Jessee v. De Shong

• Court: Court of Appeals of Texas
• Citation: 105 S.W. 1011
• Parties: JESSEE v. DE SHONG et al.
• Decision Date: 07 November 1907

105 S.W. 1011 JESSEE
v.
DE SHONG et al. Court of Civil Appeals of Texas. November 7, 1907. Rehearing Denied December 5, 1907.

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Appeal from District Court, Lamar County; T. D. Montrose, Judge.

Action by L. M. Jessee against H. L. De Shong and others. From a judgment of dismissal, plaintiff appeals. Reversed and remanded.

Allen & Dohoney, L. L. Hardison, and J. S. Patrick, for appellant. More, Park & Bermingham, for appellees.

LEVY, J.

This suit was brought by appellant, the father of the minor, against appellees, principal and sureties, on a liquor dealer's bond to recover penalties amounting to two thousand dollars ($2,000), for the several breaches in selling spirituous and intoxicating liquor to his minor son, and for permitting such minor to enter and remain in the house or place of business where the liquor was sold. The suit was filed on March 9, 1906, and the case called for trial in the district court on the 13th day of August, 1907. The defendants entered a general demurrer to the petition of the plaintiff, contending to the effect that the particular provisions of the law under which the bond sued on was executed, and the law in force at the time the infractions of said bond, as alleged, were committed, was repealed by the law passed by the Thirtieth Legislature (Laws 1907, p. 258, c. 138), known as the "Baskin-McGregor Law," and the cause of action thereby abated. The court sustained the demurrer upon this ground, and dismissed the suit. From that judgment the plaintiff appeals, and assigns as error the action of the court in sustaining the general demurrer.

In approaching the discussion of the question, it will be conceded that suits of the kind in hand are in the nature of recovery of statutory penalties (Johnson v. Rolls, 97 Tex. 453, 79 S. W. 513), and that the exercise of the right to maintain them is a statutory privilege to the aggrieved party, and that the Legislature has authority to repeal the law creating the right and giving the remedy, at any time. Cohen v. Wright, 22 Cal. 319; City of Detroit v. Chapin, 108 Mich. 136, 66 N. W. 587, 37 L. R. A. 391; 26 A. & E. Ency. 753; Globe Pub. Co. v. State Bank of Nebraska, 41 Neb. 175, 59 N. W. 683, 27 L. R. A. 854; State of North Carolina v. Massey, 103 N. C. 356, 9 S. E. 632, 4 L. R. A. 310.

Coming direct to the question to be decided under the assignment: Did the act of 1907 relating to the sale, at retail, of intoxicating liquors, repeal the particular provision of the former law on which the action of appellant was based? If the new act repeals the particular provision of the former act on which this suit is based, expressly or by reasonable and necessary implication, then it follows, as a rule of law, that this suit is abated. Referring to the grounds and particular provision on which this suit was based, at the time this suit was filed, article 5060g of the Revised Statutes of 1895 provided the subject-matter of the suit. By the terms of that article the liquor dealer's bond was provided for as sued upon. The conditions, liability for breach, and the remedy to the aggrieved party read as follows, as applicable: "Such person, firm or association of persons, or his or their agent or employé, will not sell nor permit to be sold in his or their house or place of business, nor give nor permit to be given, any spirituous, vinous or malt liquors, or medicated bitters capable of producing intoxication, to any person under the age of twenty-one years; * * * and that he or they will not permit any person under the age of twenty-one years to enter and remain in such house or place of business." "Which said bond may be sued on at the instance of any person or persons aggrieved by the violation of its provisions, and such person shall be entitled to recover the sum of five hundred dollars ($500.00) as liquidated damages for each infraction of the conditions of such bond; and the said bond shall not be void on the first recovery, but may be sued on until the full penal sum named therein shall have been recovered. In addition to civil proceedings for individual injuries brought on said bond as above indicated, if any person, firm or association of persons, shall violate any of the conditions of the bond herein required, it shall be the duty of the county and district attorney, or either of them, to institute suit thereupon in the name of the state of Texas, for the use and benefit of the county, and the amount of $500.00 as a penalty shall be recovered from the principals and sureties upon a breach of any of the conditions thereof." "Provided that where the sale is made in good faith, with the belief that the minor was of age, and there is good ground for such belief, that shall be a valid defence to any recovery on such bond." These particular provisions of that article of the former law are embodied almost literally in section 15 (page 262) of the act of 1907, with all the requirements as to the bond and the provisions as to the liabilities and remedies as well, with the exception that the following appears in the act of 1907 with a provision therein that did not appear in the former law as to the individual actions of the aggrieved party: "Provided that where the sale was made in good faith, or the minor permitted to enter and remain in good faith, with the belief that the minor was of age, and there is good ground for such belief, that shall be a valid defence to any recovery on such bond." This is also applicable to the state in recoveries of penalties. In allowing the right of the state to sue, in the new act it provides that it shall be the duty of the county and district attorneys, or either of them, to institute suit thereupon on the bond, "or any person owning real property in the

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county may institute suit thereupon in the name of the state of Texas" for the use and benefit of the county. Allowing persons owning real estate in the county to sue is the additional feature of the new act. An additional feature of the new act is that in suits by the state, or in the name of the state by an individual, to recover the penalty for violation of the bond, upon the ground, among others, of selling intoxicating liquors to minors, or permitting minors to enter and remain in the place of business, that the following further and plurality penalty shall be entered by the court in the judgment: "The license of such person or firm shall, by reason of such recovery, be forfeited, revoked and canceled" —and it further provides for punishment that the unused portion of the license tax shall not be refunded, and such forfeiture of license forbids the reissuance of a license to him for a period of two years after the date of a final judgment by the courts.

Thus it is seen that in the former act the Legislature allowed a recovery to the individual aggrieved in injuries for violation of the breach of the bond in a suit by the individual; and it also additionally allowed a penalty to the state in suit by the state. The new act provides the same in that respect as did the former...