John Barth Co. v. Brandy

Eschweiler, J. By sec. 1550, Stats., it is made a misdemeanor, punishable by fine or imprisonment in the county jail, for any person to vend, sell, deal, or traffic in spirituous or intoxicating liquors without first having obtained a license or permit therefor as required by law. To obtain such permit under the law of this state, ch. 66, the person must make application in writing stating the kind of license applied for and designating the premises where such liquor shall be sold. The only statutory provision for assigning or transferring such license is in case of the death, during the license year, of such licensee. It is further provided under the s,ame chapter that notice of such application for license shall be published before the granting thereof and a bond must be given before the delivery of the license, such bond to provide that the applicant will keep and maintain an orderly and well regulated house, will permit no gambling, and will not sell or give away liquor to certain classes of persons, such as minors or intoxicated persons. It has already been held by this court that such a license is a mere privilege to be enjoyed while the conditions and restrictions are complied with, and implies special confidence and trust in the licensee, and from the very nature of things such license is not assignable at common law. State v. Bayne, 100 Wis. 35, 75 N. W. 403. Although the license is for a fixed term it comes to an end with the life of the licensee. State ex rel. Rich v. Steiner, 160 Wis. 175, 177, 151 N. W. 256. Even were the license assigned to Schwartz by Brandy, it would have been no protection for sales by [199] Schwartz , except as agent fox Brandy. Slate v. Bayne, supra. It bas also been beld that the person having obtained and holding a license is responsible for whatever is done in that place of business by his agents in violation of law, even though it be against the express direction of the person having such license. State ex rel. Conlin v. Wausau, 137 Wis. 311, 118 N. W. 810; Olson v. State, 143 Wis. 413, 127 N. W. 975; Reismier v. State, 148 Wis. 593, 596, 135 N. W. 153. Under this view of the situation that the law places a person in by the obtaining of such permit to conduct a saloon, he must be presumed to be such owner and keeper as to the general public and persons dealing with those conducting the business. Therefore goods sold in the manner of the transactions in this case and used in the conduct of the business must be held to have been sold to the person who in law was charged.with the conduct and management of the business. It is immaterial whether plaintiff’s agent knew, at the time of the sales, Schwartz claimed to be the owner in fact of the business. The defendant Brandy is estopped from now asserting that he was not such owner. It is perhaps to be regretted that one who undertook to play the part of the good Samaritan should be rewarded with such a penalty as the judgment in this case must be. We feel, however, it is the better policy that a person who has assumed to the city and the public at large the position that the defendant Brandy did .by his application for and obtaining the license should be held to all the obligations that follow such an assumption. By the Oourt. — Judgment of the circuit court is reversed, and the cause remanded with directions to enter judgment for the plaintiff against the defendant Brandy in accordance with the prayer of his complaint.