City of Sioux City v. Tri-Angle Club, Inc.
| Decision Date | 18 October 1960 |
| Docket Number | TRI-ANGLE,No. 50019,50019 |
| Citation | 105 N.W.2d 638,252 Iowa 44 |
| Parties | In the Matter of the CITY OF SIOUX CITY, Iowa, Appellant, v.CLUB, INC., and the Hartford Accident and Indemnity Company, Appellees. |
| Court | Iowa Supreme Court |
John T. O'Brien, Sioux City, for appellant.
Frank J. Margolin, Frank Jacobs, and John Vizintos, Sioux City, for appellees.
The question presented here is the extent of the power granted to city councils and boards of supervisors to forfeit bonds posted by holders of class 'B' club beer permits.
The appellant, City of Sioux City, through its council issued a class 'B' permit for the sale of beer pursuant to sections 124.15-124.18, Code of Iowa, 1954, I.C.A. (all references are to the 1954 Code) to appellee, Tri-Angle Club, Inc. The club posted bond as required by section 124.18 with appellee, Hartford Accident and Indemnity Company, as surety. Thereafter on September 18, 1956, one of the club employees was charged with maintaining a liquor nuisance on the premises under state statute. On September 24, 1956, the chief of police of Sioux City filed a complaint with the city council alleging the violation. A hearing was held pursuant to notice and the council passed a resolution revoking the class 'B' permit and forfeiting the bond. The resolution further provided for the certification of the resolution to the clerk of the district court to obtain the summary judgment provided in section 124.40.
The club and its surety appealed to the district court. It is noted in their petition they allege in paragraph XIII, that this appeal is taken under the provisions of the 1954 Code of Iowa including but not limited to section 124.40. The district court held the resolution was null and void insofar as it purports to forfeit the bond. We agree with this result.
I. Prior to 1941, section 124.9, then section 1921.104 of the 1939 Code, provided for a bond by a class 'B' permit holder conditioned upon the faithful observance of that chapter, in the sum of one thousand dollars. Section 124.18, then section 1921.113, provided for clubs obtaining class 'B' permits to post a bond conditioned upon the faithful observance of that chapter, the bond to be in the sum of one thousand dollars. Section 124.14, then section 1921.109, providing for special class 'B' permits for trains required a bond conditioned upon the faithful performance of that chapter in the penal sum of one thousand dollars. There was no provision for forfeiture of the bond by action of the issuing authority, it was left to an action on the bond upon the condition being broken. O'Brien County v. Mahon, 126 Iowa 539, 102 N.W. 446; State v. Wipke, 345 Mo. 283, 133 S.W.2d 354; 11 C.J.S. Bonds § 99, p. 466, § 130, p. 510; and 8 Am.Jur. Bonds, §§ 64-65, p. 733.
In 1941 the 45th General Assembly reduced the amount of the bond in subsection 3 of section 124.9 from $1,000 to $500 and added, '* * * Said bond shall be further conditioned to the effect that the permittee and his surety, as a part of the permit granted hereunder, shall consent to forfeiture of the principal sum of said bond in event of cancellation of the permit as a result of charges filed and hearing had thereon as provided in this chapter.' and enacted what is now section 124.40. This section provides in addition to all other provisions for the revocation of class 'B' permits ten or more citizens may file a complaint with the council or board, and a peace officer, with knowledge of any violations, shall file a complaint with the council or board issuing the permit setting forth the alleged violation. The council or board shall hold a hearing upon notice as provided,
'* * * and if it appears that the permit holder has violated any provision of this chapter for which mandatory revocation is provided, the board or council shall immediately revoke said license, (used interchangeably with permit in chapter 124) and the bond of the permit holder provided for in section 124.9, shall be forfeited and its principal or penal sum shall become immediately due and payable * * *.'
The section further provides for the certification of the order of forfeiture to the clerk of the district court and directs the clerk to enter judgment in favor of the issuing authority for the principal sum of the bond. Section 124.18 was not changed.
It is clear the 45th General Assembly has provided for the council or board to act as a tribunal to decide the question of revocation of permits and forfeiture of bonds under the circumstances set forth in the statute and provided for the judgment of forfeiture to be entered in the district court, and at the same time provided in section 124.9 for...
To continue reading
Request your trial