#### State ex rel. Conlin, Appellant, vs. Mayor and Common Council of the City of Wausau and others, Respondents.

*December 1*—

December *15, 1908.*

*Intoxicating liquors: Violation of excise laws: Intent: Agent of licensee: Appeal and error:*Mandamus *to compel revocation of liquor license: Determination after expiration of license period: Costs.*

1. Under a statute prohibiting a licensee to sell or give away intoxicating liquors to minors without the written authority of parent or guardian, and providing that for such a violation the license shall be subject to. revocation, the licensee’s intent respecting alleged violations of the statute is not an essential factor in the offense.

2. While the system of regulation of intoxicating liquors grants the licensee the privilege of conducting his business through an agent, it also imposes on the licensee the affirmative duty to see to it that every regulation is obeyed by his agents as well as himself. Hence such a licensee is answerable for the acts of his agents (barkeepers) though he is absent from his place of business and had instructed those agents not to make forbidden sales.

3. Where a barkeeper, in the absence and without the knowledge of the saloonkeeper and in violation of instructions not to sell to any minor, such instructions being a condition of his employment, sold intoxicating liquors to a minor, the saloonkeeper is guilty of a violation of sec. 1558, Stats. (1898), and it becomes the duty of the body issuing him his license to revoke it.

4. On *mandamus*to compel the revocation of a liquor license it appeared, among other things, that the license period had expired before the cause was heard on appeal from a judgment, entered during the life of the license, erroneously denying the writ. *Held,*that the relator is entitled to a reversal of the judgment with costs and to have judgment for costs in the trial court.

Appeal from a judgment of tbe municipal court of Marathon county: Louis Maechbtti, Judge.

*Reversed.*

This is an action of *mandamus*to compel tbe mayor and common council of tbe city of *Wausau*to revoke tbe license of one Ered Brand, a duly licensed saloonkeeper of tbe city, *312it being alleged that be unlawfully sold intoxicating liquors to a minor. Complaint was made to tbe mayor and common council that Brand bad sold intoxicating liquor to a minor without a written order from bis parents or guardian. A bearing was ordered upon tbe petition and Brand was summoned to appear and show cause wby bis license should not be revoked. At tbe bearing there was evidence that Brand was a duly licensed saloonkeeper, that a bottle of beer bad been sold by bis barkeeper to tbe minor, and that tbe minor did not have a written order from bis parents or guardian. It was shown that tbe barkeeper who was in charge of tbe saloon at tbe time of tbe sale bad been given strict instructions not to sell to any minor, that this was a condition of bis employment, and that tbe sale by him was without tbe knowledge or consent of Brand. Tbe common council refused to revoke tbe license. The guardian of tbe minor thereupon instituted .this action in tbe municipal court for a peremptory writ of *mandamus*to command tbe mayor and common council to revoke tbe license. Tbe petition in substance alleges tbe facts as above stated. Tbe court issued an alternative writ commanding tbe mayor and council to revoke tbe license or to show cause wby they should not revoke it. In the return to tbe writ tbe facts as stated above were admitted, and it was further stated that tbe refusal of tbe council to revoke tbe license was based on tbe fact that tbe council was of tbe opinion that Brand was not liable for tbe act of tbe barkeeper in selling to tbe minor against instructions, and that this was a good defense to tbe complaint. Tbe relator demurred to tbe return, and tbe court upon motion entered judgment dismissing tbe action and quashing tbe alternative writ. This is an appeal from such judgment

Eor tbe appellant there was a brief by Brown, *Fradt, Gen-rich & Anderson,*attorneys, and ill. *B. Bosenberry,*of counsel, and oral argument by *F. W. Genrich.*

Eor tbe respondents there was a brief by *Franlclin E.*
      *313
      *Bump,*of counsel, and *H. H. Hanson,*city attorney, and oral argument by *Mr. Bump.*

SiebecKee, T.

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 *314tbe law at bis peril.” To tbe same effect is *State ex rel. Higgins v. Beloit,*74 Wis. 267, 42 N. W. 110.

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. *31586 Pac. 384; *People v.*Lundell, 136 Mich. 303, 99 N. W. 12; *Dudley v.*Sautbine, 49 Iowa,. 650; *Noecker v. People,*91 Ill. 494. The consequence is that upon the undisputed facts the trial court should have commanded the common council to revoke the license. *State ex rel. Buchanan v. Kellogg,*95 Wis. 672, 70 N. W. 300; *State ex rel. McKay v. Curtis,*130 Wis. 357, 110 N. W. 189.

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.