State ex rel. Ruffalo v. Common Council of City of Kenosha

Citation157 N.W.2d 568,38 Wis.2d 518
PartiesSTATE ex rel. Arthur RUFFALO, Appellant, v. The COMMON COUNCIL OF the CITY OF KENOSHA, Respondent.
Decision Date09 April 1968
CourtUnited States State Supreme Court of Wisconsin

Lucareli, Newman & Ungemach, Kenosha, for appellant.

Burton A. Scott, City Atty., Kenosha, for respondent.

HALLOWS, Chief Justice.

Ruffalo contends he has a property right to the renewal of the liquor license and the refusal of the Common Council to renew it was in effect a revocation which procedurally must follow ss. 176.11 and .12, Stats. The plaintiff makes a persuasive argument why the liquor license should be considered something more than an annual privilege granted in the uncontrolled discretion of a municipality. He acknowledges that a liquor license has traditionally taken on the attribute of a privilege to be granted in the legal exercise of discretion by a licensing authority. In keeping with this concept, this court has held a liquor license cannot be the subject of transfer or of contract which would limit or control the discretionary authority of a licensing board. Smith v. City of Whitewater (1947), 251 Wis. 306, at 311, 29 N.W.2d 33; Smith v. City of Whitewater (1947), 251 Wis. 313, 29 N.W.2d 37; see State v. Bayne (1898), 100 Wis. 25, 75 N.W. 403.

In some respects the statute seems to enlarge the privilege concept. By s. 176.05(5), Stats., a license remains in force until July 1 next after granting the license unless sooner revoked. During this period the statute provides for certain transfers of the license by operation of law when the licensee dies, goes bankrupt, or makes an assignment for the benefit of creditors. In s. 176.05(22), Stats., a provision preserves a right to a license to one who enters the armed forces. Nevertheless, most courts which have dealt with the nature of the license make a distinction between a liquor license and other licenses dealing with occupations such as doctors, lawyers, or taxi-cab drivers. See Wignall v. Fletcher (1952), 303 N.Y. 435, 103 N.E.2d 728; Hecht v. Monaghan (1954), 307 N.Y. 461, 121 N.E.2d 421; Willner v. Committee on Character (1963), 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224. And because the license is generally of only one year's duration and must be renewed, it has been considered more in the nature of a privilege than a vested or a property right. While the present case was on appeal this court decided that the property-right concept would be against public policy and consequently this case must be ruled by the recent case of Marquette Savings & Loan Association v. Village of Twin Lakes (1968), Wis., 156 N.W.2d 425. See State v. Bayne, supra; 9 McQuillin, Municipal Corporations, 3rd ed., pp. 508--510, sec. 26.195.

In his petition for a writ, Ruffalo complains of two errors: (1) The Common Council failed to follow the procedure in ss. 176.11 and .12, Stats., and (2) that its action was arbitrary, capricious and discriminatory. The sections require a complaint in writing under oath to be filed setting forth the violation of the statute justifying revocation, such as keeping a disorderly or riotous, indecent or improper house, or the selling of intoxicating liquor to a minor or an intoxicated person or an habitual drunkard or the disobedience of a valid order of certain public officials. These sections also require a summons and order to show cause, provide for a hearing and set forth the procedure for the hearing on the complaint, including a provision for producing and hearing witnesses. His argument that these sections are applicable is based on his theory that a liquor license is a continuing and property right and the failure to renew is the equivalent of a revocation. Since this premise is incorrect, these sections do not apply to a renewal. Contra, Hornsby v. Allen (5th Cir. 1964), 326 F.2d 605. Neither was it arbitrary, capricious or discriminatory to refuse to apply the procedure of those sections.

Under ss. 176.05(1) and (5), Stats., applications and renewals are treated alike, and this court has held the exercise of the discretion for the original application and for the renewal is the same. Of course, normally in a renewal situation there are more equities in favor of granting the license and the complete disregard of them goes to the question of the refusal being arbitrary, capricious and discriminatory. In State ex rel. Boroo v. Town Board of Barnes (1960), 10 Wis.2d 153, 102 N.W.2d 238, we pointed out it is generally accepted that the same discretion vested in a licensing authority with respect to an original granting of a liquor license exists in respect to renewals.

Ruffalo argues that upon renewal he is entitled to a trial-type hearing upon his application under the due-process clause of the Constitution. Hornsby v. Allen, supra. However, the granting of a liquor license is a legislative function which does not require a trial-type hearing to comport with due process. From time immemorial, legislators and bodies exercising the legislative function have held the legislative type of hearing wherein one is given notice of the hearing and a fair opportunity to state his position on the issue. The right to a hearing and a record sufficient for judicial review to determine whether the exercise of the administrative power was capricious or arbitrary is fundamental. We pointed out in Town of Ashwaubenon v. State Highway Comm. (1962), 17 Wis.2d...

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23 cases
  • Misurelli v. City of Racine
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • August 2, 1972
    ...Sections 176.05(1) and (8) of the Wisconsin Statutes, as construed by the Wisconsin Supreme Court in State ex rel. Ruffalo v. Common Council, 38 Wis.2d 518, 157 N.W.2d 568 (1968), embody a policy of "statewide concern" in that they affirmatively permit all local governments throughout the s......
  • Eichenseer v. Madison County Tavern League
    • United States
    • United States State Supreme Court of Wisconsin
    • May 6, 2008
    ...by the municipality; they are considered privileges rather than vested property rights. See State ex rel. Ruffalo v. Common Council of City of Kenosha, 38 Wis.2d 518, 523, 157 N.W.2d 568 (1968). Both "Class A" and "Class B" licenses may be revoked by the municipality if the terms of the lic......
  • Nowell v. City of Wausau
    • United States
    • United States State Supreme Court of Wisconsin
    • November 6, 2013
    ...with the historic view that “the granting of a liquor license is a legislative function.” State ex rel. Ruffalo v. Common Council, 38 Wis.2d 518, 524, 157 N.W.2d 568 (1968). It is well established that legislative power may not be delegated to the circuit courts. City of Beloit v. Town of B......
  • City of Kenosha, Wisconsin v. Bruno 8212 658
    • United States
    • United States Supreme Court
    • June 11, 1973
    ...in situations where municipalities have denied an application for renewal of a license. State ex rel. Ruffalo v. Common Council of City of Kenosha, 38 Wis.2d 518, 524, 157 N.W.2d 568, 571 (1968). Such applications may not be rejected 'without a statement on the clerk's minutes as to the rea......
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