State ex rel. Conlin v. Mayor

• Decision Date: 15 December 1908
• Citation: 118 N.W. 810,137 Wis. 311
• Parties: STATE EX REL. CONLIN v. MAYOR, ETC., OF CITY OF WAUSAU ET AL.
• Court: Wisconsin Supreme Court

137 Wis. 311

118 N.W. 810

STATE EX REL. CONLIN

v.MAYOR, ETC., OF CITY OF WAUSAU ET AL.

Supreme Court of Wisconsin.

Dec. 15, 1908.

Appeal from Municipal Court of Wausau; Louis Marchetti, Judge.

Mandamus by the State, on the relation of E. H. Conlin, against the Mayor and Common Council of the City of Wausau and others. Writ denied, and complainant appeals. Reversed and remanded.

This is an action of mandamus to compel the mayor and common council of the city of Wausau to revoke the license of one Fred Brand, a duly licensed saloonkeeper of the city; it being alleged that he unlawfully sold intoxicating liquors to a minor. Complaint was made to the mayor and common council that Brand had sold intoxicating liquor to a minor without a written order from his parents or guardian. A hearing was ordered upon the petition, and Brand was summoned to appear and show cause why his license should not be revoked. At the hearing there was evidence that Brand was a duly licensed saloonkeeper, that a bottle of beer had been sold by his barkeeper to the minor, and that the minor did not have a written order from his parents or guardian. It was shown that the barkeeper who was in charge of the saloon at the time of the sale had been given strict instructions not to sell to any minor, that this was a condition of his employment, and that the sale by him was without the knowledge or consent of Brand. The common council refused to revoke the license. The guardian of the minor thereupon instituted this action in the municipal court for a peremptory writ of mandamus to command the mayor and common council to revoke the license. The petition, in substance, alleges the facts as above stated. The court issued an alternative writ commanding the mayor and council to revoke the license or to show cause why they should not revoke it. In the return to the writ the facts as stated above were admitted, and it was further stated that the refusal of the council to revoke the license was based on the fact that the council was of the opinion that Brand was not liable for the act of the barkeeper in selling to the minor against instructions, and that this was a good defense to the complaint. The relator demurred to the return, and the court upon motion entered judgment dismissing the action, and quashing the alternative writ. This is an appeal from such judgment.Brown, Pradt, Genrich & Anderson (M. B. Rosenberry, of counsel), for appellant.

H. H. Manson, City Atty. (Franklin E. Bump, of counsel), for respondents.

SIEBECKER, J. (after stating the facts as above).

As appears from the foregoing statement of facts, the common council found that the licensee was not guilty of an unlawful sale of intoxicating liquor because the sale was made by an employé while the licensee was absent from his place of business against his positive instructions and contrary to his directions to the employé not to sell liquors to persons to whom sales were forbidden by law. The trial court held that the respondent, as licensee, was not guilty of violating the law. This conclusion was manifestly based on the assumption that the licensee was not responsible for acts of his employé which violated section 1558, St. 1898, if committed by the employé in the absence of the proprietor and against bona fide instructions not to conduct the business in violation of the law. The statute enacts, in effect, that, if the licensee shall sell or give away intoxicating liquors to minors without the written authority of parent or guardian, his license shall be subject to revocation in the manner provided. The licensee's intent respecting alleged violations of the law is not an essential factor in the case. In the case of State v. Hartfiel, 24 Wis. 60, this court held that an unlawful sale...