Commonwealth v. Wadendorf
| Decision Date | 26 February 1886 |
| Citation | 4 N.E. 817,141 Mass. 270 |
| Parties | COMMONWEALTH v. WADENDORF. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Aug Russ, for defendant.
E.J Sherman, Atty. Gen., for the Commonwealth.
The complaint charges that the defendant, on October 3, 1885 unlawfully sold intoxicating liquors, between the hours of 11 at night and 6 in the morning. St.1885, c. 90, § 1. At the trial it appeared that the defendant kept a restaurant and saloon, and that he had a license, one of the conditions of which was that no sale of spirituous or intoxicating liquors should be made therein between the hours of 11 at night and 6 in the morning. There was evidence tending to show a sale, by one of the defendant's witnesses, of a bottle of Bass ale after 11 o'clock at night on the day named in the complaint. The defendant introduced evidence to show that he had given strict orders to close the sale of intoxicating liquors at 11 o'clock at night, and wished the court to rule that "if one of his employes, willfully or in violation of his instruction, had sold a bottle of ale on that night, after 11 o'clock, such a sale would not make him liable under this law." The court refused this instruction, and instructed the jury that the license was violated if any sale was made after 11 o'clock, though by a servant in violation of the instructions of the defendant; and that, if the sale proved in this case was made by a servant of the defendant in the course of business which he was doing for the defendant, he was liable, although he had given directions to his servant not to sell after 11 o'clock.
It may be that a license is forfeited by the unauthorized act of another person done without the knowledge and against the express directions of the licensee. The legislature has judged it wise, in view of the wrong devices resorted to in order to waive the law, to make the conditions of license very stringent. It has been held in several cases that a licensee takes his license subject to the conditions, whatever they may be, and is bound at his peril to see that these conditions are complied with, or to lose the protection of his license. Com. v. Uhrig, 138 Mass. 492; Com. v. Barnes, Id. 511, and case cited. But the question in this case is not whether the defendant's license is forfeited. The complaint is not brought under the eighteenth section of chapter 100 of the Public Statutes, assigning that he has violated the provisions of his license. It is brought under the first section, which provides that "no person shall sell, or expose or keep for sale, spirituous or intoxicating liquor, except as authorized in this chapter."
It was held in Com. v. Nichols, 10 Metc. 259, decided under a law similar in its terms, that the defendant was not liable, necessarily, as a seller, when the sale proved was made by a servant without his knowledge, in opposition to his will, and which was in no way participated in, approved, or countenanced by him. This decision...
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