130 Wis. 357 | Wis. | 1907
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
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
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
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
We conclude tbat tbe peremptory writ of mandamus was rightly ordered.
By the Court. — Judgment affirmed.