State ex rel. Strike v. Common Council of Racine

• Decision Date: 01 April 1930
• Citation: 230 N.W. 70,201 Wis. 435
• Parties: STATE EX REL. STRIKE v. COMMON COUNCIL OF CITY OF RACINE ET AL.
• Court: Wisconsin Supreme Court

201 Wis. 435

230 N.W. 70

STATE EX REL. STRIKE

v.COMMON COUNCIL OF CITY OF RACINE ET AL.

Supreme Court of Wisconsin.

April 1, 1930.

Appeal from a judgment of the Circuit Court for Racine County; George Thompson, Circuit Judge. Reversed.

Relator instituted this proceeding in the circuit court for Racine county to secure a peremptory writ of mandamus compelling the city council and the city officers of Racine to issue to him a license to operate a gasoline filling station. From a judgment in favor of defendants, the relator brings this appeal.

The relator made application to the city council of the city of Racine for a license permitting him to operate a gasoline filling station in that city under the provisions of an ordinance of that city, set forth in the margin.¹

The common council, after service upon it of an alternative writ of mandamus, adopted a resolution setting forth the reasons why it had denied the license, and recited in the return to the writ that said resolution which was attached to the return, and made a part thereof, constituted its reasons for the denial of the license. Among such reasons was that said relator sold a cheap, inferior, and adulterated grade of gasoline; that he has evaded the state gasoline tax, and has engaged in the business of what is commonly known as “bootlegging gasoline;” that he has placed signs and placards in various filling stations operated by him which misrepresent the quality and test of gasoline sold by him, and that he has been duly convicted of such offense by a court of competent jurisdiction in Milwaukee county; that he has failed and neglected to place signs and placards at filling stations operated by him, showing the test of gasoline sold, contrary to the state statutes; that he has hauled gasoline into the state of Wisconsin and sold the same without first having such gasoline inspected; that he has sold gasoline in cans and containers not containing on the outside thereof the stenciling and markings required by the statutes of the state of Wisconsin, and that the sale of gasoline under such circumstances creates a dangerous condition; that he is not responsible and would be unable to pay damages in the event persons were injured through his failure to comply with the law in this regard, as shown by the fact that several judgments have been entered against him amounting to several thousands of dollars and execution has been returned unsatisfied; that he operated various trucks in the city of Racine without securing a license, of which offense he was convicted in the municipal court of Racine county; that he operated a filling station in the city of Racine without securing a license therefor, of which offense he was arrested and convicted; that he engaged in business in the city of Racine as a sole trader under a name purporting or appearing to be a corporate name, to wit, “The Belle City Oil Company,” with intent, thereby, to obtain credit without first filing in the office of the register of deeds of Racine county an affidavit disclosing and showing that said company was not a corporation, contrary to section 343.722 of the Statutes; that he executed checks in payment of gasoline tax, and for gasoline, without having a sufficient amount of money in the bank upon which they were drawn to cover the same; that while in the employ of the Winona Oil Company, at Athens, Wis., in 1926 and 1927 he embezzled and unlawfully converted to his own use oils and gasoline of the approximate value of $3,000, and that by reason of his false testimony he secured a verdict of the jury acquitting him of such embezzlement; that he subleased a certain gasoline filling station in the city of Kenosha and furnished gasoline to said lessee, knowing full well at the time thereof that said lessee had a duct or tube arranged in such manner that low test gasoline was pumped from the lowest tanks through the pumps purporting to supply high-test gasoline, and thereby defrauding the purchasers of such high-test gasoline; that he secured from the city of Kenosha a contract to furnish such city with gasoline and thereafter refused to complete his contract, and that his bonding company was and now is being compelled to continue to furnish the gasoline in accordance with the terms of said contract; that he is indebted to a certain person in the state of Illinois in the sum of several thousand dollars for gasoline purchased, and that for the purpose of hindering and preventing said person from making collection of the amount due and owing, by means of a garnishment against the city of Kenosha, he did secure an attorney to enter a judgment against him and in favor of the Metropolitan Gasoline Company of Milwaukee, Wis., by confession in a court of competent jurisdiction in Kenosha county, which judgment was filed in the office of the city clerk of the city of Kenosha; that he is shiftless and neglectful in the manner in which he conducts and cares for his gasoline business and does not respect the laws of the state of Wisconsin nor the ordinance of the city of Racine, and that to permit him to engage in the gasoline business in the city of Racine would be detrimental to the public welfare; that the use of his premises at the intersection of Thirteenth and Washington avenues as a filling station, owing to the limited space, will constitute an obstruction to and hinder the travel upon the public thoroughfares at said intersection.

For an amended return to the alternative writ the defendants alleged, upon information and belief, “that the character, competency, integrity and reliability of said John W. Strike are such that it would be detrimental to the good order of the City of Racine and the welfare of the residents thereof to issue him a license as requested, and further alleges upon information and belief that the premises for which said application for a filling-station license has been made are not suitable for that purpose, and that to use the same for filling-station purposes would create a fire hazard and would inconvenience and hinder public travel.”

The resolution of the common council, heretofore epitomized, was also attached to and made a part of this amended return.

The trial court found “that the premises in question, owing to the limited space, are not suitable for the purpose of using the same for a gasoline filling station,” and “owing to the close proximity of the gasoline tanks and containers to the sidewalks, and the manner of the construction of said tanks, the use of said premises for filling station purposes constitutes an increased and serious fire hazard; that Washington avenue, on which said filling station is located, carries a large amount of traffic, there being located upon the same a double line of street car tracks, and the space upon which the filling station in question is located is so small and in such close proximity to the streets that the use of the premises for filling station purposes causes traffic upon the streets to become congested and creates dangerous traffic conditions for persons lawfully using the public highways in and about the filling station in question;” also “that the relator has violated the ordinance of the city of Racine in operating the filling station in question without a license, and has violated the statutes of Wisconsin in placing signs and placards in filling stations operated by him misrepresenting the quality and test of gasoline sold by him, and in failing and neglecting to place placards at filling stations operated by him showing the true test of gasoline sold by him.”

In an opinion, the trial judge stated that the other charges contained in the resolution of the common council, reciting the reasons for the denial of the license, were either not proven or beyond the scope of the proper issues in the case.

As a conclusion of law, the court found that the common council was justified in refusing to issue a license to the relator to permit him to operate the gasoline station in question, and that the peremptory writ of mandamus should be denied. Judgment was rendered in accordance therewith, including costs, against the relator.

J. M. Weisman and ...