(dissenting.) The plaintiffs in this action are the ex-
■ else commissioners of the city of Hew York, and this action is based upon -.an alleged breach of the condition of a bond given by the defendants to the *659people of the state of New York upon the issuance to the defendant Eekman of a license to sell strong and spirituous liquors upon the premises No. 21 Rutger’s place. It is not necessary, in view of the conclusion to which I have arrived, to consider the condition of the bond, or the question as to the act complained of being a breach of such condition,—matters which were argued upon this appeal. The complaint alleges that the plaintiffs are the commissioners of excise; that the defendant Eekman made his application to said commissioners for the issuance of a license to sell strong and spirituous liquors, etc., in quantities less than five gallons at a time, to be drunk upon the premises, and that said Eekman as principal, and the other defendants as sureties, duly made and executed to the people of the state of New York, and delivered to said board of commissioners, a bond, as required by the statutes of this state; that the commissioners approved the bond, and issued to the defendant Eekman a license to sell strong and spirituous liquors; and that subsequently said bond was filed in the office of the clerk of the city and county of New York. The complaint further alleges a breach of the condition of the bond, and demands judgment for the penalty.
Three points were raised upon the argument: The first as to the plaintiffs’ right to maintain the action; the second as to the commissioners’ power to receive a bond from the defendant Eekman upon the granting of a license to him; and the third as to the violation of the condition of the bond.
The last question, as has already been intimated, it is not necessary to discuss. If the bond has any validity whatever, and can be enforced by anybody, it is plain that the commissioners of excise have the power to maintain this action, because section 24, c. 628, Laws 1857, which is still in force, provides that, if there shall be a breach in the condition of such bond given upon the granting of any license, it shall be the duty of the commissioners to prosecute the same, and recover the penalty therefor. There seems to be no question, therefore, but that the commissioners may maintain an action to recover for a breach of the bond, provided any recovery at all can be had thereon.
One of the grounds upon which the decision of the court below rested, as appears by the opinion, was that the instrument was exacted, but voluntarily executed and delivered, to obtain the desired license, and that the obligors should not be permitted to question the validity of an obligation thus assumed; and it has been claimed, therefore, that, even if there is no statutory provision requiring a bond to be given, it being discretionary with the commissioners as to the person to whom and the conditions upon which a license should be issued, if said commissioners require a bond as a condition pecedent- to the issuance of a license, it can be enforced if its conditions are violated. It seems to me that a very plain answer to this proposition is that there is no allegation in the complaint that this bond was exacted as a condition of issuing a license in the exercise of any discretion upon the part of the commissioners; but, on the contrary, it is alleged to have been a bond delivered as required by the statutes of the state; and therefore, unless its delivery was required by the statutes of the state, it never had any legal existence; and, as will be seen hereafter, the commissioners have no power to exact additional obligations to those mentioned in the statutes as conditions of issuing a license. They have a discretion to refuse to issue a license, but, when they issue the license, the licensee is under no obligation, except those which the statutes impose.
It has been suggested that the excise board have an absolute discretion in reference to the conditions exacted, because of the provisions contained in section 4 of the chapter above referred to, which provides that all licenses shall be signed by the commissioners granting the same, but they shall not be issued until the requirements fixed "by the act shall have been complied with. But this provision evidently refers to the rules which the board shall adopt in ref*660erence to the manner in which the business of applying for license shall be carried on, the nature of the proof of the facts necessary to be established to the satisfaction of the board of excise before they issue a license, the nature of the security upon the bonds to be approved by them, and the amount of the license fee. It certainly was not the intention of the legislature to give the board of excise the right to impose any such arbitrary conditions as they might choose under the provisions of the section referred to as a condition of the issuance of a license. A very brief history of the legislation in respect to the question of the issuance of licenses will, it seems to me, demonstrate the fact that there is no requirement of statute at the present time under which a bond may be exacted by the excise commissioners as a condition of issuing a license other than in case the applicant proposes to keep an inn, tavern, or hotel. By chapter 628, Laws 1857, § 2, it is provided that the commissioners of excise shall have the power to grant licenses to keepers of inns, taverns, or hotels, being residents of the town or city where such inn, tavern, or hotel is proposed to be kept, to sell strong and spirituous liquors and wines to be drunk in their houses, respectively; and to storekeepers, being such residents, license to sell such liquors and wines in quantities less than five gallons, but not to be drunk in their shops, houses, outhouses,' yards, or gardens; and it was also provided that they should have power to determine the sums to be paid for a license for each person applying, within certain limits; and by section 6 it is provided that licenses shall not be granted to any person to sell strong and spirituous liquors and wines to be drunk on the premises of the person licensed, unless such person proposes to keep an inn, tavern, or hotel, nor unless the commissioners are satisfied that the applicant is of good moral character, etc., nor unless on the petition of not less than 20 respectable freeholders of this state residing in the election district where such inn, tavern', or hotel is proposed to be kept, etc. Section 7 provides that no such license to keep an inn, tavern, or hotel shall be issued until the applicant shall have executed and'delivered to the board a bond to the people of the state in the penal sum of $250, with sufficient sureties, * * * conditioned that such applicant, during the time he shall keep such inn, tavern, or hotel, will not suffer it to be disorderly, etc. Section 10 provided that no inn, tavern, or hotel keeper who shall trust any person, other than those who may be lodgers in his house, for any sort of spirituous liquors or wines, shall be capable of recovering the same by any suit. Section 11 provides that in all licenses that may be granted (except to inn, tavern, or hotel keepers) to sell strong and spirituous liquors or wines in less quantities than five gallons there shall be inserted an express declaration that such license shall not be. deemed to authorize the sale of any liquor, etc., to be drunk in the house or shop of the person receiving such license, etc. Section 12 provides that such licenses shall not be granted unless the commissioners are satisfied that the applicant is of good moral character, nor until such applicant shall have executed'a bond to the people in the penal sum of $500, who shall justify in double the amount, conditioned that he will not sell, or suffer to be sold, any strong or spirituous liquors or wines to be drunk in his shop or house, etc.
Thus it would appear that there were two classes of persons to whom the commissioners might issue licenses. The one was those who proposed to keep an inn, tavern, or hotel, who should give a bond in the penal sum of $250; and the other class of licenses being issued to those persons who proposed to sell liquors and wines, less than five gallons, not to be drunk upon the premises, who were required to give a bond in the penal sum of $500. The foregoing law remained substantially unchanged until the year 1870, when, by chapter 175 of the Laws of that year, the legislature greatly extended the power of the commissioners to issue licenses. Section 4 of that act provided that the board of excise shall have the power to grant licenses to any person of good moral character, approved of by them, permitting him to sell and dispose of, at any *661one named place within such city, town, or village, strong or spirituous liquors, wines, ale, and beer, in quantities less than five gallons at a time, upon receiving a license fee, to be fixed in their discretion, not less than $30 nor more than $150. Such license shall only be granted on written application of said party, signed by the applicant or applicants, specifying the place for which license is asked, and the name or names of the applicant or applicants, and of-every person interested or to be interested in the business to authorize which the license shall be issued. Persons not licensed may keep, and in quantities of not less than five gallons at a time may sell and dispose of, strong and spirituous liquors, wines, etc., provided that no part thereof shall be drunk or used in the building in which the same shall be so kept, disposed of, or sold. Section 6 provides that the provisions of the act passed April 16, 1857, (chapter 628 being probably referred to,) except where the same are inconsistent or in conflict with the provisions of the act of 1870, shall be taken and construed as part of that act, and be and remain in full force and effect throughout the whole state.
The question is presented whether, under this act of 1870, the board of commissioners can exact a bond as a condition of granting a license, except from a person who proposed to keep an inn, tavern, or hotel. It seems to me clearly that no such right exists. The provisions of the act of 1857, in respect to the giving of a bond, are totally inapplicable to the case of a license issued to sell liquor to be drunk upon the premises, unless the person keeps an inn, tavern, or hotel. It is to be observed that under the act of 1857 two classes of licenses are mentioned, and under the act of. 1870 but one is referred to. The restriction upon licensees who do not propose to keep an inn, tavern, or hotel, that they shall not sell liquor in quantities less than five gallons to be drunk upon the premises, is abolished. And we have a general power to grant licenses to any proper persons who apply for the same, to sell liquor in quantities less than five gallons to be drunk upon the premises; the conditions being that the persons shall be approved by the commissioners, and be of good moral character, with certain details in regard to the method of. application.
How, if such an applicant, who does not propose to keep an inn, tavern, or hotel, is chargeable with the duty of furnishing a bond, which bond is it? The bond which the hotel keeper is bound to give under the act of 1857, or the bond which the other licensees are required to give where they sell liquor in quantities less than five gallons, but which cannot be drunk upon the premises? The new licensees, under the act of 1870, are certainly more nearly allied to the latter class than they are to the former; and the act of 1870 is evidently intended to be a removal of the restriction placed by the act of 1857 upon the second class of licensees, that no part of the liquor sold by them shall be drunk upon the premises; and, such restriction being removed, the provisions of section 12 of the act of 1857, in regard to that class of licensees, became absolutely inapplicable, because one of the conditions of the bond which they are required to give is that the licensee will not sell, or suffer to be sold, any strong or spirituous liquor to be drunk in bis shop or house,—a tiling which he is expressly authorized to do by the act of 1870, Therefore the provisions of the act of 1857, in reference to such licensee giving a bond, are in conflict with the provisions of the act of 1870, and inconsistent therewith, and were not re-enacted by the provisions of section 6 of said act above referred to. It is clear that the provisions in regard to bonds to be given by hotel keepers cannot apply to saloon keepers, because the condition of that bond, as fixed by the statute, is that such applicant, during the time he shall keep such inn, tavern, or hotel, will not suffer it to become disorderly; and, as has already been seen, the commissioners of excise have no power to alter the statutory condition of a bond in any particular. The next legislation upon the subject is by chapter 549 of the Laws of 1873, under which section 4 *662of the act of 1870 is amended by requiring a posting of the license, and compelling the board of excise to keep a record of all persons licensed, etc. In 1883, by chapter 340, it was enacted that the board of excise in cities of this state, having a population of over 300,000, shall, if all other requirements of the law have been complied with, have power to grant licenses to sell strong and spirituous liquors, etc., to be drunk on the premises, to any person or persons of good moral character, whether or not they propose to keep an inn# tavern, or hotel, provided that no such license shall be granted unless such commissioners are satisfied, upon examination, that the applicant is of good moral character, and the license may properly be granted for such sale in the place proposed; the legislature here clearly indicating again that by the act of 1870 the provisions of the act of 1857 in regard to hotel keepers were not interfered with, but that the provisions of the act of 1870 were a mere removal of the restrictions upon the other licensees in respect to the sale of their liquors.
It has been urged that the use of the language in this section, “if all other requirements of the law have been complied with,” is a recognition of the duty of such an applicant to give a bond under the act of 1857. But, as already seen, if any bond is to be given, it was a bond such as a storekeeper was required by that act to give, and not the bond which the hotel keeper was required to give; and that the condition of such a bond, as required by the act of 1857, was absolutely incompatible with the provisions of the act of 1870. We next have chapter 496 of the Laws of 1586, purporting to amend chapter 340 of the Laws of 1883, entitled “An act to regulate the sale of intoxicating liquors in cities having a population of over 300,000.” By this act the limit was reduced to 150,000, and provision was made for application to the court in case a license should be arbitrarily refused. The words, “if all other requirements of the law have been complied with,” are also inserted in this act; but, as already seen, this evidently cannot refer to the giving of the bond required by the act of 1857. It may be said that it is a harsh condition to compel an innkeeper to give a bond, and not other persons. But the courts cannot be responsible for the omissions of the legislature; neither can we complete by judicial decision that which the legislature has left unfinished. It seems to me it was evidently the intention of the legislature to abolish the exaction of bonds, trusting for the enforcement of discipline to the additional powers which were given to the board of excise .to revoke licenses,—a power which did not exist in them under the act of 1857. I am of the opinion, therefore, that there was no power in the board of commissioners to exact the bond in question, and therefore there can be no recovery thereon, and that the demurrer should have been sustained. The judgment appealed from should be reversed, and the demurrer sustained, with costs.