29 N.W.2d 37 (Wis. 1947), Smith v. City of Whitewater

Citation:29 N.W.2d 37, 251 Wis. 313
Opinion Judge:The opinion of the court was delivered by: Rector
Party Name:SMITH v. CITY OF WHITEWATER et al.
Attorney:Leonard Haines, of Whitewater, and W. Wade Boardman, of Madison, for appellants.
Case Date:October 14, 1947
Court:Supreme Court of Wisconsin

Page 37

29 N.W.2d 37 (Wis. 1947)

251 Wis. 313

SMITH

v.

CITY OF WHITEWATER et al.

Supreme Court of Wisconsin

October 14, 1947

Page 38

Leonard Haines, of Whitewater, and W. Wade Boardman, of Madison, for appellants.

Karon & Weinberg, of Milwaukee (Philip Weinberg, of Milwaukee, of counsel), for respondent.

RECTOR, Justice.

Is it permissible under sec. 176.05(21), Wis.Stats. to issue fourteen retail Class B intoxicating liquor licenses in the city of Whitewater?

The subsection reads: '(a) No governing body of any town, village or city shall issue more than one retail 'Class B' liquor license for each five hundred inhabitants or fraction thereof, except that if a greater number of such licenses have been granted, issued, or in force, in such town, village or city, at the time of the taking effect of this subsection, than would be permissible under said limitation, such town board, village board or common council may grant and issue such licenses equal in number to those granted, issued, and in force on the taking effect of this subsection, but no such town or village board, or common council shall grant and issue any additional retail 'Class B' license above the number in force upon the taking effect of this subsection until the number of such licenses shall correspond to the limitation provided herein. Inmates of charitable and penal institutions [251 Wis. 316] shall not be considered as inhabitants of cities or villages for the purposes of this subsection.'

We considered this statute in State ex rel. Martin v. Barrett, 1945, 248 Wis. 621, 22 N.W.2d 663. As there pointed

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out, towns, cities and villages may continue to issue licenses equal in number to those outstanding at the time the law became effective, notwithstanding the statutory ratio of one license for each 500 inhabitants or fractional part thereof would thereby be exceeded. There were 13 licenses in Whitewater at the time the law became effective. We will not consider whether the Whitewater ordinance on the subject is intended to permit a number in excess of the quota fixed by the state law since it clearly could not validly do so.

'Inhabitant' is defined by sec. 370.01(6), Stats. as meaning 'a resident in the particular locality in reference to which that word is used.' The trial court construed 'inhabitant' to include summer vacationists in the vicinity of Whitewater who customarily...

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