State v. Corron

Citation62 A. 1044,73 N.H. 434
PartiesSTATE v. CORRON et al.
Decision Date05 December 1905
CourtSupreme Court of New Hampshire

Exceptions from Superior Court.

Action by the state against Albert Corron and another. An order was entered denying defendants' motion for a nonsuit, and they bring exceptions. Overruled.

Debt, on a bond. In August, 1903, the defendant Corron applied to the state board of license commissioners for a license of the first class, to be exercised in Newport. The license was granted upon the filing of the bond in suit, executed by Corron as principal, and the United States Fidelity & Guaranty Company as surety. During the term of the license complaint was made to the license commissioners that Corron had violated the law by selling liquor to an intoxicated person. Upon notice to Corron and hearing, the commissioners found him guilty of the offense charged, revoked and canceled his license, and made complaint to the county solicitor, who thereupon brought this suit. There was no evidence of a breach of the condition of the bond, other than the proceedings before the license commissioners. The defendants excepted to the admission of evidence of the action of the commissioners, to the exclusion of evidence other than the commissioners' finding upon the question of Corron's violation of law, and to the denial of their motion for a nonsuit. At the time of the trial an indictment was pending against Corron upon the charge of which the commissioners found him guilty, on which he has since been tried and acquitted. By agreement of counsel, the question of the competency of such judgment of acquittal upon the issue tried was argued.

Frank H. Brown and Edwin G. Eastman, Atty. Gen., for the State. George R. Brown, for Corron. Streeter & Hollis, for United States Fidelity & Guaranty Co. Frink, Marvin & Batchelder, for Fidelity & Deposit Co. of Maryland.

YOUNG, J. The right to sell intoxicating liquor is neither a "natural, essential, and inherent" inalienable right, nor a constitutional one. The state may absolutely forbid or may license such sale. The license, when granted, is not a contract or vested right, but a mere permission which may be revoked at any time. State v. Holmes, 38 N. H. 225. The manner in which such permission may be recalled, and the consequences attending thereon, are mere limitations upon the privilege. The statute confers a privilege which the citizen is at liberty to accept by becoming a licensee, or not, as he pleases. Having accepted the privilege, he cannot object to any conditions which have been attached thereto by a grantor with power to entirely withhold the privilege. Dow v. Electric Co., 68 N. H. 59, 60, 31 Atl. 22; Electric Co. v. Dow, 166 U. S. 489, 490, 17 Sup. Ct. 645, 41 L. Ed. 1088. The only question open, therefore, is: What conditions and limitations did the Legislature intend should attach to the permission given? If the fair inference from the language of the act is that the Legislature intended that the finding of certain facts by the commissioners, in a proceeding to cancel and revoke the license in the manner stated in the case, should conclusively establish the same facts when in issue on the bond, and that a judgment of acquittal in a criminal proceeding should not have that effect, no further question remains to be considered. The question, therefore, is merely what was meant by the language of the act, read in the light of the surrounding circumstances and existing law. State v. Gerry, 68 N. H. 495, 502, 38 Atl. 272. 38 L. R. A. 228; Kendall v. Green, 67 N. H. 557, 42 Atl. 178.

The record does not contain the conditon of the bond. It is therefore assumed that the bond complied with the statute; that it was a joint bond, in the language of the act "conditioned upon constant adherence to the terms of said license and the provisions of this act." Laws 1903, p. 86, c. 95, § 8, cl. 9. The only question presented at the trial was as to the competency and conclusive force in this suit of the action of the commissioners in revoking and canceling Corron's license. The competency of the fact of his acquittal upon an indictment charging the violation of law of which the commissioners found him guilty has also been argued by agreement of counsel. It is convenient to first consider the connection, if any, between the criminal proceedings authorized by the act and cases like the present. The defendants contend (1) that this suit cannot be maintained because Corron has not been convicted of the charge alleged as a breach of the bond; and (2) that his acquittal upon an indictment therefor is an answer to this suit.

Upon the first contention, the language of the section of the act referred to above seems conclusive. The bond is "recoverable in an action of debt to be brought by county solicitors upon complaint of said board" of license commissioners. It is manifest that the commissioners may make complaint, in the absence of prior action by prosecuting officers of the state. Upon such complaint, it is the duty of county solicitors to bring the suit. If it was the intention that the suit should be brought only after a forfeiture of the bond upon conviction, or not until after an adjudication in a criminal proceeding of facts constituting a breach of the bond, there would be no occasion for a complaint by any person to inform the solicitor or set him in motion. The criminal proceedings in his charge would give him full information. Section 10, c. 117, p. 532, Laws 1905, prescribes the manner of bringing actions for the enforcement of bonds given by licensees and for the recovery of sums due the state on account of the forfeiture of such bonds. As a declaratory statute, these provisions are evidence of the legislative understanding that under the act of 1903 suits were maintainable upon such bonds without the prior conviction of the licensee. The liquor tax law of New York (Laws 1897, pp. 219, 221, c. 312, §§ 17, 18), which is claimed to have been the model upon which the New Hampshire statute was drafted, permits the maintenance of a suit without prior conviction of the licensee. Lyman v. Kurtz, 166 N. Y. 274, 276, 59 N. E. 903. The New York statute contains an express provision to that effect, doubtless considered unnecessary in the New Hampshire statute because of the omission of the condition for the payment of fines and costs, contained in the New York bond. By section 14 of the act, a license after being Issued may be revoked and canceled by the commissioners "if any provision of this act is violated at the place designated in said license by the holder of the same, or by his agents, servants, or any person whomsoever in charge of said premises." One of the terms of the license, either expressed therein or understood from the language of the act, was, therefore, that the provisions of the act should not be violated at the place designated in the license, by the holder himself or by any of the persons named above. Such violation by any of these persons would constitute a breach of the bond conditioned upon constant adherence to the terms of the license. The licensee could not be convicted of crime because of a violation of the act by his servant not authorized or ratified by him. State v. Wiggin, 20 N. H. 449; State v. Bonney, 39 N; H. 206; Lord Melville's Trial, 29 How. St. Tr. 746; 1 Wig. Ev. 12. Liability on the bond may exist without criminal liability on the part of the licensee; and to hold that a licensee could not be held on his bond, unless previously convicted upon indictment or information, would be to defeat the plain Intent of the act. The defendants' argument is founded upon section 28 of the act, which is: "The state board of license commissioners are hereby authorized and empowered to prescribe regulations for the conduct of the traffic in liquor under any license of the first class, as they may see fit, and whoever violates any such regulation, or any provision of this act or of his license, whatever its class, shall, unless otherwise expressly provided, be punished by a fine of one hundred dollars, the forfeiture of his license and the bond thereon, and by imprisonment for not more than sixty days. Such licensee shall be disqualified to bold a license for three years after his conviction, and if he is the owner of the licensed premises no license shall be issued to be exercised on the premises described in the license during the residue of the term thereof." The charge against Corron before the commissioners, upon the indictment, and in this case was the sale of liquor to an intoxicated person, forbidden by section 15 of the act. Such sale was a violation of the provisions of the act, punishable under section 28 "unless otherwise expressly provided." Although section 28 is a general provision for punishment for violation, both of the regulations of the commissioners and the provisions of the act, the act contains several express punitory provisions, one of which (section 33), covers the present case—the sale of liquor contrary to the provisions of the act—in the following terms: "Whoever, in a city or town wherein the provisions of this act are in force, shall sell or keep for sale liquor contrary to the provisions of this act, shall be punished by a fine of two hundred dollars and by imprisonment for not less than one month nor more than two years." While the provisions of section 28 may seem to be more appropriate for violations of the act by a licensee, the section cannot be extended to cover cases where other provision has been made. So far as the present case is concerned, there is no occasion to give any effect to the language of section 28, because it has no application to the matter in hand.

The defendants' second contention is that the judgment of acquittal upon an indictment against Corron charging the offense alleged as a breach of the bond is an answer to this suit. If the other defendants are privy with Corron, they could take the same advantage...

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