The complaint in this action is based upon an alleged breach of the condition of a bond given by the defendants to the people of the state of New York upon the issuance to the defendant Eckman of a license to sell strong and spirituous liquors upon premises. The bond is in the sum of $'230, and the condition reads: “That if, during the time for which the said license shall be granted, he shall not suffer his place to be disorderly, nor suffer any gambling, or keep a gambling table of any description, within the premises so kept by him, or in any outhouse, yard, or garden belonging thereto, nor suffer said premises to be used for immoral or unlawful purposes, and that if during the time for which the undersigned shall be licensed he shall keep and observe the provisions of the acts of the legislature known as ‘ Chapter 628 of the Laws of 1857,’ and supplementary thereto, and amendatory thereof, then this obligation shall be void, otherwise to remain in full force and effect.” A violation of the condition of the bond is charged against Eckman, in this: that on a day specified he sold, and permitted his agent and servant to sell, strong and spirituous liquors to a minor under the age of 14 years.' The demurrer admits the facts, and therefore the three questions of law arising upon this appeal open for discussion are: First, as to the plaintiffs’ right to maintain this action; second, as to the commissioners’ power to demand the bond as a condition of granting the license to Eckman; third, was there a violation of the condition of said bond by the sale of intoxicating liquor to a minor under the age of 14 years?
In disposing of these questions relied upon by the appellants, it should be remembered, as stated by the learned judge below, that “the instrument was exacted, but voluntarily executed and delivered, to obtain the desired license. ” The learned judge was also of the opinion that the obligors should not be permitted to question the validity of an obligation thus assumed. Apart, therefore, from any statutory provision requiring a bond to be given, the conclusion reached by the learned judge below, it seems to us, can be sustained. It is discretionary with the commissioners as to the persons to whom and the conditions upon which the license shall be issued. Where, therefore, in the exercise of a discretion conferred by law, a bond is required as a condition precedent to the issuance of a license, it can be enforced if its conditions are violated. This results from the fact that it is a good common-law bond. We have not overlooked in this connection the fact that a failure to wisely exercise their discretion can be remedied by an application to the court for a mandamus, and upon such an application the court undoubtedly would have the right to determine whether the conditions imposed by the commissioners were reasonable and just. In this case the commissioners required a bond, and no objection was made to giving one, nor was any resort had to the court by mandamus for the purpose of determining their right to exact the same. Under such circumstances, the bond, being executed, became, as stated, a good bond at common law, and can' be enforced. In addition, however, we are of opinion that statutory authority can be found for a determination of the questions presented upon this appeal favorable to the commissioners.
1. As to plaintiffs’ right to maintain the action, it must be conceded at the outset that, unless some authority is found in the statutes, the obligee of the bond being the people of the state, an action on their behalf could only be maintained by the attorney general or district attorney. This view is enforced by reference to section 1962 of the Code, which requires such actions to be brought by the officers named, where provision is not otherwise specially made. The act of 1857, c. 628, provides, by sections 22 and-24, by whom and in whose names actions shall be maintained. This question has been discussed in the two cases of People v. Groat, 22 Hun, 165, and in Board v. Burtis, 103 N. Y. 140, 8 N. E. Rep. 482. The latter case decided that for penalties imposed by the act the commissioners of excise were the proper parties to maintain the action. Besides actions to recover penalties imposed by
2. Had the commissioners the legal power to demand the bond as a condition of granting the license to Eckman? There are two classes of bonds authorized to be taken and required to be given before a license can be granted to an applicant—one from applicants who desire to sell liquors to be drunk on the premises, Commonly known as “hotel and saloon licenses;” the other to applicants who sell liquors not to be drunk on the premises. The license granted in this case is known as a “saloon license, ” and with that alone we have to deal upon this appeal. Many changes by amendments and new enactments have taken place in the excise laws since the adoption of .the general scheme in 1857. Laws 1870, e. 175; Laws 1873, c. 820; Laws 1878, c. 109; Laws 1883, c. 340; Laws 1886, c. 496. None of these laws in express terms repeals the general scheme or act of 1857, and except so far as the subsequent acts may be inconsistent with or repugnant to certain sections thereof, which to that extent would be abrogated, what remains of the act of 1857 would still be of binding force and effect.
By section 4 of the act of 1857 the board of excise was given the power to fix the conditions before granting licenses. By section 6 it was provided that the licenses should not be granted to any persons to sell liquors to be drank on the premises, unless a person proposed to keep an inn, tavern, or hotel. Section 7, Laws 1857, makes provision for the bond as follows: “Nor shall such license to keep an inn, tavern, or hotel be granted until the applicant shall have executed and delivered to the board of commissioners of excise a bond, * * * with the condition that such applicant, during the time that he shall keep an inn, tavern, or hotel, will not suffer it to be disorderly, or suffer any gambling, or keep a gambling table of any description, within the inn, tavern, or hotel so kept by him, or in any outhouse, yard, or garden belonging thereto. ” Section 15 provides that any person who shall sell liquors to a minor shall be deemed guilty of a misdemeanor, and upon conviction shall be liable to a fine of $25 for each and every offense, and provides by whom such penalty can be recovered.
It will thus be seen that the act of 1857 made no provision for a saloon license, the board of commissioners being restricted to the granting of licenses to persons keeping an inn, tavern, or hotel. It is contended, further, that, because a specific penalty is prescribed for the violation of the law of selling liquors to a minor, a recovery cannot be had on the bond. Our answer is that the legislature, having the power to regulate the sale of intoxicating liquors, could impose dual penalties for the same offense. When the statute fixes both the penalty, and declares it a misdemeanor for doing any act, such as selling liquor without a license, they are entirely independent of each other, and the conviction for the misdemeanor is no bar to an action for the penalty. People v. Stevens, 13 Wend. 341; Blatchley v. Moser, 15 Wend. 215. An •examination of the laws referred to will show, that no act of the legislature
3. Was there a violation of the condition of said bond by the sale of intoxicating liquor to a minor under the age of 14 years? The appellants contend that the licensee, by selling liquor to a minor, did not commit a breach of the condition of the bond, and that the sale of liquor to a minor is not such a violation as would entitle the commissioners of excise to recover upon the bond. This contention is sought to be upheld by a rigid construction of the act of 1857, as to the purposes for which a bond can be exacted. It is insisted that the sale of liquor to a minor is not a violation of any of the conditions expressly fixed by section 7, and that section 15, by affixing a penalty, and prescribing the manner in which the person guilty of selling liquor to a minor shall be punished, has thus indicated in what manner, and in what manner only, shall an offense of that character be visited. There can be no doubt that selling to minors is a violation of the law, and it is equally clear that the appellants violated the express condition of the bond by failing to “keep and observe the provisions of the act of the legislature known as • Chapter 628 of the Laws of 1857, and supplementary thereto and amendatory thereof.’ ”
It is insisted, however, that the commissioners exceeded their power in inserting in the bond the language last quoted, and it is claimed that, even though a bond could be exacted, its terms should be restricted to imposing conditions which are expressly prescribed by the act itself. The conditions
We do not think, however, that it is necessary to strain the construction of the statute in the present case to uphold the power of the commissioners in maintaining their action upon the bond for a violation of any of the provisions of the excise law not expressly enumerated in section 7 of the act of 1857, for the reason that the breach assigned in the present case seems to be covered by the conditions in section 7 mentioned. One of the conditions so expressed is that the obligor will not suffer his place of business to become disorderly. In determining the construction or meaning to be given to the word “disorderly,” it will not do to resort to the Penal Code, as claimed by appellant, and take the definition therein given as to what would constitute a disorderly house. As defined by Webster, it means “not regulated by the restraints of morality; not complying with the restraints of order and law.” This definition, coupled with the one given by Bishop on Criminal Law, (sections 1111,1119,) in defining what is meant by “disorderly” inns, etc., goes far to support the contention that the sale of intoxicating liquor to a minor under 14 years of age is a disorderly act, and a breach of the condition of the bond. Moreover, as all the questions raised upon this appeal have been examined in the cases of People v. Burget,1 and Board of Excise v. Betterlien,1 (MS. opinion, filed December 9, 1889,) and determined adversely to appellant, further discussion is unnecessary. We think the conclusions reached in those cases were correct, and that the judgment appealed from should be affirmed, with costs.
1.
Notreported.