City of Albany v. Cassel , 1912 Ga. App. LEXIS 150 ( 1912 )

Hill, C. J.

(After stating the foregoing facts.)

1. This court held in Campbell v. City of Thomasville and Jones v. Mayor and Council of Waycross, 6 Ga. App. 212 (64 S. E. 815), that it is a reasonable regulation for a city to require any one engaged in selling “near beer” in .the municipality to give to the city a good and solvent bond, conditioned that he will keep an orderly house, will not violate the State liquor laws, and will obey the ordinances of the city, regulating the business. We are asked to review these two cases on this point. We decline to do so, as, in our opinion, the law as therein decided is sound and , well supported on principle 'and by authorit

2. The other defenses relied upon, that the ordinance in question and the bond thereunder were in violation of section 4161 of the Civil Code of 1910, prohibiting forfeiture of estate for crime, and also in violation of article 1, section 2, paragraph 3, of the constitution of Georgia, which declares that “No conviction shall work corruption .of blood, or forfeiture of estate,” and in violation of article 1, section 1, paragraph 3, of the constitution, which provides that “No person shall be deprived of life, liberty, or property, except by due process of law,” we think are not even remotely applicable to the facts of the present case, and these defenses therefore are not considered.

3. The ordinance being a valid exercise of the police power of the municipality and contravening no provision of the constitution, and the bond in question being in pursuance of this ordinance, the next questions to be considered are, (1) whether the bond is penal in character, or a contract by the terms of which damages for its breach are liquidated; and (2) whether the payment of the fines imposed upon the principal of the bond for a violation of the State law or municipal ordinance was a fulfillment of the terms of the bond, and therefore precluded any recovery thereon. In determining the first question, if we look to the language of the bond itself, it would seem that it was the intention of the parties to liquidate the damages for a breach thereof, for it is expressly stipulated that “it is hereby agreed that upon any breach of this bond, or in the event it should be found that any of the allegations in the principal's application are not true, the full amount of this bond shall stand forfeited.” In the case of Cullinan v. Burkard, 93 App. Div. 31 (86 N. Y. Supplement, 1003), the Supreme Court, Appellate Division, in construing a bond containing terms similar to those of the bond now under consideration, held that a bond conditioned for the observance of the liquor law is in the nature of a contract for the observance by the licensee of the provisions of the State law, and that the sum named in the bond is fixed as liquidated damages, and an action to recover the same is in contract, and not to recover a penalty. And in Lyman v. Shenandoah Social Club,, 39 App. Div. 459 (57 N. Y. Supplement, 372), in' construing a bond conditioned upon the good behavior of a liquor dealer and his observance of the laws regulating the sale of liquor, it is said that if the bond were construed to be penal in character, requiring proof of special damage from its violation before there could be a recovery, such construction would simply nullify the purpose of the law in requiring a bond. In that case the violation of the bond consisted in permitting a game of cards to be played in a liquor saloon, and the court on this point said: “The people sustain no direct pecuniary injury from a game of cards for money between private individuals in a liquor saloon, and yet just such an act was one of those which the bond was designed to prohibit. We may go further and say that all the conditions of the bond denote a similar purpose. It is practically a bond for the principal's good behavior as defined in the conditions.” Tn the present case the condition of the bond is that the licensee shall “keep an' orderly place and not viólate the State prohibition law, nor the city ordinance regulating the near-beer business.” In the case last cited the court said: “It seems quite clear that the intention was not to limit a recovery upon the bond to the civil or criminal penalties prescribed in the act for violation of its provisions. The legislature surely meant to enforce its policy in an effective manner. Its policy and will were that there should be no gambling of any kind in premises licensed to sell liquor. How could this be enforced if proof were required of the actual loss to the people resulting from the commission of each act of violation or non-compliance? A construction requiring this would simply nullify the law.” The keeping of a disorderly place, or a violation of the State prohibition law or municipal ordinances relating to the same subject, probably would not entail any pecuniary loss upon the city, and the condition of the bond was not to protect the city from pecuniary loss, but to enforce obedience to the law, and to throw around the licensee further inducements to keep an orderly place for the salé of “near beer” and to observe the law of the State and the ordinances of the city. It would be impossible to prove any pecuniary loss resulting from a violation of the terms of the bond; and if this were required, the taking of the bond would be a mere sham and useless formality. If the municipality, as we have held, was authorized by its ordinance to take the bond, as a reasonable regulation, the power of the city to enforce the terms of the bond and to recover for its breach should be upheld.

4. The second position assumed by learned counsel, — that the imposition of the sentence by the city court for a violation of the State prohibition law and the imposition of a fine for a violation of the city ordinance was a fulfilment of the terms, of the bond, and the bond was satisfied by the payment of these fines, — is, we think, •also untenable. It is manifest, from the terms of the bond and from the purpose of the ordinance authorizing the requirement of the bond, that it was not intended by either party to the contract to limit the liability thereon to any fine that might be imposed in criminal cases. If that had been the intention, liability on the bond would have been dependent, first, upon proof of the principal obligor’s guilt, not by a preponderance of the evidence, but beyond a reasonable doubt; and, secondly, upon the discretion of the trial court in awarding punishment. It is clear that in a suit for a breach of the condition of a bond, only a preponderance of the evidence, as in other civil cases, would be required to warrant a recovery, and if the trial court in criminal cases imposed a sentence •of imprisonment, and not a fine, this would render the bond wholly ineffective, if the imposition of the sentence for a violation of the criminal statutes or the penal ordinance amounted to a satisfaction of the bond. We do not agree with the opinion of counsel for the defendant that the damage resulting from a breach of this bond consists in the failure of the defendant to pay some fine or judgment imposed upon him in a criminal prosecution for a violation of the State prohibition law or of the city ordinance relating to the same subject-matter, or that the measure of damages for such breach is the amount of any unpaid fine or costs. On the contrary, we think that the damages liquidated by the bond are recoverable, regardless of any criminal prosecution or the imposition of any fine in criminal cases, and that the two cases are entirely separate and distinct. In the case of a criminal offense against the State law the State is the aggrieved party, and the satisfaction of the indignity to the State for a violation of its penal statute does not and should not be a satisfaction of the indignity to the city for a breach of the conditions of the bond which it has seen proper to require as a condition precedent to engaging in the business of selling “near beer.” We think that bonds of this character are somewhat • analogous to bonds required by section 1320 of the Penal Code of 1910, to keep the peace. Suppose that the obligor in a peace bond makes a criminal assault upon the obligee, and is arrested for the criminal assault, convicted and fined, could it be contended that the payment of this fine by the obligor would be a satisfaction of his bond given to keep the peace towards the obligee? We think not. But we think the State could punish for a violation of the penal statute, and the obligee could also recover for a breach of the bond to keep the peace; and whether the amount of the bond be regarded as a penalty or as liquidated damages, the measure of the recovery would be the amount fixed in the bond, without reference to the extent of the injury resulting from the breach of the bond to the obligee. Shirley v. Terrell, 134 Ga. 61 (67 S. E. 436). In Brown v. Commonwealth, 114 Penn. St. 335 (6 Atl. 152), a hotel keeper whose license had been granted to sell liquor and who had filed the usual bond, was convicted of selling liquor on Sunday and sentenced to pay a fine or undergo imprisonment. He served the time of his sentence in prison. Judgment was entered upon his bond and an execution issued to collect the amount of the fine. It was held that this was not error; that he and his sureties were not released from the obligation of their bond by his imprisonment in default of the payment of his fine.

Our attention has been called to the case of the State v. Estabrook, 29 Kansas, 739, in which the court holds that where the obligor has been prosecuted for a violation of law which is alleged as a breach of the condition of his bond, and has paid the fine and cost imposed on him in such prosecution, no action on the bond can be maintainéd for the same cause, but that the bond in such cases “must be considered just as other penal bonds are, and the penalty of the bond must be considered just the same as the penalty of all other penal .bonds. It can not be considered as a pre-existing debt, as the amount stated in a recognizance is, nor as liquidated damages, 'as the amount stated in some contracts is.” This ruling is apparently in conflict with what we here hold, and with the authorities above cited in support of our rulijig. We do not undertake to reconcile the opinion of the Kansas Supreme Court with the opinion of this court or the Supreme Courts of New York and Pennsylvania. If we need authority for the position we have taken, we would prefer to rely upon the decisions of the two latter courts as sounder in principle. But, without the support of these authorities, we are satisfied that the view which this court has taken of this question is more in harmony with the purpose of the law in authorizing such bonds, as well as the object contemplated to be attained by such requirement.

Entertaining the views expressed in the foregoing opinion, we conclude that the learned trial judge committed error in rendering judgment in favor of the defendants, and that on the admitted, facts a judgment should have been rendered in favor' of the plaintiff for the full, amount of the bond. Judgment reversed.