State ex rel. Martin v. Barrett

• Decision Date: 29 April 1946
• Citation: 22 N.W.2d 663,248 Wis. 621
• Parties: STATE ex rel. MARTIN, Atty. Gen., v. BARRETT.
• Court: Wisconsin Supreme Court

248 Wis. 621

22 N.W.2d 663

STATE ex rel. MARTIN, Atty. Gen.,

v.BARRETT.

Supreme Court of Wisconsin.

April 29, 1946.

Appeal from a judgment of the Circuit Court for Brown County; Henry Graass, Judge.

Reversed.

Action commenced August 7, 1945, by the State of Wisconsin, on the relation of John E. Martin, Attorney General, plaintiff, to enjoin the defendant Homer Barrett from selling intoxicating liquor at retail under a license alleged to be void. From a judgment entered December 31, 1945, dismissing the complaint, plaintiff appeals. The facts will be stated in the opinion.John E. Martin, Atty. Gen., James Ward Rector, Deputy Atty. Gen., W. E. Torkelson, Asst. Atty. Gen., and J. Norman Basten, Dist. Atty., of Green Bay, for appellant.

G. F. Clifford, of Green Bay, for respondents.

Paul E. Jorgensen, of Racine, and Clarence Simon, Dist. Atty., of Medford, amici curiae.

BARLOW, Justice.

The issue in dispute between the parties is whether retail ‘Class B’ intoxicating liquor licenses issued to clubs as defined in sec. 176.01(8), Stats., are to be computed in determining the number of retail ‘Class B’ liquor licenses which may be issued by towns, cities, and villages under sec. 176.05(21), Stats.

Nine actions were commenced against nine separate defendants, including Homer Barrett, this defendant, by the State of Wisconsin on the relation of John E. Martin, Attorney General, to enjoin the sale of intoxicating liquor by the defendant named in each separate complaint. By stipulation the cases were tried together in the circuit court, and were briefed and argued together in this court. Separate judgments were entered and separate appeals taken.

At the time of the passage of subsection (21) of sec. 176.05, Stats., one hundred and thirty-three retail ‘Class B’ intoxicating liquor licenses were in force in the city of Green Bay, all of which were held by commercial taverns. At that time the Benevolent and Protective Order of Elks, American Legion, Fraternal Order of Eagles, Loyal Order of the Moose, and Veterans of Foreign Wars had the qualifications prescribed in sec. 176.01(8), Stats., for a club license. None of the clubs was licensed at that time, and with the exception of the Elks none thereafter obtained a ‘Class B’ intoxicating liquor license prior to July 1, 1945.

On June 5 and 19, 1945, the common council of the city of Green Bay acted upon and granted one hundred and twenty-eight retail ‘Class B’ intoxicating liquor licenses. Of these, one hundred and twenty-three were issued to what may be called ‘commercial taverns,’ and five were issued to the clubs above referred to. Thus the city at that time had authority to grant five additional licenses. June 28, 1945, nine additional licenses were simultaneously granted by the city council of the city of Green Bay to commercial tavern owners, being the nine persons sought to be enjoined from selling intoxicating liquors. All nine licenses are void if the total number granted by the city exceeds the statutory limitation. Where several licenses are granted by one action with the result that it is impossible to determine which was granted first, all are void if the action results in the issuance of licenses in excess of the quota permitted by law. State ex rel. Owen v. Reisen, 1917, 165 Wis. 258, 161 N.W. 747.

Sec. 176.05(1), Stats., authorizes each town board, village board, and common council to grant retail licenses under conditions and restrictions of chapter 176 to such persons entitled to license under said chapter as they deem proper to keep places within their respective towns, villages or cities for the sale of intoxicating liquors.

Sec. 176.05(2), Stats., provides that a retail ‘Class B’ intoxicating liquor license shall permit its holder to sell, deal and traffic in intoxicating liquors to be consumed by glass only on the premises so licensed and not in the original package or container, making additional provision for the sale of wine in the original package to be consumed off the premises, and other provisions not relevant here.

Sec. 176.01(8), Stats., defines a club in the following language: “Club' shall mean an organization, whether incorporated or not, which is the owner, lessee, or occupant of a building used exclusively for club purposes, and which is operated solely for a recreational, fraternal, social, patriotic, political, benevolent, or athletic purpose but not for pecuniary gain; except that where such club is located in an office or business building it may be licensed as such provided it otherwise qualifies as a ‘club’ within the meaning of this subsection. The trafficking in intoxicating liquors shall be incidental only and shall not be the object of its existence or operation. A club making application for a license shall have occupied the premises upon which it is then located for a period of six months prior to the date of filing such application.'

Sec. 176.05(21), Stats., was created by ch. 397, Laws of 193, limiting the number of retail ‘Class B’ intoxicating liquor licenses which may be issued by the governing body of any town, village or city, and is as follows: ‘Retail ‘Class B’ Liquor Licenses Limited in Number. (a) No governing body of any town, village or city shall issue more than one retail ‘Class B’ liquor license for each five hundred inhabitants or fraction thereof, except that if a greater number of such licenses have been granted, issued, or in force, in such town, village or city, at the time of the taking effect of this subsection, than would be permissible under said limitation, such town board, village board or common council may grant and issue such licenses equal in number to those granted, issued, and in force on the taking effect of this subsection, but no such town or village board, or common council shall grant and issue any additional retail ‘Class B’ license above the number in force upon the taking effect of this subsection until the number of such licenses shall correspond to the limitation provided herein. Inmates of charitable and penal institutions shall not be considered as inhabitants of cities or villages for the purposes of this subsection.'

Sec. 176.05(4), Stats., provides the minimum and maximum limits ($50 to $500) within which towns, cities or villages may fix fees for retail ‘Class B’ intoxicating liquor licenses; provided, however, that such licenses may be issued to bona fide clubs and lodges incorporated or chartered in the state of Wisconsin for at least six years for such smaller fee as the governing body of the town, city or village may determine.

Pursuant to the provisions of this subsection, the city council of the city of Green Bay passed ordinance sec. 11.01(2)(d), fixing the license fee for clubs at $100 for retail ‘Class B’ fermented malt beverage licenses and $25 for retail ‘Class B’ intoxicating liquor licenses, the ordinance reciting: ‘It is understood that said clubs and lodges are of a private nature open only to its members.’

The city of Green Bay issued what it termed ‘Combination Class B’ licenses, which included the right to sell fermented malt beverages and intoxicating liquors. If the ‘Class B’ liquor licenses issued to the clubs are to be computed in determining the number of retail ‘Class B’ intoxicating liquor licenses issued by the city of Green Bay, as contended by the appellant, the total number issued will be one hundred and thirty-seven; and if they are not to be so computed, as contended by respondent, the total number issued will be one hundred and thirty-two, which number the city was authorized to issue.

In the exercise of its police power the legislature has plenary authority to prohibit traffic in liquor or restrict it in any reasonable manner. Zodrow v. State, 1913, 154 Wis. 551, 143 N.W. 693;Wightman v. Devere, 1873, 33 Wis. 570;State ex rel. Henshall v. Ludington, 1873, 33 Wis. 107. Under the statute in question the legislature has limited the number of places that can sell, deal or traffic in intoxicating liquor. The right of the city council to grant and issue licenses is statutory, and without affirmative authority in the statute the action of the city council is void and of no effect. It is argued that the city authorities are vested...