157 N.W.2d 568 (Wis. 1968), State ex rel. Ruffalo v. Common Council of City of Kenosha

Citation:157 N.W.2d 568, 38 Wis.2d 518
Party Name:STATE ex rel. Arthur RUFFALO, Appellant, v. The COMMON COUNCIL OF the CITY OF KENOSHA, Respondent.
Case Date:April 09, 1968
Court:Supreme Court of Wisconsin
 
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Page 568

157 N.W.2d 568 (Wis. 1968)

38 Wis.2d 518

STATE ex rel. Arthur RUFFALO, Appellant,

v.

The COMMON COUNCIL OF the CITY OF KENOSHA, Respondent.

Supreme Court of Wisconsin.

April 9, 1968.

Page 569

[Copyrighted Material Omitted]

Page 570

[38 Wis.2d 522] 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 [38 Wis.2d 523] (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

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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...

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