State v. Helmann

• Decision Date: 13 June 1916
• Citation: 163 Wis. 639,158 N.W. 286
• Parties: STATE v. HELMANN ET AL.
• Court: Wisconsin Supreme Court

163 Wis. 639

158 N.W. 286

STATE

v.HELMANN ET AL.

Supreme Court of Wisconsin.

June 13, 1916.

Appeal from the Circuit Court for Columbia County; Chester A. Fowler, Circuit Judge. Reversed.

Action prosecuted by the district attorney to recover the penalty on a liquor license bond for breach thereof in selling intoxicating drinks to persons who were intoxicated or bordering thereon.

The bond was given under section 1549, Stats., which requires every person, as a condition of receiving a license to keep a place for the sale of intoxicating liquor, to deliver to the clerk of the issuing municipality a bond in the sum of five hundred dollars “conditioned that the applicant, during the continuance of his license, will keep and maintain an orderly and well regulated house; that he will permit no gambling with cards, dice or any device or implement for that purpose within his premises or any outhouse, yard or shed appertaining thereto; that he will not sell or give away any intoxicating liquor to any minor, having good reason to believe him to be such, or to persons intoxicated or bordering upon intoxication or to habitual drunkards; and that he will pay all damages that may be recovered by any person pursuant to section 1560, and that he will observe and obey all orders of such supervisors, trustees or aldermen, or any of them, made pursuant to law. In case of the breach of the condition of any such bond an action may be brought thereon, in the name of the state of Wisconsin, and judgment shall be entered against the principals and sureties therein named for the full penalty thereof; and execution may issue thereupon by order of the court therefor to satisfy judgment that may have been recovered against the principal named in said bond by reason of any breach in the conditions thereof or for any penalties or forfeitures incurred under this chapter. If more than one judgment shall have been recovered, the court, in its discretion, may apply the proceeds of said bond towards the satisfaction of said several judgments in whole or in part in such manner as it may see fit.”

There was no claim of any conviction of the principal in the bond having occurred, or any judgment having been rendered against him for the recovery of a fine or costs or damages. In due course, the jury found that he had sold intoxicating drink on two occasions as charged. Judgment was rendered against the plaintiff, notwithstanding the verdict, upon the ground that no action will lie upon such a bond in advance of there being some judgment for a recovery of money to be collected therefrom and the same being unsatisfied.Walter C. Owen, Atty. Gen., and J. E. Messerschmidt, Asst. Atty. Gen., for the State.

William O. Kelm, of Portage, for respondents.

MARSHALL, J.

[1] It is contended on behalf of respondent that the district attorney had no authority to commence or prosecute the action. He had such authority under section 752, subd. 1, Statutes, if the state was interested, and we think it was, as will be seen by what follows.

It was the opinion of the trial court that statutes and decisions elsewhere do not materially aid in determining whether an unsatisfied judgment of some sort, collectible out of liquor license bond, must exist as a condition precedent to an action thereon and with that we may well agree. It is well illustrated by the decisions cited by counsel for respondent in support of the judgment.

In State v. Estabrook, 29 Kan. 739, the court dealt with a druggist bond. It could only be breached by some violation of law which would subject the violator to a prosecution and judgment for a money recovery and the statute did not provide for a judgment for the full penalty of the bond in case of any breach thereof.

In Squires v. Miller et al., 173 Mich. 304, 138 N. W. 1062, 43 L. R. A. (N. S.) 76, the court had to do with a bond given to secure payment of civil damages under a statute creating liability therefor. The amount of the bond was not small and applicable to all cases as here, but was fixed by the common council with reference to being adequate security for payment of any judgment which might be rendered under the civil damage act. In the particular case, the penal sum was $3,000.00. The case went upon the ground that it was based on the wrong and not on the bond.

In State v. Larson, 83 Minn. 124, 86 N. W. 3, 54 L. R. A. 487, the statute was different in several material features from ours. The penalty in the bond required by the statute was $2,000.00, and the amount inclined the court to the view that the Legislature did not intend it to be considered as liquidateddamages; but most significant of all, the statute did not expressly provide, as ours does, that in case of any breach of the bond, an action might be maintained thereon and judgment be rendered “for the full penalty.” The absence of such a provision from the statute seems to have been the deciding circumstance. It is quite probable that but for such absence the result would have been different. After reasoning that the large penalty rendered the statute open to construction and pointing to a mere purpose of making the bond security for payment of money recoveries, the court said, in regard to the contrary view:

“We cannot believe that the Legislature intended any such drastic measure; for, had that been the design, the law would have so stated. This has been done in several states; it being expressly provided in some that judgment may be entered on such a bond against the principal and sureties for the full penalty thereof.”

That seems to indicate, pretty plainly, that had such feature characterized the statute, the result would have been different, notwithstanding the drastic character of the penalty. It should be noted that the decision was by a divided court. An able dissenting opinion was filed, pointing out that, in all the authorities, a distinction is made between the bonds given to the state, conditioned for an observance of law, and other bonds, and that as to the former the designation “of a specific sum as a penalty has the effect of constituting a bond given in compliance” with the statute “a covenant for liquidated damages or a penalty imposed by the sovereign power * * * unless a different intent appears.” 4 Am. & Eng. Enc. (2d Ed.) 700.

The foregoing shows that authorities referred to by counsel for respondent furnish little or no support for the decision appealed from. Doubtless the trial court so viewed the matter in discarding them, as appears to have been the case, and pinning the result to the words of the statute, itself, in the light of rules for construction.

Much stress seems to have been put upon the fact that our statute has been in existence for many years and there is no record of its having been regarded as permitting such a judgment as is contended for in behalf of appellant. That circumstance does not seem to be entitled to much weight, since there is no record to...