State v. Grams

• Decision Date: 10 November 1942
• Citation: 6 N.W.2d 191,241 Wis. 493
• Parties: STATE v. GRAMS.
• Court: Wisconsin Supreme Court

241 Wis. 493

6 N.W.2d 191

STATE

v.GRAMS.

Supreme Court of Wisconsin.

Nov. 10, 1942.

Appeal from a judgment of the Municipal Court of Milwaukee County; Roland J. Steinle, Judge.

Affirmed.

Action commenced June 16, 1942 by the State of Wisconsin in the district court of Milwaukee county. From a finding that defendant Leo Grams was guilty of selling liquor during prohibited hours and a fine of $1 and costs, the defendant appealed to the municipal court. From an affirmance in that court, defendant appeals.

Defendant is a licensed tavern keeper with a retail Class B liquor license. Under the provisions of sec. 176.06, Stats., his premises were not to remain open for the sale of liquor between 1 a. m. and 8 a. m. The complaint charges that on June 13, 1942 while defendant was absent from his place of business, his licensed bartender at 2:08 a. m. sold liquor in violation of the statute. Defendant alleges that by the terms of sec. 176.05(11), Stats., he is not liable for the violation because he was absent from the premises at the time it was committed.

The evidence sustains the allegations of the complaint. The defendant was adjudged guilty.

Cornelius P. Hanley, of Milwaukee, for appellant.

John E. Martin, Atty. Gen., William A. Platz, Asst. Atty. Gen., and H. J. Steffes, Dist. Atty., and Charles J. Kersten, Asst. Dist. Atty., both of Milwaukee, for respondent.

FAIRCHILD, Justice.

A sale of liquor by a licensed bartender during the proprietor's absence does not relieve the proprietor of responsibility or take him out from under the condemnation of sec. 176.06, Stats., which forbids the keeping open between 1 a. m. and 8 a. m. for the sale of liquor premises for which a retail Class B liquor license has been issued. Intent is not the controlling element. It seems that if the licensee (proprietor) is not excused when personally conducting the business, if he be deceived about or is ignorant of violations regarding forbidden traffic, he cannot escape the consequences of such violation by his agents to whom he has entrusted the conduct of his business. Carroll v. State, 63 Md. 551, 3 A. 29. The rule in this state has always been that in violations of statutes regulating the sale of liquor such as are here involved it is not required to show a wilful or intentional act. In State ex rel. Conlin v. Wausau, 137 Wis. 311, 118 N.W. 810, 811, it was said: “We are persuaded that the legislation on the subject makes the licensee answerable for the acts of his agents, though he was absent from the place of business and had instructed the agent not to make forbidden sales.” See, also, Olson v. State, 143 Wis. 413, 127 N.W. 975;Reismier v. State, 148 Wis. 593, 135 N.W. 153;Barth Co. v. Brandy, 165 Wis. 196, 161 N.W. 766, 2 A.L.R. 1513.

Appellant urges that the bartender is required to be licensed so as to relieve in some measure a proprietor who is trying to comply with regulations. It is doubtless true that by licensing the bartender a better control of the business...