Oshkosh v. State ex rel. Perkins

• Decision Date: 29 January 1884
• Citation: 18 N.W. 324,59 Wis. 425
• Parties: COMMON COUNCIL OF OSHKOSH v. STATE EX REL. PERKINS AND OTHERS.
• Court: Wisconsin Supreme Court

59 Wis. 425

18 N.W. 324

COMMON COUNCIL OF OSHKOSH

v.STATE EX REL. PERKINS AND OTHERS.

Supreme Court of Wisconsin.

Filed January 29, 1884.

Appeal from county court of Winnebago county.John W. Hume, for plaintiffs in error, the Common Council of the City of Oshkosh.

Crozier & Tyrrell, for defendants in error, the State of Wisconsin ex rel. Amasa Perkins.

COLE, C. J.

The return to the writ of certiorari made by the city clerk, contains a copy of a license which had been granted by the common council to A. Perkins & Bro. to sell intoxicating liquors at retail to be drank on their premises--such license to expire on the second Tuesday of April, 1883. The return also shows that the sum of $75 was paid by them for the license, and that they gave a bond conditioned as required by law, which was approved by the common council. The return further shows that a resolution was adopted by the common council on the fourteenth of November, 1882, expressly revoking the license which had been granted to these parties the previous September. Now, it is said by the learned counsel for the city that it does not appear that any lawful license was ever issued by the common council, or that there had been a lawful revocation of the same. In respect to the first objection, we must presume from the return that a lawful license had been granted; indeed, the city authorities are estopped by their action in the matter from denying the fact. For it affirmatively appears that they granted a license, received the license fee, approved the requisite bond, and have attempted to revoke the license. In view of these incontestable facts, it comes with ill-grace from the city authorities to claim that there was some informality or failure to comply strictly with the provisions of the city charter in granting the license in the first instance. Certainly no inference can fairly be made from the matters stated in the return that such was the case. We must assume that the city officers did not place themselves in the inconsistent and absurd position of attempting to revoke a license which had not been lawfully granted. But they would occupy that ground unless they had granted a lawful license. Therefore, we consider it reasonable to hold from their action in the matter that a license was regularly issued to Perkins & Bro.

This being the case, the next inquiry is, did the common council proceed according to law in revoking the license? The General Statute applies to the case and regulates the mode of proceeding. See President, etc., of Village of Platteville v. McKernan, 54 Wis. 487; [S. C. 11 N. W. REP. 798;] Green Co. v. Village of Monroe, 55 Wis. 175; [S. C. 12 N. W. REP. 472.] There is no room for doubt but chapter 66, Rev. St. 1878, was intended to be, and in fact is, a complete revision of the law upon the subject of revoking licenses. That chapter, in effect, provides that when a complaint in writing, under oath, is filed with the clerk of any town, village, or city, that a person within such town or municipality, keeps a disorderly, indecent, or improper house, etc., the proper town or village board, or common council shall issue a summons, etc., commanding the person complained of to appear on a day named, and show cause why his license should not be revoked. This summons is served, and the party complained of has an opportunity to appear and be heard before his license can be revoked. (Sections 1558, 1559, as amended by chapter 174, Laws 1881.) This is the clear reading of the statute. Now, it appears from the return,...