Headington ex rel. School Fund v. Smith

Debmer, J. [108] The bond filed by defendants was in the usual form, conditioned that W. R. Smith should faithfully observe and comply with all the provisions of the law stipulated and set forth in the act under which it was .given, and pay all damages that might result from the sale of intoxicating liquors upon the premises occupied bv him. The petiton alleged that he violated the provisions of the act referred to, by selling intoxicating liquors to minors, and judgment was asked for the benefit of the school fund, in the sum of $100 for each and every such sale. The demurrer-filed by the sureties was based on the ground that the bond did not cover such illegal sales, and that the penalties provided by the law for such sales were not such as were covered by the bond. The bond was given under the provisions of section 17, chapter 02, Acts Twenty109 fifth General Assembly, requiring the making and filing of such an instrument, conditioned upon the faithful observance of all the provisions of the chapter, and for the payment of all damages that might result from the sale of intoxicating liquors upon the premises used by the obligor. One of the provisions of the chapter was that no sales should be made to minors. Plaintiff based his right of action on sections 2403 and 2422 of the Code, which are similar to the statutes in force when the acts complained of were committed. Section 2403 prohibits the sale of intoxicating liquor to minors for any purpose, and provides that “* * * * any person violating the provisions of the section, shall forfeit and pay the sum of one hundred dollars, to be collected by action against him, or if a permit holder against him and the sureties on his bond. Such action may be brought by any citizen of the county. One half of the amount so collected, shall.go to the informer, and one half to the school fund of the county.” The material part of section 2422 reads as follows: “And when any one is required under the provisions of this chapter to give bond, the principals and sureties shall be jointly and severally responsible and liable for all civil damages and costs which may be adjudged against the principal, for any violation of any of the provisions of this chapter.” Without quoting statutes, it is sufficient to say that a permit holder is one holding a permit to sell liquor for certain specified purposes; issued by the district court of the county under the provisions of sections 2385 and 2401, inclusive. Such a permit holder is not the person referred to in the acts of the general assembly hitherto mentioned. It must be also remembered that we have a civil damage act in this state. See Code, section 2418. Manifestly, the action is to recover the penalty provided by section 2403 of the Code; and the pivotal point in the case is, are the sureties on defendant’s bond liable for this penalty ? That they would be liable had the action been brought under the civil [110] damage act, must be conceded. But section 2403 says the action must be brought against the defendant unless her be a permit holder. If a permit holder, then action may be brought against him and the sureties on his bond. This statute seems to provide the only penalty for sales to minors, and, as it provides the remedies and means of enforcemnt, all others are excluded. That is to say, the action is against the defendant alone, unless he be a permit holder; if a permit holder, then the action may be on his bond and against his sureties. The force of this position is conceded by appellee’s counsel, but he contends that the action will lie under-section 2422, before quoted. That statute says that principal and sureties are liable for all civil damages adjudged against the principal for any violation of the provisions of the chapter. If, then, the amount sought to be recovered in this action is civil damages, there seems to be express authority for appellee’s contention. But we do not think- it is. Section 2403, prohibiting the sales to minors, does not fix the arbitrary sum of $100 as damages, for it does not go to the party injured. The amount named is simply a penalty for the violation of the act, and mav be recovered, notwithstanding there was no damage other than the state sustains, where liquor is sold to a minor inhabitant. The amount, when recovered, dees not go to compensate the party injured. It is not, therefore, civil damages. That term has a fixed and definite meaning,and clearly has reference to the damages which may be collected by wife, child, parent, guardian, or employer, injured in person, property, or means of support, under the provisions of section 2418 of the Code. The term has a very well defined meaning when used in intoxicating liquor statutes. Black Intoxicating Liquors, section 277; Anderson’s Law Dictionary, 305. The amount that plaintiff seeks to recover is not civil damages, but a penalty; and there is no provision of law making the surities on a bond given under the so-called “mulct law” liable. True, the statute under which the bond was given [111] prohibits sales to minors; but, as no penalty is provided,, reference must be made to the other sections of the Code, for the sanction. Had plaintiff recovered judgment for damages done him or his property or means' of support, doubtless the sureties on defendant’s bond would be liable for the amount thereof. But as this action is to recover a penalty, and there is no-statute making the sureties liable therefor, their demurrer should have been sustained. State v. Douglass, 73 Iowa, 279, lends, support to our conclusions. 3 II. Defendant W. B. Smith pleaded in answer that the action was not brought in good faith; that it was brought for the purpose of blackmail, and to induce him (defendant) to advance plaintiff some money. Plaintiff’s demurrer to this part of the answer was properly sustained. McQuade v. Collins, 93 Iowa. 22. 4 III. In another division of the answer defendant' pleaded a counterclaim based on an unlawful and malicious assault made upon him by plaintiff prior to the commencement of this action. Plaintiff brought the action in-a representative capacity, and the counterclaim is-against him as an individual. It needs no argument-to demonstrate that such a counterclaim is not proper pleading. Gourly v. Walker, 69 Iowa, 80. The judgment as to-defendant W. B. Smith is affirmed, but as to Araminta Smith and Jacob Schaub it is reversed.