text:
    The Chicago, Burlington and Quincy Railroad Company v. Charles S. Bartlett et al.

      Filed at Ottawa May 12, 1887.

    1. Contbacts—construction—giving effect to words different from their ordinary signification. The general rule requiring effect to be given to all the words of an instrument, is subject to well recognized limitations, the chief of which is, that the instrument must be so construed as to effectuate the intention of the parties to it. For this purpose a word may sometimes be construed to mean almost the opposite of its commonly accepted signification.Thus, the word “and” is often construed to mean “or,” and to give effect to the intention, a word or phrase may be excluded or wholly disregarded.
    2. Same—bond of an agent conditioned to account for and pay over moneys—extent of liability —in case of theft or robbery. An agent or paymaster of a railway company, whose duty it was to receive and pay out large sums of money for the company, gave a bond, conditioned that he would faithfully perform the duties required of him as paymaster, “and promptly pay over and promptly account 'for all moneys belonging” to the company, received by him as such agent, and should deliver to the company all property belonging to it, when required: Held, that the first clause, to faithfully perform all the duties required of him, covered the whole ground, and that which followed was nothing more than a mere specification of the principal duties incident to his employment, and added nothing to his liability, and did not make him an insurer of the moneys in his hands, against theft or robbery, without his fault or negligence.
    3. But even conceding the undertaking of the principal in the bond, to pay over and account for all moneys, was an absolute one, in such sense as to make him an insurer, and that his sureties were equally bound with him for its performance, still, it would not follow that they would be so bound except where the money was in his exclusive possession, as, when he would take it out of the safe for the paying of it out on the pay-rolls of the company. So where the company required such agent to keep the moneys in a room not properly protected against the entry of thieves or burglars, and which was occupied by other servants jointly with such agent, one of which other servants had access to the safe where the money was kept, and a large sum was stolen from the safe during the temporary absence of such agent, without any neglect of duty or want of care on his part, it was held, that such agent could not be held liable on his bond given to the company, conditioned that he would account for all moneys coming to his hands.
    4. Same—release or waiver of performance by acts of obligee. If a party covenants with another to perform any lawful act, there will be an implied undertaking on the part of that other that he will do nothing to prevent the performance or render it impossible; and if such other does prevent performance or renders it impracticable, this will operate to discharge the covenanting party from liability for his failure to perform.
    5. Error will not always reverse. This court will not reverse a judgment clearly right upon the undisputed facts of the case, for errors that could not have changed the result.
    Appeal from the Appellate Court for the First District;—. heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Messrs. Stiles & Lewis, for the appellant:
    Appellees contend, and the court below so ruled, that the bond in no way enlarged Bartlett’s liability, and that it was a mere security for the faithful discharge of his duties as paymaster. We insist that this construction of the bond is erroneous, and that it does, in most explicit terms, impose on Bartlett something in addition to what the law required of him by virtue of his employment, and that the other construction is virtually to expunge the two last clauses of the bond. A familiar rule of construction requires that we shall give force and effect to all the words employed by the parties, when this is possible. Bowman v. Long, 89 Ill. 19; McCarty v. Howell, 24 id. 341.
    When a bailee undertakes to keep the goods of his bailor safely, it is no answer for a failure to return them, that they have been stolen. Such undertaking is a special contract enlarging his common law liability. Kettle v. Brownsall, Willes, 118; Southcote v. Bennett, 4 Coke, 83 b; Drake v. White, 117 Mass. 10; Knowles v. Dabney, 105 id. 407; Harmony v. Bingham, 12 N. Y. 99; Steele v. Buck, 61 Ill. 343.
    It has been repeatedly held in suits on penal bonds, that the loss of money by theft, or otherwise, without the fault of the principal obligor, is no defence to a suit upon his bond, conditioned that he will safely keep, or that he will pay over, such money. United States v. Prescott, 3 How. 578; United States v. Morgan, 11 id. 154; United States v. Dashiel, 4 Wall. 182; United States v. Kebler, 9 id. 83; Boyden v. United States, 13 id. 17; Beavans v. United States, id. 56; United States v. Thomas, 15 id. 337; State v. Harper, 6 Ohio, 607; Halbert v. State, 22 Ind. 125; Merbeck v. State, 28 id. 86; Inglis v. State, 61 id. 212; New Providence v. McEachren, 33 N. J. L. 339; 35 id. 528; State v. Morse, 74 Mo. 413; District Township of Taylor v. Morton, 37 Iowa, 550; District Township of Union v. Smith, 38 id. 9; Muzzy v. Shattuck, 1 Denio, 233; 7 Hill, 584; Commonwealth v. Comly, 3 Pa. St. 372; Commissioners v. Jones, 18 Minn. 199; County of Redwood v. Tower, 28 id. 45; Thompson v. Trustees, 30 Ill. 99; Clay County v. Simonson, 1 Dak. 403; Jefferson County v. Linberger, 3 Mont. 231; Boggs v. State, 46 Texas, 10.

      Mr. John S. Cooper, and Mr. William J. Hynes, for the appellees:
    The obligation sued on was not an absolute guaranty by appellees for the safe keeping of the money against possible loss from theft or other casualty, occurring without Bartlett’s fault. Vene v. Smyth, 2 Kibble, 764; 2 Levins, 5; 1 Ventris, 121.
    The bond should be construed in the light of the intention of the parties in exacting and accepting it, on the one hand, and in executing it, on the other. 1 Chitty on Contracts, 104; 2 Kent’s Com. 655; Stout v. Whitney, 12 Ill. 227; Walker v. Douglas, 70 id. 445.
    That intention is to be ascertained from the language used by the parties in their written contract, and also from the circumstances under which the contract was entered into. Robinson v. Stow, 65 Ill. 508.
    As to the question of liability on this bond for a loss by theft, see Walker v. British Guarantee Association, 18 A. & E. 277; 83 E. C. L. 276; Bank v. Hill, 1 Stew. 201; Bank v. Clossy, 10 Johns. 271; Ross v. Hatch, 5 Iowa, 149; United States v. Prescott, 3 How. 578; Murfree on Official Bonds, sec. 464.
    The same rule of construction insisted upon by appellant, if applied to the words in the bond, “promptly pay over and promptly account for” the company’s moneys, would release the appellees from liability for the moneys stolen, under the facts in this case.
    Where the master places entire charge of his business, or of a distinct branch of it, in the hands of an agent, exercising no discretion, and no oversight of his own, it is manifest that the negligence in exercising ordinary care in supplying and maintaining suitable instrumentalities is breach of duty, for which the master should be held responsible. Railroad Co. v. Ford, 17 Wall. 554; Mullen v. Steamship Co. 78 Pa. St. 26; Whelan v. Centenary Church, 62 Md. 326; 2 Thompson on Negligence, sec. 5 of notes, p. 974; Shearman & Redfield on Negligence, secs. 102, 103.
    Nor is this duty satisfied by having performed it once,—it is a continuing duty. The Supreme Court of Illinois, in Chicago and Northwestern Railroad Co. v. Swett, 45 Ill. 197, says : “Such an obligation is permanent, and can not be avoided by the delegation of the power or authority to any other or number of persons. ”
    That the acts of omission and commission, as to the security of guarding the approaches to the vault, were the acts of the company, the principles stated in the authorities above cited would appear to place beyond question. In addition, see Railroad Co. v. Welsh, 52 Ill. 183; Schooner “Norway” v. Jensen, id. 373; Railroad Co. v. Jackson, 55 id. 492; Railroad Co. v. Moranda, 93 id. 302.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 6th day of December, 1882, Charles S. Bartlett, as principal, and John G. Shortall, Samuel D. Barker and William Chisholm, as sureties, executed and delivered to the Chicago, Burlington and Quincy Railroad Company, a bond, in the usual form, in the penal sum of $40,000, which was required of Bartlett as paymaster of the company. The condition of the bond is as follows:

“The condition of this obligation is such, that if the said Charles S. Bartlett shall well, truly and faithfully perform the duties required of him by said company as paymaster, and promptly pay over and promptly account for all moneys belonging to said company which shall be received by him as such agent, and shall deliver over to said company all property of said company when required, then this bond to be void, otherwise to be in full force and effect.”

Some time between one and two o’clock in the afternoon of March 1,1884, while Bartlett was out at lunch, some one, to him unknown, opened the company’s safe, in which he kept the moneys of the company in his hands as paymaster, and abstracted therefrom $26,833.54. He at once reported the facts to the company, and has not otherwise accounted to it for the loss. On the 19th of Máy, 1884, the company brought an action in the Superior Court of Cook county, against Bartlett and his sureties on the bond, to recover the amount of money so abstracted from the safe. The cause was heard before the court and a jury, resulting in verdict and judgment for the defendants. On the company’s appeal, the judgment of the Superior Court was affirmed by the Appellate Court for the First District, whence the ease is brought here for review.

With respect to the facts in the case, with one exception, we find no material conflict in the testimony. Nor is it thought there is any serious difficulty in regard to the law applicable to the facts. While but very few of the cases cited in the briefs, on either side, can be regarded as directly in point, yet we think there is but little, if any, doubt as to the general principles which must govern the case.

Previous to the execution of the bond sued on, Bartlett had, so far as anything to the contrary appears from the record, faithfully and satisfactorily served the company in the capacity of paymaster, without bond, for about fifteen years. He belonged to the treasury department of the company, consisting of himself, the cashier, and general book-keeper, including their respective assistants. James C. Peasley, the treasurer and second vice-president of the company, was the head of this department, and all belonging to it were subject to his orders. Shortly after the giving of the bond, the company removed its general offices, including the treasury department, from the corner of Bandolph street and Michigan avenue, to the second floor of the company’s new building, on the corner of Franklin and Adams streets. On this floor, the paymaster, cashier and book-keeper all occupied the same room, known as the “treasurer’s room.” Connected with this room was a large vault, containing two safes belonging to the company, one of which was for the exclusive use of the cashier. The other was a double safe, one compartment of which was used by the paymaster, and the other by the bookkeeper. There was no connection, however, between the two compartments. Each had its separate door and separate lock. Near this safe was a door which led into an adjoining vacant room, the doors of which were unfastened, and opened into an outer court near a back stairway, which led to the basement below, from which there was access to the street. When the robbery was discovered, this door near the safe was found standing ajar, though it was closed and supposed to be locked when Bartlett left the office. Before moving to the new building, Bartlett called the attention of Peasley to the danger from this door, and suggested that it should be “bricked up, ” to which Peasley replied that it would be sufficiently secure with a Yale lock. On moving iqto the new offices, this door was securely locked, and the key taken possessión of by Mr. Smith, the cashier. It seems, however, that in the absence of Bartlett, a few weeks before, this door had been opened for the purpose of taking a large new safe through it, and that in doing so the building was so sprung that the lock did not properly work. Mr. Smith, who had charge of the room, and whose duty it was to look after repairs, gave orders for the repair of the lock, and it appears to have been done; but whether the door was locked and the key returned to Mr. Smith, the keeper of it, is a matter which the evidence leaves in doubt. It is clear, however, that Bartlett had no cause to suspect that anything was wrong with the door or the lock, and it is equally clear that it was no part of his duty to look after that matter. That duty devolved on Smith, the cashier, and not on him. It further appears, that it was a custom of the office to never leave it vacant in the daytime, and it is a conceded fact that on the occasion of the robbery Mr. Smith was in the office, though his posi39—120 Irn. tion at his desk, where he was sitting at the time, did not command a view of the safe. The evidence also tends to show, that it was the custom of the office, and had been for many years, to set the safes in the daytime on the last number, instead of locking them or throwing out the combination. Bartlett, however, after maturely reflecting upon the matter, swears, positively, that on this particular day he locked the safe, and gives as a reason for it, that about noon he took out of the safe something over -$3000, which he knew would be all the money he would have to pay out that day, and consequently would not want to go into it again before the next morning, and that he therefore locked the safe, as he always did at the close of the day. Appellant, on the other hand, stoutly maintains that the safe was set on the last number, and certain alleged admissions by Bartlett are relied on to prove it. Whatever the real fact may be with respect to this matter, we do not attach the importance to it which seems to be given it in the argument. Another important fact is, that Bartlett was required by the treasurer to give the cashier the combination of the safe, and Mr. Smith had it at the time of the loss. Moreover, the company furnished Bartlett’s assistants in the .office without even consulting him as to one of them.

Such is the general outline of the facts. The position of appellant’s counsel is, that the condition of the bond must be so construed as to give force and effect to all the words contained in it, and that when thus construed, it makes appellees absolute insurers of all moneys which came into Bartlett’s hands as paymaster. The general rule requiring effect to be given to all the words of an instrument, to which counsel has adverted, is not questioned; but there are well recognized limitations upon it that are just as well settled as the rule itself, the chief of which is, that an instrument must be so construed as to effectuate the intention of the parties to it, and for this purpose a word will sometimes be construed to mean almost the very opposite of its commonly accepted signification. Thus, “and, ” the very word to which counsel attach so much significance in this case, is often construed to mean “or.” So, to give effect to the intention of the parties, a word or phrase will be excluded or disregarded altogether, if necessary;

In determining whether by the use of the words, “and shall promptly pay over and promptly account for all moneys, ” etc., it was intended to impose upon Bartlett and his sureties a higher degree of responsibility than is indicated by the preceding words, “shall well and truly and faithfully perform the duties required of him by the company as paymaster,” it is necessary to take into consideration Bartlett’s relation to the company, the nature of his existing employment, the duties it imposed, and the degree of responsibility which the law annexed to it. The relation was that of master and servant—principal and agent. The employment was one of confidence and trust, which required of him the handling and paying out for the company, from time tó time, large sums of money, and of accounting therefor. With respect to the moneys in his hands' for such purpose, Bartlett was a mere bailee for hire, and, consequently, the measure of his legal liability was good faith, and ordinary skill, care and diligence in the performance of the duties imposed by his employment. Such being the case, what was the object in taking the bond? Was it to entirely change the character of his responsibility by making him an absolute insurer of all moneys that came into his hands, without regard to his care, diligence or faithfulness to the company? We can not think that such was the object or purpose of the bond. On the contrary, we think it was given simply to secure the faithful performance of the duties which the law cast upon Bartlett as paymaster of the company, and nothing more,—or, in other words, the object of the bond was to secure the performance of existing duties, and not to create new ones. The condition that he should .“well, truly and faithfully perform, the duties required of him as paymaster, ” we think covers the whole ground. “The duties, ” in that connection, means all the duties devolving on him as paymaster, and that which follows, in respect to paying over and accounting for moneys received by him, is nothing more than a mere specification of the principal duties incident to his employment, which were fully covered by the more general provision that preceded it. Clearly, the specifying of these duties did not change Bartlett’s liability. When he accepted the office of paymaster, and entered upon his duties, fifteen years before that, although he gave no bond, he nevertheless, by implication of law, promised the company that he would well and truly pay over and account to it for all moneys received by him. This was a continuing promise and obligation on his part, and was not at all changed by the giving of the bond. His duties and obligations remained precisely the same as they were before the bond was given. Until then he alone was bound. Afterwards, his sureties were equally bound with him. The object of the bond, therefore, as already seen, was to give the company additional security for the performance of Bartlett’s duties as they existed before and after its execution. As bearing upon this subject, Mr. Beasley’s statement, which is a part of appellant’s own testimony, .is not without significance. He says: “The bond was exacted by me of Mr. Bartlett, as security for the faithful performance of his duties, and for accounting for such sums of money as he should have in his hands. ”

There is another view, however, to be taken of this case, which we think supports the conclusion reached by the lower courts. Let it be admitted, for the purposes of the argument, that the undertaking of Bartlett to pay over and account for all moneys was an absolute one, in the sense claimed by appellant, and that his sureties are equally bound with him for its performance, still, it does not follow that they would be so bound except where the money was in his exclusive possession, as, when he took it out of the safe for the paying of it out on the pay-rolls of the company. The money was kept in the company’s safe with the knowledge and tacit approval of the company, and we attach no importance to the statement of Mr. Peasley that it was not required to be kept there. When the company provided a safe, and placed it in the treasury department for Bartlett’s use, and directed him to leave the key of ^t,—that is, the combination of the lock,— with the cashier, who had charge of the room in which the safe was kept, it was, in legal effect, a direction to Bartlett to keep his moneys there. That was the proper place for it. Convenience, the character of Bartlett’s duties, and the exigencies of the company’s business, alike required it should be there. That this safe was practically open at all times to the cashier, by the company’s direction, and that the latter was in the room (and most likely by himself) when the robbery occurred, are undisputed facts. In addition to all this, there is no pretence or claim that the money was taken by Bartlett. We are clearly of opinion that a loss occurring under these circumstances is not one against which the bond in question was intended to indemnify the company.

Again, conceding the contract to be absolute, its performance, as in the case of all other contracts, might nevertheless be waived or discharged by the obligee or promisee, either expressly or by implication of law. If one covenants to deliver to another a sum of money belonging to the latter, on a certain day, or to do any other specific lawful act, the covenantee impliedly promises and undertakes that he will do nothing in the meanwhile to prevent performance at the time, or to render it impossible altogether; and a breach by the covenantee of such implied promise and undertaking will be a sufficient answer to any action brought by the latter for the non-performance of the defendant’s covenant. More shortly stated, it is an elementary, fundamental rule of law, founded upon the plainest principles of justice, that the promisor will in all eases be discharged from liability if performance is prevented by the default, negligence or other wrongful act of the promisee. Applying this principle to the case in hand, we think, upon the facts stated, the jury were justified in finding (as we must assume they did) there was such negligence on the part of the company in respect to the door of the office opening into the adjoining room, and in leaving the doors of the latter room not fastened at all, as to defeat any right of action on the bond. Had the door connecting the vacant room with the office been “bricked up, ” as suggested by Bartlett, or otherwise securely closed, the robbery could not have been possible in the way it was effected.

Upon the undisputed facts in the case, we do not feel called upon to review the- rulings of the trial court. We are led to adopt this course from two considerations. In the first place, we are fully satisfied with the treatment those questions have received in the opinion of the Appellate Court,-and it would therefore be a useless task to go over the same ground again. In the second place, for reasons already stated, we think it clear that the judgment below is, upon the undisputed facts, right. Conceding, therefore, that some errors on the trial may have intervened, still the judgment should not be reversed, as another trial would necessarily result the same way.

The judgment will be affirmed.

Judgment affirmed.

Mr. Justice, Craig, dissenting:

I do not concur with a majority of the court in the decision of this ease, and the magnitude of the ease and importance of the questions require that I should state the grounds upon which I predicate my opinion.

Charles S. Bartlett, having been appointed paymaster of the Chicago, Burlington and Quincy Railroad Company, executed and delivered to the company the following bond:

“Know all men by these presents, that we, Charles S. Bartlett, as principal, and John Gr. Shortall, Samuel D. Barker and William Chisholm, as sureties, are held and firmly bound unto the Chicago, Burlington and Quincy Bailroad Company, in the sum of $40,000, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors and administrators, firmly by these presents.
“The condition of this obligation is such, that if the said Charles S. Bartlett shall well, truly, faithfully perform the duties required of him by said company, as paymaster, and promptly pay over and promptly account for all moneys belonging to said company which shall be received by him as such agent, and shall deliver over to said company all property of said company when required, then this bond to be void, otherwise to be in full force and effect.
“Witness our hands, the sixth day of December, 1882.
Charles S. Bartlett, Principal.
John Gr. Shortall,
Samuel D. Barker,
William Chisholm,
“Approved, J. G. Peasley, Treasurer.” Sureties.

As stated in the opinion of a majority of the court, on the first day of March, 1884, while Bartlett was paymaster, $26,833.54 of the company’s money was stolen from his safe, and this action was brought on the bond, against Bartlett and his sureties, to recover the amount stolen.

The circuit court refused an instruction asked by plaintiff, as follows:

“5. The jury are instructed, that the bond in question is an undertaking that the defendant Bartlett shall pay over all moneys belonging to the company, received by him as paymaster, and that such payment is not excused by the fact that such moneys were lost, by theft or otherwise, with or without his fault.”

Other instructions, in a different form, involving the same principle, were refused. On the other hand, the court gave the following instructions for defendant:

“4. The jury are instructed, that whilst a person having the custody of the money of another, as the latter’s agent, upon a salary paid by his principal, is under a duty to take precautions for the safety and security of such money in proportion to the amount thereof and the danger thereto from depredation, yet such agent is not an insurer of the safety and security of such money against possible loss from theft or other casualty, in the absence of an express agreement between the parties to that effect.
“5. And the jury are further instructed, that the bond or written agreement sued on in this cáse does-not constitute such special agreement for the absolute safety or security of the plaintiff’s money entrusted to defendant Bartlett, as its paymaster and agent, against possible loss, from theft or other casualty, not occasioned by the negligence or fault of Bartlett.”

The plaintiff failed to recover in the circuit court, and the ruling of the court on the instructions, in its construction of the bond in suit, presents the principal question for decision here.

This action was not brought against Bartlett for a failure to observe a duty which arose from an acceptance of the office of paymaster,—a duty which the law might imply if it was a different question; but the action was brought upon a contract, which was reduced to writing and executed by the parties ; and by that contract the rights, duties and obligations of the parties must be determined. The rule is a familiar one, that where parties reduce their contract to writing, their rights, duties and obligations must be determined by the terms and conditions of that contract, and when the language used is unambiguous, the intention of the parties must be determined from the terms of the agreement.

There is no ambiguity in the contract upon which this action was brought. Its terms and conditions are plain and readily comprehended. The condition of the bond requires Bartlett' to well, truly, faithfully perform the duties required of him by said company, as paymaster, and promptly pay over and promptly account for all moneys belonging to said company which shall be received by him as such agent, and shall deliver over to said company all property of said company when required. Here, by the terms of the bond, these duties are enjoined by the contract, and as said in Bowman v. Long, 89 Ill. 23: “A familiar rule of interpretation requires that we shall give force and effect to all the words employed by 'the parties in making their agreement, when this is possible.” Observing this rule, what obligation was imposed by the contract ?

If the bond contained no obligation except the first one, which provides that Bartlett shall well, truly, faithfully perform the duties required of him by said company as paymaster, the construction placed upon it by the circuit court would, no doubt, be correct, as this clause of the instrument would be observed if Bartlett was diligent in the discharge of his duties, free from negligence, honest, reasonably skillful, and careful in the performance of his duties. But the bond does not stop with the duties we have enumerated, requiring a faithful discharge of his duties as paymaster, but a second obligation imposed is, that the paymaster shall promptly pay over and promptly account for all moneys belonging to the company, which shall be received by him. Can it be said that this clause was inserted for no purpose whatever, -or that it can be disregarded in placing a construction on the instrument ? We see no ground upon which this can be done. This clause of the bond was placed there for a purpose, and that purpose, no doubt, was the one indicated by the plain language used by the parties,—that is, to require Bartlett to pay over all moneys he might receive, and render a just and true account, showing an itemized disposition of the same. In no other manner could this clause of the bond be complied with on the part of the paymaster. The bond also contains a third condition, that Bartlett shall deliver over to the company all property belonging to the company, when required. This clause may embrace money or.any other description of property in the hands of the paymaster, which he would be bound to deliver over to the company at any time a demand might be made upon him.

But it is said that the money was stolen without the fault of Bartlett, and on this account he is not liable on the bond. This presents the question, whether the performance of the condition of a bond can be excused by the act of a third party. An early and a leading ease on this question is United States v. Prescott, 3 How. 587, where it was held that the felonious taking and carrying away public money in the custody of a receiver of public moneys, without fault or negligence on his part, .does not discharge him and his sureties, and can not be set up as a defence to an action on his official bond. It is there said: “The condition of the bond has been broken, as the defendant, Prescott, failed to pay the money received by him, when required, and the question is, whether he shall be exonerated from the condition of his bond, on the ground that the money had been stolen from him. The objection to the defence is, that it is not within the condition of the bond, and this would seem to be conclusive. * * * There is no principle on which such a defence can be sustained. The obligation to keep safely the public money, is absolute, without any condition, express or implied; and nothing but the payment of it, when required, can discharge the bond.”

In Thompson v. Board of Trustees, 30 Ill. 99, where an action w'as brought on the bond of a township treasurer for a failure to pay over money which had been received by him, and then stolen, the Prescott case was cited with approval, and it was held, that township treasurers were insurers of -public funds coming into, their possession. The condition of the bond in that case, upon which the action was brought, provided that the township treasurer shall faithfully discharge all the duties of said office, according to the laws which are or may hereafter be in force, and shall deliver to his successor in office all moneys, books, papers, securities and property in his hands as such township treasurer. The defence there interposed was the same as here,— that the money had been stolen. But it was. held that the treasurer was liable; that his liability grew out of his official bond; that the contract was absolute, without any condition, express or implied. There are many other cases holding the same doctrine. Boggs v. State, 46 Texas, 10; United, States v. Thomas, 15 Wall. 337; State v. Harper, 6 Ohio, 607; Ingles v. State, 61 Ind. 212; State v. More, 74 Mo. 413; Muzzy v. Shattuck, 1 Denio, 233; Commonwealth v. Comly, 3 Pa. St. 372.

In the decision of the case last cited, the court said: “The opinion of the court in the ease of United States v. Prescott, is founded in sound policy and sound law. The responsibility of a public receiver is determined, not by the law of bailment, which is called in to supply the place of a special agreement where there is none, but by the condition of his bond. The condition of it, in this instance, was to ‘account for and pay over ’ the moneys to be received; and we would look in vain for a power to relieve him from the performance of it. True, there are many eases of relief against a legal right arising out of a contract,—not one of which, however, bears even a remote resemblance to the present. ”

The bond in the case against Gomly was given by a collector of tolls, conditioned that he would “account for and pay over all moneys he may receive for tolls, ” the language being almost identical with that contained in the bond given by Bartlett, and the defence interposed, as here, was, that the money was stolen, without fault on his part. But the defence was not sustained, the court holding the collector liable, by the terms of the bond.

It has, however, been suggested, in the argument, that in the cases cited, the actions were brought on official bonds of officers, and such actions have been sustained on the ground of public policy. I think a close examination of the cases cited will show that public policy had nothing to do with the decisions in those cases, but, on the other hand, the decisions rest on the terms of the contract,—the conditions of the bonds executed by the parties. What reason could be assigned why one rule of law should be applied where the action was on an official bond of a public officer, and a different rule invoked where the suit was on a bond of a bank officer, or paymaster in a railroad company, the condition of the bonds in the two cases being alike? I am unable to perceive upon what principle a distinction can be made.

But a case which I regard as directly in point, is Steele v. Buck, 61 Ill. 344, which was an action on a bond given to secure the performance of a charter-party, under which Vogell & Crandall were to have the use and possession of a certain propeller, to man and run her during the season of 1869, upon the lakes, and navigable waters connecting with the same. In addition to what has been stated, the charter-party contained a covenant that they would deliver the propeller at the port of Chicago, at the close of the navigation season for that year, in as good condition as she then was, reasonable wear excepted. The propeller was not returned, and to an action on the bond, it was set up as a defence, that on the 18th day of November, 1869, the propeller was overtaken by a gale on the waters of Lake Michigan, and by force of the waves and wind, and without'fault of Yogell & Crandell, broken to pieces, and sunk. This defence did not prevail. The court held that the parties were bound, by the terms of their bond, to return the propeller, and the fact that she was destroyed by the “act of God,” was no defence. It is there, among other things, said: “The parties did not provide, by their contract, for any excuse in ease of the destruction of the propeller by reason of any accident arising from inevitable necessity, and the law will not supply the omission for the contracting party. Having failed to make provision for their protection in case of disaster, the parties can not now set up as an excuse for the non-compliance with the express terms of the bond, that the propeller was destroyed by the perils of the sea, and the evidence as to its destruction was properly rejected.”

This was not an action on the bond of a public officer, and public policy could have no bearing on the decision of the case. The liability was placed on the terms of the bond, the contract existing between the parties. They were the bailees of a specific chattel, and contracted to return it. Here, Bartlett was bailee of a certain quantity of money, and contracted to pay it over. If, as was held, the destruction of the propeller by the act of God was no excuse for a failure to return her, the defence here interposed, that the money was stolen, could form no excuse for a failure to pay over as required by the contract. If Bartlett had desired to relieve himself from responsibility in case the money was stolen, he ought to have provided for a contingency of that character, in the bond. As he failed to do this, he must abide by the terms of his bond, as the courts have no right to impose conditions not found in the contract of the parties. His bond is an absolute undertaking to pay over the money, regardless of its loss by robbery, and while it may work a hardship to require him to do so, I see no way open to escape the liability, unless the plain terms of his contract are disregarded.

Much has been said, in the argument, in regard to the negligence of the railroad company in its failure to keep the door of the office occupied by Bartlett, which led into an unoccupied room, in a safe and secure condition, to prevent thieves from entering the office. I do not regard this as a material question in the case. It is true that the railroad company furnished Bartlett an office to occupy, and a safe in which to keep the money. If Bartlett, however, thought the office or safe insecure, he - should have refused to accept the office until they were made safe, or provided against a loss arising from the negligence of the company, by an appropriate clause in his bond. But after accepting the office, and executing a bond in which he agreed to pay over all moneys received, he is bound by the terms of his bond.

In my judgment, the court erred in the construction placed on the bond upon which the action was brought, and for this error I think the judgment ought to be reversed.


source: Caselaw Access Project

author: Mr. Chief Justice Scott

license: Public Domain

text:
    The Burlington Insurance Company v. S. M. Johnson et al.

      Filed at Springfield May 27, 1887.

      1. Surety—liability, strictly construed. The undertaking of a surety is to be strictly construed, and his liability will not be extended beyond the precise words of his agreement, by implication or construction.
    2. Same—measure of liability limited to terms of the contract. Where a party gives a bond, with sureties, conditioned for his faithful performance of a written contract, that contract will fix the measure of the sureties’ liability; and they will not be liable for the default of their principal to perform any duty or obligation arising out of a contract, or otherwise, not fairly within the provisions of the written contract the bond was given to secure.
    3. SAME—surety on bond of insurance agent—extent of his liability. An insurance agent entered into a written contract with an insurance company for carrying on the business of the company, and at the same time gave a bond, with sureties, to the company, to secure his faithful performance of the contract. Under the contract, the company was not required to advance any moneys to the agent for any purpose, nor did the contract contain any covenant that the agent should repay any moneys advanced to him: Held, that the sureties were not liable on the .bond for any moneys advanced to the agent, their principal, to enable him to prosecute his business for the company.

      Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    Messrs. Kerrick, Lucas & Spencer, for the appellant:
    The court below held that the bond did not cover any money advanced to the principals to pay their expenses, in excess of what was actually due them at the time. The bond mentions the contract, and provides that the Johnsons “shall well and faithfully fulfill the terms of the before mentioned contract, ” etc., and then provides, that they “shall well and faithfully discharge all duties devolving upon them as special agents, and shall, on demand, deliver a correct account of all sums of money as may come into their hands as special agents, and shall pay and deliver unto any authorized person, all balances, sums of money * * * which shall be due by them” to appellants.
    The declaration does not count on the failure of the John-sons to fulfill the terms of the contract, but upon their failure to pay “all balances, sums of money * * * which shall be due by them to” the appellant.
    In the absence of fraud, it is immaterial how the money got into the hands of the Johnsons. The question is, after charging them with all money that comes into their hands as such agents, and giving them credit for all claims they have, is there any balance due by them to appellant ? If there is, then appellees, the Johnsons, shall pay that balance or sum.
    The bond is more than a guaranty that the Johnsons shall perform their contract, and the construction makes of no effect the undertaking that they shall pay all sums of money due from them as such agents.
    Messrs. Tipton & Beaver, and Mr. A. J. Barr, for the appellees:
    There is no provision in the contract between appellant and the Johnsons, that appellant was to advance to the John-sons any money, or to pay them any money,- except for expenses and money earned; and for this the mode and time of payment are carefully and specifically provided for in the contract. There is nothing in the contract or bond that required or bound appellant to advance money or to loan money to the Johnsons, and if they did so, it was outside of the contract, and creates no liability on the bond. This obligation, as against the sureties, is to be strictly construed. Reynolds v. Hall, 1 Scam. 35; People v. Moore, 3 id. 123; Field v. Rawlings, 1 Gilm. 581; Sharp v. Bedell, 5 id. 88; Waters v. Simpson, 2 id. 570.
    The contract of a surety is strictly construed. People v. Tomphins, 74 Ill. 482; Cooper v. People, 85 id. 417; Mix v. Singleton, 86 id. 194; Phillips v. Manufacturing Co. 88 id. 305.
    The rule is, that a surety will not be held liable beyond the precise words of his undertaking, and all doubts are generally solved in favor of the surety. Adams v. People, 12 Bradw. 380.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

This suit was brought by the Burlington Insurance Company, against S. M. Johnson and W. F. Johnson, and their sureties, on a bond. The declaration, as last amended, contains only a single count, to which the circuit court sustained the demurrer interposed by defendants, and plaintiff electing to stand by its declaration, final judgment was entered in favor of defendants. That judgment was affirmed in the Appellate Court for the Third District, and plaintiff brings the ease to this court on its further appeal.

The bond declared on was given in pursuance of the fifteenth clause of an agreement entered into between S. M. Johnson and W. F. Johnson, and plaintiff. The other defendants are sureties for the principals in the bond. The contract between the principals and the insurance company, and the bond in suit, are both set out at length in the declaration. It is averred the bond was given in pursuance of the written contract, and was to secure the faithful performance of the ■contract by the principal defendants. On looking into the contract, it is seen what covenants the sureties obligated themselves that the principals should perform, or in default thereof they would become liable. A rule of law having a direct .application to the case, is, the undertaking of a surety is to be strictly copstrued, and his liability will not be extended beyond the precise words of his agreement, either by implication or by construction. Applying this well understood doctrine, the contract between the principals and plaintiff fixes the measure of the liability of the sureties, and beyond -or outside of that agreement the sureties are liable for no default of their principals. It is important, then, to inquire what duties the principals owed to plaintiff under the contract they failed to perform.

It is averred in the declaration, “that after the execution of the above mentioned contract and bond, the defendants, S. M. and W. F. Johnson, entered upon the performance of such contract, and from thence, at various times, to the time ■of the termination of said agency, the said S. M. and W. F. ■Johnson requested the plaintiff to advance money to them, as such agents, to pay commissions, expenses, etc., and to ■enable them, the said S. M. and W. F. Johnson, to prosecute and carry on the said business of the plaintiff, as such agents, under the first mentioned contract, and with the agreement and understanding, on the part of the plaintiff and the said S. M. and W. F. Johnson, that they, the said S. M. and W. F. Johnson, on demand, would pay and return to the plaintiff any and all money so received by them, and due from them, as such agents, as aforesaid; and thereupon, to-wit, at various and divers times, and after the time of such request, on such and other like requests from the said S. M. and W. F. Johnson, the plaintiff did advance to the said S. M. and W. F. Johnson, as such agents, for the purpose aforesaid, large sums of money, to-wit, $10,000.”

It nowhere appears in the contract that plaintiff was to advance any money to their agents for the purposes stated in the averments of the declaration, or, indeed, for any other-purpose, nor does it contain any covenant they shall repay any money advanced to them. It can not be claimed, with any show of reason, the bond obligates the sureties to be responsible for the default of the principals to perform any duty or obligation arising out of á contract, or otherwise, not fairly within the provisions of the Written contract between the parties, in pursuance of which the bond was entered into. That would be to enlarge the undertaking of the sureties, which the law will not permit. The money advanced to their agents, according to the averment in the declaration, is outside of the terms of the written agreement. The legal effect, of the bond of the sureties is, that their principals should perform and observe all the covenants and undertakings contained in the written contract, but nothing beyond what may fairly be said to be within its terms. Should it be held the sureties are liable for moneys advanced to the agents of plaintiff, although for their business, by the same parity of reasoning they could be held liable for the default of the agents to perform any other agreement they might make with the insurance company, outside of the written contract, concerning their business. There is no warrant of law for extending the liability of the sureties to such an unreasonable extent. Clearly, the money advanced by plaintiff to its agents was not advanced under the terms of the written contract, and the sureties are not liable for the default of the agents in regard to it. It is not covered by the conditions of the bond of the sureties.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    Charles Dennehy v. The City of Chicago.

      Filed at Springfield May 12, 1887

      Rehearing denied June Term, 1887.

      1. Intoxicating liquors—regulations as to selling or giving away— police power. Police regulations prohibiting sales or gifts of intoxicating liquors are sustained, on the ground that they are established for the prevention of intemperance, pauperism and crime, and for the abatement of nuisances.
    2. Same—municipal powers to license or prohibit—as to the manner of their exercise—classification as to purposes, quantities, and rates—statutes construed. The words, “to license, regulate and prohibit the selling or giving away of any intoxicating, malt, vinous, mixed or fermented liquors, ” in clause 46 of section 1, article 5, of the act relating to cities and villages, are generic, and authorize the classification of sales and gifts by quantity or purpose, or both, and the imposition of different charges for licensing, as classified, subject only to the qualification expressed in the Dram-shop act, and the amendment thereto.
    3. A city or village incorporated under the general law, has the power, not only to license dram-shops to sell intoxicating liquors by retail, and druggists, but also the further power to exact a license for the sale of liquors in a larger quantity than one gallon, classifying such license as a “license of wholesale liquor dealers,” as distinguished from a “dram-shop license.”
    4. Where power is conferred to “license, regulate and prohibit” sales of intoxicating liquor, the prohibition need not be total, but may be applied to any and all sales not licensed by law.
    5. The proviso to clause 46 of section 1, article 5, of the act relating to cities and villages, does not affect the question of the existence or extent of the particular power to which it relates, but only the manner and condition of its exercise, and was designed only to produce uniformity as to the mode of granting licenses, and the terms upon which they shall be granted, to the extent that the general law assumes to establish uniformity in those respects. Therefore, the proviso in section 1 of the amendatory Dram-shop act of 1883, must be read as a part of clause 46 of the first named act.
    6. Same—license fee—as a tax. The sum charged for a wholesale liquor license is not a tax, but is a burden imposed as the price of a privilege which may be denied altogether. The reasonableness of the amount exacted is not a question for the courts to pass upon. .

      7. Same—prohibition of sales, as affecting the manufacture. A prohibition of all sales of liquors within a city for use there as a beverage, without reference to the quantity sold at one time, which is within the police power, will not affect the manufacture of liquor therein to be sold to druggists, or to be sold for exportation and trade without the limits of the city.
    8. Same—druggists’ permits—whether limited as to quantity. A druggist’s permit to sell intoxicating liquors, is not required to be limited to sales in quantities less than one gallon. Under a general permit he may sell in quantities exceeding one gallon.
    9. Same—sale or giving away to minora, etc.—whether restriction limited to quantity. The power conferred by the law upon municipal authorities to forbid and punish the selling or giving away of liquors to any minor, apprentice or servant, or insane, idiotic or distracted person, habitual drunkard, or person intoxicated, is not to be confined to sales or gifts by the drink, or in quantities less than one gallon. Sales or gifts to persons of that class, of intoxicating liquors, in any quantify, to be used as a beverage, are within the letter and the spirit of the provision.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Criminal Court of Cook county; the Hon. Bollin S. Williamson, Judge, presiding.
    Messrs. Barnum, Rubens & Ames, for the appellant:
    The ordinance is void, because the city has no authority, under its charter, to impose a license fee upon wholesale dealers in intoxicating liquors. The rule of strict construction prevails as to grants of municipal powers of the character claimed. 1 Dillon on Mun. Corp. sec. 16; Cooley’s Const. Lim. *192; Cooley on Taxation, 109; Commissioners v. Newell, 80 Ill. 593; Webster v. People, 98 id. 347; Alton v. Insurance Co. 82 id. 45.
    This rule is particularly applicable to the case of taxes on occupations. Cooley on Taxation, 574; Latle v. Williams, 87 N. C. 126; Kip v. Patterson, 26 N. J. 298; St. Louis v. Laughlin, 49 Mo. 559.
    Where the prohibiting power exists, the regulating power growing out of and coupled with it, can go any length, and be justified. (Schwuchow v. Chicago, 68 Ill. 450.) Not so when the regulating power stands alone upon its own merits. Then it must be exercised for “regulation, ” not for “prohibition,” nor for “revenue.” 1 Dillon on Mun. Corp. sec. 357; Cooley on Taxation, 598; Cooley’s Const. Lim. 245.
    . Under the ninety-first power of section 1, article 5, of the act relating to cities and villages, the city can tax, license and regulate distillers and brewers, but can not prohibit their callings; and the eighty-second power authorizes the city council to direct the location, and regulate the use and construction, of breweries and distilleries in the city. This is inconsistent with the idea that all sales by brewers and distillers can be prohibited.
    The key to the proper construction of power 46 is found in the Dram-shop act, clearly showing that both acts refer to sales and gifts for drinking purposes, and not to wholesale dealers.
    The proviso in section 1 of the Dram-shop act requires the corporate authorities, in granting licenses, to conform to the general law of the State on the subject. There is no State law for the licensing of wholesale liquor dealers. The permits to druggists are only for retail sales.
    The history of the Illinois liquor legislation shows that the only "regulation and the only prohibition ever tried, related to the retail grocery business.
    A municipal corporation can not, by ordinance, make any thing a nuisance which is not such. Railroad Co. v. Lake View, 105 Ill. 206.
    The ordinance is void, because the license provided for is simply imposed for revenue purposes, and not for regulation purposes. Mayor v. Railroad Co. 32 N. Y. 273; Collins v. Louisville, 2 B. Mon. 137; State v. Roberts, 11 Gill & J. 505; Mays v. Cincinnati, 1 Ohio St. 268; Cincinnati v. Bryson, 15 id. 625; Freeholders v. Barber, 2 Halst. 64; Kip v. Patterson, 2 Dutch. 298; Bennett v. Birmingham, 31 Pa. St. 15; Chilvers v. People, 11 Mich. 43; Mayor v. Zuille, 3 Ala. 144; Ash v. People, 11 Mich. 347; Mayor v. Beasley, 1 Humph. 240;
      Commonwealth v. Stodder, 2 Cush. 562; City of Burlington v. Insurance Co. 31 Iowa 103; Home Insurance Co. v. Augusta, 50 Ga. 537; St. Paul v. Traeger, 25 Minn. 251; Commonwealth v. Markham, 7 Bush, 486; State v. Hoboken, 33 N. J. L. 281; Ex parte Frank, 52 Cal. 606.
    Mr. F. A. Hoffman, Jr., and Mr. F. S. Winston, for the appellee:
    The power to prohibit the selling of any intoxicating liquors is broad enough to authorize the prohibition of such sales in quantities greater than one gallon at a time. But assuming that no power exists to prohibit such traffic, it by no means follows that it may not be licensed. The right to license any given occupation, of itself carries the right to determine the amount to be paid for such license. Howland v. Chicago, 108 Ill. 500; Braun v. Chicago, 110 id. 186; Lyman v. Chicago, id. 000; Distilling Co. v. Chicago, 112 id. 19.
    The claim that the city can not license or prohibit the sales of liquor in greater quantities than one gallon, because the Dram-shop act refers only to retail sales, and therefore the ordinance is too broad, is answered by Gunnarssohn v. Sterling, 92 Ill. 569.
    It is also contended that the license demanded is so large as to amount to a tax. In answer to this objection, reference is made to the following cases: People v. Thurber, 13 Ill. 554; Firemen’s Association v. Lounsbury, 21 id. 511; Insurance Co, v. Peoria, 29 id. 180; East St. Louis v. Wehrung, 46 id. 392; Ducat v. Chicago, 48 id. 172; Packing Co. v. Chicago, 88 id. 221; Walker v. Springfield, 94 id. 364; Lovingston v. Trustees, 99 id. 564; East St. Louis v. Trustees, 102 id. 489; Ferry Co. v. East St. Louis, id. 560; Cole v. Hall, 103 id. 30; Howland v. Chicago, 108 id. 500; Braun v. Chicago, 110 id. 186; Distilling Co. v. Chicago, 112 id. 19.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This appeal brings before us for review a judgment of the Criminal Court of Cook county, convicting appellant of selling spirituous and vinous liquors within the city of Chicago, in quantities of one gallon or more at a time, without having obtained a license from the city authorizing such sales. There is no question of fact presented, it being conceded that appellant made the alleged sales without the requisite license, and the-only question of law to be passed upon is the validity of the following ordinances, namely:

“An ordinance concerning the licensing of wholesale liquor ■dealers:
“Sec. 1. No person, firm or corporation shall sell or offer for sale any spirituous or vinous liquors in quantities of one gallon or more at a time, within the city of Chicago, without first having obtained a license therefor from the city of Chicago, under a penalty of not less than $50 nor more than $200 dollars for each.offence. But no distiller who has taken ■out a license as such, and who sells only distilled spirits of his own production at the place of manufacture, shall be required to pay the license herein prescribed, on account of such sales.
“Sec. 2. All such licenses shall be issued in accordance with the general ordinances of the city concerning licenses, itnd for every such license there shall be charged at the rate •of $250 per annum.”

Other ordinances of the city were in force at the time these were adopted, providing for the licensing of dram-shops upon -the payment of $500, and the licensing of brewers and distillers upon the payment of a like sum.

Appellant contends that the ordinances recited are void, for -two reasons,—first, because the city has no power, under its oharter, to impose a license fee upon wholesale dealers in intoxicating liquors; second, because the license provided for is simply imposed for revenue purposes, and not for purposes of regulation. The questions- thus presented will be considered in the order stated.

First—The city of Chicago is incorporated under the general law for the incorporation of cities, villages and towns. (Rev. Stat. 1874, chap. 24, p. 209.) Article 5 of that chapter confers numerous powers upon the city council in cities, and the president and board of trustees in villages, among which is that contained in clause 46, in section 1, which is in these-words: “To license, regulate and prohibit the selling or giving away of any intoxicating, malt, vinous, mixed or fermented liquors, the license not to extend beyond the municipal year in which it shall be granted, and to determine the amount to-be paid for such license: Provided, that the city council in cities, or president and board of trustees in villages, may grant permits to druggists for the sale of liquors for medicinal, mechanical, sacramental and chemical purposes, only, subject to forfeiture, and under such restrictions and regulations as-may be provided by ordinance: Provided, further, that in granting licenses, such corporate authorities shall comply with whatever general law of the State may be in force relative to-the granting of licenses.” Looking at this language alone, it would seem to be as broad and comprehensive as could have-been employed to convey the idea of an unlimited and unrestricted power to license, regulate and prohibit, except as-affected by the provisos,—for the use of only general language, plainly, to every apprehension, negatives the idea of restriction or limitation. This is, in effect, conceded by counsel for appellant in their very ingeniuous and able argument; but they contend that the clause should be read as in pari materia with the original “Dram-shop act, ” (Rev. Stat. 1874, chap. 43, p. 438,) and the amendatory Dram-shop act, approved June-15, 1883, (Pub. Laws of 1883, p. 92,) and in the light of the past legislation of the State upon the question, generally, and. the decisions thereon of this court; and that, being so read, it will be evident th|t the power to license, regulate and prohibit is intended only to apply to sales in a less quantity than one gallon.

The act in relation to “Cities and Villages” was approved April 10, 1872, and that in relation to dram-shops was approved March 30, 1874, but both acts were incorporated, as they now read, in the revision of 1874; and so it is to be assumed that the language of each act was then in the mind of the General Assembly, and, therefore, that any substantial diversity in the language of the two acts, in respect to the licensing, regulating and prohibiting sales of liquors, etc., is not merely accidental, but is intentional, and because different ideas, in that respect, are intended tó be conveyed in the different acts. Section 1 of the Dram-shop act, instead of using general language, as is used in the 46th clause of section 1, article 5, of the act in relation to cities and villages, enacts, “that a dram-shop is a place where spirituous or vinous or malt liquors are retailed by a less quantity than one gallon. ” Section 3 empowers the county-board to grant licenses to keep dram-shops, but contains this proviso: “Such board shall not have power to issue any license to keep any dram-shop in any incorporated city, town or village, or within two miles of the same, in which the corporate authorities have authority to license, regulate, restrain or prohibit,”—not “dram-shops, ” as certainly would have been said if that only had been intended, but the “sale of liquor, ” and this language is repeated in section 2 of the amendatory Dram-shop act.

Our constitution confers power upon the General Assembly to “tax * * * liquor dealers,” (sec. 1, art. 9,) and in Timm v. Harrison, 109 Ill. 601, we held that the term “liquor dealers,” as thus used, was generic, and that it was competent, under it, for the General Assembly to classify the different kinds of liquor dealers, and impose differential taxes upon such classes; and so, upon like principle, here, the words, “to license, regulate and prohibit the selling or giving away of any intoxicating, malt, vinous, mixed or fermented liquors, ” would seem to be generic, and authorize the classification of sales and gifts, by quantity or purpose, or both; and the imposing of differential charges for licensing, as classified, subject to the qualification expressed in the Dram-shop act and the amendatory Dram-shop act. The power to license and regulate sales of liquors,—the genus,—of course includes the power to license and regulate “dram-shops,”—one of the species; and hence the .question is, not whether cities have power, by virtue of the clause under consideration, to license and regulate “dram-shops,”—that is beyond question,—but whether they have the further power to exact a license for selling liquors in a larger quantity than one gallon, classifying such license, as contradistinguished from a “dram-shop license, ” as a “license of wholesale liquor dealers; ” and in this view, the proviso in the clause of the city and village charter under consideration, that “in granting licenses, such corporate authorities shall comply with whatever general law of the State may be in force relative to the granting of licenses, ” and the provision in section 1 of the amendatory Dram-shop act of June 15, 1883, that “it shall not be lawful for the corporate authorities of any city, town or village * * * to grant a license for the keeping of a dram-shop, except upon the payment, in advance, into the treasury of the city, town or village granting such license, such sum as may be determined by the respective authorities of such city, town or village, not less than at the rate of $500 per annum, ” etc., have no tendency to prove that the authority of the city or village is exhausted when the quantity of one gallon is reached. This proviso, in other words, does not affect the question of the extent of the particular power .to which it relates. It simply affects the manner and condition of its exercise, and was manifestly designed only to produce uniformity as to the mode of granting licenses, and the terms upon which they shall be granted, to the extent that the general law assumes to establish uniformity in those respects; and, therefore, the provision in section 1 of the amendatory Dram-shop act of June 15, 1883, must be read as a part of the clause of the city and village charter under consideration, immediately after the words, “amount to be paid for such license,” so that the clause will then read: “To license, regulate and prohibit the selling or giving away of any intoxicating, malt, vinous, mixed or fermented liquor, the license not to extend beyond the municipal year in which it shall be granted, and' to determine the amount to be paid for such license; [but] it shall not be lawful for the corporate authorities of any city, town or village in this State, to grant a license for the keeping of a dram-shop, except upon the payment, in advance, into the treasury of the city, town or village granting the license, such sum as may be determined by the respective authorities of such city, town or village, not less than at the rate of five hundred dollars (§500) per annum,” etc.

But counsel for appellant contend, that the use of the word “prohibit, ” in the clause in question, shows that it was only intended to confer power to license dram-shops; that the power “to prohibit” must be construed as co-extensive with the power “to license and regulate, ” and that it could never have been intended to confer power upon cities and villages to prohibit all sales of liquors, etc. There is no question, here, whether the power can be or has been here conferred upon cities and villages to prohibit all sales of liquors. No ordinance, here, assumes to prohibit any sales of. liquors. It is only material to determine whether language, apparently used in its general or universal sense, was, in fact, intended to be used only in a restricted or particular sense because of the inclusion of the word “prohibit. ”

It is to be observed that the words “wholesale dealer, ” as used in this ordinance, are purely nominal, fixing an arbitrary classification, without any reference to the circumstances attending the sale, or the use for which the article is purchased. A person selling liquors in a less quantity than one gallon, or in a larger amount, if to be drank on his or the adjacent premises, is the keeper of a dram-shop, and a person selling liquors in quantities of one gallon or more is a “wholesale dealer in liquors.” We must not be deceived by mere names. It is quite apparent that the question before us would in no wise have been different if the Dram-shop act had simply provided that persons should not sell liquors in a less quantity than'one gallon, or to be drank on the premises, or those adjacent, without a license authorizing them so to do, and the city had provided, by ordinance, first, for issuing license for the class of sales specified in that statute; and second, for issuing license for sales of one gallon or more, omitting all naming of it, -having, of course, the authority conferred by the clause of the City and Village act under consideration. If, therefore, sales of liquors in quantities of one gallon or more, which are not to be drank on the premises of the seller or those adjacent, may properly be prohibited for any purpose, the word “prohibit, ” as here used, may have effect beyond suppressing dram-shops, and its inclusion, therefore, creates no presumption that the power intended to be conferred was limited to that purpose.

Counsel say: “There could be no such legislation, and no occasion for it, but for dram selling. * * * The dram-shop is the institution, and the only one, calling for regulation or prohibition under either statute, and against it, exclusively, both alike are leveled.” The .vice of this assumption runs through the entire argument of the counsel, on the effect of the inclusion of the word “prohibit. ” It is, that the quantity of liquor sold at one time, and the place at which it is drank, —one or both,—are the only inducing causes through which citizens of a community are injuriously affected by sales of liquors therein. Police regulations prohibiting sales of liquors are sustained, upon the ground that they are established for the prevention of intemperance, pauperism and crime, and for the abatement of nuisances. Cooley’s Const. Lim. (1st ed.) 583, and authorities cited. It is manifest that selling drams over the counter, and liquors in greater quantities to be drank in or upon any adjacent premises, are but ways of selling liquors to be used as a beverage; but these are by no means the only ways, although they may be the worst, by which sales for that purpose can be made. Liquors may be purchased in quantities of one gallon or more, and carried off to be drank at the home of the purchaser, or elsewhere other than at the place of sale or on the premises adjacent thereto, and when thus drank, they will, of course, produce the same drunkenness, and the same usual train of personal ills resulting therefrom. The injury to the citizen is as evident in the one case as it is in the other. It is of the same kind in each case, and if there be difference at all, it is obviously only in degree, not in quality; and hence, if the use of liquors as a beverage is injurious to the person, to the degree justifying the prohibition of its sale for that purpose, it is cle.ar the question of the quantity sold at any one time, for that purpose, is immaterial. If the individual may not buy the drink in the saloon, simply because of the injury resulting from drinking, surely he may not be allowed to buy a barrel or a hogshead, and take it into his family, and there drink it.

A reference to previous decisions of this court will show that the' right to prohibit sales of liquors in a municipality has never been predicated upon the idea that the quantity sold at a given time was controlling, but that it has always been predicated solely upon the idea that its sale and use as a beverage, without reference to the quantity sold at the time, was injurious to the citizen.

In King et al. v. Jacksonville, 2 Scam. 305, under power to make ordinances to prevent and remove nuisances, to restrain and prohibit gambling or other disorderly conduct, an ordinance prohibiting the sale of spirits, wine, beer, etc., by a less quantity than one gallon, was sustained.

In Goddard v. Town of Jacksonville, 15 Ill. 588, under the same power as in the preceding case, and the additional power to “license, tax and regulate auctioneers, groceries, ordinaries, and all places where spirituous or fermented liquors are sold by less quantity than one quart, ” an ordinance declaring the sale of spirituous liquors a nuisance, and imposing a fine for the offence, was held valid; and the court justified its ruling upon the ground that the sale of liquors for use as a beverage is “hurtful and injurious to the public morals, good order and well-being of society.”

In Byers et al. v. President and Trustees of Town of Olney, 16 Ill. 35, under powers not essentially different from those possessed by Jacksonville, in the case last above cited, an ordinance prohibiting sales in a less quantity than one barrel, was sustained.

In O’Leary v. County of Cook, 28 Ill. 534, an act prohibiting the sale of spirituous liquors within four miles of the Northwestern University, was sustained as a valid and constitutional enactment, upon the ground that it prevented its use by the students as a beverage.

In Block v. Town of Jacksonville, 36 Ill. 301, an ordinance of the town declared the sale of liquors, a nuisance. The defendant offered to prove that he was a wholesale and retail dealer in liquors; that he had a government license; that he sold no liquor to be drank on his premises, nor suffered any to be so drank; that he kept a quiet, respectable and orderly house, created no nuisance, and had no noise or disturbance on his premises. But the evidence was excluded, and this court held that it was properly excluded, and sustained the ordinance.

In Kettering v. City of Jacksonville, 50 Ill. 39, the city charter empowered the city council to “regulate, license, tax, prohibit and punish the sale of intoxicating, alcoholic or malt liquors, ” etc. (1 Private Laws of 1867, p. 346.) The city council adopted an ordinance prohibiting the sale of liquor and beer. The proof was that Kettering sold beer by the glass, in a saloon. He was convicted of violating the ordinance, and, on appeal, the judgment of conviction was affirmed in this court. The objection was there urged, that the ordinance was in violation of the constitution, but it was said, in reply, that this question, so far as it relates to retailing of liquor or beer, is not an open question in this court. The objection, however, was further urged, that the ordinance was too broad, inasmuch as it prohibited not only the sale of liquor by retail, but by wholesale, and therefore could not be sustained as a police regulation. The court said: “But this prosecution was for the sale of beer by the glass, in what is called a ‘saloon,’ and therefore does not involve the question of the power of the city to forbid its sale as an article of commerce, to be carried beyond the limits of the city, or used for mechanical or domestic purposes. Such a case is not before us. ” Counsel, in argument, speak of this decision as holding this ordinance too broad. This is a misapprehension. The court did not rule one way or the other on that question; and it will, moreover, be noted, that what is said there with reference to “retail” and “wholesale,” has reference to such sales as a matter of fact, and not to an arbitrary definition of such sales, as here, drawing a line between those of less than a gallon at a time, and assigning them to one class, and those of one gallon or more at a time, and assigning them to the other class.

In Strauss v. Town of Pontiac, 40 Ill. 301, section 19, of article 4, of the city charter, authorized the prohibition of tippling houses or dram-shops within the town, or within five miles thereof, and it was held that this did not authorize an ordinance prohibiting sales of beer and liquor, generally. But section 17, of article 7, of the charter, forbade any person from keeping within the town, or within five miles thereof, spirits or beer, for the purpose of traffic, and it was held that this was, in itself, a prohibition of the traffic, and did not need to be supplemented by an ordinance; and there was the same ruling in Town of Ashton v. Ellsworth, 48 Ill. 299.

In Gunnarssohn v. City of Sterling, 92 Ill; 571, the charter empowered the city council “to license, prohibit or regulate, ” by ordinance, sales of spirituous or malt liquors, etc., “within the city, and within one mile of the city limits north of Eock river.” An ordinance was adopted prohibiting sales within the limits prescribed by the charter, of spirituous and malt liquors in less quantities than five gallons. It was contended that this ordinance was invalid, first, because the exclusive power of the city to prohibit the sales of liquor has been taken away by the subsequent enactment of the Dram-shop act; second, that the ordinance is too broad and comprehensive in its terms, and attempts to restrain and prohibit a matter of business or trade to an extent that in nowise affects the police of the city; and third, that the ordinance is inconsistent with the general statutes of the State and the policy of the State legislature, and therefore void. But each of these objections was overruled, and the ordinance was sustained.

It is impossible to draw a line between those eases and the present case, and say, that there the word “prohibit” was effective to the extent there held, but here it must be held to mean sales of less than a gallon at one time, only. If it might be referred, in the Olney case, to local option to prohibit sales in quantities of less than one barrel at one time, or, in the Goddard case or the Bloch case, to declare all sales a nuisance, no reason is apparent why a different rule should apply here.

Counsel, however, say, that the 48th clause of the same section, of which the clause under consideration is a part, is further confirmative of the construction they contend for. It reads: “And the city council in cities, and president and board of trustees in villages, shall also have the power to forbid and punish the selling or giving away of any intoxicating, malt, vinous, mixed or fermented liquor, to any minor, apprentice or servant, or insane, idiotic or distracted person, habitual drunkard, or person intoxicated.” They say the language here is just as broad and comprehensive as in clause 46, and that it is inconceivable that legislation should be thought necessary, to prohibit wholesale dealers from giving away their stocks by wholesale. But to give this language effect, as to amounts of one gallon or greater, it is not necessary that we should assume that the legislature supposed there was great probability of owners of large stocks of liquors giving away their entire stocks to persons of the classes designated in this clause,—it is sufficient that the legislature has used general language prohibiting sales and gifts to these classes, and that there is nothing in the subject necessarily creating a presumption that some specific limitation as to quantity sold or given at one time must have been intended. Beading this clause by itself, no one could reasonably come to the conclusion that it was intended to apply to any one specific quantity rather than another, for no quantity is named, and no language is used showing that it was intended that information was to be sought elsewhere, in this respect. If it could have been certainly known that some small specific quantity was intended, then the clause must have either named that quantity or have unmistakably indicated a mode of ascertaining it. The manifest purpose of enacting the clause was to enable cities and villages to prevent the use of liquors, as a beverage, by the designated classes,» and to that end they are empowered to prohibit, by ordinance, that liquors shall be either sold or given to them; and since any amount of liquor, whether great or small, sufficient to produce intoxication, is certainly within the danger intended to be guarded against, so, also, any amount of liquors that may be used as a beverage is within both the letter and the spirit of the clause.

But it is contended that the words “selling,” or “giving away,” in this clause, are defined by the 13th section of the Dram-shop act, and that that definition clearly defines the objects of both laws. Section 13 of the Dram-shop act reads thus : “The giving away of intoxicating liquors, or other shift or device to evade the provisions of this act, shall be held to be an unlawful selling.” Clearly, this has no reference to sales to the helpless classes designed to be protected by the clause referred to; and it is also quite clear that its sole purpose is to define what shall be deemed a sale under that act. It has no reference to quantities, and none to the powers of cities and villages under the general act applicable to them.

Again, counsel contend that the proviso concerning druggists’ permits is limited to sales by retail, and that we have thus decided in Wright v. People, 101 Ill. 134, and that this being so, it is fairly to be presumed that the balance of the clause was to have no greater scope. Counsel labor under a misapprehension in respect to what .we decided, on this subject, in Wright v. People. The question in that ease was, whether a druggist selling in good faith, as such, and without any intention of violating the Criminal Code,' but not being, at the time, licensed as a druggist, was liable to indictment- and conviction under the second section of the Dram-shop act, and it was held that he was. There was no question as to the scope of the proviso in favor of druggists in clause 46, in section 1, of article 5, of the act in relation to cities, villages and towns. The case involved only a construction of the Dram-shop act, so far as bearing upon the case, and the language referred to only asserts the obvious truth, that if by the term “dram-shop, ” “the legislature meant any place where liquors are sold' in less quantities than a gallon, any well provided drug store as fully answers that description as a tippling house, for all regular druggists are daily, and almost hourly, in the habit of selling liquor in that way. ” But it neither directly asserts, nor was it intended to' convey the idea, that druggists’ sales are confined to such amounts. It proves nothing to the purpose of appellant’s contention, to establish that the clause under consideration confers power to prohibit sales in quantities less than a gallon,—all concede that; but, we repeat, the question is, does the power conferred stop there ? And hence, unless druggists’ sales are always in quantities less than a gallon, it can not be logically urged that the exception in their favor tends to prove that the power of prohibition was intended to be limited to quantities less than a gallon. It surely must be beyond question, that if the business of druggists necessitates that they should sometimes sell liquor in quantities of one gallon, or greater, at one time, to exempt them from the operation of ordinances prohibiting sales generally, in quantities of one gallon or greater, they should be specifically named and excepted.

The recital of the purposes for which druggists may be authorized to sell, namely, “medicinal, mechanical, sacramental and chemical, ” renders it certain that it must often be necessary for them to sell in quantities of one gallon and more ; and if we could have had any doubt in that regard, that doubt would have been removed by statistics furnished in the argument of counsel for appellant. They were produced for another purpose, but we deem them more pertinent for this. Counsel there say: “From testimony given before the United States revenue commission, in 1865, it was established that the sales of one single rectifying house in the city of New York averaged over thirty thousand gallons of alcohol, equivr alent to sixty thousand gallons of proof spirit, per annum, for the preparation of hair tonics, eighty thousand gallons of alcohol to one firm for the manufacture of a popular article of cheap perfumery, one hundred and twenty-five thousand gallons to another firm for an imitation wine, and forty-one thousand gallons to a third for a patent pain killer. A single firm in western New York, engaged in the manufacture of a horse medicine, reported a consumption for this purpose of over fifty thousand gallons of proof spirits per annum. * * * The whole quantity of alcohol used in the manufacture of burning fluid in the United States in 1860, was estimated by the United States revenue commission to have been at least sixteen millions of gallons. ‘Some idea of the extent of the production of this article may be gained from the statement that the manufacture of burning fluid in 1860, in the city of Cincinnati alone, required an amount of alcohol equal to the distillate from twelve thousand bushels- of corn for every twenty-four hours.’ ”

These are illustrations of the uses of liquors, and the quantities required for medicinal, mechanical and chemical purposes, and therefore within the sales that it is here contemplated may be made by druggists, and it is apparent that they do not exhaust even the classes under these heads.

Another contention urged by counsel for appellant is, that the Dram-shop act, in its second section, by implication intends that even the dram-shop keeper, and therefore every other individual as well, may freely, without fee or charge therefor, lawfully sell liquor in any quantity greater than a gallon, only not to be drank upon or adjacent to the seller’s premises. This, in any view, could only be true as to cities and villages, in the event that the Dram-shop act was the only law in force in cities, villages, etc., on the subject of licenses, which, we have seen, is not the fact. In all the eases referred to supra, there ivas a'general law in force limiting the amount that could be sold without a license. When the causes of action in King et al. v. Jacksonville, Goddard v. Jacksonville, and Byers et al. v. Town of Olney, accrued, that amount was one quart—when the cause of action accrued in all the other cases, the amount was one gallon; and in neither one of them was the amount fixed by the general law allowed to affect the power of licensing, regulating or prohibiting, under the charters. In the Olney case, it was expressly ruled that an ordinance prohibiting sales in a less quantity than one barrel was not repugnant to a general law prohibiting a sale without a license in a less quantity than one quart. The court said: “But we see no repugnance between the general law and the ordinance in this case. The general law prohibits a sale without a license in a less quantity than one quart. The ordinance only extends the amount to a barrel, and does not require a license to be procured from the corporation. The subject matter of sale without license has been in part, only, regulated, by forbidding sales in small quantities, and has left the larger sales without regulation by law. The ordinance comes in to regulate sales in larger quantities. I can not see the repugnance to any law of the State, and believe the subject to be within the corporate powers for regulation. ” And afterwards, in City of Pekin v. Smelzel, 21 Ill. 464, it was again expressly ruled, that cities, under general powers to license and regulate, etc., may exercise powers by ordinance, regulating the sale of intoxicating drinks, beyond those authorized by the general laws of the State. And there was also, like ruling, in effect, in Pendergast v. City of Peru, 20 Ill. 51.

And finally, it is contended that the eighty-second power in section 1, of article 5, of the act entitled “Cities and "Villages, ” confers power “to direct the location, and regulate the use and construction, of breweries and distilleries * * , * within the limits of the city or village, ” and that this is inconsistent with the notion that by the forty-sixth power prohibition of wholesales without limit was intended. But the fallacy here, as in the argument on the inclusion of the word “prohibit” with the words “to license and regulate,” is in assuming that the word “prohibit” must apply to all sales, or only to sales in less quantities than one gallon. But we have seen that it is sufficient to authorize its use in the connection in which it occurs, if it may properly apply to any sales not covered by the Dram-shop act, and that such sales are not only possible, but of frequent occurrence. It is, moreover, clear, that a prohibition, even if the power were to be exercised, need not necessarily be exclusive, because, as we have seen, the exception may be made in favor of druggists, without regard to the quantity to be sold at one time. A. prohibition of all sales of liquors within the municipality for use there as a beverage, without reference to the quantity sold at one time, which, on the authorities we have referred to, is clearly within the police power, it is evident would not affect the manufacture of liquors to be sold to druggists, nor the manufacture of liquors to be sold for exportation and trade without the limits of the municipality. There is therefore no necessary conflict between the provisions.

Second—The second objection, by implication, assumes that the license here, affects only sales of liquors in large quantities, and as a part of the general commerce of the country, without in any perceptible degree affecting sales facilitating its use as a beverage among the inhabitants of the city, and doubtless originated in an omission to observe and keep in mind the distinction between wholesale in fact, and wholesale as arbitrarily defined and classified by this ordinance. When it is reflected that this license authorizes sales, for the purposes of a beverage, in quantities of one gallon or more when the liquors are carried'away in jugs, demijohns, bottles, kegs, etc., and drank at the houses of the purchasers, or elsewhere remote from the premises of the vendors, it must be evident, that if, as all prohibitory laws assume, and as is held by the previous decisions of .this court, dram drinking is an evil to the person, and pernicious to the welfare of society, it must be evident that there is, under this license, as well as under license authorizing sales of smaller quantities, a necessity for police supervision, and that as to this license, as well as to that, there may be charged a sum both for the purpose of restricting sales or restricting the persons selling, and compensating the municipality for additional police expenses that may directly or indirectly result from the traffic. The amount charged for the license is not a tax, but a burden imposed as the price of a privilege, which those controlling the municipality were at liberty to restrict as they pleased, or to deny altogether. (People v. Thurber, 13 Ill. 554; East St. Louis v. Wehrung, 46 id. 392; East St. Louis v. Trustees, 102 id. 489.) There can therefore be no question of adequacy or excessiveness of the amount charged. See, also, Tenny. v. Lenz, 16 Wis. 566, and State v. Cassidy, 22 Minn. 312. As was said in Schwuchow v. City of Chicago, 68 Ill. 449: “This business is, in principle, within the police power of the State, and restrictions which may rightfully be imposed upon it might be obnoxious as an illegal restraint of trade when applied to other pursuits.”

But if the question w'ere before us, it would be impossible to say that the amount here charged ($250 per annum) is excessive. How can it be certainly known that the additional expense to the police of the city, in consequence of sales here licensed, can not be equal to the amounts thus to be derived from licenses? In Distilling Co. v. Chicago, 112 Ill. 19, we held, twice this sum not an unreasonable amount to be exacted for a license for a distillery. It is true, in the clause authorizing that license, the word “tax, ” as well as the word “license, ” is used, while here the word “license, ” only, is used; but that is of no significance, since we held that the sum there charged was authorized under the licensing power, and not under the taxing power. It is impossible that in such matters there can be any accurate adaption of charges to expenses. A general, reasonable approximation, must, in the nature of things, be sufficient. See Ash v. People, 11 Mich. 347.

The ruling below meets with our approval in all respects, and the judgment must therefore be affirmed.

Judgment affirmed.

Mr. Justice Craig : I am not satisfied with the construction placed upon the act of the legislature under which the ordinance was passed. I do not think the legislature intended to authorize the city to impose a license upon wholesale dealers.