Berlowitz v. Roach

• Decision Date: 23 December 1947
• Citation: 30 N.W.2d 256,252 Wis. 61
• Parties: BERLOWITZ v. ROACH, Chief of the Beverage and Cigarette Tax Division, et al.
• Court: Wisconsin Supreme Court

252 Wis. 61

30 N.W.2d 256

BERLOWITZ

v.ROACH, Chief of the Beverage and Cigarette Tax Division, et al.

Supreme Court of Wisconsin.

Dec. 23, 1947.

Appeal from a judgment of the Circuit Court for Washington County; Edward J. Gehl, Judge.

Reversed.

Action commenced July 31, 1947, by Robert D. Berlowitz, an individual doing business under the name and style of Hartford Liquor, on behalf of himself and others similarly situated, plaintiff and respondent, against John M. Smith, individually and as state treasurer of the state of Wisconsin, John W. Roach, individually and as chief of the beverage and cigarette tax division of the state treasurer, John E. Martin, individually and as attorney general of the state of Wisconsin, and A. C. Snyder, individually and as district attorney of Washington county, Wisconsin, defendants, requesting declaratory judgment that the increase in rates provided in ch. 412, Laws of 1947, has no application to intoxicating liquor in the possession of Berlowitz and others similarly situated on July 25, 1947, to which beverage tax stamps were previously affixed in the amount specified in sec. 139.26, Stats., prior to the amendment by ch. 412, Laws of 1947. Defendants' answer put in issue the applicability of the increase in rates and defendants moved for summary judgment and a like motion was made by plaintiff. From a judgment entered September 18, 1947, determining the increased tax did not apply to liquor previously taxed, defendants John W. Roach and John E. Martin appeal in their official capacities. Subsequent to the commencement of the action, but prior to the expiration of the time for answering, defendant John M. Smith, state treasurer, died and the action was tried against the remaining defendants.John E. Martin, Atty Gen., and Harold H. Persons, Asst. Atty. Gen., for appellant.

Fred R. Wright, of Milwaukee (Marcus A. Jacobson, of Waukesha, and Wallace C. Bartz, of Milwaukee, of counsel), for respondent.

BARLOW, Justice.

Respondent Berlowitz was the holder of a retail ‘Class A’ liquor license issued by the city of Hartford, and was engaged in the business of selling and trafficking in intoxicating liquor by operating a retail package goods liquor store. Between thirteen and fourteen thousand licensed taverns, package goods stores, wholesalers and pharmacies were engaged in selling, dealing and trafficking in intoxicating liquor in the state of Wisconsin at the time this action was commenced. Each had on hand on July 25, 1947, liquor purchased prior to that date and upon which Wisconsin beverage tax stamps were affixed in the amounts as prescribed by sec. 139.26, Stats. prior to the amendment thereof by ch. 412, Laws of 1947.

Sec. 139.26(1), Stats. of 1945, provided for a tax of twenty-five cents per wine gallon on intoxicating liquors containing less than twenty-one per centum of alcohol by volume and one dollar per wine gallon on intoxicating liquors containing twenty-one per centum of alcohol by volume or more. Ch. 412, Laws of 1947, which became the law on July 25, 1947, increased the rate of tax on intoxicating liquor containing less than twenty-one per centum of alcohol from twenty-five cents to fifty cents, and on intoxicating liquor containing twenty-one per centum or more of alcohol from one to two dollars per wine gallon.

The state treasurer, through the beverage and cigarette tax division of his office, took the position that the increased rates were immediately applicable on July 25, 1947, the date ch. 412, Laws of 1947, became a law, and applied to all persons having intoxicating liquor in their possession for sale and that they would be required to pay the additional tax. The question for decision is whether the increased liquor tax applies to this intoxicating liquor.

Appellants contend (1) that declaratory judgment proceedings are not maintainable in this case, and (2) if they are, the intoxicating liquor in question is taxable at the increased rate.

The uniform declaratory judgment act, sec. 269.56, Stats. provides:

‘(2) * * * Any person * * * whose rights, status or other legal relations are affected by a statute * * * may have determined any question of construction or validity arising under the * * * statute * * * and obtain a declaration of rights, status or other legal relations thereunder.’

This clearly grants to any party the right to proceed under the uniform declaratory judgment statute to have a statute construed with reference to a claimed right so long as it cannot be said to be an action against the state. It is argued that while the state is not named as a party defendant it is the party in interest because the money realized from the collection of this tax is state property. We cannot agree with appellants' position that this is an action against the state. It is an action against the enforcing officer to prevent him from doing that which it is claimed he has no legal right to do, and if respondent is correct in his position that the statute gives him no legal right to collect this tax the enforcing officer is then acting as an individual in excess of his authority and with no protection under the law. It was held in Jelke Co. v. Beck, 1932, 208 Wis. 650, 242 N.W. 576, 581:

‘There can be no doubt that the circuit court has jurisdiction in the sense that it has power to enjoin state officials from enforcing a statute which is invalid because in contravention of the Constitution. An unconstitutional act of the Legislature is not a law. It confers no rights, imposes no penalty, affords no protection, is not operative, and, in legal contemplation, has no existence. State ex rel. Kleist v. Donald, 164 Wis. 545, 160 N.W. 1067;State ex rel. Ballard v. Goodland, 159 Wis. 393, 150 N.W. 488.’

While the constitutionality of this statute is not in issue the authority of the enforcing officer is involved and as to this it was said in Century Distilling Co. v. Defenbach, 1940, 61 Idaho 192, 99 P.2d 56, 59:

‘It is generally held by the courts, both state and federal, that where the action taken or threatened by an officer, is alleged to be in violation of the complainant's rights, either because of a misconstruction or misapplication by the officer of a statute, or on account of the alleged unconstitutionality of the statute, the action is not in fact one against the state but is rather against the individual because of his lack of power and authority to do the thing complained of. State ex rel. Robinson v. Superior Court, 182 Wash. 277, 46 P.2d 1046, 1049;State Highway Commission v. Younger, 170 Okl. 614, 41 P.2d 686, 688; Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, 727, 729, 13 L.R.A.,N.S., 932, 14 Ann.Cas. 764;Smyth v. Ames, 169 U.S. 466, 18 S.Ct. 418, 42 L.Ed. 819, 839;Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 14 S.Ct. 1047, 38 L.Ed. 1014, 1021; * * *.’

This is consistent with what was said in the Jelke case, supra. We see no difference between an officer attempting to act under a law which is unconstitutional and his attempting to act in excess of the authority granted to him under a law which is constitutional. The effect on the person against whom such action is taken is the same. In neither instance is it the act of the...