Sprecher v. Weston's Bar, Inc., 240

• Citation: 52 Wis.2d 677,191 N.W.2d 212
• Decision Date: 02 November 1971
• Docket Number: No. 240,240
• Parties: Albert SPRECHER and Alma Sprecher, his wife, Plaintiffs-Appellants, v. WESTON'S BAR, INC., a Wisconsin corporation, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 212

191 N.W.2d 212

52 Wis.2d 677

Albert SPRECHER and Alma Sprecher, his wife, Plaintiffs-Appellants, v. WESTON'S BAR, INC., a Wisconsin corporation, Defendants-Respondents.

No. 240.

Supreme Court of Wisconsin.

Nov. 2, 1971.

This is a suit for an injunction to restrain the defendants, the lessee Weston's Bar, Inc., and its officers Cyril G. and Julia A. Weston, from attempting to have a liquor license transferred from the leased premises to a new location in violation of the terms of the lease. The defendants demurred to the complaint of the plaintiff-lessors Albert Sprecher and Alma Sprecher, his wife. The trial court sustained the demurrer on the ground the complaint stated no cause of action because the agreement was void. From the judgment dismissing the complaint, the Sprechers appeal.

Hill Quale & Hartmann, Baraboo, for plaintiffs-appellants.

Stevens & LaRowe, Reedsburg, for defendants-respondents; Myron E. LaRowe, Reedsburg, of counsel.

HALLOWS, Chief Justice.

The complaint alleges the Sprechers leased premises at 616 Water street in the village of Prairie du Sac for one year ending June 30, 1970, to the defendant Weston's Bar, Inc., for the purpose of conducting a tavern business in the premises. By paragraph 15 of the lease ¹ the lessees agreed upon termination to surrender and deliver up to the lessors all licenses to engage in the sale of beer or intoxicating liquor. By this language, it would seem the parties thought they were dealing with a property right which was assignable. The trial court correctly held there was no property right in a tavern license but incorrectly held the agreement was void as against public policy.

Liquor licenses are not normally assignable. Applications for such a license or a renewal thereof are granted effective on July 1st of each year. Sec. 176.05(5), Stats. A liquor license permitting the sale of liquor at a designated location may be modified as to a location in midterm or midyear under sec. 176.05(14), Stats., but this is at the discretion of the licensing authority. Parties cannot bind or interfere with the exercise of the discretion of the licensing board. Consequently, a provision for the assignment of a liquor license is unenforceable against the licensing authority but not necessarily void for all purposes. State v. Bayne (1898), 100 Wis. 35, 75 N.W. 403; State ex rel. Ruffalo v Common Council (1968), 38 Wis.2d 518, 157 N.W.2d 568.

This lease is susceptible of a reasonable interpretation that the lessee upon the termination of the lease would not seek to have the liquor license transferred or a new license issued. The effect of such an agreement is to give the owners of the property an edge in the securing a liquor license for their building or keeping a license available for a new tenant who could qualify. We must assume the parties attempted to enter into an enforceable contract and a construction favoring enforceability should be adopted. 17 Am.Jur.2d, Contracts, p. 647, sec. 254 (1964); 17A C.J.S. Contracts § 318 (1963), pp. 181, 183.

Construing the lease to be an agreement not to seek a transfer of the license would not interfere with the discretionary authority of the body authorized to grant liquor licenses. While the lease may restrict or limit the number of persons by one who may apply for a license, such a limitation is not against public policy or unenforceable as a restriction of the discretionary authority of a licensing body which may grant a license to one who breaches his contract.

The cases relied on for the invalidity of the agreement in the lease are not controlling. In Marquette Savings and Loan Asso. v. Twin Lakes (1968), 38 Wis.2d 310, 156 N.W.2d 425, the action was to enjoin the licensing agency in order to enforce an agreement between...