State ex rel. Treat v. Hammel

• Decision Date: 13 December 1907
• Citation: 134 Wis. 61,114 N.W. 97
• Parties: STATE EX REL. TREAT ET AL. v. HAMMEL, MAYOR, ET AL.
• Court: Wisconsin Supreme Court

134 Wis. 61

114 N.W. 97

STATE EX REL. TREAT ET AL.

v.HAMMEL, MAYOR, ET AL.

Supreme Court of Wisconsin.

Dec. 13, 1907.

Appeal from Circuit Court, Outagamie County; John Goodland, Judge.

Mandamus by the state, on the relation of Charles Treat and another, against David Hammel, mayor of the city of Appleton, and others, to compel the revocation of a liquor license. From a judgment denying the peremptory writ, and dismissing the proceedings, relators appeal. Affirmed.

In November, 1906, the city of Appleton voted Herman Bach a license to sell intoxicating liquors for the remainder of the year ending the first Tuesday in July, 1907; he paying therefor $133.33. On December 5, 1906, application was made to the common council for the revocation of his license for the selling of a glass of beer to a minor on that day. The application was referred to the city attorney, and, on his report to the common council that the application stated a good cause of action, Bach was summoned to appear before the common council, and show cause why his license should not be revoked. After being continued, the case was finally tried February 6, 1907. It appears that the beer was sold to the minor by Bach's barkeeper; that this sale was against the express directions of Bach; that the minor had no written order from his parent or guardian for the purchase of the intoxicating liquor; that the minor drank several glasses of liquor that day; and that Bach was absent from the city on December 5, 1906. Upon this evidence, the common council by a vote of seven to four passed the following resolution: “Resolved that the license of H. Bach be not revoked, and be it further resolved that the case against H. Bach be dismissed, and that the costs of the proceedings be paid by the city of Appleton.” Petition was made to the circuit court for a writ of mandamus requiring the mayor and common council to revoke the license. An alternative writ was issued requiring them to revoke the license, or to show cause why they did not. The members of the council who had voted in favor of the revocation made separate return to the writ, stating that they did not wish to contest the proceeding, and that they were willing that the license should be revoked. The mayor and the other members of the council answered to the effect that they had acted in good faith and in the exercise of a sound discretion, that they doubted the testimony of some of the witnesses, and therefore voted for the adoption of the resolution. They also alleged that no valid license had ever been issued to Bach, for the reason that Bach had not paid $200 for the license, as required by the laws of the state, and that the form of the writ was defective, and they demurred because Bach, the real party in interest, had not been made a party thereto. The relators demurred to the answer of the majority of the council. On the trial the parties stipulated the facts as above stated, and the only evidence introduced was a part of the city charter and an ordinance of the city. Subdivision 1, § 2, c. 6, of the charter of the city, provides as follows: “No license shall be granted for a term longer than one year, nor for a less term than the corporate year, or the part of such year unexpired at the term when application for such license is filed with the city clerk.” The section of the city ordinances introduced in evidence was as follows: “The licenses provided for in section three shall not be granted to any person until the person applying for the same shall have paid into the treasury of the city of Appleton therefor, the sum of two hundred dollars, and produced and filed with the city clerk, a receipt, showing the payment of such sum to the city treasurer and filed with such clerk the bond provided for in section 1549 of the Revised Statutes.” The court made findings of fact and conclusions of law and entered judgment in accord therewith, denying the peremptory writ, dismissing the proceedings and action, and for costs and disbursements for the majority of the defendants in the action. Numerous exceptions were filed to the findings of the court and to the refusal of the court to find as proposed by the relators. This is an appeal from the judgment of the court, above described, entered on June 26, 1907.Richmond, Jackman & Swansen, for appellants.

Henry D. Ryan, for respondents.

SIEBECKER, J. (after stating the facts as above).

This is an application for a writ of mandamus to compel the revocation of a license to deal in intoxicating...