| Wis. | Apr 3, 1923
The evidence as to the defendants being licensed is in substance as follows: The town clerk after having been sent home for his records was allowed to
Sub. (29), sec. 1543, Stats., provides that “town boards . . . may grant licenses to such persons as they deem proper for the sale of non-intoxicating liquors.” This means that the town board as a board must act upon the application for a license and determine whether or not the applicant is a proper person to license. This is not shown to have been done in this case. On -the contrary, the only inference is that the town clerk issued the licenses without any action on the part of the town board. The fact that the town treasurer was there does not change the inference. And if the licenses were not handed to the defendants July 8, 1921, then there is no evidence as to when they were delivered. It may have been after August 9, 1921, when the search was made. But in addition the fatal defect in the evidence is that it was not competent because not the best evidence. . The town board through its clerk is required to keep a written record of its proceedings (sec. 60.45), and such record would show whether or not licenses were granted to the defendants for the year 1921. No such record was produced nor its absence accounted for. Undet such circumstances it was error to permit the clerk to give oral testimony of what was done; and, as before stated, such testimony, even if admissible, was not sufficient to show that valid licenses had been issued to the defendants prior to August 9, 1921.
If defendants were not licensed to sell non-intoxicating liquors at the time and place in question, then the search was illegal because made without a warrant and without consent, and it could not be held as a matter of law that de
If the premises were licensed, did the court err in holding as a matter of law that the liquor was found upon licensed premises? In the Tunn place the barroom opened directly on one side by a door into the sitting room, which in turn opened into the dining room by a door. The liquor was found in a cupboard in the dining room. The barroom on the other, side also opened directly by a door into the kitchen, which in turn opened into the dining room by a door.
In the Walsh place the barroom opened into a, narrow hallway by a door. From tthis hallway a door led into, the dining room. In a cupboard in a pantry opening into the dining room the liquor was found. We are of the opinion that in both cases the liquor was on the premises, if licensed. If a person engages in the sale of non-intoxicating beverages and uses a part of his home for such purpose, he must refrain from the possession of intoxicating liquors in such home where there are easy means of access from the barroom to the liquor.. To hold otherwise would be to allow intoxicating liquors to be on premises licensed for the sale of nonintoxicating beverages under the sanction of a home. The statute makes no exception and we can make none in favor of the home. If a person desires to lawfully keep intoxicating liquor in his home he must sever it from premises licensed for the sale of non-intoxicating beverages. Were he allowed to keep them in a home which is a part of the premises the statute would be valueless in such cases. The court, therefore, correctly held that the liquor found was upon the premises in question, but for the error in admitting the evidence as to the issuance of the licenses the judgment must be reversed.
By the Court. — Judgment reversed, ancl cause remanded for a new trial as to each defendant.