State v. Myers et al.

• Decision Date: 16 June 1914
• Citation: 74 W.Va. 488
• Court: West Virginia Supreme Court
• Parties: State v. Myers et al.

74 W.Va. 488

State

v.Myers et al.

Supreme Court of Appeals of West Virginia.

Submitted June 3, 1914.

Decided June 16, 1914.

1. Statutes Construction Intent.

In construing statutes the legislative intent is the controlling consideration, and to arrive at such intention it is sometimes necessary to exclude from the operation of a statute things included within its letter. (p. 491).

2. Same Repeal.

There is a strong presumption against legislative intention to repeal an existing statute by the enactment of a subsequent one dealing with a different subject and containing no express reference to the former, (p. 491).

3. Principal and Surety Liquor License Action on Bond Judgment Against Principal Conclusiveness.

The liability of a surety on a liquor license bond, executed pursuant to Sec. 28, Ch. 32, Code, conditioned to pay any fine and costs that may be adjudged against the principal for violating any of the conditions of the bond, is not affected by Ch. 37, Acts 1907, amending and re-enacting Sec. 1, Ch. 101, Code. The judgment against the principal, in such case, is conclusive evidence of the surety's liability, (p. 490).

Error to Circuit Court, Tucker County.

Action by the State against Ira C. Myers and others. Judgment for plaintiff, and defendants Joseph Schilansky and others bring error.

Affirmed.

J. W. Harman, for plaintiffs in error.

A. A. Lilly, Attorney General, John B. Morrison and J. E. Brown, Assistant Attorneys General, for the State.

Williams, Judge:

The State recovered a judgment for $123.95 against Hiram Rubenstein and Ira C. Myers, principals, and J. Schilansky and Anna Rubenstein, sureties, in an action of debt upon a retail liquor dealer's license bond, and the sureties were awarded this writ of error. The bond was in the penalty of $3,500 and conditioned as required by Sec. 28, Ch. 32, serial section 1144, Code 1913. There was a demurrer to the declaration and also a demurrer to plaintiff's evidence, both of which were overruled.

it is insisted that the demurrer to the declaration should have been sustained, because, as counsel for plaintiffs in error contends, the declaration does not aver that the act for which the fine was imposed, which is sought to be recovered in the action, occurred within the time covered by the term of the license for which the bond was given. This objection is not well founded. The declaration avers that the bond was made on the 20th June, 1908, and sets out its conditions, which are the conditions named in the section of the Code above cited. It recites that license to sell spirituous liquors, wine, porter, ale, beer and drinks of like nature, at retail in a certain building in the town of Laneville, Tucker county, was granted to Ira C. Myers and Hiram Rubenstein for a term beginning on the 22nd June, 1908, and ending on 30th June, 1909, and avers that they violated the conditions upon which said license was granted them, that, on the 4th March, 1909, they were found guilty of selling and giving spirituous liquor to John Nordeck, a minor, and on the 11th June, 1909, were adjudged to pay a fine of $40 and costs of prosecution amounting to $83.95. Those allegations show that the fine was imposed for violating a condition of the license, and also that the license and the bond covered the same period of time. The violation must, therefore, have occurred while the bond was in force. It was not necessary to allege the date on which the violation occured. The averment of the breach of the condition of the bond is sufficiently definite and certain.

Complaint is made that defendants were not allowed to plead "conditions not broken" and "nil debit". They were permitted to plead, and did plead "conditions performed". That is the usual plea in actions upon bonds with collateral conditions, whether the action be in form of debt or covenant. Hogg's PL & Forms, Sec. 222, and 226; State v. Rays, 30 W. Va. 107; and Poling v. Macldox, 41 W. Va. 779. Strictly speaking there is no general issue plea in an action of debt or covenant on a bond with collateral conditions. Authorities, supra, and Mix v. People, 86 Ill. 329. And under the plea of covenants performed, plaintiffs in error were entitled to make full defense in this particular case, and hence they were not prejudiced by the rejection of the pleas.

It is contended that it was not proven that Myers and Rubenstein violated the condition of their license, within the period covered by the bond sued on. In this counsel is in error, for it is clearly deducible from facts admitted and facts proven, that the penalty imposed was for a violation of the particular license covered by the bond. The record contains an admission by counsel for defendants, made at the trial, that Myers and Rubenstein had no license in 1908, prior to June 22, 1908. At that time the license was granted for the period covered by the bond. It is proven by the indictment and the judgment thereon, that the fine was imposed on the the 11th June, 1909, for a conviction had on the 4th March, 1909, upon an indictment found at the December term, 1908. These facts, all taken together, prove that the offense was committed during the license period in question. The offense charged was violating the condition of their license, within a year prior to the finding of the indictment. This must have been a violation of the license in question, because it was agreed they had no other in the year 1908, and any previous license they could have had would have ended on the 30th June, 1907, which was more than a year before the indictment. Sec. 39, Ch. 32, Code.

Complaint is made that the record of the indictment and conviction of Myers and Rubenstein and of the judgment imposing the fine, was improperly admitted as evidence against the sureties over their objection. The record was certainly admissible, and was conclusive proof, as to the principals in the bond, but whether it was evidence of the sureties liability depends upon the proper construction of Ch. 37, Acts 1907, amending and re-enacting Sec. 1, Ch. 101, Code. Counsel insists that that statute repeals, by necessary implication, Sec. 28, Ch. 32, Code, pursuant to which the bond was executed. We do not think so. Ch. 37, Acts 1907, deals with the rights of sureties in general, and reads as follows: "The surety or guarantor or endorser (or his personal representative) or any person bound by any con- tract may, if a right of action has accrued thereon, require the creditor (or his personal representative,) by notice in writing, forthwith to institute...