O'Flinn v. State ( 1888 )

Cooper, J.,

delivered the opinion of the court.

Section 1115 of the code of 1880 was amended 'by the act of February 23, 1882, by striking from that section the word “ knowingly,” so that by the code as amended it is an offense for one having license to retail or sell intoxicating liquor to a minor whether the seller does or does not know that the buyer is a minor. The condition of the bond sued on is, inter alia, to “ observe and keep all the provisions of the revised code of 1880,” and this means the code as it had been amended and was in force at the time of the execution of the bond. At the instance of the state the court instructed the jury that the plaintiff was entitled to a verdict if from the evidence the jury believed that O’Flinn, the principal in the bond, was interested in the liquor sold to the minor. It is unnecessary in this case to decide whether, under all circumstances, the rule announced is correct, it is sufficient to say that on the uncontroverfced facts of this case the plaintiff was entitled to a verdict, and that the court might have given a peremptory instruction to the jury so to find.

O’Flinn was a licensed retail dealer engaged in carrying on his business as such in the house in which he was licensed to deal. The bar was open for the transaction of business, and Payne, a youth under eighteen years of age, went into the room and bought intoxicating liquor from a person standing behind the bar and transacting the business. The defendants, to meet the case thus made by the plaintiff, introduced O’Flinn, the dealer, and his son, and showed by them that at the time of the sale, O’Flinn had no other clerk in his employment, and as he says no other person was then authorized by him to sell liquor, and further proved that neither O’Flinn nor his sou sold the liquor. Whether it be true or not that the mere ownership of the whisky sold was sufficient to show a breach of the bond, a breach was prima faoie shown by the facts disclosed by the plaintiff and the case so made was not rebutted by anything shown by the defendant.

The business of retailing intoxicating liquors is considered by the legislature as one highly dangerous to society, and though the business is licensed, it is under restrictions, limitations, and penalties which are calculated to minimize the evil. Among other salutary requirements is one by which the dealer is placed under bond, conditioned in effect that he will not violate any of the provisions of the law in reference to • retailing, and will not suffer or permit other things to be done. By the condition of the bond he must “ keep a quiet, orderly, and peaceable house ;” “ he must not retail or otherwise dispose of vinous or spirituous liquors to any Indian, minor, or intoxicated person •” he must not “ suffer or permit any riotous or disorderly conduct, or any drunkenness, or any unlawful gaming in or about the house or on the premises thereunto belonging,” and must “ in all things faithfully observe and keep all the provisions of this act.” A licensed dealer is thus made, as it were, the guardian of the law as to the premises on which his business is transacted. Failing to act is in many respects as much a breach of the bond as unlawful action. We are not prepared to say that if an intruder were to slip on the premises- and sell liquor to a minor without the knowledge of the keeper, it would be a breach of the bond. But if the dealer leaves his premises in the hands of a servant, leaving the doors open as an invitation to customers, or if he places other persons in charge, with apparent right to sell, but restricts them by private instructions, and the servant or other person does or permits an' act, which if done by the dealer would be a breach of the bond, it is as much a breach as though done by him. The law cannot permit him to shield himself by abandoning control of the business that is still conducted in his name and under his license, to one not authorized to sell by him. The suggestion that some interloper might have stepped into the bar and sold the liquor to the minor is entirely too unsubstantial and improbable. If such was the fact, at least some evidence of it should have been introduced. In the absence of anything tending remotely to prove such fact, we are not disposed to consider what its effect would be if proved.

The judgment is affirmed.