Thе F. W. Woolworth Company, a corporation, procured issuance of an alternative writ of mandamus from the circuit court for Dane county commanding the defendant, the Wisconsin State Board of Health, to grant it a permit to conduct a restaurant in and in connection with one of its merchandising stores. The defendant moved to quash the writ. The motion was in effect a demurrer to the petition on the ground that it did not state fаcts sufficient to constitute a cause for issuance of a peremptory writ. The court granted the motion and the relator apрeals from the order quashing the writ.
The petition recites that the relator owned premises in Milwaukee, and was conducting in the building thereon оne of its several stores for the sale of various articles of merchandise, and desired to establish a restaurant in a portion of said store; that it duly made application to the defendant board for a permit to establish such restaurant and tendered to the *640 board the statutory fee for the issuance of such permit, which it is ready and willing to pay, but the board refused to grant such permit and to accept said fee; that its said store was so equipped as to comply with all the regulations of the board respecting sanitation and the protеction of the public health, and it intended to continue to maintain such equipment and to comply with all such regulations of the board; that the portion of the store to be used as a restaurant is not “separated from the petitioner’s other business in the same place by рartition,” but “the kitchens and other places used in connection therewith then were [at time of its application] and now are completely and effectively separated from the petitioner’s other business by substantial partitions extending from the floor to the ceiling with sеlf-closing doors for ingress and egressthat the defendant refused and continues to refuse to grant the petitioner such permit solely on the grоund and for the reason that its proposed restaurant “was not and is not separated from petitioner’s other business in the same room оr place by partition.”
Ch. 160, Stats. 1939, relates to and provides for the licensing of “Hotels and Restaurants.”
Sec. 160.05, Stats. 1939, provides that “Everyone, оwning, managing, controlling or maintaining any hotel or restaurant shall conduct and maintain the same with a strict regard to the public health and safеty and in conformity with this chapter [160] and the rules, regulations and orders of the state board of health.” This provision inferentially declares that thе purpose of ch. 160, Stats. 1939, and therefore of the licensing provisions thereof is protection oí “the public health and safety.”
Seс. 160.01, Stats. 1939, defines the term “restaurant” as including “any building, room or place wherein meals or lunches are prepared or served or sold to transients or the general public, and all places used in connection therewith. The term ‘meals or lunches’ as used herein [ch, 160] shall *641 not include soft drinks, ice cream, milk, milk drinks, ices and confections. The serving in taverns of free lunches consisting of popcorn, cheese, crackers, pretzels, cold sausage, cured fish or bread and butter shall not constitute such taverns to be restaurants.”
Sec. 160.02 (1), Stats. 1939, provides genеrally for the granting of a permit for the conducting of a restaurant. Sub. (2) of said section provides that no permit shall be issued to operаte or maintain any restaurant where there is conducted any other business except the sale of fermented malt and nonintoxicating bеverages, intoxicating liquors, chewing gum, candies, and other conféctions or newspapers, unless “such restaurant and the kitchens or other places used in connection therewith are completely and effectively separated from such other business in the same room or place by substantial partitions extending from the floor to the ceiling with self-closing doors for ingress and egress. The provisions of this subsectiоn shall apply only to restaurants commencing business after the effective date of this subsectipn.”
Sec. 160.02, Stats., was amended by ch. 440, Laws of 1935, by merely adding to the existing statute sub. (2) next above quoted, and declaring the effective date of the amending act as March 1, 1936.
The relator’s рrincipal assignment of error is that ch. 440, Laws of 1935, which added to the existing licensing statute sub. (2) of sec. 160.02 is void under the Fourteenth amendment to the constitution of the United States and sec. 1, art. I, of the Wisconsin constitution, as denying to it due process and equality before the law.
The contention of the relator must be sustained under the rule of
State ex rel. Ford Hopkins Co. v. Mayor,
As the above rules the case in relator’s favor we see no need to discuss rеlator’s other alleged grounds for reversal.
By the Court. — The order of the circuit court is reversed, and the record is rémanded with directions to enter an order *643 denying the defendant’s motion to quash the alternative writ and to issue a peremptory writ as prayed or for further proceedings according to law if by return defense to the petition appears.