State v. Larson

• Decision Date: 03 May 1901
• Citation: 83 Minn. 124,86 N.W. 3
• Parties: STATE v. LARSON et al.
• Court: Minnesota Supreme Court

83 Minn. 124

86 N.W. 3

STATE

v.LARSON et al.

Supreme Court of Minnesota.

May 3, 1901.

Appeal from district court, Renville county; Gorham Powers, Judge.

Action by the state against Martin J. Larson and others. From an order overruling a demurrer to the complaint, defendants appeal. Reversed.

Start, C. J., and Brown, J., dissenting.

Syllabus by the Court

The bond to be executed by a person making application for a license to sell intoxicating liquors, in accordance with Gen. St. 1894, § 2026, is one of indemnity, given to protect the state as well as such private parties as are authorized to maintain actions under the provisions of section 1992. The amount thereof, fixed by statute at $2,000, is a penalty, and not in the nature of liquidated damages, to be recovered as an entire sum in case any of the conditions of the bond are violated. A. J. Volstead, E. L. Winje, Robert Jamison, and Cobb & Wheelwright, for appellants.

A. V. Rieke, Co. Atty., and W. A. McDowell, for respondent.

COLLINS, J.

This is a civil action brought by the state against Martin J. Larson as principal, and the other defendants as sureties, upon a liquor bond given pursuant to section 2026, Gen. St. 1894. A general demurrer to the complaint was overruled by the court below, and the case is here upon an appeal from the overruling order.

The complaint alleges the application of the principal for a license; the execution of the bond in the sum of $2,000; the issuance of a license; that on a day certain, in violation of the laws of the state and of the ordinances of the village, he sold certain malt liquors to one Kinsberg, who was then a minor person, under the age of 21 years; that he was duly arrested under a warrant issued out of a justice's court for the violation aforesaid, was arraigned in said court, and, in proceedings thereafter had, was duly convicted of the offense of which he was charged, was ordered to pay a fine of $25 and costs of prosecution, and in default thereof to be imprisoned in the common jail of Renville county for a term not exceeding 30 days, or until said fine and costs were paid; that he paid said fine and costs, and was duly discharged from custody. The question is, was a cause of action stated upon this bond when it appeared that the offender had paid the fine and costs imposed upon him by the court as a penalty for a violation of the law which prohibits the sale of malt liquors to a person under the age of 21 years of age, there being no special damages alleged in the complaint? Or, stated in another form, the question is whether the sum of $2,000, the amount specified in the bond, shall be treated as a penalty, the amount recoverable to be measured by the actual damages; or is the amount to be treated as liquidated damages, the whole thereof to be recovered in a single action brought by the state, whenever the condition of the bond has been violated? It is a question of statutory construction, and must be decided by taking into consideration the entire statute regulating the sale of intoxicating liquors, in our endeavor to ascertain the legislative intent. A majority of the court are of the opinion that the amount specified in the bond must be treated as a penalty, to be enforced to the amount of actual damages and no further, and that the whole sum of $2,000 cannot be considered as liquidated damages; the whole to be collected in case of any infraction of the law, technical or otherwise, intentional or unintentional. While the question is not without perplexity, we are somewhat influenced by the belief that, in the absence of any express provision such an instrument, executed in compliance with a law which recognizes traffic in intoxicating liquors as a legitimate business, should not be rigidly construed when the result will inevitably be oppressive and unjust. The law is that the authority to impose penalties, and especially excessive penalties, must be strictly construed. City of Minneapolis v. Olson, 76 Minn. 1, 78 N. W. 877. The legislature may see fit, in the future, by express enactment and in positive language, to exact the pound of flesh; but for many years, at least since Shylock demanded strict compliance with the condition of his bond only to meet with disaster, such exactions have not met with favor in or out of judicial tribunals.

It is evident that the statutes of this state bearing upon intoxicating liquors are in a very complicated condition. This is undoubtedly the result of enactments at nearly every legislative session since we became a state, without regard to existing statutes, and oftentimes producing absolute conflict. As early as 1858 a bond was required from licensees, with conditions similar to those now found in section 2026, the amount thereof to be $1,000. In the year 1862 the amount of the bond was decreased to $500, the conditions being those that had theretofore prevailed. In 1887 the license fee was greatly increased, and also the amount of the bond, the latter being fixed at $2,000. The conditions to be contained therein were not materially altered. The law of 1858 provided for a revocation of licenses in case conditions of the bond were violated, and the further provision making the obligors liable for all damages done by persons intoxicated by liquors obtained from the principal was a feature of the law, and it still remains a part of section 1992. In 1872 the last clause now found in said section was added, whereby the sureties upon the bond were made ‘jointly any severally liable with the principal for the payment of said damages, to be recovered in a civil action.’ For more than 28 years this clause, which gives a right of action upon the bond to a private person in case he sustains damages at the hands of an intoxicated person, has been in force. It is still in force unless it is abolished by this court, as it would be, practically, should we sustain the position of counsel for the state.

It is evident that the legislators who enacted these provisions as to the right of the injured persons to recover in civil actions on account of all damages done by intoxicated persons to them were of the opinion that the amount fixed in the bond was simply a penalty, to be recovered, as occasion might require, by different plaintiffs, and to the amount each might be injured. We believe it to be a rule of general application that the amount of a bond of this character-nothing but a contract-must be treated as a penalty, rather than as liquidated damages. In any event, when the intent of the parties appears, as it does here, to be doubtful and uncertain, no good reason exists why such an instrument should be rigidly and narrowly construed. Such a construction is not at all necessary for the enforcement of the laws regulating the sale of intoxicating liquors; for other and adequate remedies are provided.

It seems to us, aside from that section of the law hereinbefore quoted, and to which further reference will be made, that the legislature could not have intended that the entire amount of the bond should be recovered for a single offense on the part of the principal obligor. The bond may be violated, as may be the liquor laws of this state, unintentionally, and without a purpose to disregard the statute. Take the case now before us: The sale made by Larson was to a minor person. It was, under the law, made at the risk of the former; for it was incumbent upon him to know whether the purchaser was a minor or an adult. In this respect, the sale was at his peril. If he sold to a minor person in the belief, and having every reason to believe, that the latter was over the age of 21 years, his want of knowledge as to the real fact was no defense. Intent or knowledge is not an essential element in the commission of the offense. Every person violating the law in this particular way is declared guilty of a misdemeanor, and may be punished by a fine of not less than $25, nor more than $100, or be imprisoned in the county jail for not less than 30, nor more than 90, days. If the construction placed upon the bond by the counsel for the state is correct, the fine, including costs of prosecution, may be in excess of $100. In addition to this, the license, for which the violator must have paid $500 or $1,000, possibly more, depending upon the population and the ordinances in his municipality, is revoked without further action (sections 1993, 2001), and this may occur on the very day on which he has paid for the license. The result might be that for an unintentional violation of the law, made a misdemeanor by statute, with a minimum fine of $25, and a maximum of $100 and costs, the offender would be compelled to pay over for a single offense, not knowingly committed, over $2,100, and lose the amount of his license fee ($1,000) in addition. In no case could he escape with a loss of less than $2,025, and $500 more, the amount of his license fee.

It may be argued that under our construction conviction of a violation, in a court of competent jurisdiction, must precede an action upon the bond, and for this reason such construction is radically wrong. Probably conviction before a civil action can be instituted will be necessary; but power to revoke the license, and to deprive the licensee of his occupation as well as the sum he has paid for such license, in no case less than $500, is with the municipal authorities, intervention by the courts not being required. Section 2020. This, in itself, seems quite a severe penalty. We are not defending the saloon keeper who violates the law, nor are we upholding the business of selling intoxicating liquors, lawfully or unlawfully, when we say that such a result would be strikingly unjust, and smack strongly of persecution. While it may not violate the constitutional provisions forbidding the imposition of excessive fines, or the infliction of unusual punishments, this penalty would be exceedingly excessive, and of a character to shock our sense of...