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conduct of the principal. When the privilege of withdrawal is not guaranteed the surety will often find himself in a position where, though he cannot approve the acts of the principal, he is practically powerless to prevent them. It is only fair to allow him to refuse to continue his guarantee of the acts of the principal, when that can be done without loss to those protected. It would not be just to force him to remain in a position concerning the danger of which he had already warned the state.

To remedy this condition, statutes are found which allow sureties to give notice of unwillingness to continue to act, whereupon the principal is called on to furnish a new bond. If this is not proffered within a stated time the office is declared vacant. In this way the responsibility of the sureties is brought to an end and the public is continuously protected whether the man offer a new bond or not. Doubt has been expressed as to the power to declare offices vacant in this way when the term is prescribed by the constitution.1 In practice many of the statutes on the subject apply in general terms to all offices and the constitutional question appears not to have been raised. Where the office is created by statute, or where the constitution leaves the legislature free to prescribe the end or beginning of the term or to outline other conditions on which the position may be held, there is no doubt that this remedy may be applied.2

1 Willard, Legislative Handbook, p. 219.

2 Surety may ask release by giving notice in writing to officer on whose bond he is. Officer must notify the approving authority of request. If a new bond be not given within a specified time the office is declared vacant. Revised Statutes of Illinois, 1909, ch. 103, sec. 10.

An unusual protection is granted to sureties by the statute of Idaho which provides that the party of whom the bond is required may agree with the surety to deposit any assets that may come into his possession in a certain bank approved by the court or one of the judges. The party of whom the bond is required may agree not to draw on this account except with the written consent of the surety, or on an order from the court or one of its judges, made on such notice to the surety as the court or judge may direct.1

What Constitutes Delivery

The statute on bonds should contain a clear statement of what shall constitute delivery. Does the bond become binding as soon as it has left the possession of those giving it, or is it delivered only when received by the proper authority? Different rules have been established by statute, and though the courts almost uniformly hold for the first standard stated even in the absence of statute it is best to prescribe that rule in the general statute regulating the form of bonds.2

Similar are Alabama, Political Code, 1907, Art. 7, sec. 1540–7, and Kerr's Cyclopedic Codes of California, 1 Political Code, Art. IX, sec. 976.

A less satisfactory plan is that of Georgia by which the surety is allowed to retire on showing cause which the governor thinks sufficient. If new bond is required by governor it must be given within ten days or the office is vacated. Code of the State of Georgia, Vol. I, 1911, 301 and 302.

1 Idaho Revised Codes 1, p. 1171, sec. 2947.

2 Under Acts of Congress the bond of a deputy postmaster is held not delivered until it has reached the hand of the postmastergeneral and been approved by him. U. S. v. LeBaron, 19 Howard 73 (1856), but a different rule is enforced as to bonds of collectors of customs. Broome v. U. S., 15 Howard 143 (1859).

CHAPTER XIX

LICENSES AND INSPECTION

The motives back of the issuance of licenses may vary from the establishment of a standard of quality for the protection of the public down to the production of revenue only. The former is in theory always their excuse, but in practice they are often only taxing measures using a peculiar method of collection. With the merits of the license as a revenue producer we have no concern. It is to be judged, then, from the economic standpoint. It is considered here as a tool of legal control. For our purpose the license is merely a means by which conditions which might prove dangerous to the public can be measured and a corrective applied in advance. By the use of the license a standard of goods or service may be established by law, the observance of which it might otherwise be impossible to enforce. There are several classes of cases to which this means of law enforcement is peculiarly adaptable.

Business Licenses

Most important are the licenses on businesses which from their nature involve possibilities of unnecessary danger to the public. The chief instance of regulation in this class involves the perennial problem of the regulation of the sale of liquor. Some of the chief means of control which have been used where the policy of licensing has been followed are:

(a) Granting licenses for one year only, so that the licensing authorities will have the question of compliance or non-compliance with the law frequently brought before them for review.

(b) Limiting the maximum number of licenses by the population of the city, ward or other civil division, as one to 1,000 population.1

(c) Prohibiting granting of licenses within certain distances of public parks, churches or schoolhouses.

(d) Requiring any person holding a license to sell liquor to be drunk on the premises to hold also a license as innholder or victualer. A provision of this sort used in Massachusetts and in Pennsylvania gave general satisfaction. It was argued that it helped eliminate disorderly bars. In New York, under the famous Raines law, the licenses issued produced an exactly opposite effect. The hotels operating under such licenses often became disorderly houses.

(e) Making courts the licensing authority. This was done on the theory that the long term of the judges would make them independent of the political influence of the liquor interests. It was doubtless true that this would be a better plan than the alternative of putting license-granting into the hands of the mayor or aldermen of cities; but it did not destroy the political influence of liquor and it put an unwelcome burden on the courts. Especially in large cities licenses are very valuable and when large numbers are to be issued it is not to be expected that the courts in their actions as to them will be as free from suspicion of accepting bribes as in their

1 In Boston it was found that an expedient of this sort was of value in reducing the “number of saloons and making the keepers more law abiding, but the evidence does not justify the statement that it would work well everywhere." Winez & Koren, Liquor Problem, p. 8. Houghton, 1897.

ordinary judicial duties. It is more important to protect the judge in his reputation for honesty than to insure fair licensing.

(f) Creating special commissions for licensing. These provisions have been of varying value. In some cities, especially when their members retire at different times and are appointed for long terms, they have been a decided success. Elsewhere they have, because of these very characteristics, forced the liquor interests to take an active part in politics all the time to insure that the commissioners shall not be "unfriendly." In the average case every licensing board becomes a powerful factor in local politics.

The Ohio constitution of 1851 forbade licenses and forced the state to the plan by which, under the law now in force, a flat charge of one thousand dollars per annum is demanded from anyone wishing to take up the business of the sale of liquor. Since it removes the discretionary element it has been claimed that this plan removes the liquor influence from politics to a greater extent than under the usual license scheme.1

(g) Giving to the licensing authority the power to revoke the license at any time when judged necessary to protect the public interests.

(h) Providing that licenses shall be forfeited for infraction of law.2

(i) Providing that no new license should be issued to a person for a term of years after forfeiture of a previous license.

1 When the question of changing from the Ohio plan to the licensing system was before the Ohio Constitutional Convention in 1912 it was vigorously opposed by the Anti-Saloon League. Campaign Text-Book Against License, Ohio Anti-Saloon League, W. B. Wheeler, 1912.

2 A good example of a comprehensive provision of this sort is Laws of Wisconsin 1905, ch. 489.

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