City of Roswell v. Jacoby

• Decision Date: 12 June 1916
• Docket Number: No. 1808.,1808.
• Citation: 158 P. 419,21 N.M. 702
• Parties: CITY OF ROSWELLv.JACOBY ET AL.
• Court: New Mexico Supreme Court

21 N.M. 702

158 P. 419

CITY OF ROSWELL

v.JACOBY ET AL.

No. 1808.

Supreme Court of New Mexico.

June 12, 1916.

Syllabus by the Court.

Under subsections 18 and 66 of section 3564, Code 1915, and section 3621, Code 1915, a city or town has power to require the giving of a bond as security that a druggist will obey the law in dispensing liquor.

The penalty of such a bond is not a “penalty” by way of punishment for a violation of the law.

But where the cause of action on the bond is made by the ordinance, as in this case, to arise only upon the conviction of the obligor of a violation of the law, the intention of the city is made to appear to punish the offender in the amount of the penalty of the bond, which punishment is in excess of the amount allowed by the statute, and the ordinance is consequently void.

Appeal from District Court, Chaves County; McClure, Judge.

Action by the City of Roswell against P. C. Jacoby and others. From judgment for plaintiff, defendants appeal. Reversed and remanded, with directions to dismiss.

Where a city ordinance predicates the right of action on a druggist's liquor bond on conviction of the obligee, and it appears that the intent is to punish the obligee in the amount of penalty of the bond, which exceeds $300, the limit fixed by Code 1915, § 3564, subsec. 66, the ordinance is void.

L. O. Fullen, H. C. Maynard, and W. A. Dunn, all of Roswell, for appellants.

H. M. Dow and Tomlinson Fort, both of Roswell, for appellee.

PARKER, J.

This is an action by the city of Roswell against Jacoby and his sureties upon a bond given by him to the city as a condition precedent to the issuance to him of a druggist's permit to sell intoxicating liquors for medicinal purposes under the provisions of the prohibition ordinance then in force in that city, the bond being in the sum of $2,000, and conditioned that he would in good faith observe the provisions of this ordinance relating to apothecaries as such. The complaint alleged a violation of the ordinance, and the conviction of Jacoby of violating the same, and sought a forfeiture of the bond and the recovery of the full amount thereof as liquidated damages. The defendant demurred to the complaint on the grounds that the sum named in the bond was a penalty, and the city had no authority to provide a penalty for a violation of an ordinance in excess of a fine of $300 and imprisonment for more than 90 days; that, the bond being a penalty, and Jacoby having paid the fine imposed, the city could collect nothing more; and that no damages were alleged. This demurrer was overruled. The defendant answered, and as a fourth defense set up an alleged compromise and agreement between Jacoby and the city that Jacoby was to enter a plea of guilty in 1 of 13 similar cases, and to pay a fine of $25 and costs, and pay a fine of $1 in each of the 12 other cases with suspended sentence, and, upon this being done, the city was to make no further claim against him for the alleged violation of the law. The plaintiff demurred to this defense, upon the ground that it violated the Constitution of this state, forbidding a municipality to settle any claim for less than face value except by proper legal proceedings. This demurrer was sustained. The case then came on for trial before the court, and the defendants objected to the introduction of evidence for the reason that the complaint did not state facts sufficient to constitute a cause of action, specifically attacking the same on the grounds stated in their demurrer theretofore submitted. The objection was overruled, and the court heard the case and gave judgment in accordance with the prayer of the complaint. The defendants appeal.

The pertinent provisions of the statute are as follows: Subsection 18 of section 3564, Code 1915, grants specifically the power to cities “to have the right to license, regulate, or prohibit the selling or giving away of any intoxicating, malt, vinous, mixed or fermented liquor, within the limits of the city or town: * * * Provided, that the city council in cities, or board of trustees in towns, may grant permits to druggists for the sale of liquor for medicinal, mechanical, sacramental, and chemical purposes only, subject to forfeiture, and under such restrictions and regulations as may be provided by ordinance. * * *” Subsection 66 of the same section provides that cities and towns shall have the power “to pass all ordinances, rules, and make all regulations proper or necessary to carry into effect the powers granted to cities or towns, with such fines and penalties as the council or board of trustees shall deem proper: Provided, no fine or penalty shall exceed three hundred dollars, and no imprisonment shall exceed ninety days for one offense.” Section 3621, Code 1915, provides that:

“Municipal corporations shall have power to make and publish, from time to time, ordinances not inconsistent with the laws of the state, for carrying into effect or discharging the powers and duties conferred by law, * * * and to enforce obedience to such ordinances by fines not exceeding three hundred dollars, or by imprisonment not exceeding ninety days, by suit or prosecution before any justice of the peace within the limits of such city or town.”

The city of Roswell, prior to the issuance of the permit to Jacoby and another, had in force an ordinance, sections 11 and 16 whereof are as follows:

“Section 11. Before any apothecary shall sell or dispense any intoxicating liquor under the authority of section 10 of this ordinance he shall first obtain from the city clerk of said city of Roswell a permit authorizing him to do so; provided, no such permit shall be issued until after such apothecary shall have executed and delivered a good and sufficient bond to the city of Roswell in the sum of $2,000 to be approved by the mayor and city attorney of the city of Roswell, conditioned for the observance in good faith of the provisions of this ordinance applicable to the apothecaries as such, and upon conviction of the offense of violating any of the provisions of this ordinance, such bond shall be forfeited to the city, and such apothecary shall, in addition to the penalties imposed by said bond and the other penalties and punishments prescribed by this ordinance, be forever prohibited from selling or dispensing liquor under and by authority of this ordinance, and his permit to sell and dispense shall upon such conviction become ipso facto void.”

“Section 16. Any persons who shall violate any of the provisions of this ordinance or who shall fail to comply with any of the provisions thereof, shall be deemed guilty of an offense against the city of Roswell and upon conviction thereof shall be fined in any sum not exceeding $100.00 or by imprisonment not exceeding thirty days, or by both such fine and imprisonment in the discretion of the court trying the cause.

Any person who shall be convicted of the violation of this ordinance shall, after the first offense, be fined in any sum not exceeding $300.00 or imprisonment not exceeding ninety days or both such fine and imprisonment in the discretion of the court trying the cause.”

[1] 1. The first proposition presented is as to whether the city of Roswell had the power by ordinance to require the giving of a bond. It is to be observed that there is no express power granted cities and towns to make such a requirement. The power, if it exists, is an implied power. It is argued by appellee, in support of the judgment, that the power to “license, regulate, or prohibit the selling or giving away” of liquors, and the power to “grant permits to druggists for the sale of liquor for medicinal, mechanical, sacramental and chemical purposes only, subject to forfeiture, and under such restrictions and regulations as may be provided by ordinance,” implies the power to exact of the druggist a bond as security that the druggist will obey the law. Unrestrained by any other provisions of the statute granting these powers, it may be conceded that the position of the appellee is correct upon reason and the weight of authority. Thus, in the case of In re Schneider, 11 Or. 288, 8 Pac. 289, it is said:

“Under an authority to ‘regulate and restrain barrooms and drinking shops' is conferred power to require, as a proper measure of regulation and restraint, a bond to be given by an applicant for a license to keep a ‘barroom’ or ‘drinking shop’ within the city limits.”

This is a very well-reasoned case, and, so far as we can ascertain, has never been departed from in Oregon. In the City of Paducah v. Jones, 126 Ky. 809, 104 S. W. 971, under a statute authorizing municipalities to regulate and control the granting of liquor licenses, the Supreme Court of Kentucky said:

“The statute has invested these municipalities with the exclusive right to regulate and control the granting of liquor licenses; the only limitation upon their discretion being that the conditions imposed shall not be arbitrary or unreasonable. Within these limitations, they have the right to provide as a precedent to the granting of the license that the applicant shall perform all the conditions imposed. It is with him to decide whether he will accept it or not. The license is not a right that the applicant may demand and have for the asking. It is a mere privilege that the authorities may or may not give in their discretion. It cannot be successfully maintained that the requirement of the execution of a bond that the licensee will observe the law is an unreasonable condition. On the contrary, it is not only a reasonable, but a proper, condition, the imposition of which exercises a restraining influence and has a tendency to compel an observance of the law.”

See, also, Campbell v. City of Thomasville, 6 Ga. App. 212, 64 S. E. 815, to the same effect.

Counsel for appellant cite two cases opposed to this view. State v. Estabrook, 29 Kan. 739; City of Minneapolis v. Olson, 76 Minn. 1, 78 N. W. 877. In ...