137 Wis. 311 | Wis. | 1908
As appears from tbe foregoing statement of facts, tbe common council found tbat tbe licensee was. not guilty of an unlawful sale of intoxicating liquor because tbe sale was made by an employee while tbe licensee was absent from bis place of business, against bis positive instructions and contrary to bis directions to tbe employee not to sell liquors to persons to wbom sales were forbidden by law. Tbe trial court beld tbat tbe respondent, as licensee, was not guilty of violating tbe law. Tbis conclusion was manifestly based on the assumption tbat tbe licensee was not responsible for acts of bis employee which violated sec. 1558, Stats. (1898), if committed by tbe employee in tbe absence of tbe proprietor and against bona fide instructions not to conduct tbe business in violation of the law. Tbe statute enacts in effect tbat, if tbe licensee shall sell or give away intoxicating liquors to minors without tbe mitten authority of parent or guardian, bis license shall be subject to revocation in tbe manner provided. Tbe licensee’s intent respecting alleged violations of tbe law is not an essential factor in tbe case. In tbe case of State v. Hartfiel, 24 Wis. 60, tbis court beld tbat an unlawful sale of intoxicating liquors to a minor is a violation of tbe law prohibiting such sales, though tbe vendor is ignorant of tbe fact tbat tbe purchaser is a .minor. It is there declared tbat “where a statute commands tbat an act be done or omitted which, in tbe absence of such statute, might have been done or omitted without culpability, ignorance of tbe fact or state of things contemplated by tbe statute will not excuse its violation” (citing), and tbat “police and other laws and regulations for tbe mere violation of which, irrespective of the motives or knowledge of tbe party, certain penalties are enacted, are of tbis nature, for tbe law in these cases seems to bind tbe party to know tbe facts and to obey
Tbe statutes regulating tbe sale of intoxicating liquors show an intent by tbe legislature to prevent tbe mischief wbicb accompanies an unrestricted traffic, and were obviously enacted to impose the specified restrictions on the traffic with a view to protect the public against such evils. To accomplish this it appears to have been deemed good policy to impose on the licensee the obligation that he, his employees and agents, be required to conduct the business conformably to-the regulations prescribed by law. Nelson v. State, 111 Wis. 394, 87 N. W. 235. While the system of regulation grants the licensee the privilege of conducting the business through an agent, it also imposes on him the affirmative duty to see-to it that every regulation is obeyed by his agents as well ashy himself. The court in the case of Carroll v. State, 63 Md. 551, 3 Atl. 29, wherein the question of the licensee’s responsibility for an unlawful sale of intoxicating liquor to a minor by his barkeeper during his absence, without his knowledge and authority and contrary to his instructions given in good faith, was considered, held, where intent is not an ingredient of such an offense, “that it must be immaterial whether such-orders are given or not, for he who does by another that which he cannot lawfully do in person must be responsible for the-agent’s acts. In fact, it is his act.” It seems that if the licensee is not excusable when personally conducting the business, if he be deceived or is ignorant of violations regarding forbidden traffic, he cannot escape the consequences of such violations by his agents to whom he has intrusted the con- ' duct of his business. We are persuaded that the legislation on the subject malees 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. The following eases support this rule: State v. Kittelle, 110 N. C. 560, 15 S. E. 103; State v. Constatine, 43 Wash. 102.
The license sought to be revoked expired in July, 1908. Under these circumstances no writ of mandamus will now issue. Since, however, the trial court erred in denying the writ during the life of the license, relator is entitled to a reversal of the judgment with costs and to have judgment for costs in the trial court. State ex rel. Treat v. Hammel, 134 Wis. 61, 114 N. W. 97.
By the Court. — Judgment reversed, and the cause remanded with directions to the trial court to award judgment in accordance with this opinion.