United States v. Jourden

• Decision Date: 05 February 1912
• Docket Number: 2,019.
• Citation: 193 F. 986
• Parties: UNITED STATES v. JOURDEN.
• Court: U.S. Court of Appeals — Ninth Circuit

193 F. 986

UNITED STATES v. JOURDEN.

No. 2,019.

United States Court of Appeals, Ninth Circuit.

February 5, 1912

B. S Rodey, U.S. Atty., N. H. Castle, Asst. U.S. Atty., and Elmer E. Todd, for the United States.

William A. Greene, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District Judge.

GILBERT Circuit Judge.

The statutes of Alaska (section 468 of Carter's Code of Criminal Procedure Alaska), as amended by the act of Congress of February 6, 1909 (35 Stats. 602), provide for two classes of licenses to sellers of liquor in Alaska: A barroom license, for which the licensee pays $1,000, and a wholesale license, for which he pays $2,000, per annum. The plaintiff in error brought an action against the defendant in error in the court below, alleging that the latter obtained on November 1, 1910, a barroom liquor license from the District Court for the District of Alaska for the term of one year from that date, but that, without obtaining the wholesale license, he so conducted his business as not only to sell liquors at retail, but at wholesale, and that thereby he became liable for the payment of $2,000, the statutory license fee for selling liquors at wholesale. The court below sustained a demurrer to the complaint, and entered a judgment against the plaintiff in error.

The single question presented on the appeal is whether in Alaska a civil action may be brought to recover the license fee in a case where the defendant has thus violated the law. Those statutes make no provision, either in express terms or by implication, for the recovery of the fee by such an action. Section 472 of the Criminal Code provides that:

'Any one engaged in the sale of intoxicating liquor, as specified in this act, in the District of Alaska, who is required by it to have a license, as herein specified without first having obtained a license . . . do so as herein provided, or any person who shall engage in such sale in any portion of the district where the sale thereof is prohibited, upon conviction thereof, shall be fined not less than $100 nor more than $2,000 or be imprisoned for not less than one month nor more than one year.'

Section 474 prescribes the method of procedure in prosecutions for violations of the act.

It is the general rule, sustained by the authorities, without exception so far as we are advised, that where a statute provides for the payment of a license fee as the condition of doing any specified business, and also provides that a violator of the act shall, upon conviction, be punished by fine or imprisonment, the remedy by prosecution and punishment so prescribed by the statute is exclusive, unless there is some special provision of law which permits the prosecution of a civil action to recover the license fee. Henke v. Standiford, 66 Ark. 535, 52 S.W. 1; Chicago v. Enright, 27 Ill.App. 559; State v. Piazza, 66 Miss. 426, 6 So. 316; State v. Adler, 68 Miss. 487, 9 So. 645; United States v. Claflin, 97 U.S. 546, 24 L.Ed. 1082; City of Carondelet v. Picot, 38 Mo. 125; City of Camden v. Allen, 26 N.J.Law, 398; 23 Cyc. 151; 17 Am. & Eng.Enc.of Law, 272.

The case at bar is unlike that of United States v Chamberlain, ...