern, or hotel. Section 7, Laws 1857, makes provision for the bond as follows: “Nor shall such license to keep an inn, tavern, or hotel be granted until the applicant shall have executed and delivered to the board of commissioners of excise a bond, * * * with the condition that such applicant, during the time that he shall keep an inn, tavern, or hotel, will not suffer it to be disorderly, or suffer any gambling, or keep a gambling table of any description, within the inn, tavern, or hotel so kept by him, or in any outhouse, yard, or garden belonging thereto. ” Section 15 provides that any person who shall sell liquors to a minor shall be deemed guilty of a misdemeanor, and upon conviction shall be liable to a fine of $25 for each and every offense, and provides by whom such penalty can be recovered. It will thus be seen that the act of 1857 made no provision for a saloon license, the board of commissioners being restricted to the granting of licenses to persons keeping an inn, tavern, or hotel. It is contended, further, that, because a specific penalty is prescribed for the violation of the law of selling liquors to a minor, a recovery cannot be had on the bond. Our answer is that the legislature, having the power to regulate the sale of intoxicating liquors, could impose dual penalties for the same offense. When the statute fixes both the penalty, and declares it a misdemeanor for doing any act, such as selling liquor without a license, they are entirely independent of each other, and the conviction for the misdemeanor is no bar to an action for the penalty. People v. Stevens, 13 Wend. 341; Blatchley v. Moser, 15 Wend. 215. An •examination of the laws referred to will show, that no act of the legislature [657] since the passage of the-act of 1857 contains anything repugnant to or inconsistent with sections 4 and 7, so that the situation to-day is that, so far as the board of excise is concerned, no doubt exists as to their power, and as to their duty to exact a bond from all persons who apply for an hotel, inn, or tavern license. If, therefore, the contention of the appellant is correct, that the commissioners had no power to exact a bond at all from him for a saloon license, then the anomaly is presented that, while in all the other cases specified a bond must be given, a saloon keeper has the right to obtain a license without being required to give any bond. In 1870, by chapter 175, power was given to the commissioners to license any place to sell strong and spirituous liquors. This is the first authority for granting saloon licenses at all. It is true that, as amended by the Laws of 1873, c. 249, no mention whatever is made of the giving of a bond by a saloon keeper, and this is equally true with regard to chapter 340 of the Laws of 1883. But chapter 496 of the Laws of 1886, being an amendment to chapter 340 of the Laws of 1883, provides that the board of commissioners of excise, “if all other requirements have been com-, plied with, have power to grant licenses to sell strong or spirituous liquors, ” etc., “to be drank on the premises.” Although, therefore, it may be true, as claimed by the appellants, that no mention of the bond as a condition of granting a license is, by express terms, made a provision of any of the acts subsequent to 1857, yet it seems, from a fair construction of all the various provisions of -tlie excise law, that it was not the intent of the legislature to relieve the saloon keepers from giving a bond, while it imposes the condition upon others in the same business. In other words, we are of opinion that the general policy of the legislature, in extending the power to grant licenses to sell intoxicating liquors to others than to hotel and tavern keepers, was to. formulate a general plan or policy, equally applicable to all classes of licenses.. This conclusion is justified, not only by a reference to the general scheme enacted by the act of 1857, but is fortified by the provision of the Laws of 1886,. already referred to, which enables the commissioners, upon a compliance by the applicant with the other requirements of the law, to grant the license. One of the requirements of the law applicable to all persons entitled to a-, license was, by the act of 1857, the giving of a bond, and there is nothing in, any act subsequent to 1857 indicating that saloon keepers should enjoy greater advantages in the right to sell liquors than other licensees. The legislature undoubtedly intended to treat all applicants for licenses alike, and that the requirement of a bond as a condition, in all cases, was and is intended. 3. Was there a violation of the condition of said bond by the sale of intoxicating liquor to a minor under the age of 14 years? The appellants contend that the licensee, by selling liquor to a minor, did not commit a breach of the condition of the bond, and that the sale of liquor to a minor is not such a violation as would entitle the commissioners of excise to recover upon the bond. This contention is sought to be upheld by a rigid construction of the act of 1857, as to the purposes for which a bond can be exacted. It is insisted that the sale of liquor to a minor is not a violation of any of the conditions expressly fixed by section 7, and that section 15, by affixing a penalty, and prescribing the manner in which the person guilty of selling liquor to a minor shall be punished, has thus indicated in what manner, and in what manner only, shall an offense of that character be visited. There can be no doubt that selling to minors is a violation of the law, and it is equally clear that the appellants violated the express condition of the bond by failing to “keep and observe the provisions of the act of the legislature known as • Chapter 628 of the Laws of 1857, and supplementary thereto and amendatory thereof.’ ” It is insisted, however, that the commissioners exceeded their power in inserting in the bond the language last quoted, and it is claimed that, even though a bond could be exacted, its terms should be restricted to imposing conditions which are expressly prescribed by the act itself. The conditions [658] of the bond are not unreasonable, and they are directed to cover the evil which it was the evident intention of the legislature to prevent. We think it doubtful, moreover, if the appellants had the right to challenge the express conditions of the bonds, for the reason that the license was issued, and they accepted the privilege, and in consideration thereof executed the bond which has been sued upon. “Whenever a bond is or shall be required by law to be given by any person in order to entitle him to any right or privilege conferred by law, or to commence any proceeding, it shall not be necessary for such bond to conform in all respects to the form thereof prescribed by any statute, but the same shall be deemed sufficient if it conform thereto substantially, and do not vary in any manner to the prejudice'of the rights of the party to whom and for whose benefit such bond shall have been given.” Surpervisors v. Pindar, 3 Lans. 11; Parley v. McConnell, 7 Lans. 430; Foster v. Foster, 7 Paige, 49; Ring v. Gibbs, 26 Wend. 510; Tillage of Warren v. Philips, 30 Barb. 651. We do not think, however, that it is necessary to strain the construction of the statute in the present case to uphold the power of the commissioners in maintaining their action upon the bond for a violation of any of the provisions of the excise law not expressly enumerated in section 7 of the act of 1857, for the reason that the breach assigned in the present case seems to be covered by the conditions in section 7 mentioned. One of the conditions so expressed is that the obligor will not suffer his place of business to become disorderly. In determining the construction or meaning to be given to the word “disorderly,” it will not do to resort to the Penal Code, as claimed by appellant, and take the definition therein given as to what would constitute a disorderly house. As defined by Webster, it means “not regulated by the restraints of morality; not complying with the restraints of order and law.” This definition, coupled with the one given by Bishop on Criminal Law, (sections 1111,1119,) in defining what is meant by “disorderly” inns, etc., goes far to support the contention that the sale of intoxicating liquor to a minor under 14 years of age is a disorderly act, and a breach of the condition of the bond. Moreover, as all the questions raised upon this appeal have been examined in the cases of People v. Burget,1 and Board of Excise v. Betterlien,1 (MS. opinion, filed December 9, 1889,) and determined adversely to appellant, further discussion is unnecessary. We think the conclusions reached in those cases were correct, and that the judgment appealed from should be affirmed, with costs. Footnotes [1] Notreported.