Silber v. Bloodgood
188 N.W. 84
Wis.
1922
Check Treatment

The following opinion was filed May 9, 1922:

Owen, J.

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. Sub. (29), sec. 1, ch. 441, Laws 1921, provides that nonintoxicating liquor shall not be sold or kept for sale without a license, therein .provided for, and sub. (30) of the same section provides that the prohibition commissioner, his deputies, or any peace officer may inspect such premises at any reasonable time without warrant. So far as the validity of this' provision is concerned, it is settled by the case of Finsky v. State, 176 Wis. 481, 187 N. W. 201. It was lawful for the defendants in the execution of their official duties to “inspect” plaintiff’s premises for the purpose of ascertaining whether he was violating the law of the state with reference to the possession or sale of intoxicating liquors. The trial court was of the opinion that the authority conferred upon the defendants to “inspect” did not authorize them fo foxxe an entrance into the locked drawer. He expressed the view that if the power to “inspect” were to be construed as authorizing a search and seizure without a warrant, its validity would be jeopardized, as it would contravene both federal and state constitutions prohibiting unreasonable searches and seizures.

*611The plaintiff^ was doing business pursuant to the sufferance of the state. Pursuant to its power to prohibit traffic in intoxicating liquors it may also prohibit traffic in non-intoxicating liquors, for the reason that traffic in nonintoxicating liquors affords an easy cover for dealing in intoxicating liquors, Pennell v. State, 141 Wis. 35, 123 N. W. 115. As the state may prohibit dealing in nonintoxicating liquors it may permit traffic therein upon such conditions as it may prescribe. The conditions imposed by the provisions of ch. 441 of the Laws of 1921 require the securing of a license and the submission by the licensee of his premises to the inspection of the prohibition commissioner and his deputies. It is not necessary to consider how far the prohibition commissioner and his deputies may go in the matter of searching premises not under license for the sale of non-intoxicating liquors. The legislature has evidently not attempted to confer any such authority upon such officials. As to non-licensed premises it is provided by said ch. 441 (sec. 5), as an amendment to sec. 4840, Stats., that a search warrant may be issued to search for and seize any liquor unlawfully possessed or property designed for the unlawful manufacture of liquor, etc. No reason is perceived why the legislature, as a condition for granting permission to- conduct a business which it may prohibit, may not require the licensee to submit his premises to an inspection by the lawful authorities without the issuance of a search warrant. By receiving the license and acting thereunder he consents to all the regulations prescribed by the law authorizing the issuance of the license. In this case the law was the defendants’ authority to inspect plaintiff’s premises, by virtue of which law the plaintiff had impliedly given his consent to such inspection.

It is contended that the power to “inspect did not authorize the defendants to force an entry to the drawer. It may be that the ordinary import of the term “infepect” does not comprehend the breaking of locks. It was inserted in this statute for the purpose of authorizing the prohibition *612commissioner and his deputies, acting in good faith, to make such investigations as may be necessary to1 discover the presence of contraband liquor upon the premises. If the licensee could prevent an effective inspection by the simple expedient of keeping his contraband liquor under lock and key, the enforcement of the law would be seriously frustrated. The authority conferred upon the defendants in their official capacity by the statutory provision under consideration amply authorized them to secure access to the drawer in which the bottle of whisky was hidden, in the manner alleged. The answer > states a good defense and the demurrer should have been overruled.

By the Court. — Order reversed, and cause remanded with instructions to overrule the demurrer.

Eschweiler, J., dissents.

The respondent moved for a rehearing.

In support of the motion there was a brief signed by Irving A. Fish and W. B. Rubin, both of Milwaukee, of counsel.

The motion was denied, without costs, on July 8, 1922.