This is a suit in the name of the State of Texas, for the use and benefit of Johnson County, brought by the county attorney, to recover of R. J. Hawthorne and his surety, American Bonding Company, penalties aggregating $4,000, for alleged breaches of R. J. Hawthorne's liquor dealer's bond.
The alleged breaches consisted of appellant Hawthorne, at the various dates alleged, permitting games prohibited by the laws of the State to be played, dealt and exhibited in and about his place of business as a retail liquor dealer.
Appellants answered by plea in abatement, general and special demurrers, general denial and special answer. The case was tried before the court without a jury; appellants' plea in abatement and general and special demurrers were overruled, and the court rendered judgment in favor of appellee against appellants for the sum of $2,500, with interest at the rate of 6 percent per annum from the 4th day of June, 1904.
By their first assignment of error, appellants complain of the action of the court in overruling their plea in abatement, which set up that since the commission of the offenses complained of in appellee's petition, Johnson County had duly and legally held an election, the result of which was to establish and put into effect in that county the law known as the local option law, the result of which was to repeal the law under which appellant Hawthorne carried on the business of a retail liquor dealer; and that the repeal of said law abated any prosecution for the violation of the law by a retail liquor dealer. It appears from the record that the court below considered and overruled appellants plea in abatement, but the record does not disclose upon what ground such action was based. There is no evidence in the record in support of the plea in abatement. In view of this condition of the record, we must presume that the action of the court was authorized and proper.
Appellants' second assignment of error complains of the action of the court in overruling their first special exception to appellee's petition, which was to the effect that under the allegations in appellee's petition, the law limited the recovery of appellee to the sum of $500; appellants' contention being that in a suit upon a retail liquor dealer's bond by the State of Texas, for the use and benefit of a county, the limit of a recovery is $500, regardless of the number of conditions breached, or the number of times any one condition is breached. The question here raised has been decided adversely to appellants' contention by the Dallas Court of Civil Appeals, in the case of Jones v. The State, 81 S.W. 1010; and also by this court in Cox v. The State, 88 S.W. Rep., 812, though the opinion does not discuss the question.
Appellants' third, fourth, fifth and sixth assignments of error relate to the sufficiency of the testimony to support the judgment of the court. In our opinion the testimony, as shown by the record, is sufficient to support the finding of the court that as many as five of the alleged breaches of his bond had been committed by appellant Hawthorne. We think that the evidence shows that said appellant and his employes, at *Page 125 the times alleged in the petition of appellee, were using and exercising control over the upper story of the building, the lower story of which he had rented and was using as his place of business as a retail liquor dealer, in connection with such lower story, in the operation of his said business, and that they permitted parties to play, deal and exhibit games prohibited by law in said upper story of said building while so using and exercising control over same. In fact, the testimony shows that, on several occasions, about the dates alleged in appellee's petition, Robbins, the person who was the general manager of appellant Hawthorne's business, was seen engaged with other parties in playing cards for money in the upper story of the building. The testimony tends to show that the parties engaged in such games entered the second story of the building where the games were dealt, played and exhibited, by going out of the saloon through the side door thereof, which opened into the stairway that led to the upper story, thence by said stairway into said upper story. The testimony also tends to show that, at the times the prohibited games were in operation, there was telephone connection between a point in the rear of appellant's bar, in the lower story of the building, and the upper story where the games were going on. The testimony also tends to show that this telephone connection was, at the time the games were being operated, used by appellant Hawthorne and his employes to advise the parties engaged in the games of the approach of the officers of the law, who might be endeavoring to ascertain whether or not any games prohibited by law were being carried on in the upper story of said building, so that they might take steps to avoid detection by such officers. The testimony also tends to show that this telephone connection was used by the participants in the said games, and appellant Hawthorne and his employes in the saloon, as a convenient and expeditious method of ordering and receiving orders for intoxicating liquors to be sent up to the second story of said building to the participants in such games. The testimony tends to show that intoxicating liquors were used by the participants in such games during the progress thereof. It was not necessary that the proof should show that the breaches alleged occurred within the exact dates, as alleged in appellee's petition. Proof showing that the breaches occurred a few months prior would support the allegations.
Appellant's seventh assignment of error complains of that part of the judgment of the court below which provides for interest at the rate of six percent per annum upon the amount recovered from the fourth day of June, 1904, upon the ground that judgments for penalties under the law are not entitled to bear interest. In our opinion, this assignment should be sustained. It has been held by our Supreme Court that a sum recoverable for the infraction of the conditions of a liquor dealer's bond is a penalty. (Johnson v. Rolls, 79 S.W. Rep., 513.) Article 3105, Sayles' Revised Statutes, is as follows: "All judgments of the several courts of this State shall bear interest at the rate of six percent per annum from and after the date of the judgment, except where the contract upon which the judgment is founded bears a specified interest greater than six percent per annum, and not exceeding ten percent per annum, in which case the judgment shall bear the same rate of interest specified in such contract and after the date of such judgment." *Page 126
This article, however, must be construed in connection with article 3097, id., which is as follows: "Interest is the compensation allowed by law, or fixed by the parties to a contract, for the use or forbearance or detention of money." The amount collected is in the nature of a punishment for the violation by the liquor dealer of the conditions of his bond (Johnson v. Rolls, supra), and under no view or theory can it be held that the State is entitled to interest upon the ground that the liquor dealer had used or detained a sum of money due the State by him. We are of the opinion that article 3105 above quoted, when construed in connection with said article 3097 and the holding in the case of Johnson v. Rolls, supra, does not apply to judgments recovered for breaches of the conditions of a liquor dealer's bond. (State v. Steen, 14 Tex. 396; People v. Sutter St. Ry., 79 Am. St. Rep., 139, 129 Cal. 548.) This conclusion, however, will not necessitate a reversal of the judgment of the court below, but will require its reformation so as to bear no interest.
The judgment of the court below is therefore reformed so as to bear no interest; and, thus reformed, the judgment of the court below is affirmed.
Reformed and affirmed.
Writ of error refused.