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183 Wis. 322

Pelkowski v. State

Wisconsin Supreme Court

Decided March 11, 1924

Wisconsin Supreme Court · decided 1924-03-11

E. Smalley, Judge. ■ Plaintiff in error,-hereinafter called the defendant, being a licensee to sell non-intoxicating liquors under the provisions of sub. (29), sec. 165.01, Stats. 1923, was convicted in the lower court of a violation of the Severson law, for having liquor upon the licensed premises containing more than one half of one per cent, of alcohol.

Relies on Purity Extract & Tonic Co. v. Lynch · Pennell v. State · Finsky v. State

Affirmed · Decided 1924-03-11

Per Curiam.

¶1Defendant claims that the right to sell harmless intoxicating liquors is an inherent right both under *323the state and the federal constitutions, and that therefore the licensing statute above referred to is unconstitutional. This contention has been adversely ruled against the defendant in Pennell v. State, 141 Wis. 35, 123 N. W. 115, and in Purity E. & T. Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44.

¶2The liquor in question was seized by the prohibition officers when making an inspection of the licensed premises, and defendant claims that, inasmuch as the licensing statute is unconstitutional, he had a right’ to the possession' of such liquor and that the same was not subject to seizure. We having held that the licensing statute is constitutional, the officers could make an inspection and seize the liquor, even without a search warrant. Finsky v. State, 176 Wis. 481, 187. N. W. 201.

¶3The statute being constitutional, the possession of intoxicating liquor on the licensed premises becomes a clear violation of the Severson law, and the contention of the. defendant’s counsel that he has the right to the possession of such liquor cannot be sustained.

¶4The judgment and sentence of the lower court is affirmed.

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