Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1900-01-10

| mat he SuStainS Il good moral ch,rac
ter by section l, chapter -, r. S. tn,
licensing board may license "as MANY
| persons OF good moral character :
| as they deem necessary to be innhold
ers. Thls authority involves questions
| TO re determined by the board and not
| by the applicant This idea of limit
| ing the number of innhOlderS in "A place
has always prevailed in most if not
| all OF the states. In Colonial DAYS
| the General Court of Massachu-
setts annually prescribed how many
each town in the colony should be en-
! titled to, especially naming the towns
| that should be entitled to more than
| one, and the business Of unfolding
was regulated with exacting restraints
and impositions which would perhaps
be regarded as oppressive at the pres
ent lay. 1t is therefore. not easy to
see what this question of constitutions
ality in its present aspect is practi-
cal one between these parties. AS a
merely academical question we cannot
indulge in it's discussion
The penal sum of the bond $500 cannot
he regarded as an extreme at all when il
is considered that the accompanying
license would confer right and privilege
where none existed before. The statute
requirement certainly cannot he regarded
as prohihtory in its nature or effect. There
is nothing indicating that the defendant
could have easily furnished the bond had
he been disposed t. do so There are
many instances in the statutes where
bonds are required of officials and quasi
officials for the faithful discharge Of their
duties. even where no money is neces-
Sarily to pass through their hands as Off
GERS, but whore honest conduct is to be
ensured.
In Lunt's case. 8 Maine. 4l2. it was
held not unconstitutional to require a
common seller of liquors to purchase a
license and pay certain duties before
entering on his business. There can
not be very much difference in princi-
PIE between requiring prepayment of
money and requiring security for the
payment Of money for damages if af-
forwards incurred. In Day vs.. Frank,
III, Mass. 491. a licenSee was required
to give a bond with surcties to pay
all costs, fines and damages recover
able against him under the Massachu
sets statute of 1875 oh. 30, sec. 9, and
while the main question here arose in
another form there, it was not noticed
by counsel or court, while other ques-
tons We're discussed and considered.
Upon another ground is the consu
tutionalty Of the statutes in question
attacked by the defense. 1t is con-
tended that an action cannot be law
fully instituted by any citizen of the
STATE" in the name of d town. and the
burden of an expensive litigation be
imposed on the town without its con-
sent: and that any statute authorizing
such a thing is null and void. The
first obvious answer to this proposition
isthat the counsel for the defense can
not represent the plaintiffs in order to
raise such Il question. He is defending
against tn" plaintiffs and not acting
in their behalf The only legitimat"
controversy on the record of the case
is whether the town can maintain this
particular action while it is apparently
at least striving to do so, and all else
in this connection is illusory and theo-
rctical merely. But there is much more
answer than this. The position of the
defendant misapprcciates the true po-
Sition Of the plaintiffs. The town has
tn. entire control Of the action and
Al
the presumption that it acuuisccs in
The proceedings. nothing appearing 7"
The contrary This is not technically
uui tam action. The town sues lof
Il penalty because the penalty belongs
ID the town. it SUES to recover its own.
Carrie II. Foster. who claims to prose
cute the suit as a citizen Of Maine.
can only 40 50 by the plaintiffs con
sent. she il not plaintiff. but STANDS
rather in The position Of an intOrmer
foi. thr State 81. town. somewhat in the
nnsitinu If a complainant who obtains
IN indirtment-a aid and promoter 81
III. prosecution. She informs the town
Of the penalty due them. ana the!
81. for il. Section II of tn" thaptef
- saws the licensing boards shall pros
rclit. Tor any violations by complaint
irlfttp,.ut or action of debt. implying
the institution of proceedings IN the
n.u,. of the State which perhaps by
tho better and more satisfactory klhu
of remedy. But the town can sue Ill
rrctIv for the penalty because IL owns
al of il. So held in WiscaSset vs.
TrrIndy. T. Maine. 20i. an action Wher'
The facts and pleadinSs were essential
~ the same as in the present case
.rbr writ here is in all essential re-
snacts. as far as form goes. Ike the
writ there.
Even where this is a pui tam aciloh
the princIple would be the same l ne
.,ction would be under the contfoi ana
airactton of the town as the actual
naintirf. In a qui tam action al com
mon law. a plaintiff may abandon OF
cnptinue his action at his pl"aSure.
II however he becomes nohSuite"
,,ithn,It the consent of the court, any
IN Where only moicty Of pehatS
may sue again as if no action hau
haar brought before Wheeler y
cou,ding. Il Gray l39. Colburn v.
scot, +, Mete. -. Smith ". Look, loo
Mass 1919. State IS. Johnson. o. Maine
3e9 Dunn VS.. birmingham, ~ Mass
"a Where only a molety of penal'!
roes 70 an informcr he cannot sue ~
I, 4, his own name. although IT Is
.h.rvise. as before seen. II ne Is ="
...Iod - all Of the penalty. As par
a,,.nor az the penalty the lnformcr ooe'
| ,nt control the action. but receives ms
| .,a,.. when recovered. Same authofi-
/ hall