Rawn v. City of Superior

• Decision Date: 13 April 1943
• Citation: 9 N.W.2d 87,242 Wis. 632
• Parties: RAWN v. CITY OF SUPERIOR et al.
• Court: Wisconsin Supreme Court

242 Wis. 632

9 N.W.2d 87

RAWN

v.CITY OF SUPERIOR et al.

Supreme Court of Wisconsin.

April 13, 1943.

Appeal from a judgment of the Circuit Court for Douglas County; Carl H. Daley, Judge.

Affirmed.

This action was commenced on June 26, 1942, by Byron G. Rawn, plaintiff, against the City of Superior, a municipal corporation, and the members of the common council of that city, praying for a writ of mandamus to compel the common council to issue to the plaintiff a license to sell liquor. From a judgment entered on September 16, 1942, denying the petition, the plaintiff appeals.

The facts will be stated in the opinion.

L. R. McPherson, of Superior, for appellant.

George D. Flynn, of Superior, for respondents.

ROSENBERRY, Chief Justice.

Two questions are involved:

(1) Is the common council of a city under a duty to grant an applicant a license where it appears that he has complied with the requirements of the law and no objection has been made to his personal fitness or the place of business?

(2) Is sec. 176.05(8) mandatory in the sense that if the common council does not act upon an application for a license prior to the 15th day of June, it may not thereafter deny the license?

The material facts as found by the court are as follows: The plaintiff filed his application for a retail Class B intoxicating liquor license and a Class B fermented malt beverage license under the provisions of the ordinances of the city of Superior and pursuant to ch. 176 of the Wisconsin statutes, for the premises known as 2209 East 5th Street in the city of Superior, Wisconsin, the said application having been made on April 15, 1942, for the licensing year ending June 30, 1943, and Rawn had paid the city of Superior the proper license fee. At a regularly held meeting of the common council of the city of Superior on the 21st day of July, 1942, at which council meeting the licensing committee of the said city council reported as follows: (The licensing committee recommended that a license be denied plaintiff) the report was adopted by the common council upon motion. The court found: “However, the licensing committee and the Council, voting on the recommendation of the licensing committee, refused the license because they were of the opinion that four taverns were sufficient in this territory. That in granting licenses they sought to give preference to men who had been in the tavern business previously, and that as there were four already in business in East End, they refused the plaintiff a license, rather than to give him a license and put a man out of business who had previously been in business in the East End. There was nothing against his personal character, or against the particular building in which he was to operate the tavern, other than they were of the opinion that four taverns were sufficient for the East End.”

The court further found that petitioner prior to April 15, 1942, entered into a lease agreement with the owner of the building at 2209 East 5th Street, for the use thereof as a tavern for one year, commencing July 1, 1942, at the agreed rental of $75 per month; that said building has been used and licensed as a tavern each year since the repeal of prohibition and to the 1st day of July, 1942, and is in a good state of repair and sanitation and suitable for tavern purposes; that during the year ending July 1, 1942, there were five of such Class B tavern licenses in effect in the East End of Superior; that petitioner has suffered some losses on account of his obligation for rent upon the premises in question; that the present legal limit of such Class B licenses which can be granted in Superior for the year July 1, 1943, is ninety-nine, of which ninety-six have been granted; that the petitioner has done all acts required by the city of Superior and the statutes of the state of Wisconsin to be done by him to obtain the licenses applied for.

Upon these and other undisputed facts the court denied the petition for peremptory writ of mandamus. It is considered that the trial court correctly disposed of this case. In State ex rel. Higgins v. Racine, 1936, 220 Wis. 107, 264 N.W. 490, the court held that...