Summary
In Marquette Savings Loan Asso. v. Twin Lakes (1967), 38 Wis.2d 310, 156 N.W.2d 425, the action was to enjoin the licensing agency in order to enforce an agreement between the mortgagor and the mortgagee.
Summary of this case from Sprecher v. Weston's Bar, Inc.Opinion
February 1, 1968. —
February 27, 1968.
APPEAL from an order of the circuit court for Kenosha county: HAROLD M. BODE, Circuit Judge. Affirmed.
For the appellant there was a brief by Morrissy, Morrissy, Sweet Stowe of Elkhorn, and oral argument by Lowell E. Sweet.
For the respondent there was a brief by Hammond Tennessen of Kenosha, and oral argument by C.A. Tennessen.
This case concerns the authority of a village board as the licensing agency for the issuance of Class "B" liquor licenses.
The licensees, Stephen P. and Bertha M. Wysoczan, executed a note, secured by a real estate mortgage covering certain real estate in the village of Twin Lakes, Kenosha county. The note and mortgage were executed on February 28, 1961, and a tavern was located on the real estate.
Marquette Savings Loan Association, plaintiff-appellant, was the mortgagee, and the following provision appears in the mortgage:
"The tavern license and all necessary fixtures and equipment for the operation of the tavern shall go with the above described premises and at no time during the term of this mortgage shall said tavern license be sold, transferred or surrendered without the consent of the Marquette Savings and Loan Association."
The mortgage was foreclosed by the plaintiff and final judgment was entered in the county court of Kenosha county on April 21, 1966. Sometime prior to May 8, 1967, and while still in possession of the property, Bertha M. Wysoczan made an application to the village board for a reissuance of the license. Her application stated the real estate described in the mortgage as the property to which the license would apply. Thereupon counsel for the plaintiff informed the village board that Bertha M. Wysoczan had no interest in the real estate described on the date of the application nor would she have an interest therein on the date of the issuance of the license.
Meantime the plaintiff was instrumental in the formation of Twin Lakes Bay View, Inc., a Wisconsin corporation, and executed a one-year lease with this corporation to commence July 1, 1967. Pursuant to direction and authorization from the plaintiff, the corporation proceeded to make an application for a license to be used on the premises in accordance with its future lease.
May 8, 1967, the village board, having to choose between the former licensee and the new applicant, reissued the license to Bertha M. Wysoczan.
The plaintiff then commenced this litigation, alleging three causes of action against the village of Twin Lakes.
The defendant demurred to the complaint and the trial court entered an order sustaining the demurrer. The plaintiff appeals from this order.
Statutes involved.
"Sec. 176.05 Liquor licenses.
"(1) AUTHORITY TO GRANT LICENSES. Each town board, village board and common council may grant retail licenses, under the conditions and restrictions in this chapter contained, to such persons entitled to a license under this chapter as they deem proper to keep places within their respective towns, villages, or cities for the sale of intoxicating liquors. No member of any such town board, village board or common council shall sell directly or indirectly or offer for sale, to any person, firm, or corporation that holds or applies for any such license any bond, material, product, or other matter or thing that may be used by any such licensee or prospective licensee in the carrying on of his or its said business.
". . .
"(5) FORM; DURATION. The application for a license to sell or deal in intoxicating liquor and 'fermented malt beverages' as defined in s. 66.054 shall be in writing on a form furnished by the commissioner of taxation and sworn to by the applicant. The original application shall state the kind of license applied for, designate the premises where such liquor is to be sold and such other information as required by this chapter. Such form shall be prepared by the commissioner and shall be suitable for the entire state and so worded as to make clear to any licensing authority the past history of the applicant and fitness for license under this chapter. The commissioner may prescribe a simplified form for renewal applications requiring information pertinent to renewal. The commissioner shall furnish on request such form blanks as may be necessary to each licensing body. Except as provided in sub. (6), all such licenses shall remain in force until July 1 next after the granting thereof, unless sooner revoked; they shall be attested by the town, city or village clerk, and shall not be delivered until the applicant shall produce and file with the clerk a receipt showing the payment of the sum required therefor to the proper treasurer. If any licensee or license applicant dies or becomes bankrupt or makes an assignment for the benefit of creditors during any license year or at any time after filing the application for a license and a license is granted to such applicant, the administrator, executor, receiver or trustee, or, if no administrator is appointed, the surviving husband or wife of such deceased licensee may continue or sell said business, and, if he sells the same, may assign or transfer such license and all rights and privileges of the licensee thereunder if the transferee or assignee is acceptable to the licensing authorities, and secures their consent thereto, and fully complies with the requirements of law applicable to original applicants, provided that the administrator so appointed must be a citizen of the United States; and provided further that the surviving husband or wife of the deceased is an American citizen. No license shall be issued to any person in violation of any provision of this chapter, and any license so issued shall be void. The town, village or city clerk shall keep all applications for license and they may be inspected by any citizen.
". . .
"(8) ANNUAL LICENSE MEETINGS. All town and village boards and common councils, or the duly authorized committees of such councils, shall meet not later than May 15 of each year and be in session from day to day thereafter, so long as it may be necessary, for the purpose of acting upon such applications for license as may be presented to them on or before April 15, and all applications for license so filed shall be granted, issued or denied not later than June 15 for the ensuing license year, provided that nothing shall prevent any governing body from granting any licenses which are applied for at any other time. As soon as an application has been approved, a duplicate copy thereof shall be forwarded to the commissioner of taxation. No application for a license which is in existence at the time of such annual license meeting shall be rejected without a statement on the clerk's minutes as to the reasons for such rejection.
". . .
"(9) WHERE AND TO WHOM LICENSES NOT GRANTED. No license or permit shall be granted to any person or persons under the age of 21 years for the sale of any such intoxicating liquors, or to any person who is not of good moral character and a full citizen of the United States and of this state and who has not resided in this state continuously for at least one year prior to the date of filing the application; nor shall any such license be granted or issued to any person who has habitually been a petty law offender, or has been convicted of an offense against the laws of this state punishable by imprisonment in the state prison, unless the person so committed has been duly pardoned. The provisions of this subsection shall not apply to a Wisconsin corporation; such provisions apply, however, to all officers and directors of any such corporation."
The plaintiff urges us to recognize a property and contract right between the licensee and a third party as paramount to the well-established "privilege" concept that exists between the licensee and the issuing authority. The adoption of such rationale would permit the licensee and a third party to enter into a contract which would negate the discretionary authority of the licensing board in granting and reviewing such licenses. This would be against public policy.
This court has previously held that an agreement between a lessor and the licensee as to a liquor license cannot affect the jurisdiction conferred upon the city council by statute to act upon license transfers. Smith v. Whitewater (1947), 251 Wis. 306, 311, 29 N.W.2d 33; Smith v. Whitewater (1947), 251 Wis. 313, 29 N.W.2d 37.
The right to hold a liquor license is a privilege that inures to the benefit of the licensee as determined by the exercise of the discretionary authority vested in a licensing board. See State v. Bayne (1898), 100 Wis. 35, 38, 75 N.W. 403. This proposition is advanced in 9 McQuillin, Municipal Corporations (3d ed.) pp. 508-510, sec. 26. 195:
"Sec. 26. 195. — As right or privilege.
"There is no vested right to or under a liquor license. There is at most a privilege, personal in character, which, it has been said, is merely to do what otherwise would be, or could be made, an offense, and which is subject to changing regulations, and even to legislative cancellation. A liquor license or permit creates neither a contract nor a property right, and denial of it by a proper authority with discretion in the matter deprives an applicant of neither liberty nor property. But it has been asserted that a liquor licensee has something more than a `mere privilege.' He is protected by law against arbitrary or discriminatory deprivation of the privilege or right, irrespective of what it is called, that he obtains under the license, particularly where he has paid a large sum for it. Although a lawfully issued liquor license may not be property in the strict legal sense, it has some of the aspects of a property right, and it is reasonable to suppose that the legislature intended that a holder of such a license should have protection from arbitrary interference therewith by a local licensing board."
We see nothing inherently arbitrary and capricious in the fact that the board chose to issue the license to the former licensee rather than the new corporate applicant. This is particularly so when the village board was entirely cognizant of the situation when it decided to reissue the license to the former licensee.
One of the grounds for demurrer was that there is a defect in the parties plaintiff in that the plaintiff did not possess sufficient legal interest in the subject matter or relief sought. We opine that there is merit in this assertion inasmuch as the final judgment in the foreclosure action had been entered April 21, 1966, and also the plaintiff does not occupy the status of an applicant.
However, aside from the merits of the action, which upon the record presently before us, does not support a cause of action, the proper procedure for judicial review of the action of the village board in the case before us would be by way of certiorari.
An examination of ch. 176, Stats., and in particular those sections thereof relating to the issuance of licenses, reveals that there exists no specific provision granting the right of judicial review to an applicant who has been denied a license by the village board.
This court has recently reviewed a series of prior cases that stand for the rule that where there are no statutory provisions for judicial review, the action of the board or commission may be reviewed by writ of certiorari. State ex rel. Kaczkowski v. Fire Police, Comm. (1967), 33 Wis.2d 488, 500-502, 148 N.W.2d 44, 149 N.W.2d 547; Outagamie County v. Smith, ante, p. 24, 155 N.W.2d 639 (involving review by declaratory judgment proceedings).
Also in State ex rel. Kaczkowski v. Fire Police Comm., supra, at pages 500-502, Mr. Justice BEILFUSS sets forth in considerable detail the scope of review upon a writ of certiorari.
By the Court. — Order affirmed.