Smith v. City of Whitewater

• Decision Date: 14 October 1947
• Citation: 29 N.W.2d 37,251 Wis. 313
• Parties: SMITH v. CITY OF WHITEWATER et al.
• Court: Wisconsin Supreme Court

251 Wis. 313

29 N.W.2d 37

SMITH

v.CITY OF WHITEWATER et al.

Supreme Court of Wisconsin.

Oct. 14, 1947.

Appeal from a judgment of the County Court of Walworth County; Roscoe R. Luce, Judge.

Mandamus proceeding by Kate Smith against City of Whitewater, a municipal corporation, and others, to compel issuance of a beer and intoxicating liquor license to plaintiff and for damages for refusal to grant a license. From an interlocutory writ ordering issuance of license to plaintiff and reserving for future consideration the determination of damages, defendants appeal.-[By Editorial Staff.]

Judgment reversed.This is a mandamus proceeding and is a companion case to Smith v. City of Whitewater, Wis., 29 N.W.2d 33. The petition for the writ to a considerable extent follows the allegations of the complaint in that case. It recites the lease and the agreement between plaintiff and Whitinger, the issuance of the combination retail Class B fermented malt beverage and intoxicating liquor license to Whitinger for the year ending June 30, 1947, the application of Whitinger for transfer of his license and the application of plaintiff for a license upon her premises for the period from January 1, 1947 to June 30, 1947. It varies from the complaint by alleging that while under the statutes of the state and the ordinances of the city of Whitewater at least 13 Class B intoxicating liquor licenses were permitted, there were but 12 such licenses in effect as of January 1, 1947. This statement is premised upon the assumption that Whitinger's license was terminated when he lost possession of plaintiff's premises. The statements in the complaint with reference to the city council proceedings are in substance repeated in the petition. It is alleged that the city attorney erroneously advised the council that it would not consider plaintiff's application because of the quota restriction and that the council, without the exercise of discretion, arbitrarily and wrongfully refused to grant plaintiff the license for which she applied. It is said that the members of the council admitted that the petitioner and her premises complied with all legal requirements for the granting of a license.

The petition was placed in issue by a return. Upon a trial the court rendered a memorandum decision to the effect that 14 retail Class B intoxicating liquor licenses were permissible in the city of Whitewater, and issued an interlocutory writ ordering the issuance of a license to plaintiff and reserving for future consideration the determination of damages to which plaintiff might be entitled. The defendants appeal.

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 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 pointedout, 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 patronize places of business in that city during their vacation periods. Upon that basis it computed the inhabitants to be in excess of 7,000. This computation of course would permit the issuance of 14 licenses within the...