Frank v. Kluchesky

Decision Date15 April 1941
PartiesFRANK et al. v. KLUCHESKY et al.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from an order of the Circuit Court for Milwaukee County; Otto H. Breidenbach, Judge.

Reversed.

This action was begun on June 17, 1940, by Ralph W. Frank and Ray Miess, plaintiffs, against Joseph Kluchesky, Herbert J. Steffes, Edward Mitten and Walter Mattison, defendants. There were demurrers to the complaint and from the order sustaining the demurrers of the defendants and construing the statute in question, the plaintiffs appeal.

From the allegations of the complaint it appears that the plaintiff Frank is a retail grocer in the city of Milwaukee and that the plaintiff Miess owns and operates a drug store in said city; that the defendant, Joseph Kluchesky, is Chief of Police of the city of Milwaukee; that the defendant, Herbert J. Steffes, is District Attorney of Milwaukee County; that the defendant, Edward Mitten, is Sheriff of Milwaukee County, and that the defendant, Walter Mattison is City Attorney of the city of Milwaukee; that both of the plaintiffs are duly licensed Class “A” retail liquor dealers pursuant to the provisions of sec. 66.05(10) (f), Wisconsin Stats., which is as follows:

“Class ‘A’ retailers' licenses. Class ‘A’ retailers' licenses shall be issued only to domestic corporations or to persons of good moral character who shall have resided in this state continuously for not less than one year prior to the date of the filing of application for said license. Said license shall authorize sales of fermented malt beverages only for consumption away from the premises where sold and in the original packages, containers, or bottles and unrefrigerated. ***”

Sec. 66.05(10) (e) provides for wholesalers' licenses. Under such licenses the wholesaler may sell only in original packages or containers and in quantities of not less than four and one-half gallons at any one time, not to be consumed in or about the premises where sold.

Sec. 66.05(10) (m) fixes the penalties for violation of the provisions of the statute.

It is further alleged that unpasteurized beer cannot be preserved and kept in a condition fit for consumption for any but a short period of time unless it is kept at a temperature of 40 degrees F. or less; that beer at a temperature greater than 40 to 45 degrees F. is unpalatable for beverage purposes. The gravamen of the complaint is that the provision requiring Class “A” dealers to sell unrefrigerated beer has the effect of preventing its sale because the majority of customers will not buy unrefrigerated beer; that the statute permitting wholesalers to sell refrigerated beer while forbidding its sale by Class “A” licensees is discriminatory and in effect prohibits the exercise of the right which the license grants; that the term “unrefrigerated” is so indefinite and uncertain that the section is invalid for want of certainty.

There is much informative and some argumentative matter set out in the complaint which we need not state here in view of the conclusion at which we have arrived.

The plaintiffs seek to restrain the defendants from enforcing sec. 66.05(10) (f), Wisconsin Stats., on the ground that it is unconstitutional and ask that if the Court holds the act valid to have the term “unrefrigerated” construed and defined.Mount & Zander, of Milwaukee, for appellants.

O. L. O'Boyle, Corp. Counsel, Robert P. Russell, Asst. Corp. Counsel, Walter J. Mattison and Leo B. Hanley, Asst. City Attys., all of Milwaukee, for respondents.

ROSENBERRY, Chief Justice.

The defendants state the issue as follows:

“1. Does Wis.Stat.1939, Section 66.05(10) discriminate unconstitutionally in favor of wholesalers of beer, and in favor of Class ‘B’ licensees or taverns, against Class ‘A’ licensees, such as grocers and druggists, in preventing the latter from selling refrigerated beer?

“2. Is the statutory prohibition of the sale of refrigerated beer by Class ‘A’ licensees, such as grocers and druggists, a valid exercise of the police power?

“3. Is the word ‘unrefrigerated’ in Section 66.05(10) (f) so vague and indefinite as to fail of constitutionality?”

We shall first consider the plaintiffs' contention that “unrefrigerated” is a term which is so vague, indefinite and uncertain as to render the act invalid.

[1] The offense is a misdemeanor and in addition to other penalties, the seller may lose his license. If convicted of two offenses the statute is mandatory in that respect. The offense therefore is a crime within the meaning of Article I, sec. 7 of the Wisconsin constitution, which provides: “In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause, of the accusation against him; ***” State v. Slowe, 1939, 230 Wis. 406, 284 N.W. 4.

Under a similar provision of the United States constitution the Supreme Court of the United States held: “That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Connally v. General Construction Co., 1925, 269 U.S. 385, 46 S.Ct. 126, 127, 70 L.Ed. 322.

See also Lanzetta v. New Jersey, 1939, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888. Following this case in 83 L.Ed., beginning on page 893, are a large number of illustrations as to when a statute defining a criminal offense is subject to attack as vague, indefinite and uncertain.

See also United States v. L. Cohen Grocery Co., 1921, 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516, 14 A.L.R. 1045.

[2][3] This Court followed the rule laid down in Connally v. General Construction Co., supra, in State v. Arnold, 1935, 217 Wis. 340, 258 N.W. 843, 844. It is not contended that the term “unrefrigerated” is without meaning but on the contrary that it has a number of meanings and for that reason it is impossible for a person to determine with certainty in which sense the legislature intended to use the term. It is a matter of common knowledge that all beer in the course of its manufacture and preparation for sale for purposes of consumption is artificially cooled, according to the allegations of the complaint, to a temperatureof 40 degrees F. It also appears that unpasteurized beer cannot be preserved and kept in a condition fit for consumption for more than a short period of time unless it is kept at a temperature of 40 degrees F. or less. Beer is customarily delivered by the brewer to Class “A” licensees at a temperature of about 40 degrees F. It also appears that there are various and numerous methods, means and ways of cooling beer. Beer may be cooled by storing it in naturally cooled cellars, by storing it in unheated rooms in the winter months, by keeping it in tanks or containers through which cold water is allowed to run, by storing it in artificially cooled compartments such as ice boxes, refrigerators and cabinets; that beer may be cooled or refrigerated without the aid of any artificial contrivance or mechanical device, and it is argued...

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4 cases
  • State ex rel. Lynch v. Conta
    • United States
    • Wisconsin Supreme Court
    • January 7, 1976
    ...have a strict construction. The same rule would be appropriate if they commenced the declaratory judgment action. See Frank v. Kluchesky (1941), 237 Wis. 510, 297 N.W. 399. Strict construction of forfeiture laws has been followed even if enforcement is not involved. Capt. Soma Boat Line, In......
  • Pardeeville Elec. Light Co. v. Pub. Serv. Comm'n
    • United States
    • Wisconsin Supreme Court
    • June 12, 1941
  • City of Waukesha v. Stathas
    • United States
    • Wisconsin Supreme Court
    • June 7, 1949
    ...that respect that the ordinance would virtually be unenforceable and void. State v. Arnold, 217 Wis. 340, 258 N.W. 843;Frank v. Kluchesky, 237 Wis. 510, 514, 297 N.W. 399;Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322;Lanzetta v. New Jersey, 306 U.S. 451, 59 ......
  • Doyle v. Clark
    • United States
    • Indiana Supreme Court
    • June 3, 1942
    ... ... an arrangement with an independent contractor to ice his ... beer? As supporting their views the appellees rely on ... Frank v. Kluchesky, 1941, 237 Wis. 510, 297 N.W ... 399. In that case the Supreme Court of Wisconsin held invalid ... for uncertainty a provision of a ... ...

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