Lynch v. State , 147 Ala. 143 ( 1906 )

ANDERSON, J.

Although it is in general permissible to grant a license to two persons jointly, yet a license granted to one person, who forms a.' partnership with an unlicensed person, does not authorize the latter to make sales. — Shaw v. State, 56 Ind. 188. And Avhen the firm already exists, a license to one partner individually will confer no authority on his partner or the firm. “A license to retail affords protect} m only for those acts Avlfich, by laAV, are merely acts of an individual. If it is granted to a partnership, it affords protection onty for those acts Avhicli, in laAV, are the acts of the firm. A license to an individual cannot be a license to a partner-. ship.” Long v. State, 27 Ala. 32. And on the same principle a license issued to a firm, of Avhich a, given person is a member, confers no authority to sell on another firm, of which, also ,the same person is a member.— Wharton v. King, 69 Ala. 365. “But where a license is issued to a. firm, and before its expiration one partner acquires the interest of the other partners in the firm’s business and property, he may continue to sell under the same license; and so, also, a license granted to tAvo persons or partners will justify one of them in making sales, although the other has retired from the firm.” — Black on Intoxicating Liquors, § 134; U. S. v. Davis, (D. C.) 37 Fed. 468; State v. Gerhardt, 48 N. C. 179; Hill v. Thixton, 94 Ky. 96, 23 S. W. 947; St. Charles v. Hackman, 133 Mo. 634, 34 S. W. 878.

In the case at bar the license was granted to D. B. Wilkins and Will Lynch, the defendant, who were at the time partners, and at the time of the alleged violations the said Lynch was conducting the business as the sole owner and proprietor. The North Carolina' case, supra, very justly holds “that the continuance of the business by the remaining partner will not authorize an improper person to retail, because the moral qualifications of the retailer have already been examined into and passed upon by the county court. In this respect it differs essentially from the case of an assignee, or of the personal representative of a licensed person, claiming the right to sell under the license. Such claim would be rejected, for the obvious reason that the claimant would not have the sanction of the county court. But the reason would not apply to the case of the present defendant, who- is a remaining partner.” The trial court erred-in giving the general charge for the state, and in refusing the one requested by the defendant; and the judgment is reversed and one ivill be here rendered discharging the defendant.

Eeversed and rendered.

Haralson, Tyson, Dowdell, and Denson, JJ., concur.