El Nuevo mexicano., 1916-06-15
UPPER COURT ACTS
IN TWO LIQUOR CASES

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The supreme court today reversed
the lower court in the case OF City Of
Roswell, appellee, VS.. p. g. Jacoby, ct
al, appellants, Chaves county; opinion
by Justice Parker, Roberts, G. j., and
Hanna, j., concurring. Motion to
strike the bill Of exceptions from files
was sustained In the case Of State eE
rel. Placido Baca y Baca, etc, ct al,
appellants, VS.. the Board Of County
Commissioners OF Guadalupe county,
ct al, appellees, Guadalupe county;
opinion by Roberts, Hanna and Parker
concurring. The latter is an action to
enjoin Guadalupe county officials from
issuing liquor licenses in Santa Rosa.
The statement Of the first named
case is as follows:
"This is an action by the city of
Roswell against Jacoby and his sure
ties upon a bond given by him to the
city as a condition precedent to the
issuance to him of a druggists per-
nit to sell Intoxicating liquors for
medical purposes under the provisions
Of the prohibition ordinance then in
force in that city. The complaint al
legged violation Of the ordinance and
the conviction of Jaeoby of violating
the same and sought forfeiture OF the
bond and recovery OF full amount OF
the damages.
"The defendant demurred which de-
murrer was o%verruled. Defendant an
swered and set forth as defense an al
legged compromise and agreement be-
tween Jacoby and the city that Ja-
CODY was to enter a plea OF guilty in
one Of the 13 similar and pay
a fine Of $25 and costs and pay a fine
Of 81 in each of the 70 other cases
with suspended sentence, and upon
this being done the city was to make
no further claim against him for al
legged violation of the law. The plain
tiff demurred to this defense. The
demurrer was sustained. The case
then came on for trial before the
court and defendants objected to the
introduction of evidence for the rea-
son that the complaint did not state
facts sufficient to CONSTITUTES q cause
of action, specifically attacking the
same on the grounds stated In their
demurrer. The objection was overTul-
ed and the court heard the ase and
gave Judgment in accordance with the
prayer of the complaint. The defend
ants appealed. Judgment of the court
below reversed, cause remanded."
Syllabus.
1. Under s~ubsections Is and 66 OF
section 1854, code 1915, and section
4 1921, a city or town has power to re
quire the giving of a bond as secur-
ity that a druggist will obey the law
in dispensing liquor.
2. The penalty Of such a bond is
not a penalty by way of punishment
for a violation of the law.
3. But. where the cause of action
on the bond is made by the ordin-
ance, as in this case, to arise only
upon the conviction of the obligor of
a violation of the law. the intention
of the city if made to appear to
punish the offender in the amount
Of the penalty of the bond, which
punishment is in excess Of the amount
allowed by the statute. and the or
dinance is, consequently, void.
Opinion by Justice Parker, Chief
Justice Roberts and Justice Hanna,
concurring.
1. Under the provisions of section
44S2, code 1918, where appellant fails
to make all Interested parties in the
court below parties to the appeal, he
may, upon leave granted by this
court, compel such interested parties
to become parties to the appeal.
2. In cause tried by the court
without a jury, a party desiring to
appeal NAV have the proceedings oc-
curing upon THE trial brought into
the record either under the provis-
ions of section 4493. of section 4495
where he elects to make such mat
tiers a part of the record by bill of ex-
ceptions, it is incumbent upon him to
give the adverse party five days no
tice of his intention of applying to
the Judge of the court in which said
cause was tried, to have the judge
Of said court sign and seal the same
in proper form as a bill of exceptions,
and, where hel fails to give. such 10
tice the bill of exceptions viii be
stricken from the transcript, upon
notice.
8. For suggestions as to the prop
er preparations of transcript of rec
ord. so as to show filing of the tran
script of the stenographerF notes
and bill of exceptions see the opin-
ion. Opinion by Roberts, C. ]. Han
ma and Parker concurring.
Result Of Primary
II G.. C~.-Ex,