State v. Wachsmuth, 75--128--CR

CourtUnited States State Supreme Court of Wisconsin
Citation243 N.W.2d 410,73 Wis.2d 318
Docket NumberNo. 75--128--CR,75--128--CR
PartiesSTATE of Wisconsin, Respondent, v. Virginia WACHSMUTH, Appellant.
Decision Date30 June 1976

Page 410

243 N.W.2d 410
73 Wis.2d 318
STATE of Wisconsin, Respondent,
Virginia WACHSMUTH, Appellant.
No. 75--128--CR.
Supreme Court of Wisconsin.
Submitted May 5, 1976.
Decided June 30, 1976.

Page 411

[73 Wis.2d 319] Herrick, Hart, Duchemin & Peterson, Eau Claire, on brief for appellant.

Bronson C. La Follette, Atty. Gen., and Frederick J. Erhardt, Asst. Atty. Gen., on brief for respondent.


The principal question on this appeal is whether sec. 176.06(3), Stats., requires that

Page 412

premises with a retail Class B liquor license close for all purposes at 1 a.m. or whether the statute only requires that no alcoholic beverages be served on the premises after 1 a.m. 1

[73 Wis.2d 320] We conclude that such licensed premises must be closed for all purposes by the statutory closing time and that the failure to so close subjects the licensee to the statutory penalties.

The fact indicate that the tavern in question, the Koolmo's Club and Ballroom, Inc., at Gilman, Wisconsin, was licensed in the name of Virginia Wachsmuth. At approximately 1:25 a.m. on April 3, 1974, a Taylor county deputy sheriff saw several cars in the parking lot of the tavern. The officer found the door of the tavern locked; but upon looking through the window, he saw persons in the barroom with glasses in their hands. He knocked on the door, but there was no response. After sounding his siren, the door was opened. Upon entry into the premises, he found that there were two patrons there, who gave as their reason for lingering that they were finishing a game of pool. One of the patrons testified that the last drink was served before 1 a.m. and stated that they were requested to leave the premises before 1 o'clock.

The trial judge, County Judge Peter J. Seidl, found the defendant guilty of violating sec. 176.06(3), Stats., holding that the statute was violated by the presence of patrons in the tavern after the closing hour. He concluded correctly that it was unnecessary to determine that liquor was sold after 1 a.m.

After a remand for sentence, the previously imposed fine of $500 was reduced to $150. The appeal is from the order of the circuit court which affirmed the county court judgment.

It is the defendant's contention that the statute, sec. 176.06(3), Stats., can only be construed to mean that the premises may remain open if no liquor is sold after 1 a.m. It is the state's contention, while acknowledging [73 Wis.2d 321] some ambiguity in sec. 176.06(3), that the statute, when read in context and in conjunction with sec. 66.054(10)(a), relating to be conditions of operating under a fermented malt beverage license, and in light of the legislative history, requires that the premises be closed for all purposes by 1 a.m.

Surprisingly enough, this court has never specifically addressed the question presented here, to wit, does it constitute a violation of sec. 176.06(3), Stats., to remain open, i.e., to permit patrons to remain on the premises even though no liquor is proved to have been sold during the period that the licensed premises are to be closed.

This court, however, has in numerous cases indicated by persuasive dicta that sec. 176.06(3), Stats., requires that the premises be closed for all purposes by 1 a.m. State v. Potokar (1944), 245 Wis. 460, 15 N.W.2d 158, principally addressed the question of whether the statute, now sec. 66.054(10)(a), denied a defendant equal protection and due process of law when it excluded licensees in counties of more than 500,000 from its closing-hour provisions. The court, after an analysis of legislative history, pointed out that all premises licensed under sec. 176.06 were also required to have a fermented malt beverage license. A condition of the fermented malt beverage license was, and is, that these licensed premises be

Page 413

closed for all purposes after 1 a.m. The court thus reasoned that this was a necessary condition under which a licensee operates pursuant to an alcoholic beverage license and, hence, a premise licensed under sec. 176.06(3) and necessary licensed under what is now sec. 66.054(10)(a) must close for all purposes at 1 a.m. The court stated:

'The effect of the enactment of the above chapter is to require all retail Class B malt-beverage licensees in [73 Wis.2d 322] counties of less than five hundred thousand population to close between the hours of 1 a.m. and 8 a.m. for all purposes . . .. All Class B retail liquor licensees in counties of less than five hundred thousand must close for all purposes between 1 a.m. and 8 a.m.' Potokar, p. 464, 15 N.W.2d p. 159.

There are also statements in other opinions of this court that indicate that premises licensed under sec. 176.06(3), Stats., must be closed by 1 a.m. for all purposes, and not merely closed for the sale of liquor. Weinberg v. Kluchesky (1940), 236 Wis. 99, 294 N.W. 530; State v. Grams (1942), 241 Wis. 493, 6 N.W.2d 191; State v. Badolati (1942), 241 Wis. 496, 6 N.W.2d 220.

The Attorney General, in an opinion antedating Potokar, 32 O.A.G. 461, 464 (1943), stated:

'. . . permitting patrons to remain in a tavern after closing hours constitutes a violation of sec. 176.06 and sec. 66.05(10)(hm), Stats. (now 66.054(10)), even though the door be locked and additional members of the public excluded.'

In an opinion following Potokar, 35 Op.Atty.Gen. 228 (1946), the attorney general concluded that, while the express language of sec. 176.06(3), Stats., prohibited Class B taverns only from remaining open for the sale of liquor, the fermented malt beverage license required such taverns to be closed for all purposes during the hours specified in that section.

The attorney general thus held specifically what Potokar foreshadowed by way of dicta. He construed sec. 176.06(3), Stats., and what is now sec. 66.054(10) (a) together and concluded that Class B taverns must be closed for all purposes between 1 a.m. and 8 a.m.

This court is not bound by the opinions of the attorney general, nor is it bound by incidental dicta of [73 Wis.2d 323] earlier cases of this court where it is not apparent that the court was attempting to state comprehensively the law applicable to the general subject. Nevertheless, such court dicta or opinions of the attorney general which are not binding as precedent are persuasive if well reasoned and founded upon appropriate legal principles. We are satisfied that the general rationale of the prior cases and of the attorney general's opinions is correct. Our analysis of the statutes compels the conclusion that these earlier pronouncements properly stated the law.

On its face, sec. 176.06(3), Stats., is ambiguous, and if we look only to the preamble section of sec. 176.06--'No premises . . . shall be permitted to remain open for the sale of liquor'--the argument of the defendant herein, that remaining open is not a violation of the statutes, would appear plausible. However, a rule of statutory construction followed by this court is that the meaning of a particular section of the statute must be derived from consideration of the act or statute as a whole. State ex rel. B'nai B'rith v. Walworth Co. (1973), 59 Wis.2d 296, 308, 208 N.W.2d 113.

The legislative intent of sec. 176.06(3), Stats., must therefore be determined in light of sec. 176.06 in its entirety. Following the introductory clause, quoted in part above, appears a series of subsections. Sub. (3) provides, when read in conjunction with the introductory paragraph, that no retail Class B premises shall be permitted to remain open for the sale of liquor in any county having a population of less than 500,000 between 1 a.m. and 8 a.m. Sub. (5) is directed to an exclusion of certain activities of some Class B licensees from the strictures set forth in sub. (3). In pertinent part it reads:

'(5) Hotels and restaurants whose principal business is the furnishing of

Page 414

food or lodging to patrons, and bowling alleys and golf courses, shall be permitted to remain open for the conduct of the regular business but shall not be permitted to sell intoxicating liquors during the hours mentioned in sub. (3).'

[73 Wis.2d 324] If the defendant's interpretation of sec. 176.06(3), Stats., is correct, that only the sale of liquor is prohibited during the hours that the premises are to be closed, then the exemption granted to hotels, restaurants, bowling alleys, and golf courses is superfluous. It is apparent, therefore, that the legislature concluded that sec. 176.06 in its preamble did not permit licensed premises to remain open, even for purposes other than the sale of liquor, without the specfic exemption granted by sub. (5).

A basic rule of this court in constructing statutes is to avoid such constructions as would result in any portion of the statute being superfluous. By interpreting the statute as the defendant would do, sub. (5) is superfluous. On the other hand, to read the statute as does the state--to ignore the provision 'for the sale of liquor'--would render that portion of the statute superfluous.

An additional ambiguity is presented by sub. (6) of sec. 176.06, Stats. This subsection follows the same introductory paragraph:

'No premises . . . shall be permitted to remain open for the sale of liquor:

'. . .

'(6) In any county having a population of 500,000 or more . . . during which (closing hours) no patron or guest shall be permitted to enter or remain in the licensed premises . . ..'

It is therefore clear that, if the statute is construed as the defendant urges sub. (6) is contradictory to the argued interpretation of the preamble--that patrons may be on the premises during closing hours if no alcoholic beverages are sold.

Sec. 176.06(3), Stats., is ambiguous on its face. Under such circumstances the court may look to the legislative history and intent in determining the meaning of the statute. State ex rel. Gutbrod v. Wolke (1971), [73 Wis.2d 325] 49 Wis.2d 736, 742, 183 N.W.2d 161. The legislative intent may...

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