State v. Larson , 54 L.R.A. 487 ( 1901 )

COLLINS, J.

This is a civil action brought by the state against Martin J. Larson as principal, and the other defendants as sureties, upon a liquor bond given pursuant to G. S. 1894, § 2026. A general demurrer to the complaint was overruled by the court below, and the case is here upon an appeal from the overruling order. •

The complaint alleges the application of the principal for a license; the execution of the bond in the sum of $2,000; the issuance of a license; that on a day certain, in violation of the laws of the state and of the ordinances of the village, he sold certain malt liquors to one Krinsberg, who was then a minor, under the age of twenty-one years; that he was duly arrested under a warrant issued out of a justice’s court for the violation aforesaid, was arraigned in said court, and, in proceedings thereafter had, was duly convicted of the offense of which he was charged, was ordered to pay a fine of $25 and costs of prosecution, and in default thereof to be imprisoned in the common jail of Eenville county for a term not exceeding thirty days, or until said fine and costs were paid; that he paid said fine and costs, and was duly discharged from custody.

The question is, was a cause of action stated upon this bond when it appeared that the offender had paid the fine and costs imposed upon him by the court as a penalty for a violation of the law which prohibits the sale of malt liquors to a person under the age of twenty-one years, there being no special damages alleged in the complaint? Or, stated in another form, the question is whether the sum of $2,000, the amount specified in the bond, shall be treated as a penalty, the amount recoverable to be measured by the actual damages; or is the amount to be treated as liquidated damages, the whole thereof to be recovered in a single action brought by the state, whenever the condition of the bond has been violated? It is a question of statutory construction, and must be decided by taking into consideration the entire statute regulating the sale of intoxicating liquors, in our endeavor to ascertain the legislative intent.

A majority of the court are of the opinion that the amount specified in the bond must be treated as a penalty, to be enforced to the amount of actual damages and no further, and that the whole sum of $2,000 cannot be considered as liquidated damages; the whole to be collected in case of any infraction of the law, technical or otherwise, intentional or unintentional. While the question is not without perplexity, we are somewhat influenced by the belief that, in the absence of any express provision, such an instrument, executed in compliance with a law which recognizes traffic in intoxicating liquors as a legitimate business, should not be rigidly construed when the result will inevitably be oppressive and unjust. The law is that the authority to impose penalties, and especially excessive penalties, must be strictly construed. City of Minneapolis v. Olson, 76 Minn. 1, 78 N. W. 877. The legislature may see fit, in the future, by express enactment and in positive language, to exact the pound of flesh; but for many years, at least since Shylock demanded strict compliance with the condition of his bond only to meet with disaster, such exactions have not met with favor in or out of judicial tribunals.

It is evident that the statutes of this state bearing upon intoxicating liquors are in a very complicated condition. This is undoubtedly the result of enactments at nearly every legislative session since we became a state, without regard to existing statutes, and oftentimes producing absolute conflict. As early as 1858 a bond was required from licensees, with conditions similar to those now found in section 2026, the amount thereof to be $1,000. In the year 1862 the amount of the bond was decreased to $500, the conditions being those that had theretofore prevailed. In 1887 the license fee was greatly increased, and also the amount of the bond, the latter being fixed at $2,000. The conditions to be contained therein were not materially altered. The law of 1858 provided for a revocation of licenses in case conditions of the bond were violated, and the further provision making the obligors liable for all damages done by persons intoxicated by liquors obtained from the principal was a feature of the law, and it still remains a part of section 1992. In 1872 the last clause now found in said section was added, whereby the sureties upon the bond were made “jointly and severally liable with the principal for the payment of said damages, to be recovered in a civil action.” For more than twenty-eight years this clause, which gives a right of action upon the bond to a private person in case he sustains damages at the hands' of an intoxicated person, has been in force. It is still in force unless it is abolished by this court, as it would be, practically, should we sustain the position of counsel for the state.

It is evident that the legislators who enacted these provisions as to the right of the injured persons to recover in civil actions on account of all damages done by intoxicated persons to them were of the opinion that the amount fixed in the bond was simply a penalty, to be recovered, as occasion might require, by different plaintiffs, and to the amount each might be injured. We believe it to be a rule oí general application that the amount of a bond of this character — nothing but a contract — must be treated as a penalty, rather than as liquidated damages. In any event, when the intent of the parties appears, as it does here, to be doubtful and uncertain, no good reason exists why such an instrument should be rigidly and narrowly construed. Such a construction is not at all necessary for the enforcement of the laws regulating the sale of intoxicating liquors; for other and adequate remedies are provided.

It seems to us, aside from that section of the law hereinbefore quoted, and to which further reference will be made, that the legislature could not have intended that the entire amount of the bond should be recovered for a single offense on the part of the principal obligor. The bond may be violated, as may be the liquor laws of this state, unintentionally, and without a purpose to disregard the statute. Take the case now before us: The sale made by Larson was to a minor. It was, under the law, made at the risk of the former; for it was incumbent upon him to know whether the purchaser was a minor or an adult. In this respect, the sale was at his peril. If he sold to a minor in the belief, and having every reason to believe, that the latter was over the age of twenty-one years, his want of knowledge as to the real fact was no defense. Intent or knowledge is not an essential element in the commission of the offense. Every person violating the law in this particular way is declared guilty of a misdemeanor, and may be punished by a fine of not less than $25, nor more than $100, or be imprisoned in the county jail for not less than thirty, nor more than ninety, days. If the construction placed upon the bond by the counsel for the state is correct, the fine, including costs of prosecution, may be in excess of $100. In addition to this, the license, for which the violator must have paid $500 or $1,000, possibly more, depending upon the population and the ordinances in his municipality, is revoked without further action (sections 1998, 2001), and this may occur on the very day on which he has paid for the license. The result might be that for an unintentional violation of the law, made a misdemeanor by statute, with a minimum fine of $25, and a maximum of $100 and costs, the offender would be compelled to pay over for a single offense, not knowingly committed, over $2,100, and lose the amount of his license fee ($1,000) in addition. In no case could he escape with a loss of less than $2,025, and possibly all or part of $500 more, the amount of his license fee.

It may be argued that under bur construction conviction of a violation, in a court of competent jurisdiction, must precede an action upon the bond, and for this reason such construction is radically wrong. Probably conviction before a civil action can be instituted will be necessary; but power to revoke the license, and to deprive the licensee of his occupation as well as the sum he has paid for such license, in no case less than $500, is with the municipal authorities, intervention by the courts not being required. (Section 2020.) This, in itself, seems quite a severe penalty. We are not defending the saloon keeper who violates the law, nor are we upholding the business of selling intoxicating liquors, lawfully or unlawfully, when we say that such a result would be strikingly unjust, and smack strongly of persecution. While it may not violate the constitutional provisions forbidding the imposition of excessive fines, or the infliction of unusual punishments, this penalty would be exceedingly excessive, and of a character to shock our sense of justice and right. Tt would remind us of the days when trivial offenses were punished by absolute and wholesale confiscation of the offenders’ estates. In practice, that would frequently be the result should the amount of the bond be declared liquidated damages. We cannot believe that the legislature intended any such drastic measure; for, had that been the design, the law would have so stated. This has been done in several states; it being expressly provided in some that judgment may be entered on such a bond against the principal and sureties for the full penalty thereof. In support of our views, we cite State v. Estabrook, 29 Kan. 789; Jenkins v. City, 79 Ill. App. 339.

It is not to be understood that there are no cases to the contrary, for several have been referred to, notably Quintard v. Corcoran, 50 Conn. 34, in which two Rhode Island cases are cited as authority; the court saying that the question in issue was there decided in the same way. A glance at these cases (Tripp v. Norton, 10 R. I. 125; City v. Bligh, 10 R. I. 208) will show that no such question was presented or decided. We are also referred to some cases arising under the federal revenue law. The courts in which revenue cases are litigated have always construed the conditions found in revenue bonds with great strictness and excessive severity, and we are not inclined to accept their rules on this subject. But, as before intimated, our conclusion is largely influenced by our sense of right and justice, and also by the provision found in -the latter part of section 1992, and heretofore quoted, to the effect that the principal and his sureties shall be jointly and severally liable for the payment of damages caused by an intoxicated person, to be recovered in a civil action brought by the person injured. This clearly indicates that the amount of the bond must be declared a penalty, and must be recovered as such. If the construction contended for is to be given the bond, this provision of the statute is entirely without force or effect. It is rendered nugatory, for the amount of the bond is either a penalty, or it is liquidated damages. It cannot be both. The amount cannot be declared a penalty when a civil action is brought under section 1992, by a person injured, to recover damages done by an intoxicated person, and then held to be liquidated damages in an action brought upon a complaint drawn as was the one we have before us. It cannot be one kind of a bond, for one purpose, to-day, and another kind of a bond, for another purpose, tomorrow.

The statute just referred to cannot be construed as authority for the collection of the whole amount named, by a private party, unless he has been injured in the full sum. That is, he is not authorized to enforce the obligation except to the amount of his damages. It may be suggested that an injured party might intervene in an action instituted by the state to recover the stipulated amount, but this presupposes that he is fully informed as to the facts upon which his action can be maintained, and, further, that he has knowledge of the pendency of the action brought by the state. He has a statutory right to proceed in a civil action to recover Ms damages, and should not be placed in a position where he must either enter into a race with the state to determine which of the two can first commence an action, or suffer a loss. Nor should he be compelled to keep watch upon all proceedings in the courts in order to protect himself by intervention when the state moves. It may also be suggested that the right to recover may be unavailing because other parties have forestalled, by similar actions, one who has the right. This suggestion would be equally as potent in any other case where the amount of a bond is in the nature of a penalty, and damages in excess thereof occur. But, in any event, we do not decide that this is not a continuing bond.

It is impossible to harmonize this particular section of the statute with the contention of counsel for the state, and for this reason, if there be no other, we are compelled to hold that the purpose of the bond was to indemnify the state as well as private parties against all damages that may actually result from any breach thereof, and not to authorize a recovery of the full amount as liquidated damages. It follows that the complaint failed to state a cause of action.

Order reversed.