Silber v. Bloodgood

• Decision Date: 09 May 1922
• Citation: 188 N.W. 84,177 Wis. 608
• Parties: SILBER v. BLOODGOOD ET AL.
• Court: Wisconsin Supreme Court

177 Wis. 608

188 N.W. 84

SILBER

v.BLOODGOOD ET AL.^a1

Supreme Court of Wisconsin.

May 9, 1922.

Appeal from Circuit Court, Milwaukee County; Gustave G. Gehrz, Judge.

Action by H. Silber against C. R. Bloodgood and another. From an order sustaining demurrer to defendants' answer, they appeal. Order reversed, and cause remanded, with instructions.

The complaint alleges that on the date therein mentioned the defendants entered his place of business and then and there unlawfully interfered with plaintiff in the exercise of his ownership and possession of his said property and belongings, and did then and there forcibly and violently against his consent, and over his protest, cause said property, furniture, and fixtures to be destroyed, smashed, and injured, and did break the locks on said furniture, to his damage, etc. For answer, the defendants allege that they were deputy prohibition commissioners of the state of Wisconsin, and that on the day in question they were acting in the discharge of their official duties as such deputy prohibition commissioners; that the plaintiff was engaged in the sale of nonintoxicating liquors pursuant to a license issued to him for that purpose by the proper officials of the city of Milwaukee, under the provisions of chapter 441 of the Laws of 1921; that prior to the day in question the defendants were informed by officers of the police department in the city of Milwaukee that the plaintiff had in his possession, at the licensed premises where he was so engaged in selling nonintoxicating liquors under and pursuant to such license, intoxicating liquors, contrary to the laws of the state of Wisconsin, and that the plaintiff had some time prior to the day in question habitually sold intoxicating liquors upon said premises, and believing such information, on the day in question, with certain officers of the police department of the city of Milwaukee, they proceeded to the premises of plaintiff, in discharge of their duties as such deputy prohibition commissioners; that upon arriving at the premises they requested the plaintiff to open a locked drawer, the key to which was in his possession, and upon the persistent refusal of the plaintiff so to do the defendants forced the lock on said drawer, without breaking or destroying any property of the plaintiff, and took from said drawer and possession of the plaintiff a bottle of whisky; that the defendants used no violence whatever except the slight amount necessary to spring the lock of said drawer to obtain possession of said whisky and to discharge their official duties. The plaintiff demurred to the answer for the reason that it did not state facts sufficient to constitute a defense. The trial court sustained the demurrer, from which order the defendants bring this appeal.

Eschweiler, J., dissenting.William J. Morgan, Atty. Gen., and J. E. Messerschmidt, Asst. Atty. Gen., for appellants.

Rubin, Wurster & Rouiller, of Milwaukee (W. B. Rubin, of Milwaukee, of counsel), for respondent.

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

The precise question presented is whether the defendants in their official capacity as deputy prohibition commissioners were authorized to force an entrance to the drawer in which was concealed the contraband whisky. Subsection 29 of section 1 of chapter 441 of the Laws of 1921 provides that nonintoxicating liquor shall not be sold or kept for sale without a license, therein provided for, and subsection 30 of the same section provides that the prohibition commissioner, his deputies, or any police officer, may inspect such premises at any reasonable time without warrant. So far...