Smith v. City of Whitewater

• Decision Date: 14 October 1947
• Citation: 29 N.W.2d 33,251 Wis. 306
• Parties: SMITH v. CITY OF WHITEWATER et al.
• Court: Wisconsin Supreme Court

251 Wis. 306

29 N.W.2d 33

SMITH

v.CITY OF WHITEWATER et al.

Supreme Court of Wisconsin.

Oct. 14, 1947.

Appeal from two orders of the County Court of Walworth County; Roscoe R. Luce, Judge.

Suit by Kate Smith against city of Whitewater, a municipal corporation and others, to enjoin defendants from transferring a beer and intoxicating liquor license from premises owned by plaintiff. From an order reinstating a temporary restraining order and from an order denying motion to review order reinstating temporary injunction and in alternative to vacate the injunction, defendants appeal [By Editorial Staff.]

Order reinstating temporary restraining order reversed and appeal dismissed as to order denying motion to review order reinstating temporary injunction and in alternative to vacate the injunction.

See also 29 N.W.2d 37.Plaintiff Kate Smith is the owner of premises situated in the city of Whitewater at which she was licensed to sell intoxicating liquors from 1933 to 1942. On August 1, 1945 she leased the premises to Orland Whitinger for a period of two years. On July 31, 1945 a retail Class B combination beer and intoxicating liquor license was issued to Whitinger for the premises and was followed by another such license from July 1, 1946 to June 30, 1947. The maximum number of retail Class B intoxicating liquor licenses permissible under the quota fixed by law for the city of Whitewater is 13 and was filled by the granting of Whitinger's license.

Mrs. Smith brought an unlawful detainer action against Whitinger arising out of a claimed breach in the lease, and in November 1946 the parties stipulated in court that Whitinger would vacate the premises as of December 31, 1946. She then notified the mayor and common council that Whitinger's lease would expire on December 31, but that the premises would remain available for tavern purposes. She applied for a combination retail Class B beer and liquor license for the period commencing January 1, 1947 and ending June 30, 1947. Whitinger applied for a transfer of his license to other premises in Whitewater. Both applications came before a meeting of the council on December 3, 1946. The complaint alleges that at this meeting the mayor, upon the advice of the city attorney who was then present and who had represented Whitinger in the lease litigation, advised the council that Whitinger was entitled to a transfer of his license as a matter of right. There was some difference of opinion as to Whitinger's rights in the matter and the meeting was adjourned until a later date. The complaint sets out that on December 5 the council denied plaintiff's application for a license and granted Whitinger's application for a transfer of his license, thereby depriving plaintiff of the use of her property for tavern purposes for the remainder of the license year. It recites that the council's action was based upon the mistaken view that Whitinger was entitled as a matter of right to transfer his license. It also recites that at the time Whitinger entered into the lease with Mrs. Smith he agreed that at the expiration of his lease she could again operate her tavern without any interference from him with respect to obtaining a license.

Upon the allegations of the complaint the plaintiff obtained from a court commissioner a temporary injunction restraining defendants from doing any act changing the status quo and from transferring Whitinger's license. On December 10 the county court vacated the restraining order exparte upon the grounds that the council had made the transfer to Whitinger prior to the time the injunction was served and that it had been granted without the requirement of a bond as provided by sec. 268.06, Wis.Stats. On February 17, 1947, upon the application of the plaintiff, the court reinstated the injunction nunc pro tunc as of the time it was vacated. The defendants then moved to review the order reinstating the temporary injunction and in the alternative to vacate the injunction. The motion was denied by an order entered May 15, 1947, and the defendants appeal from the February 17 and the May 15 orders.

Leonard Haines, of Whitewater, and W. Wade Boardman, of Madison, for appellants.

Karon U. Weinberg, of Milwaukee (Philip Weinberg, of Milwaukee, of council), for respondents.

RECTOR, Justice.

The respondent advances the contention that the cause is moot. It is said that the 1946-1947 license year for which Whitinger's license was issued has now expired, and that any controversy as to whether that license may properly be transferred is now ended. The order of February 17, 1947 setting aside the ex parte dissolution and reinstating the injunction nunc pro tunc as of December 10, carried $10 motion costs in favor of the respondent. A reversal of the order would absolve the appellants from the payment of such costs. The matter of costs has on several occasions been considered as preserving the life of a cause for purposes of a decision on appeal even though it has otherwise become moot. State ex rel. Strike v. Common Council, 1930, 201 Wis. 435, 230 N.W. 70;State ex rel. Runge v. Anderson, 1898, 100 Wis. 523, 76 N.W. 482,42 L.R.A. 239;State ex rel. Treat v. Hammel, 1907, 134 Wis. 61, 114 N.W. 97;State ex rel. Conlin v. City of Wausau, 1908, 137 Wis. 311, 118 N.W. 810;State ex rel. Hathaway v. Mirlach, 1921, 174 Wis. 11, 182 N.W. 331. No question of costs in the trial court was involved in Lamoreux v. Williams, 1905, 125 Wis. 543, 104 N.W. 813, upon which respondent relies.

The order of May 15, 1947 did not assess costs. The appellants argue, however, that if the injunction which the court therein refused to vacate was improperly issued, they are entitled to be compensated for such damages as they may have suffered by reason of its issuance. Muscoda Bridge Co. v. Worden-Allen Co., 1932, 207 Wis. 22, 239 N.W. 649,240 N.W. 802. The difficulty with the contention is that...