State ex rel. Tate v. Wolf
| Decision Date | 23 May 1916 |
| Citation | 158 N.W. 78,163 Wis. 390 |
| Parties | STATE EX REL. TATE v. WOLF, CITY CLERK. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a Judgment of the Municipal Court of Outagamie County; Albert M. Spencer, Judge.
Application was made to the common council of the City of Kaukauna, by one Luedke, for a license to conduct a saloon for the sale of intoxicating liquors for the license year commencing in June, 1915. A remonstrance against granting the application was duly filed January 21, 1915, under section 1548, subd. 5, Statutes, and was sufficiently signed. Such section provides as follows:
“Whenever, after January 1, 1908, a list of all the parents and lawful guardians of the children enrolled as pupils of any public school * * * with a remonstrance, in writing, signed and acknowledged before a notary public by a majority of such” persons “is filed with the city * * * clerk, * * * describing certain premises for which a license had previously been issued within three hundred feet of the grounds of said * * * school, * * * and demanding that no license be granted for the sale of intoxicating liquors on such premises, no such license shall thereafter be granted to any person for the sale of such liquors on such premises.”
On such day, after such filing, eight signers of the paper filed with the city clerk a request to have their names erased therefrom, because they signed the same without knowing the facts. Later, on the same day, the council duly met, referred the application, remonstrance, and request, to a committee and adjourned to June 25th thereafter. On that day the eight signers duly filed a second request of the tenor of the first, claiming that they signed the remonstrance in ignorance of its contents and purpose and were induced thereto by false representations and insistence of the circulators. The latter filed affidavits to the effect that they fully informed such signers of the purpose and contents of the remonstrance before they signed the same. The council then took up the matter for consideration. An offer to show that the requests for withdrawals were unfairly obtained was rejected and, in due course, without formally allowing the names to be withdrawn from the remonstrance, they were treated as withdrawn, leaving an insufficient number to satisfy the statute, and a resolution was adopted allowing the application for a license.
After the occurrences aforesaid a certiorari action was duly commenced to test the validity of the council's determination. Issue was duly joined, by a motion to quash, as to the sufficiency of the facts set forth to show want of jurisdiction of the council to grant the application for a saloon license. The vital point was whether a person who signed the remonstrance had a right, after the same was duly filed with the clerk, to withdraw therefrom, either with or without permission of the council, before such council acted thereon. The decision was in the affirmative and judgment was rendered accordingly, dismissing the action. The relator appealed.Somers & Velte, of Neenah, for appellant.
George H. Kelly, of Kaukauna, for respondent.
Rooney & Grogan, of Appleton, for Otto Luedke.
The question raised on this appeal is whether a person who signs a remonstrance under section 1548--5, Stats., has a right to withdraw his name after the remonstrance shall have taken effect by being filed as the statute provides.
The common council, in the particular instance, acted upon the assumption that a remonstrant has the absolute right of withdrawal at any time before action upon an application for a license to keep a saloon for the sale of intoxicating liquors within the territory involved. It evidently did not act upon the theory that the persons who asked to have their names erased from the remonstrance had been induced thereto by fraud. It could not well have so acted upon the mere general claim of such persons,--no showing having been made of what was said or done to deceive them,--in face of the positive statements, under oath, by those who circulated the remonstrance, that they carefully explained it to each signer; but the form of the resolution which was adopted leaves no room for fair doubt but what the supposition was that the absolute right of withdrawal existed. Such resolution contained this language in respect to the effect of the remonstrance:
“Believing that the question is one that should be ruled upon by a court of higher authority so that all parties may be fully and legally satisfied,and in order to make it possible to secure such court decision, be it Resolved that the remonstrance presented does not contain a sufficient number of names after withdrawing those who have requested the removal of their names, and in order to make it possible to have the matter tested in court, we decide that the license may be granted and that it is hereby granted.”
The trial court, evidently, affirmed the action of the council, solely upon the ground that a remonstrant had an absolute right to change his mind and withdraw his opposition to the granting of a license. We gather that from the opinion wherein particular stress is put...
To continue reading
Request your trial