State ex rel. Wilczewski v. Common Council

| Wis. | Jan 13, 1914

WiNsnow, O. J.

This court, after full consideration of tbe subject, beld in State ex rel. McKay v. Curtis, 130 Wis. 357, 110 N. W. 189, tbat in such proceedings as the present' defects or imperfections in mere matters of form at any stage of tbe proceedings having no tendency to' prejudice tbe defendant are to be disregarded, and tbat where the person and tbe case may rightly be understood by the tribunal amendments may be ordered curing such defects.

Applying this rule to the present case, it is plain that' the revocation of the license was properly ordered.

Tbe first complaint filed before tbe Council was inartifi-cially drawn, but 'it stated tbe fact under oath that there bad been a conviction of the person in charge of tbe relator’s saloon for unlawfully selling liquor to a minor, and that revocation of tbe relator’s license was desired. Probably this was sufficient under sec. 1558, Stats., but in any event tbe amendment curing tbe defect was entirely proper under tbe principles above stated, because there is no doubt but tbat “the person and tbe case” must have been rightly understood by tbe tribunal.

The claim that the hearing could not be rightly had before the committee of the whole must' be rejected. The difference between a legislative'or, an administrative body sitting in committee of the whole and in regular session is a difference rather in name than in nature. The whole hody is present in both cases.' For convenience in matters calling for deliberation, debate, or consultation the body resolves itself into the committee of'the whole, but when these purposes have been accomplished and definite legislative or administrative action is to be taken, it resumes its sittings as a legislative or administrative body and takes such action. That is what was done in the present case and no sound reason occurs to us why it should be even criticised. The relator has had his hearing before the proper body .in either case, and the final action was taken by the Council in regular session. , - • ’

The objection that the return does not show what testimony was taken cannot prevail. The resolution recites that evidence was taken and proof submitted, and the statute does not require that the evidence shall be made matter, of record.

By the Court. — Judgment affirmed.