Enos v. Hanff

145 N.W. 244, 95 Neb. 184, 1914 Neb. LEXIS 162

• Court: Nebraska Supreme Court
• Decided: January 30, 1914
• Docket: No. 18,195
• Status: Published

Opinions

Rose, J.

The question to be determined is the validity of a license to sell intoxicating liquors in the city of Stanton. A. L. Hanff is licensee, and G. A. Enos and others are remonstrators. From the municipal action granting the license, remonstrators appealed to the district court, where the license was sustained. The record of the proceeding is now presented here for review by appeal from the district court.

One of tlie objections to the license is that it was issued in violation of the Gibson act (laws 1907, ch. 82), which malíes it unlawful to conduct a saloon in a building owned or controlled by a manufacturer of beer. Comp. St. 1911, ch. 50, sec. 30e. It is conceded by remonstrators that the Independent Eealty Company, which is not a manufacturer of beer, holds title to the building wherein licensee is engaged in selling intoxicating liquors, but it is insisted that the building is nevertheless owned or controlled by the Storz Brewing Company, a manufacturer of beer. Licensee frankly admits that prior to the passage of the Gibson act the building was owned by the Storz Brewing Company, but he insists that, for the purpose of complying with the law, and without any intention of evading it, the property was transferred with many other pieces of real estate, which had been used in different parts of ’ the state for saloon purposes, to the Independent Eealty Company of Omaha, a corporation organized in June, 1907, after the Gibson act was passed and approved, but before it went into effect July 5, 1907. Comp. St. 1911, ch. 50, sec. 1. There is direct testimony on part of stockholders of the Independent Eealty Company that, in incorporating it and in taking title to real estate formerly owned by the Storz Brewing Company, the transactions were all conducted in good faith and that the property so transferred is not owned or controlled by a manufacturer of beer.

It would be unusual for those who participated in the incorporation of the new company, or in the.transfer of the property of the old, to testify frankly in direct terms to an intention to violate the law. The transactions themselves must be scrutinized in the light of all of the circumstances, giving due weight to forms and to evidence of good- intentions. An issue presented by the remonstrance to the licensing tribunal required the determination of this question : Is the building in which the saloon is to be conducted controlled by a manufacturer of beer? That it was-so controlled before the passage of the Gibson act is admitted. The transfer of title did not change the business to which the property had been, devoted. The managing officer of the grantee testified that he had no offer to lease the building in question for any other purpose and that he presumed its use for a saloon would be continued. On premises purchased from the Storz Brewing Company by the Independent Realty Company in many different places in the state, Storz beer had been generally kept for sale. A purpose on the part of licensee to continue the sale of the products of the Storz Brewing Company under his license may fairly be inferred. The business interests which prompted the brewer to purchase a great number of saloon sites in different localities were the same before and after the passage of the Gibson act and before and after the transfer. It was understood that the new company should respect the leases of the old. Shares of stock of the Storz Brewing Company, each of the par value of $100, were issued as follows: To George Tierney, one; to John Buck, one; to Charles F. Wevmuller, one; to Adolph Storz, one; to Gottlieb Storz, 3,061. The five stockholders named are directors. Gottlieb Storz .is president, and Charles F. Wevmuller, secretary and treasurer. Shares of stock of the Independent Realty Company, each of the par value of $100, were issued as follows: William F. Webber, one; Maggie Buck, one; Minnie G. Storz, 3,058. The three stockholders named are directors. Minnie G. Storz is president, Maggie Buck, vice-president, and William F. Webber, secretary and treasurer. The president of the Independent Realty Company is the wife of the president of the Storz Brewing Company. The husband of the vice-president of the Independent Realty Company is ■ the brew-master of the Storz Brewing Company, and a cousin of Minnie G. Storz. For four years the secretary and treasurer of the Independent Realty Company did general office work for the Storz Brewing Company, and did not sever his relations ,with his employer until June 1, 1907. According to the testimony of Maggie Buck, she was told by Minnie G. Storz at the time of the organization of the Independent Realty Company that under the new law the Storz Brewing Company conld not hold the property nsed for saloon purposes, and that Gottlieb Storz wanted the three persons who became the incorporators of the Independent Realty Company to take the property. A few days before the transfer from the old corporation to the new, the Storz Brewing Company declared a dividend of 55 per cent.' — -an unusual transaction. In the Storz Brewing-Company, Gottlieb Storz is the controlling factor. His wife, on the face of the new organization, controls the Independent Realty Company. The husband and the wife •control both corporations. Within the meaning of the Gibson act, does the Storz Brewing Company, a manufacturer •of beer, still control the building wherein A. L. Banff is licensed to sell intoxicating liquors in the city of Stanton? 'The domestic relations between Gottlieb Storz, president of the Storz Brewing Company, and his wife, Minnie G. Storz, president of the Independent Realty Company, are harmonious. In a business sense the interests of the controlling factors in both corporations are identical, Where the financial interests of husband and wife are thus -united, the court, in furtherance of a public policy established by the legislature, will look beyond the legal •entity of a corporation to the relations of the individuals behind it and enforce the law according to its terms. Legislative emancipation of married women in regard to property and business did not terminate a husband’s natural influence over his Avife, where marital relations are ideal. In this view of the law, when all of the circumstances are considered, the building in Avhich the licensing tribunal of Stanton attempted to legalize the sale of intoxicating liquors is still controlled by a manufacturer of beer, within the meaning of the Gibson act. In reaching- this conclusion none of tbe evidence tending to establish the good faith of the transfer, and the purpose of the incorporators to obey the law, has been overlooked.

The judgment of the district court is reversed and the •cause remanded, with directions to cancel the license.

Reversed.

Letton and Fawcett, JJ., not sitting.