Thе respondent advances the contention that the cause is moot. It is said that the 1946-1947 license year for which Whitinger’s licensе was issued has now expired, and that any controversy as to whether that license may properly be transferred is now endеd. The order of February 17, 1947, setting aside the
ex parte
dissolution and reinstating the injunction
nunc pro tunc
as of December 10th, carried $10 motion costs in favor of the respondent. A reversal of the order would absolve the appellants from the payment of such costs. The matter of costs has on severаl occasions been considered as preserving the life of a cause for purposes of a decision on appeal even though it has otherwise become moot.
State ex rel. Strike v. Common Council
(1930), 201 Wis.
*310
435,
The order of May 15, 1947, did not assess costs. The appellants argue, however, that if the injunction which the court therein refused to vacate was improperly issued, they are- entitled to bе compensated for such damages as they may have suffered by reason of its issuance.
Muscoda Bridge Co. v. Worden-Allen Co.
(1932)
The order of February 17th reinstating the temporary injunсtion must be reversed. It is true, as contended by the respondent, that the injunction should not have been vacated by an
ex parte
order,
Simon v. Wisconsin Telephone Co.
(1946)
The respondent’s asserted right to maintain this action is based upon her ownership of the premises from which the license transfer is sought and upon her alleged agreement with Whitinger. It is claimed, in substance, that if the transfer were permitted, it would constitute a violation of the agreement and would prevent her and her prоperty from being licensed since the maximum quota of retail Class B. intoxicating liquor licenses, after the transfer, would be exhaustеd.
There is no merit in respondent’s contentions. Any agreement between respondent and Whitinger could not possibly affect the jurisdiction conferred upon the common council by sec. 176.05 (14), Stats., to act upon license transfers. It would be difficult to find a more self-evident proposition of law. The remaining contentions are equally untenable. The transfer of Whitinger’s existing liquor licеnse could not deprive respondent of the right to sell liquor upon her premises. She had no such right because she was not then licensed to sell intoxicating liquors. Nor would it otherwise prejudice her. Her action in terminating Whitinger’s lease did not invalidate his existing license and reduce the number of liquor licenses below the authorized quota fixed by sec. 176.05 (21). His privilege as a licensee would continue during the term of the license until revoked pursuant to law or until terminated by voluntary surrender. Whether the license was оr was not transferred is immaterial so far as her status was concerned. The liquor-license quota would remain filled and would preclude the granting of a license to respondent or to anyone else irrespective of the council’s action on Whitinger’s application.
Respondent relies upon XXVIII Op. Atty. Gen. 123, .as holding that where a licensee loses possession of licensed premises another license may be granted covering those premises for the remainder of the term оf the first license. That *312 may be true, but the attorney general’s opinion has no application to a situation, such as herе, where the issuance of a second license is precluded by reason of a full quota. It did not discuss the applicability оf the quota law for obvious reasons. It was rendered February 28, 1939, and the quota law, sec. 176.05 (21), Stats., did not become effective until August 26, 1939.
Our rеasoning results in the conclusion that respondent’s complaint states no cause of action. Neither her status nor that оf her property was dependent upon the council’s action in passing upon Whitinger’s application for transfer of his license. Pier alleged agreement with Whitinger did not invest her with the right to question the council’s action. No protectible privаte right is asserted, and she cannot maintain the action as the champion of a public right.
Nast v. Eden
(1895),
We do not decide whether she would have standing to maintain the action if her right to a license for herself or to cover her property were dependent upon the council’s action on Whitinger’s application. Cf.
Bjordal v. Town Board
(1939),
The asserted right to maintain the action under the provisions of sec. 66.05 (10) (1) 1 and 2, Stats., empowering courts of record to review the action of licensing authorities in granting or revoking fermented malt beverage licenses or in failing to revoke such licenses, is without merit. It is argued that under sec. 176.05 (10) the liquor license mаy not be transferred unless the fermented malt beverage license is likewise transferred and that the action to review thus extеnds to the transfer of liquor as well as fermented malt beverage licenses. We need not decide whether the one transfеr is dependent upon the other. • We are here dealing with the transfer of an existing license. This action cannot fairly be denominated as one to review the granting of a license.
*313 The only other matter requiring comment deals with the question whether thеre had been a valid transfer at the time the injunction was served. Our disposition of the case upon other grounds is not to be regarded as intimating that the transfer was incomplete.
By the Court. — The order of February 17,1947, is reversed. The appeal from the order of May 15, 1947, is dismissed.