Weinberg v. Kluchesky

• Decision Date: 08 November 1940
• Citation: 294 N.W. 530,236 Wis. 99
• Parties: WEINBERG v. KLUCHESKY.
• Court: Wisconsin Supreme Court

236 Wis. 99

294 N.W. 530

WEINBERG

v.KLUCHESKY.

Supreme Court of Wisconsin.

Nov. 8, 1940.

Appeal from a judgment of the Circuit Court for Milwaukee County; Otto H. Breidenbach, Judge.

Affirmed.

Action brought by Max Weinberg, owner of a retail liquor store operated under a “Retail Class A” license issued under section 176.05(2), Stats., against Joseph Kluchesky, Chief of Police of Milwaukee, to enjoin the arrest of plaintiff for keeping his store open after 9 o'clock P. M. in violation of section 176.06(2), Stats. The issue is whether this statute, in connection with section 176.05(2) (a) and (b), Stats., is unconstitutional. The action was tried upon stipulated facts, and the court concluded that the statutes in question were not violative of the state or federal constitutions; and that the complaint must be dismissed. From a judgment to that effect plaintiff appealed.

Jacob J. Rothstein, Sol Kahn, and N. D. Rothstein, all of Milwaukee, for appellant.

Walter J. Mattison, City Atty., and Leo B. Hanley, Asst. City Atty., both of Milwaukee, for respondent.

FRITZ, Justice.

The plaintiff seeks an injunction permanently enjoining the Chief of Police of Milwaukee from prosecuting him for keeping a retail liquor store, which he operates under a “Retail Class A” license issued under section 176.05(2), Stats., open between 9 o'clock P. M. and 1 o'clock A. M., in violation of section 176.06(2), Stats. The statutory provisions involved, so far as here material, read as follows:

Sec. 176.05(2) (a) “Licenses to sell, deal, or traffic in intoxicating liquors shall be designated either ‘Retail Class A’ or ‘Retail Class B’. A retail license ‘Class A’ shall permit its holder to sell, deal and traffic in intoxicating liquors only in original packages or containers, in quantities of not more than three wine gallons at any one time, and to be consumed off the premises so licensed, except that wine may be sold in the original package or otherwise in any quantity. ***

“(b) In all counties containing a city of the first class *** a retail license ‘Class B’ shall permit its holder to sell, deal and traffic in intoxicating liquors to be consumed by the glass only on the premises so licensed, and in the original package or container, in quantities of not more than one quart at any one time, and to be consumed off the premises so licensed, except that wine may be sold in the original package or otherwise in any quantity to be consumed off the premises.”

Sec. 176.06 “No premises for which a *** retail liquor license has been issued shall be permitted to remain open for the sale of liquor: *** (2) If a retail ‘Class A’ license, between 9 P. M. and 8 A. M. (3) If a retail ‘Class B’ license, between 1 A. M. and 8 A. M.”

Plaintiff contends that because “Class B” licensees in Milwaukee County, as well as “Class A” licensees, have in common the privilege of selling in original packages for off-premises consumption wine in any quantity and more highly intoxicating liquor in quantities up to one quart at any one time (insofar as “Class B” licensees are permitted to so sell it), the provisions in section 176.06, Stats., which limit the time for keeping “Class A” licensed premises open to 9 o'clock P. M.,-but permit “Class B” licensed premises to continue open until 1 o'clock A. M.,-are unreasonable, discriminatory and oppressive, and deny plaintiff the equal protection of the law in contravention of the equality and due process of law provisions in the federal and state constitutions.

[1][2][3][4] In passing upon these contentions there are applicable the well established principles that the legislature in the exercise of the police power may entirely prohibit traffic in intoxicating liquors for use as a beverage, or may license such traffic conditionally by imposing such restraints or conditions upon licensees as it considers necessary and reasonable in its judgment and discretion; even though the conditions coupled with the license may be so burdensome that the business cannot be conducted successfully thereunder. State ex rel. Henshall v. Ludington, 33 Wis. 107;Zodrow v. State, 154 Wis. 551, 143 N.W. 693;General Sales & Liquor Co. v. Becker, D.C., 14 F.Supp. 348;Premier-Pabst Sales Co. v. McNutt, Governor, D.C., 17 F.Supp. 708;16 C.J.S., Constitutional Law, § 512, p. 1027. As we said in Vieau v. Common Council, 235 Wis. 122, 124, 125, 292 N.W. 297, 298:

“The regulation of the sale of intoxicating liquors does not come within the equality provisions of the United States. Constitution. As was stated in Giozza v. Tiernan, 148 U.S. 657, 661, 13 S.Ct 721, 723, 37 L.Ed. 599: ‘The privileges and immunities of citizens of the United States are...