State ex rel. Higgins v. City of Racine
| Decision Date | 07 January 1936 |
| Citation | 220 Wis. 107,264 N.W. 490 |
| Parties | STATE EX REL. HIGGINS v. CITY OF RACINE ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Racine County; C. M. Davison, Circuit Judge.
Affirmed.
The relator sued for a peremptory writ of mandamus commanding the city of Racine, through its representative officers, to grant him a liquor license under the provisions of an ordinance of the city, and in accordance with the application filed by the petitioner. Judgment was entered dismissing the petition. The court made the following findings of fact: That the city of Racine is a municipal corporation; that the defendants were officers of the city; that the relator is a person of good moral character, a citizen of the United States, of twenty-one years of age, and a resident of the city of Racine for more than two years; that an ordinance had been duly adopted by the city to create section 10.015 of the Code of General Ordinances for the city of Racine to license and regulate the sale of intoxicating liquors in that city; that this ordinance provides for the licensing and regulation of such business pursuant to chapter 176 of the Wisconsin Statutes; that the relator filed his application for retail class “B” license for the premises known as 3025 Washington avenue in said city, on January 15, 1935; that the license was denied; that the common council did not act arbitrarily, wrongfully, and capriciously, but did so honestly, rightfully, and in the exercise of sound and reasonable discretion based upon the council's disapproval of the location described. Upon these findings, the trial court dismissed the petition and entered judgment denying the peremptory writ of mandamus prayed for, with costs and disbursements. The relator had demurred to the return to the alternative writ of mandamus. This demurrer had been overruled. Among the assignments of error are the challenge of the sufficiency of this ruling; the refusal of the trial court to submit questions of fact, with relation to the exercise of discretion by the common council, to a jury; and that the finding of fact, that the common council, in denying the application, did not act arbitrarily and without legal reason, but did so honestly, rightfully, and in the exercise of its sound and reasonable discretion, because of its disapproval of the location in which the relator proposed to conduct his business, was against the great weight and clear preponderance of the evidence. When the case was tried, the court announced that a verdict of the jury, if any question were submitted to a jury, would be considered as advisory only, and after the conclusion of the testimony, being of the opinion that no questions existed requiring the submission thereof to the jury, the jury was dismissed.
Edward F. Higgins, of Milwaukee (H. K. Curtis, of Milwaukee, of counsel), for appellant.
Cornelius Colbert, City Atty., of Racine, for respondents.
We do not understand that there is any claim to a right to locate a tavern anywhere within a municipality regardless of the effect such an institution may have upon the interests of the community. It is understood and generally conceded that the business of conducting a tavern is subject to legislative restriction, regulation, and control. Usually there is vested in the licensing authorities a discretionary power which may be reasonably exercised in granting or refusing to issue a license.
[1] That an ordinance or statute provides for granting licenses to applicants furnishing a proper bond and evidence of good moral character does not prevent the licensing body from giving due consideration to the proposed location of a tavern, and denying the license because the place where the business is to be conducted is not a proper place, by reason of surroundings, for the carrying on of such an enterprise. Harrison v. People, 222 Ill. 150, 78 N.E. 52;Kretzmann v. Dunne, 228 Ill. 31, 81 N.E. 790;Jugenheimer v. State Journal Co., 81 Neb. 830, 116 N.W. 964;...
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