Castellano v. Marks
| Decision Date | 23 November 1904 |
| Parties | CASTELLANO v. MARKS et al. |
| Court | Texas Court of Appeals |
Appeal from Bexar County Court; Robt. B. Green, Judge.
Action by Hilario Castellano against A. L. Marks and another. From a judgment in favor of defendants, plaintiff appeals. Reversed.
T. H. Ridgeway, for appellant. Clark & Davis, for appellees.
Appellant sued A. L. Marks, as principal, and the Fidelity & Deposit Company of Maryland, as surety, on a liquor bond, to recover $1,000 for two sales of liquor to his minor son, Ascencio Castellano. There was a verdict and judgment for appellees.
Upon the trial of the cause the following evidence was offered by appellant, objected to by appellees, and rejected by the court:
Also the evidence of A. L. Marks: Also an annual tax receipt for state and county taxes, in which it was recited that A. L. Marks was authorized to sell liquors in quantities of one gallon or less for one year from August 1, 1903. Also a statutory liquor bond given by appellees on July 29, 1903, in which it is recited that Marks desired to engaged in the sale of spirituous, vinous, and malt liquors and medicated bitters capable of producing intoxication, to be drunk on the premises, in quantities of one gallon or less, at 605 West Commerce street, in the city of San Antonio, county of Bexar, state of Texas, "and has made the application and paid the taxes required by law." Also the following license:
All of the foregoing evidence was excluded on the ground that no valid application for license to sell liquors had been made by A. L. Marks and therefore he and his surety were not liable under the statute authorizing the recovery of a penalty for the sale of intoxicants to a minor.
It is apparent from an inspection of the application that it is defective in not stating that the applicant desires to sell liquors in certain quantities, to be drunk on the premises. It is also apparent that the application was made on a printed blank, and the applicant failed to make the proper insertions and erasures therein. The question is, does the failure to properly fill out the blanks preclude a recovery on a proper statutory bond which was given under a legal license to sell liquors in certain quantities in a certain place in San Antonio?
It is argued that the amount provided for in the statute, which an aggrieved person may recover for an infraction of a condition in the bond, is a penalty, and that, being a penalty, strict proof must be made not only of a statutory bond and license, but also of a statutory application for a license to sell. In the case of Johnson v. Rolls (Tex. Sup.) 79 S. W. 513, it is held that the sum allowed in article 3380, Rev. St. 1895, for an infraction of a liquor bond, although denominated therein "liquidated damages," is a penalty, and that decision is relied on by appellees to sustain the decision of the lower court. We do not think that a proper construction of that opinion will lead to that result. We think that we are sustained in this view by the opinion in the case of Green v. Southard, 94 Tex. 470, 61 S. W. 705, where it was held that the bond of a liquor dealer is not invalid, although both license and application fail to designate the particular house in a town in which the liquor was to be sold. In that decision the case of Pearce v. State, 35 Tex. Cr. R. 150, 32 S. W. 697, in which it was held that a license which designated the town in which the liquors were to be sold was valid, was cited and followed. After a discussion of what is meant in the statute as to the designation in the application of the "place" where the liquor was to be sold, the Supreme Court said: "But waiving this question, if the omission to name the house in the license does not make it void, for a much stronger reason, we think, it ought to be held that a like omission in the application cannot have such effect."
Under the decision of the lower court, the bond and license must be held to be based and dependent upon the application; and, although every requisite of the statute is embraced in bond and license, they are not sufficient to constitute A. L. Marks a liquor dealer, in the eyes of the law. The Supreme Court, however, not only does not rest the validity of the bond upon a strict compliance with the statute in either license or application, but goes further, and holds, by implication, that there is a much stronger reason for holding that an omission in the application is not of such gravity as one in the license. It follows that if a bond is good, although neither license nor...
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