State ex rel. Getchel v. Bradish

• Decision Date: 02 February 1897
• Citation: 70 N.W. 172,95 Wis. 205
• Parties: STATE EX REL. GETCHEL v. BRADISH ET AL.
• Court: Wisconsin Supreme Court

95 Wis. 205

70 N.W. 172

STATE EX REL. GETCHEL

v.BRADISH ET AL.

Supreme Court of Wisconsin.

Feb. 2, 1897.

Appeal from circuit court, Winnebago county; George W. Burnell, Judge.

Certiorari, on the relation of George Getchel, against Ethan Bradish, town clerk, and the town of Rushford, to review proceedings of the town board revoking relator's liquor license. The proceedings were annulled, and defendants appeal on certificate. Affirmed.

Marshall and Newman, JJ., dissenting.Herbert L. Sweet and C. D. Cleveland, for appellants.

Hume, Oellerich & Jackson, for respondent.

CASSODAY, C. J.

It appears from the record that July 17, 1895, the town board of Rushford granted and issued to the relator a license to sell at retail at the village of Eureka, in said town, intoxicating liquors, to be drunk upon the premises; that upon complaint made and trial had before the town board under section 1558 et seq., Rev. St., the relator was convicted of selling whisky to a minor without the written order of the parent or guardian of said minor, and his license was revoked; that thereupon a writ of certiorari was obtained from the circuit court to review such proceeding of the town board; that upon the return thereto, and hearing had, it was adjudged by the circuit court that the proceedings of the town board in the matter of revocation of the liquor license of the relator be in all things annulled, set aside, and held for naught, with costs; that thereupon the trial judge certified to this court that the case necessarily involved the decision of a question or point of law of such doubt and difficulty as to require a decision of the same by this court, and also a construction of the state and federal constitutions as to due process of law; that one W. W. Noble, the chairman of the board, had procured and hired the minor to purchase the whisky for the purpose of procuring evidence against the relator of selling liquor to minors; and that he then sat upon said trial, and participated in the same and in said judgment or determination,--and so submits to this court the following question: Was the chairman disqualified to sit as a member of the board in hearing the case, so as to render the action of the board null and void?

The question submitted for our consideration is not whether the relator was guilty or innocent of violating the statutes cited, but whether the chairman of the town board, after having “procured and hired the minor to purchase the whisky,” was a proper person to sit in judgment and determine whether the relator's license should or should not be revoked for selling the whisky. Of course, it is important that the laws should be enforced, and that every violation thereof should be punished. But it is still more important that, as far as possible, every person accused of an offense should have a fair trial before an impartial tribunal. It is claimed, in effect, that, as there is no provision for changing the venue in such proceeding, the town board must, of necessity, act, regardless of any interest or prejudice on the part of those composing the board. Assuming that this may be true, in practice, to a certain extent, yet it does not justify members of such board in voluntarily corrupting or prejudicing themselves by advancing money and procuring and abetting the commission of the offense in order that they may pronounce judgment upon the offender who committed the same. The statute disqualifies jurors having an interest, or related to either party, or having expressed or formed an opinion, or being sensible of any bias or prejudice. Sanb. & B. Ann. St. § 2849. So it disqualifies any judicial officer who is interested in the cause, or who has acted as an attorney for either party thereto, from reviewing in an appellate court what he determined in the trial court, or giving counsel or advice in any matter that may come before him. Sanb. & B. Ann. St. §§ 2579, 2580, 2582. Such statutes are confirmatory of the common law. This court has held that the revocation of such license by the board granting it is void, unless made after notice to the licensee, and an opportunity given to him to be heard upon the charge made. City of Oshkosh v. State, 59 Wis. 425, 18 N. W. 324. This is because the license is a vested property right. In Collins v. Blantern, 2 Wils. 350, that very able jurist, Lord Chief Justice Wilmot, of the common pleas, quotes approvingly this: “You shall not stipulate or promise to pay money to a man not to do a crime.” He further states: “You shall not stipulate for iniquity. All writers upon our law agree in this,--no polluted hand shall touch the pure fountains of justice.” Id. In the case at bar the chairman of the tribunal to do justice furnished the money, and procured the active agency, in the commission of the offense. The case of The Queen v. County Council [1892] 1 Q. B. 190, seems to be very much in point: “The London county council delegated to a committee of their body the hearing of applications for music and dancing licenses. The committee, by a majority, recommended that a license which had been applied for should not be granted. The applicant thereupon applied to the county council for a license. At the hearing before the county council, certain members of that body, who were also members of the committee, and had voted in the majority against granting a license at the hearing before the committee, instructed counsel to represent them before the county council and oppose the application for a license. The councilors so instructing counsel were present at the hearing, but did not vote. The council, by a majority, refused the application for a license. Held, that the presence at the hearing of those members of the county council who had instructed counsel to oppose the application vitiated the proceedings.” In the same case it was further held that “the county council, in determining applications for music and dancing licenses, are acting judicially, and are bound by the same principles as are binding on justices in determining questions which come before them for judicial decision.” The opinion of the court, quoting approvingly from another case, says: “Of course, the rule is very plain that no man can be plaintiff or prosecutor in any action, and at the same time sit in judgment to decide in that particular case, either in his own case, or in any case where he brings forward the accusation or complaint on which the order is made.” Id. 195, 196; Leeson v. General Council, 43 Ch. Div. 379. This is substantially done in the case at bar. See, also, The Queen v. Huggins [1895] 1 Q. B. 563, and cases cited in the brief of the relator's counsel. The mere fact that only one of the three members of the board thus disqualified himself to sit in judgment did not relieve the board, as a whole, from being incompetent. Id.; The Queen v. Justices of Hertfordshire, 6 Q. B. 753; Id., 51 E. C. L. 753; The Queen v. Meyer, 1 Q. B. Div. 173; The Queen v. Justices of Suffolk, 18 Q. B. 416; Id., 83 E. C. L. 416. The case of State v. Common Council of City of Superior, 90 Wis. 612, 64 N. W. 304, is clearly distinguishable. That was a proceeding by the council, under express statutory authority, to remove the mayor, as a member of that body, and yet it was held that he could not sit as a member of the council upon the trial of charges against himself. The question propounded is answered in the affirmative. The judgment of the circuit court is affirmed.

MARSHALL, J. (dissenting).

With all that is said in the opinion of the court respecting the importance of maintaining a high standard of judicial purity, and of impartiality respecting all persons and bodies of persons charged with the performance of judicial or quasi judicial duties, I fully concur, but nevertheless dissent from the conclusion reached in this case, believing that it is inconsistent with well and long settled principles of law. The decision appears to proceed upon the theory that a license to sell intoxicating liquor is a vested right of property, and that its possessor is entitled to constitutional protection in such possession, as in case of a contract right. In support of that view, City of Oshkosh v. State, 59 Wis. 425, 18 N. W. 324, is cited. What there is in that case to sustain such view is not perceived. The law provides that before a license shall be revoked the licensee shall be notified of the charges preferred against him, and have an opportunity to be heard. The Oshkosh Case turned on the failure to obey the statute in that regard. No mention is made of the character of the right at all. The leading case on the subject in this country is People v. Cornwell, 34 N. Y. 657, where Mr. Justice Wright said: “Licenses to sell liquors are not contracts between the state and the persons licensed, giving the latter vested rights protected by the constitution; nor are they property in any legal or constitutional sense. They have neither the qualities of a...