State ex rel. McKay v. Curtis
110 N.W. 189
Wis.
1907
Check Treatment
Winslow, J.

It must be considered as settled in this state that mandamus will lie to compel tbe common council of a city to revoke a liquor license in a case where, upon complaint duly made, tbe facts requiring such revocation are established beyond dispute. State ex rel. Buchanan v. Kellogg, 95 Wis. 672, 70 N. W. 300. It is argued that certiorari is a complete and adequate remedy, but this position is clearly untenable. Certiorari is a complete and adequate remedy for one who has been wrongfully deprived of bis license, because a reversal of tbe judgment of tbe council will have tbe effect of reinstating bis license. State ex rel. Sullivan v. Tomah, 80 Wis. 198, 49 N. W. 753. But where tbe council dismisses tbe proceedings when it should have revoked tbe license, a judgment reversing that dismissal is absolutely barren of any substantial result except to remove a possible bar to tbe beginning of a new and independent proceeding for revocation. This cannot be considered as an adequate or complete remedy. Thus tbe question is fairly presented whether under tbe facts as found it was the imperative duty of tbe common council to revoke Niebuhr’s license upon tbe bearing. Sec. 1558, Stats. 1898, provides that upon verified written complaint made by a resident and filed with tbe city clerk charging that any licensed person keeps or maintains a disorderly *362bouse, permits gambling therein, has sold liquor to a minor-without written order of his parents or guardians, or to intoxicated persons qr to known habitual drunkards, “or that he-has not observed . . . any order of such supervisors, trustees, aldermen, or county superintendent of the poor, or any of them, made pursuant to law,” the council shall issue a summons commanding the licensed person to appear at a time and place named and show cause why his license should not' be revoked, such summons to be served in the manner described by the section. Sec. 1559 provides that if upon such hearing “the board shall find the complaint to be true the license shall be revoked, and if untrue the proceeding shall be dismissed without costs to the accused.”

The appellants claim that the word “order,” in sec. 1558, supra, does not refer to an ordinance of the city council, but’ only to the order or notice authorized to be given under the-terms of sec. 1554 by said officials to licensed persons forbidding the sale of liquor for one year to spendthrifts. We-are unable to agree with this contention. Had this order been the sole thought of the legislature, it would have been not only easy, but natural, to refer to it as an order made-under the provisions of sec. 1554. On the contrary, it seems evident from the use of the broad words “any order . . .. made pursuant to law” that the legislature intended to include many possible orders rather than one particular order. The word “order” is a word of broad and general meaning. It includes all commands, precepts, or rules made by competent authority. An ordinance passed by the board of aider-men which has been approved and published, so as to become-a valid ordinance is in the highest sense an order or command of the aldermen. If it be within their power, it is an order-made pursuant to law. If it be an order legitimately regulating the saloon business, we can entertain no doubt that it is one of the orders referred to- in the statute. To hold otherwise would seriously emasculate the statute, the evident pur*363pose of wbicb is to secure obedience by means of a penalty more effective than paltry fines; i. e. by revocation of license. This construction seems strengthened by the fact that the bond given by a licensed saloonkeeper under sec. 1549 is required to contain conditions substantially identical with the provisions of sec. 1558, closing with the condition that the licensed person will “obey all orders of such supervisors, trustees, or aldermen, or any of them, made pursuant to law.” This section precedes sec. 1554, providing for the giving of notice by aldermen forbidding sales to spendthrifts, and it seems that the words “such aldermen,” in sec. 1549, can hardly refer to individual aldermen,, but to common councils, because there are no provisions prior to sec. 1549 in the excise law giving individual aldermen any power to make orders, but only grants of power to common councils to issue licenses. If the words “such aldermen,” in see. 1549,’ refer to the common council, the argument is strong that the same words used in the same connection should have the same meaning in sec. 1558.

It is further argued, however, that the complaint made to the council did not charge a violation of the ordinance, and in fact charged no offense of any kind, and that there could be no revocation of the license on such a complaint, and reliance is placed on State ex rel. Sullivan v. Tomah, 80 Wis. 198, 49 N. W. 753, where it was held that, .if the complaint be fatally defective, the council should- dismiss the proceeding upon objection being made that no offense was charged. It must be at once admitted in the present case that the complaint before the council was radically defective. Instead of charging in apt language that Niebuhr failed to close his place of business and exclude customers therefrom at 12 o’clock midnight., or that he failed to keep the same closed between the hours of 12 o’clock midnight and 5 o’clock a. m., it charged that Niebuhr sold intoxicating liquors on the premises after the hour of 12 o’clock midnight on the 23d day *364of July. While this might perhaps be construed as charging in effect that he failed to -exclude customers from his premises, it did not charge that such failure took place between the hours of 12 o’clock midnight and 5 o’clock a. m. A sale made at noonday of July 23d would fully satisfy the charge. Had objection been taken, as in the case last cited, the complaint should doubtless have been dismissed. But no objection was taken. The accused appeared and filed a written answer in which, while denying that he sold any liquors, he •expressly admitted that his saloon was open on the night in question until twenty minutes after midnight and that he was personally in charge; and he explains and endeavors to excuse his delinquency by the fact that he was having a dispute with a customer as to whether he had paid his bill for drinks ordered before 12 o’clock. The answer further admits that he pleaded guilty to a technical violation of the 12-o’clock ordinance of the city and paid a fine therefor, and that this should be considered as a sufficient punishment for any violation of the ordinance, if such there has been. The affidavits of two other persons who were in the saloon at the time were introduced by the accused, and these affidavits practically stated the same facts as to the saloon being open and customers on the premises for twenty minutes after 12 o’clock.

Thus both the answer and the proofs showed a clear violation of the closing ordinance. No objection had been made to the sufficiency of the complaint, and the question is whether under these circumstances the council had any choice as to the course to be pursued. We think it had not, even applying the strict rules of criminal pleading to the case, as was done in the case of State ex rel. Sullivan v. Tomah, 80 Wis. 198, 49 N. W. 753. Much progress has been made in ridding the criminal law of the reproach that it allows minute defects and trivial technicalities, by which none is misled, to subvert the course of substantial justice. The ancient rules of strict*365ness in pleading and procedure have been greatly relaxed. Defects or imperfections in matters of form at any stage of' tbe proceedings wbicb do not tend to prejudice tbe defendant are to be disregarded (Stats. 1898, secs. 4658, 4659), and. our Statutes have gone so far as to provide tbat “no indictment, information, process, return, or other proceedings in a criminal case in tbe courts or course of justice shall be abated,, quashed or reversed for any error or mistake where tbe person and tbe case may rightly be understood by tbe court, and tbe court may, on motion, order an amendment curing such defect.” Stats. 1898, sec. 4706. Tbe complaint before the council would bave charged a substantial violation of tím ordinance bad tbe words “and before five o’clock a. m.” followed tbe words “after tbe hour of twelve o’clock midnight.” Tbe answer of tbe accused showed conclusively tbe fact thus omitted, and thus tbe case stood when tbe case closed, with no objection at any stage of tbe proceeding. It would be idle to say tbat tbe person and tbe case could not be rightly understood by tbe tribunal. Indeed, it seems tbat to understand them wrongly would require greater genius for misunderstanding than city councils are ordinarily supposed' to possess. Tbe statute is imperative. It leaves nothing to discretion. Tbe ordering of an amendment cuts no real figure save to impart formal regularity to tbat wbicb on its face is irregular. Whether tbe proceedings be amended or not the inhibition against abating or quashing tbe proceedings is. equally imperative.

We conclude tbat tbe peremptory writ of mandamus was rightly ordered.

By the Court. — Judgment affirmed.