Inhabitants of Dexter v. Blackden

• Decision Date: 09 January 1900
• Parties: INHABITANTS OF DEXTER v. BLACKDEN (two cases). SAME v. JORDAN.
• Court: Maine Supreme Court

45 A. 525

93 Me. 473

INHABITANTS OF DEXTER

v. BLACKDEN (two cases).

SAME

v. JORDAN.

Supreme Judicial Court of Maine.

Jan. 9, 1900.

(Official.)

Agreed statement from supreme judicial court, Penobscot county.

Three actions by the inhabitants of Dexter against Owen E. Blackden, and by the same plaintiff against J. M. Jordan. Cases submitted on agreed statement. Judgment for plaintiff in each action.

The first of the above-named actions was brought in the name of the "Inhabitants of Dexter, who prosecute this action by Carrie H. Foster, of said Dexter, a citizen of said state of Maine."

The defendant on the first day of the return term filed the following plea in abatement, omitting formal parts:

"And now the said Owen E. Blackden comes and defends," etc., "when," etc., "and prays judgment of the writ aforesaid, because he says that the Inhabitants of the town of Dexter never authorized this action to be brought, and this he is ready to verify; wherefore he prays judgment of said writ, that the same may be quashed, and for his costs."

To this plea, on the sixth day of the return term, the plaintiff demurred as not sufficient in law. The demurrer was duly joined. Plea was overruled, and defendant required to answer over. To this ruling the defendant duly filed exceptions, which were allowed.

Thereupon the defendant pleaded the general issue, which was duly joined. The defendant also filed with the general issue the following brief statement of further defense:

(1) That said Carrie H. Foster had no authority to bring this action.

(2) That the action was never authorized by the inhabitants of Dexter or by the licensing board of Dexter.

(3) That neither the Inhabitants of Dexter nor the licensing board had any official knowledge of the commencement of this action, were not in any way consulted or notified about It, nor up to this time have had any such official knowledge or consultation; that it was instituted by the said Carrie H. Foster of her own motion.

(4) That the statute requiring inn-holders to give bond, with sureties (Rev. St. c. 27, § 2), is unconstitutional, invalid, and against public policy.

(5) That St. 1891, c. 132, amending chapter 27, § 14, Rev. St., is unconstitutional, invalid, and against public policy, so far as regard is had to the following provision:

"Any citizen of the state may prosecute for any violation of any of the preceding sections of this act in the same manner as the licensing board may prosecute."

(6) That if defendant is liable for anything by the way of forfeiture or penalty it is not $50, but any sum not more than $50:

"It is admitted that the authority of said Carrie H. Foster to bring said action in the name of the inhabitants of Dexter is derived solely from section 14 of chapter 27 of the Revised Statutes, as amended by section 1 of chapter 132 of the Laws of 1891, she being a citizen of the state; also, it is admitted that the defendant was a common innholder in said Dexter, as declared in plaintiff's writ, during the time set forth therein, and that he was not licensed therefor as required by statute; also, it is admitted that the licensing board of said Dexter had knowledge of such violation of the statute by defendant, and neglected or refused to prosecute therefor as required by law.

"It is agreed that the only questions to be determined by the court shall be (so far as the defendant has the right to raise the questions in this case) the constitutionality or validity of the statute requiring inn-holders to give the bond with sureties (mentioned as the fourth item of defendant's brief statement), and the constitutionality or validity of the statute of 1891 (referred to in defendant's fifth item in his brief statement), conferring authority upon any citizen of the state to prosecute in same manner as licensing board. All other matters are admitted on both sides as regular and sufficient. If either statute is held to be unconstitutional or invalid, judgment is to be for defendant: otherwise judgment is to be for plaintiffs, the amount of penalty to be fixed by the court This case is submitted to the law court on this agreed statement of facts."

The other cases named in this agreement were to abide the judgment in the case set out, said judgment to be entered in each of the others as by consent of parties; full costs to be taxed in favor of the prevailing party, and to the same amount in each case as in the present case.

Argued before PETERS, C. J., and EMERY, HASKELL, WISWELL, SAVAGE, and FOGLER. JJ.

T. H. B. Pierce, for plaintiff.

J. & J. W. Crosby, for defendant PETERS, C. J. These cases, in all respects alike, present, by agreement of parties, the single question whether certain clauses of the liquor statutes, taken singly or combined, are, so far as applicable to the facts stated, constitutional or not.

Section 2, c. 27, Rev. St., provides that no person shall receive a license as an innholder or victualler until he has given bond, with one or more sureties, with the condition annexed that the licensee shall conform to the provisions of law relating to the business for which he is licensed, "and shall not violate any law of the state in relation to intoxicating liquors." Section 14 of the same chapter reads as follows: "The licensing board shall prosecute for the violation of the foregoing sections [chapter 27] that come to their knowledge by complaint, indictment, or action of debt; and all penalties recovered shall inure to the town where the offense is committed." Section 1, e. 132, Laws 1891, enacts that "any citizen of the state may prosecute for a violation of any of the preceding sections [chapter 27] in the same manner as the licensing board may prosecute."

The counsel for the defendant in an exhaustive argument strongly urges the reasons why, in his view, these statutes are unconstitutional, while, to our minds, his objections are, in effect merely an argument as to the expediency of the statutes, rather than as to their want of constitutionality.

It is virtually admitted in behalf of the defendant that all the statutory requirements contained in chapter 27 of the Revised Statutes relating to innkeepers, however extreme and severe they may be, might not be regarded as tainted with unconstitutionality, were it not for the one imposing on the innholder the necessity of giving a bond, with sureties, for his observance of the liquor enactments, as a condition of his being granted an inn-holder's license. We apprehend that the fallacy of this position is in what we believe to be an erroneous assumption by the defendant that the business of keeping a hotel is a private and natural right, of which a person cannot be directly or indirectly deprived. If this foundation proposition be wrong, then all the superstructure built upon it falls to the ground.

Of course, we must admit that the position thus assumed would be a sound one as to very many private employments, and perhaps as to all the usual employments in ordinary business life. But innholding has always been regarded in this country as a public or quasi public business, over which the legislature may rightfully exercise an unusual control.

Judge Cooley strikes the true key in stating the general rule and its exceptions....