State ex rel. Boroo v. Town Bd. of Barnes

• Decision Date: 05 April 1960
• Citation: 102 N.W.2d 238,10 Wis.2d 153
• Parties: STATE ex rel. Henry BOROO, d/b/a Sportsman's Lodge, Appellant, v. TOWN BOARD OF BARNES et al., Respondents.
• Court: Wisconsin Supreme Court

Page 238

102 N.W.2d 238

10 Wis.2d 153

STATE ex rel. Henry BOROO, d/b/a Sportsman's Lodge, Appellant, v. TOWN BOARD OF BARNES et al., Respondents.

Supreme Court of Wisconsin.

April 5, 1960.

Douglas, Omernik & Bitney, Spooner, for appellant.

Norlin & Spears, Washburn, Borg, McGill & Moodie, Superior, for respondent.

CURRIE, Justice.

Sec. 176.05(5), Stats., provides in part as follows:

'The application for a license to sell or deal in intoxicating liquor and 'fermented malt beverages' as defined in s. 66.054 shall be in writing on a form furnished by the commissioner of taxation and sworn to by the applicant. The original application shall state the kind of license applied for, designate the premises where such liquor is to be sold and such other information as required by this chapter. Such form shall be prepared by the commissioner and shall be suitable for the entire state and so worded as to make clear to any licensing authority the past history of the applicant and fitness for license under this chapter. The commissioner may prescribe a simplified form for renewal applications requiring information pertinent to renewal. The commissioner shall furnish on request such form blanks as may be necessary to each licensing body.'

Because the statute authorizes the commissioner of taxation to prescribe a simplified form of application for a renewal license, appellant contends that this evinces a legislative intent that only events which have occurred since the making of the application for license presently in effect need be stated by the applicant in a renewal application. His felony conviction in Michigan had occurred long before his original license was obtained in 1946, and, therefore, was not something which had transpired subsequent to the date of his last prior application. No authority is cited by appellant in support of such interpretation of the statute here advanced. Furthermore, the statute does not make it mandatory that the commissioner devise a simplified form of renewal application but leaves it to his discretion whether or not to do so. The commissioner has exercised such discretion by prescribing but one form of application blank which is to be used for renewal as well as original applications. Thus the commissioner has by such action determined that all information required to be stated in the original application is 'pertinent to renewal.'

We do not deem the statutory interpretation so advanced by the appellant is a reasonable one, and reject the same.

The second contention made by the appellant is that the legislature by adoption of ch. 42, Laws of 1941, which amended sec. 176.05(8), Stats., made it clear that a renewal license could only be denied for one of the specific reasons set forth in subds. (9) and (9m), of sec. 176.05, Stats. sec. 176.05(9) provides among other things that no license shall be 'granted or issued to any person who * * * has been convicted of an offense against the laws of his state punishable by imprisonment in the state prison, unless the person so committed has been duly pardoned.' There is no express statutory prohibition against granting a license to one convicted of a felony in a state other than Wisconsin.

That part of the amendment to sec. 176.05(8) effected by ch. 42, Laws of 1941, upon which appellant relies was the addition to such section of the following sentence:

'No application for a license which is in existence at the time of such annual license meeting shall be rejected without a statement on the clerk's minutes as to the reasons for such rejection.'

Without such amendment it is clear that a licensing authority, such as the instant town board, has the discretion to deny a license for grounds other than those set forth in subds. (9) and (9m) of sec. 176.05. This clearly appears from the initial sentence of sec. 176.05(1), which reads:

'Each town board, village board and common council may grant retail licenses, under the conditions and restrictions in this chapter contained, to such persons entitled to a license under this chapter as they deem proper to keep places within their respective towns, villages, or cities for the sale of intoxicating liquors.' (Italics supplied.)

Cases which hold that a licensing authority has the discretion to deny a license for a reason other than stated in subds. (9) and (9m) of sec. 176.05 are State ex. rel. Higgins v. City of Racine, 1936, 220 Wis. 107, 264 N.W. 490, and Rawn v. City of Superior, 1943, 242 Wis. 632, 9 N.W.2d 87. It is generally accepted that the same discretion as that vested in the licensing authority with respect to the original granting of a liquor license exists with reference to renewals. Cook v. Glazer's Wholesale Drug Co., 1945, 209 Ark. 189, 189 S.W.2d 897; 30* Am.Jur., Intoxicating Liquors, p. 630, sec. 166.

If the legislature, when it adopted ch. 42, Laws of 1941, had intended to limit the grounds for denial of an application for license to those stated in subds. (9) and (9m) of sec. 176.05, it seems to us it would have said so. Because it did not so state in such amending statute, this court is not inclined to read such a provision into the statute by implication, thereby indulging in judicial legislation.

Ch. 42, Laws of 1941, originated as Bill No. 57 S. There is a card in the file of the Legislative Reference Library pertaining to such bill which states that it had been drafted at the request of Senator Greenquist and such card also bears this statement:

'This request probably filed in view of the Supreme Court's decision in State ex rel. Higgins v. [City of] Racine, 220 Wis. 107 (1936) holding that a mandamus does not lie against a licensing authority to issue a license if it acts within is province & exercises its discretion.'

From the facts stated in the opinion in State ex rel. Higgins v. City of Racine supra, the application then denied was not one for a renewal license but was an application to license a place not then being operated as a tavern. It is our opinion that the above-quoted memorandum in the Legislative Reference Library was intended to change the rule of law, insofar as it related to renewal licenses, set forth in the following portion of the court's opinion (220 Wis. at page 111, 264 N.W. at page 492):

"If, as a result of such a...