State v. Wrobel
| Decision Date | 02 June 1964 |
| Citation | 128 N.W.2d 629,24 Wis.2d 270 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Roy WROBEL, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Eisenberg & Kletzke, Milwaukee, Edwin A. Star, Milwaukee, of counsel, for appellant.
George Thompson, Atty. Gen., Madison, William J. McCauley, Dist. Atty., Donald W. Steinmetz, Asst. Dist. Atty., Milwaukee, for respondent.
The case turns upon an interpretation of sec. 176.32(1), Stats., 1961. 1 The section prohibits persons under the age of 21 from being on tavern premises excepting three general classifications, i. e., (1) a minor who is a resident, employe, or a bona fide lodger or boarder on the premises of such licensed person, (2) a minor accompanied by an adult parent, guardian or spouse, (3) a minor engaged in bona fide business on the premises other than amusement or the purchase, receiving or consumption of edibles or beverages.
It is argued by the defendant the minor-band members were employes and therefore came under the exception. We must disagree. We think the exception of an employe because of its association with the words 'resident' or 'bona fide lodger or boarder' meant an employe who had a more or less permanent connection with the premises by virtue of some relationship with the licensed person. Over this class of people the tavern keeper would have some general supervision and control and they would essentially not be on the premises as a customer or patron. An employe of the licensed person would fit this class; an employe of another might not. The minor band members were not employes of the defendant and hence the exclusion does not apply.
The members of the band were not patrons or customers and if the section is to apply to them they must come under the exclusion of transacting a bona fide business other than amusement or the purchase, receiving, or consumption of edibles or beverages. We view the word 'amusement' as referring to the same class of activity as 'purchase, receiving or consumption of edibles or beverages.' Such activities refer to the reason or purpose of being a patron or customer. The band members were not in the tavern to amuse or enjoy themselves but to work by furnishing music for the amusement and enjoyment of others. If a tavern keeper may hire a minor to work in the tavern, it is not illogical that he may hire a band composed of some minors to play in his tavern.
The legislative history of the statute bears out the interpretation that the section was aimed at minor patrons. Subsequent amendments were aimed at promoting the enforcement of the statute. As originally proposed, the statute applied to every place licensed to sell intoxicating liquor. It was amended before it was originally enacted so the terms would not apply to hotels, restaurants, grocery stores, and bowling alleys. By amendment in 1943, drug stores and railroad cars were exempted. 2 In 1951 'regularly established athletic fields or stadiums' were removed from the purview of the statute 3 and in 1963 ski chalets were likewise exempted. 4 The above places are not the type of place generally known as a tavern but are mostly places where persons under 21 years of age go as patrons to be amused or amuse themselves.
As originally enacted the statute imposed a criminal penalty upon a tavern keeper who allowed a minor 'to linger or loiter in or about any barroom or other room on such premises * * *.' 5 In 1943 an amendment replaced the 'to linger or loiter' clause with the words 'to remain' and added the clause which is here under review. In 1951 the statute was again amended 6 and the language 'to remain in any barroom or other room on such premises' was replaced with 'to enter or be on such licensed premises.' These amendments all imply a purpose to keep minors as patrons or customers out of taverns.
The section must be read in its relation with...
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...statutory construction compel this view: (1) Penal statutes must be construed strictly in favor of the accused, State v. Wrobel (1964), 24 Wis.2d 270, 275, 128 N.W.2d 629, 14 Am.Jur. (2d), Criminal Law, p. 763, sec. 13, and (2) a construction which would create a new felony when the languag......
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