City of Paducah v. Jones

• Decision Date: 25 October 1907
• Citation: 126 Ky. 809,104 S.W. 971
• Parties: CITY OF PADUCAH v. JONES ET AL.
• Court: Kentucky Court of Appeals

104 S.W. 971

126 Ky. 809

CITY OF PADUCAH v. JONES ET AL.

Court of Appeals of Kentucky.

October 25, 1907

Appeal from Circuit Court, McCracken County.

"To be officially reported."

Action on a bond by the city of Paducah against J. L. Jones and others. From a judgment for defendants, plaintiff appeals. Reversed, with directions.

James Campbell, Jr., for appellant.

Crice &amp Ross, for appellees.

CARROLL J.

Paducah is a city of the second class, and under section 3058 of the Kentucky Statutes of 1903, the general council have the right "to license, tax and regulate the sale of spirituous vinous and malt liquors in saloons and coffee houses." In pursuance of this authority, the council enacted an ordinance providing that: "Every person, firm, company or corporation desiring to keep a coffee house, saloon clubroom, or other establishment wherein spirituous, vinous or malt liquors are sold by retail, shall make application therefor in writing to the general council giving the number of the house, and street on which same is located in which said business is to be carried on, with the receipt of the city treasurer for the amount required for such license as herein fixed, and also the proper receipt of the proper officer for county and state or other license than city license where such license is required; and the names of two good sureties resident of McCracken county, Kentucky, and the owner of real estate therein, as bondsman. If said general council shall approve and accept such sureties and grant said license, the clerk of said city of Paducah shall thereupon issue to the said applicant upon his entering into a bond with said sureties to said city according to law in the penalty of one thousand dollars, conditioned that he, she, they or it will keep a quiet, orderly house, and will not permit gaming or riotous or disorderly conduct therein, and shall not keep open his bar nor offer for sale any spirituous, vinous or malt liquors on Sunday; and otherwise comply with all the ordinances of the city of Paducah in relation to coffee houses, saloons and clubrooms. But the clerk shall not issue said license until the said bond is executed as aforesaid, and said person, firm, company or corporation shall not commence business until said license shall issue." Appellee, J. L. Jones, upon his application to keep a coffee house and sell therein spirituous, vinous, and malt liquors, was granted license so to do, and thereupon in compliance with the ordinance executed the following bond, which was accepted by the city: "Know all men by these presents that we, J. L. Jones, as principal, and Adolph Weil and Lee Weil, sureties, are held firmly bound unto the said city of Paducah in the sum of one thousand dollars the payment thereof well and truly to be made, we bind ourselves, our heirs, executors, administrators or assigns, jointly and severally, by these presents, sealed with our seals, and dated this, the 2d. day of January, 1905. Now, the condition of this bond is such, whereas the above named J. L. Jones hath obtained from the general council aforesaid a license to keep a coffee house to sell spirituous, vinous, and malt liquors therein in the city of Paducah for one year. Now, if the said J. L. Jones shall well and truly observe the laws of the commonwealth, and the laws and ordinances of the city of Paducah relating to coffee houses, then this bond is to be void; otherwise to remain in full force and effect." Ky. St. 1903,§ 1303, as well as an ordinance of the city of Paducah, prohibit the sale of spirituous, vinous, or malt liquors on Sunday. A warrant was issued against Jones, charging him with the offense of selling liquor on Sunday, and upon his confession of guilt he was fined, thereupon the city instituted this action upon his bond, seeking to recover thereon the sum of $1,000.

Two interesting questions are presented for our consideration: First. Was Jones guilty of selling liquor on Sunday? Second. Did the general council have the right as a condition precedent to the issual of licenses to exact the bond in question, and, if so, the facts authorizing it, can there be a recovery for the full amount? The sureties upon the bond of Jones were not estopped by his confession of guilt or conviction of the offense from showing in an action against them that no breach of the bond had been committed. They were not parties to the penal proceeding against him, and, as their liability upon the bond depended upon the question whether or not he had committed a breach of his obligation, they had the right in an action against them to show that he had not. Margoley v. Commonwealth, 3 Metc. 405; Commonwealth v. Stringer, 78 Ky. 56.

The evidence in this action disclosed the following facts: The coffee house conducted by Jones was in the rear of a grocery store also operated by him; the coffee house being separated from the grocery by swinging doors. He employed a clerk to attend to both the coffee house and the grocery, and on the Sunday in question Jones went out in the country, but before leaving gave his key to the clerk, telling him "to open up," not indicating whether he desired him to open the grocery or the saloon, or both. Soon after his departure, the clerk did "open up," and during the day before the return of Jones sold liquor to numbers of persons. When Jones returned late in the afternoon, he found in the coffee house or saloon a number of persons, and, after ordering them out closed the doors. The clerk had been in the employment of Jones for some time, and testified that his duties on Sunday were the same as those during the week, with the exception of the saloon. During his examination, he was asked by counsel for the city if the saloon had not been kept open on other Sundays. Objection was made, and sustained, and it was avowed that the witness, if permitted to answer, would say that on several Sundays the clerk with the knowledge of Jones kept open the saloon, and sold liquor to persons desiring to purchase. The trial judge was of the opinion that Jones was not responsible or liable for the act of his clerk in keeping open the saloon on the Sunday for which it was sought to recover on the bond, as Jones did not authorize the opening of the saloon or the sale of whisky therein, nor did he know or assent thereto or ratify or approve the same; and upon this issue, which was decisive of the case, rendered a judgment in favor of appellee. With the excluded evidence out of the record, it did not appear that the clerk in opening the saloon and selling liquor was acting within the scope of his employment or by the knowledge or with the consent of Jones, but, on the contrary, the inference was that he was acting entirely for himself, and the trial judge was correct in his conclusion; but we are of the opinion that he erred in failing to permit the city to prove that on previous Sundays, with the knowledge and consent of Jones, his clerk had opened the saloon and sold whisky therein. This evidence was competent upon the ground that it conduced to show whether or not the selling by the clerk on the Sunday in question was within the scope of his employment or by the consent of Jones. If the clerk of Jones in selling liquor on Sunday or in violation of law was acting within the scope of his employment, or by the consent of Jones, then Jones was liable to prosecution for his acts. Jones merely told his clerk to "open up." He did not give him any other directions, or limit him to selling groceries, or forbid him to sell liquor. What he intended to convey to his clerk by the direction to "open up," depends largely on what his clerk had done on previous Sundays. If theretofore on Sunday he had opened up both the saloon and the grocery, it would seem to follow that the directions gave him authority to do the same on this Sunday, although the conduct of Jones in closing the saloon on his return would indicate that he had not intended that his clerk should open it. If it should appear that the clerk had been in the habit of opening the grocery but not the saloon on Sunday, then the direction to open up would not give him authority to open the saloon, and in opening it he would not be acting within the scope of his employment and Jones would not be liable. However this may be, in view of the indefiniteness of Jones' direction, it was competent for the purpose of explaining the sense in which it was used...