Joseph Schlitz Brewing Co. v. City of Superior

• Decision Date: 21 March 1903
• Citation: 93 N.W. 1120,117 Wis. 297
• Parties: JOSEPH SCHLITZ BREWING CO. v. CITY OF SUPERIOR ET AL.
• Court: Wisconsin Supreme Court

117 Wis. 297

93 N.W. 1120

JOSEPH SCHLITZ BREWING CO.

v.CITY OF SUPERIOR ET AL.

Supreme Court of Wisconsin.

March 21, 1903.

Appeal from Circuit Court, Douglas County; A. J. Vinje, Judge.

Suit by the Joseph Schlitz Brewing Company against the city of Superior and others. From a decree in favor of defendants, plaintiff appeals. Affirmed.

This is an action in equity brought to enjoin the city of Superior and its officers from enforcing a certain ordinance adopted by the common council of the city. The complaint alleges, in substance, that the plaintiff is a large manufacturer of malt liquors, having its place of business in the city of Milwaukee; that for more than one year last past it has been conducting, and is still conducting, a considerable business at the city of Superior in the sale of malt liquors, and has a warehouse or depot in said city, which it uses in said business, of the value of $2,000; that, in the course of the transaction of such business, it ships the said beer in barrels, kegs, and bottles to the said warehouse or depot, where it has an agent who delivers the same to customers in various parts of the city in fulfillment of orders taken therefor by its said agent; that on the 25th day of November, 1895, a certain ordinance, entitled “An ordinance relating to licenses for the sale of intoxicating liquors,” was adopted by said city, the first section of which ordinance is as follows: “It shall be unlawful for any person to sell, give away, barter, furnish or dispose of in any manner, either directly or indirectly, or by agent or employe or otherwise, any spirituous, vinous, malt, or fermented or intoxicating liquors, for any purpose whatever, without first having obtained a license therefor from the common council of the city of Superior as hereinafter provided;” that the remaining sections of said ordinance prescribe the methods by which a license is to be obtained, the bond to be given therefor, and the amount to be paid for the same, such provisions being substantially similar to the provisions contained in section 1549, Rev. St. 1898, except that the bond is required to contain certain additional provisions, and the license fee is fixed at $500 per year, the penalty for the violation of any provision of section 1 being fixed at a sum not less than $50, nor more than $100; that the said ordinance is unauthorized and void; that the defendant city and its officers threaten to institute proceedings against the plaintiff under said ordinance from time to time on account of the prosecution of the plaintiff's said business without license, and that thereby the plaintiff will be subjected to a multiplicity of suits, and compelled to pay out large sums in fines; and that its business will be ruined unless the prosecution of such suits be enjoined. A preliminary injunctional order having been obtained upon this complaint, the same was, upon motion, vacated by the trial court, and at the same time a general demurrer to the complaint was sustained, and the plaintiff appeals from both of said orders.Miller, Noyes & Miller, for appellant.

Thomas E. Lyons and Carl M. Wilson, for respondants.

WINSLOW, J. (after stating the facts).

There are two questions in this case: (1) Can an action in equity be maintained for the purpose enjoining the enforcement of a municipal ordinance? And (2) is the ordinance valid and binding upon the...