Town of Flora v. American Express Co.

45 So. 149, 92 Miss. 66

• Court: Mississippi Supreme Court
• Decided: October 15, 1907
• Status: Published

Opinion

Whitfield., C. L,

delivered the opinion of the court

This action was brought by the town of Elora against the 'appellee express company to* recover the penalty provided by Annotated Code 1892, § 1590, which reads as follows: “Persons selling or giving liquors away to pay tax. — Any person who may sell or give away liquors unlawfully, or allow the same to be sold or given away at his place of business, for any purpose whatsoever, shall be subject to pay the state, county and the city, town or village where the offense is committed,, each, the sum of five hundred dollars; and it shall be the duty of the sheriff and state revenue agent, or either, to assess and collect such sums whenever he is informed that such sales or gifts have been made; and such persons shall be liable to a criminal prosecution, as in other cases; and, in addition, the state, county, city, town or village may sue for and recover civilly, either jointly or separately, each, the sum of five hundred dollars; and such civil suits may be commenced by attachment without bond.”

The declaration as originally filed claimed $600, but as amended claimed $3,000. It is not the intent of this statute to permit the recovery of more than one penalty up to the time of the commencement of the suit. It does not say that a penalty of $500 shall be recovered for each offense. There is no such language in the statute. The thing which it denounces is the selling of intoxicants unlawfully. That is the substantive thing. There may be many acts of violation, many sales; hut it is not said that $500 penalty shall be recovered for each sale. The penalty is visited for thé violation of the substantive thing named, the unlawful sale of intoxicants. The word “each” in the statute refers to state, city, county, etc., not to the sale. The amendment was therefore improper, and the court correctly limited the possible recovery later to one penalty of $500, since only the town of Flora was suing.

A very learned and exhaustive argument has been made by the learned counsel for the appellee to show that this statute is unconstitutional. This argument, of course, we cannot notice, because of the thoroughly fundamental canon of constitutional construction that this court will not consider the constitutionality of the statute assailed, except where it is absolutely essential to decision to do so. The court, at the conclusion of the introduction of the testimony, gave a peremptory instruction to find for the defendant. After a very careful examination of the evidence in the case, we are convinced that this action was correct. There is no evidence which would have warranted a verdict for the plaintiff on the issue joined. The circuit court would have been compelled, if such verdict had been rendered, to set it aside on the ground that it was not warranted by the testimony; and this fact is the best test of the propriety of his action in granting at the outset the peremptory charge.

The judgment is affirmed.