#### Michels, Plaintiff in error, vs. The State, Defendant in error.

*May 16*

June *19, 1902.*

*Intoxicating liquors: License: Sale by brevier to consumer.*

Sec. 1548, Stats. 1898, provides that village and town hoards and common councils may grant licenses “to such persons as they may deem proper to keep groceries, saloons and other places” for the sale of intoxicating liquors. Sec. 1550 provides that if any person shall sell intoxicating liquors in any quantity whatever, without first having obtained a license as required, he shall be guilty of a misdemeanor. *Held,*that a brewer cannot, without license, sell from his wagon direct to a consumer in his own town. Dodge and Baedeew, JJ., dissent.

Error to review a judgment of the circuit court for Eau Claire county: James O’Neixx,, Circuit Judge.

*Affirmed.*

For the plaintiff in error there was a brief by *Frawley, Bundy & TFilcox,*and oral argument by *C. T. Bundy.*

They contended, *inter alia,*that a license to sell liquor at one place does not authorize the licensee to sell at another. 17 Am. & Eng. Ency. of Law (2d ed..) 235, and cases. The sale of liquor, within the meaning of the excise law, is made at the place where the liquor is delivered, without regard to where and in what manner it was ordered, or where or when payment was to be made therefor. 17 Am. & Eng. Ency. of Law (2d ed.) 297-301; *Sarbecker v. State,*65 Wis. 171; *Carter v. Bartell,*110 Iowa,,211, 81 N. W. 462; *Comm. v. Greenfield,**44121 Mass. 40; *Comm. v. Hugo,*164 Mass. 161; *People v. Capen,*26 Hun, 377; *Lafferty v. Slate,*35 S. W. 374; *Comm. v. Holstine,*132 Pa. St. 357. Tbe legislature lias made no provision for granting a license wbicb would authorize any one to sell except at a designated, fixed place; and a license permitting plaintiff in error to sell beer at his brewery would not furnish protection for sales made from the wagon to various customers throughout the city. As the plaintiff in error did not keep a grocery, saloon, or other place where liquor was sold, the council was without authority or jurisdiction to grant him a license, even if applied for, and as sec. 1550 makes it an offense for one to sell without a license only when such license is required (authorized) under sec. 1548, no person can be convicted thereunder except the keeper of a *place where liquor is sold,*who alone can be licensed. In the absence of some express statutory provision to the contrary, the manufacture of intoxicating liquor is a lawful business, and the sale thereof in packages and casks, according to the custom of dealers in such articles, without a license, is also lawful in the absence of some express statutory provision requiring a license. 17 Am. & Eng. Ency. of Law (2d ed.) 353; *Lawson v. Comm.*14 B. Monroe (Ky.) 225; *Si. Paul v. Troyer,*3 Minn. 291; *State v. Olson,*38 Minn. 150; *Strauss v. Pontiac,*40 Ill. 301.

For the defendant in error there was a brief by the *Attorney General,*and oral argument by *B. P. Hamilton,*second assistant attorney general.

WiNsnow, J.

The plaintiff in error is a manufacturer of beer in Eau Olaire, and was convicted under sec. 1550, Stats. 1898, because his agent sold bottled beer to a consumer in Eau O'laire from his wagon, the plaintiff in error having no local license. The claim is that the manufacture of beer is a lawful business, and that he who engages in such business must have the right to dispose of his product unless such *45right has expressly been taken away by statute, which it is claimed has not been done in this state. The question is one of the proper construction of our own statute in the light of such decisions as have been made bearing on the subject. Our statute (sec. 1548, Stats. 1898) provides that village and town boards and common councils may “grant license . . . to such persons as they may deem proper to keep groceries, saloons and other places within their respective towns, villages or cities for the sale of strong, spirituous, malt, ardent or intoxicating liquors” for certain prescribed license fees. The section contains no provision requiring that the liquor sold shall be drank upon the premises. Sec. 1548a provides for the granting of permits to registered pharmacists for the sale of strong, spirituous, and ardent liquors in quantities less than one gallon for medicinal, mechanical, or scientific purposes only, *and not*to be drank on the premises. Sec. 1549 provides for the giving of a bond, with sureties, by an applicant for a license under sec. 1548, conditioned for the keeping of an orderly and well-regulated house, and for the observance of the laws. Sec. 1550 provides that:

> “If any person shall vend, sell, deal or traffic in, or for the purpose of evading any law of this state, give away, any 'spirituous, malt, ardent or intoxicating liquors or drinks in any quantity whatever, without first having obtained a license or permit therefor as required by this chapter, he shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished therefor,” by fine or imprisonment as prescribed.

The argument is that the license provided for by. sec. 1548 is a license to keep a *place*for the sale of liquor, and that by the terms of the section it can only be granted to persons who keep a grocery, saloon, or other similar place; that sec. 1550 only punishes those who sell liquor' without having obtained the license or permit required-by secs. 1548 and 1548ft; that a brewer who keeps no saloon cannot obtain a license under *46sec. 1548, and that only those who can obtain such license, namely, those who keep groceries, saloons, or other like places, can be punished under that section. On the other hand, the .claim is that sec. 1550 prohibits the sale of liquor by *all persons*save such as have obtained the proper license or permit.

The question is not without some difficulty, especially in view of the decision of this court in the case of *Scanlan v.*Childs, 33 Wis. 663. In that case it appeared that a brewer in Janesville sold beer in casks at wholesale to retail dealers in that city, and it was held that he could rightfully do so without license, on the ground that the manufacture of beer was a lawful business, and that the statute only applied to the vending of liquors at wholesale or retail by persons who buy for that purpose, and not to sales by manufacturers of their own product in quantities to dealers in the usual course of trade. At the time this decision was made the law as to the obtaining of licenses was somewhat different from the present, in that it provided for two kinds of licenses, — one for the keeping of groceries, saloons, or other places for the sale of liquors to be drank on the premises in quantities less than one gallon; and another for the licensing of persons to sell liquors not to be drank within their houses or on the premises. The section which described the offense and prescribed the penalty was, however, identical in all essential particulars with sec. 1550, *supra.*1 Tay. Stats, pp. 728 — 730, eh. 35, secs. 1, 2, 5.

The nest case involving the question of the application of the statute to manufacturers was that of *Peitz v. State,*68 Wis. 538, 32 N. W. 763. At this time the law governing the subject was contained in ck. 296, Laws of 1885, and it was substantially identical in its essential particulars with the law in force when the *Scanlan Case*was decided. In the last-named case it appeared that a brewer in one place had established a depot at another town fifteen miles distant, where he *47sent beer to be stored and sold by an agent to sncib persons as desired to pairábase; and snob agent, baying sold a keg of beer directly to a consumer without local license, a conviction under a section identical with sec. 1550 was sustained. Tbe ease of *Scanlan v. Childs*was commented upon in terms indicating dissatisfaction witb it, and it was said that all members of the court were opposed to any extension of its doctrine to any case not' fully brought within it. As tbe *Peitz Case,*however, was different in its facts, in that the sale was made directly to tbe consumer at a place distant from the factory, tbe court did not feel bound by tbe *Scanlan Case,*and held that tbe words, “if any person shall vend,” etc., were so broad as to cover tbe defendant. Two of tbe justices, including tbe present chief justice, did not concur in tbe reasoning of tbe court by which the case was differentiated from tbe *Scanlan Case,*and expressed their belief that it was fully within tbe *Scanlan*Case, and that tbe latter case should be either overruled or its doctrine applied.

Tbe last case touching tbe question is that of *Mayer v.*State, 83 Wis. 339, 53 N. W. 444, where a brewer in Milwaukee established an agency at Neenah, and sold a half barrel of beer, without local license, to a licensed saloon-keeper, and tbe conviction was affirmed without discussion save a reference to the *Peitz Case*and tbe statement that no distinction is made in tbe law between a sale to a consumer and to a dealer. Tbe law at this time was tbe same in all essential particulars as in 1886, when tbe *Peitz Case*was decided.

Since the last decision cited tire law has been changed so as to provide but one form of license, and tbe distinction between licenses for the sale of liquors to be drank upon tbe premises and not to be drank upon tbe premises has been abolished. It is not perceived that this change affects tbe question at issue here.

Tbe *Scanlan Case*not having been overruled, but limited to its own exact facts, tbe condition of tbe law as deduced *48from the *three cases*cited would *seem to be that*a brewer may lawfully sell without license to a licensed dealer in bis own town, but that be cannot establish a depot in another town, and sell by bis agent, either to a consumer or a dealer, in that town, without license. The present case, however, involves a still different question, namely, whether he can, without license, sell from his wagon direct to a consumer in his own town. We think this question must be answered in the negative. The argument used in the *8 cantan Case,*if fully carried out, would doubtless prevent a conviction in the present case, but that argument has been very seriously trenched upon, if not in effect repudiated, by the two subsequent cases cited, and we feel no disposition to rehabilitate it. When the legislature says, that “if *any*person” shall sell liquors without a license he shall be guilty of a misdemeanor, we feel inclined to take them at their word, and not undertake to spell out a way by which the word “any” is to be deprived of its well-understood meaning, and held to mean any of a certain class of persons. *Ita lex scripta est.*If the law needs changing, let the legislature change it. That is not our function. The defendant is certainly included within the words “any person.” He has sold' malt liquor to a consumer without license. He comes directly within the plain words of sec. 1550, and hence was properly convicted.

*By the Court.*— Judgment affirmed.

Dodge, J;

I cannot avoid the conviction that the decision in this case amounts practically to *ex post facto*legislation, and that thereby burdens are cast upon one of the important industries of the state, and the persons engaged therein are made conmináis against the meaning of the legislature as fixed and established by fifty years of construction, both practical and judicial. In 1851 (Laws of 1851, ch’. 162, secs. 1, 2, 5) the legislature vested authority in municipal officers to grant licenses — first, to those who kept saloons, groceries, and other *49like places for the sale of liquor in quantities of less than one gallon, to be drank on tbe premises; second, to any person to sell liquor not to be drank on the premises. This legislation was retained through the revision of 1858 onward, applied practically so as to recognize that it was not intended to preclude brewers from selling their product in the customary manner of their business, not to be drank in or about the manufacturing premises, but to be used at other places by other persons. The question then came before this court in *Scanlon v.*Childs, 33 Wis. 663, and this court, at the pen of DixoN, O. J., confirmed that construction, holding that the manufacture of beer was a lawful business, having received long recognition from the state authorities, and being specifically licensed as such by the federal government; that inherent in a lawful manufacture was the right to sell the product thereof, and that only by clear terms could a purpose be ascribed to the legislature to limit or control that right: and that the long practice of noninterference with the right by brewers under the then existing excise statutes precluded belief in any such purpose. True, that case related to a sale by a brewer to a retail dealer, but upon cogent and unanswerable reason this court said in *Mayer v. State,*83 Wis. 339, 53 N. W. 444, that the statute made no difference between sales to dealer’s and sales to consumers. This meaning of the law, acquiesced in by the officers of the government already for more than twenty years, and then solemnly declared by this court, must certainly be ascribed to the legislature, when, in the following year (ch. 179, Laws of 1874), in consolidating the excise laws, they re-enacted these provisions in substantially the same words. No plainer case of construction by long custom, by the court, and by the legislature itself can be conceived. That state of the law is unchanged to-day, except that licenses are now authorized only to those who keep saloons, groceries, or other places for the sale of liquor. Of course, the rule of *noscitur a sociis*would confine such *50“places” to “like places.” Tin's only makes the inference of the exemption of the brewer from the license npon his ordinary sales not npon premises kept for the purpose all the plainer. Of course, a license can be issued only as authorized by the legislature. The ordinary brewer does not keep a grocery, saloon, or other like place. He therefore cannot obtain a license, and the effect of sec. 1550, Stats. 1898, in making sales without a license criminal, is in its terms to prohibit the brewer’s business, — a result too .absurd to be ascribed to the legislature of this state from anything short of direct declaration of that purpose. True, this court has held in two cases *(Peitz v. State,*68 Wis. 538, 32 N. W. 763; *Mayer v.*State, supra) that a sale by the brewer’s agent in original packages is forbidden in the absence of a license, in cases, however, where a place elsewhere than the brewery had been established for the sale, which brought the transaction within the terms npon which license might be granted, and involved a marked distinction from the general method of disposing of the product of manufacture at the place where conducted.

BaisdeeN, J.

I concur in the foregoing opinion by Mr. Justice Dodge.