154 Wis. 551 | Wis. | 1913
Lead Opinion
The plaintiff in error claims that sec. 1565d, Stats. 1911, is unconstitutional because (a) it violates the Fourteenth Amendment to the federal constitution in that it denies to all the property owners within the city the equal protection of the laws; (b) it creates a monopoly in favor of .2,224 places and against 30,000 places within said city; (c) it discriminates in favor of 2,224 property owners in said city; (d) it enables the owners of 2,224 pieces of property to exact extortionate rents because they are protected from competition; (e) it is class legislation because it builds up a class and clothes that class with special privileges; (f) it destroys the right of home rule which the city of Milwaukee enjoyed before the adoption of the constitution, and which was not taken away by the constitution; for while the law fixes the number of saloons that the city may have, it denies to the people of the city the right to say where those saloons shall be located; (g) it deprives persons of their property without due process of law, for by depriving any property owner of the right to lease his property for any purpose for which his neighbor may lease his, it takes from him one of
The above objections to the constitutionality of the law urged by plaintiff in error are set forth in detail, not for the purpose of separate treatment in the opinion, but to show that they were raised and that none,have been overlooked by the court. Whether all the rights therein claimed to attach to property or to persons are in fact rights or privileges which the constitution or the laws recognize, it is needless to discuss or determine in this ease, for it is established by early decisions of this court, as well as'by other courts, that, as respects the 'liquor traffic, the legislature in the exercise of the •police power has plenary authority to prohibit it altogether, or to restrict it in any reasonable manner. State ex rel. Henshall v. Ludington, 33 Wis. 107; Wightman v. Devere, 33 Wis. 570; License Cases, 5 How. 504, 12 L. ed. 256; 1 Woollen & T. Intox. Liq. sec. 79 et seq. and cases cited. The justification for the exercise of the police power in restraining or prohibiting the sale of intoxicating liquors has been stated and restated by the courts time and again. It may be summed up as resting upon the fundamental principle that society has an inherent right to protect itself; that the preservation of law and order is paramount to the rights of individuals or property in manufacturing or selling intoxicating liquors; that the sobriety, "health, peace, comfort, and happiness of society demand reasonable regulation, if not entire prohibition, of the liquor traffic. Unrestricted, it leads to drunkenness, poverty, lawlessness, vice, and crime of almost every description. Against this" result society has the in
Tested by these fundamental principles, and without going into a detailed discussion of the objections raised against the constitutionality of the law, it cannot be said that it unreasonably affects either the rights of persons or property in the sale of intoxicating liquors. It permits a saloon for every 250 inhabitants, presumably adequate facilities for quenching all lawful thirsts. It reasonably protected all persons engaged in, and places used for, the sale of intoxicating liquors at the time it went into effect. If, incidental to these lawful regulations, it so happens that, temporarily, certain places or persons are given a preference, or that rights theretofore enjoyed are limited or entirely destroyed, such result does not affect the validity of the act. Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, and cases cited ante. As soon as cities grow so that they will be within the ratio limit, or as soon as they vote to remain within it, all preferences disappear. The preferences created result from the effort to temporarily protect business that was established at the time the law went into effect. In State ex rel. Marvin v. Larson, 153 Wis. 488, 140 N. W. 285, the constitutionality of the law was assumed, and we perceive no reason now why such assumption was not well founded.
The question of whether or not the proof shows the plaintiff in error to have been properly convicted depends upon the construction to be given to the two provisos of the law. In State ex rel. Marvin v. Larson, supra, the court said:
“The main thought of the section was doubtless to set a limit, which should adjust itself as the population increased or diminished, beyond which the number of saloons should*557 not go. While this was the dominant idea, it was also realized that in some places this limit had been passed, and it was thought that, where premises .were already in use for saloon purposes, as well as where a tenant was obliged to remove his business by circumstances over which he had no control, exception might be made in favor of such premises or such tenant. The theory evidently was that the law might operate too harshly and summarily if provision were not made to protect, in some degree at least, investments already lawfully made.” Pages 490, 491.'
Upon further reflection and reconsideration of the question we think the construction there indicated is the correct one. It was evidently the legislative purpose in enacting the provisos to reasonably protect persons engaged in, and places used for, the traffic at the time the law went into effect rather than to permit the whole number of licenses then outstanding to be reissued indefinitely. - If the latter had been its purpose it would have been easy to have said that in cities exceeding the ratio the present number of licenses might be issued till the increase in population brought the number within the ratio. But it did not do that. It made the further proviso that licenses be granted or issued to persons for those places or locations for which licenses were issued or granted on or prior to the 30th day of June, 1907, unless they came within the exceptions contained in the proviso, thus restricting the power of cities, where they grant licenses in excess of the ratio, to grant them fovnew places only to the owner or lessee of premises used for saloon purposes on and continuously since the 30th day of June, 1907, who has been deprived of the use of such premises for saloon purposes in any of the ways mentioned in the last proviso of the section.
The idea was to protect existing liquor business in such a way as to create as little hardship as possible and at the same time to bring the number of licenses down to the ratio as speedily as lapses in the reapplieation therefor, and the growth of the city, would produce such result. By this
By the Court. — Judgment affirmed.
Dissenting Opinion
(dissenting). This case turns upon the construction of sec. 1565ti, Stats., otherwise ch. 484, Laws of 1907. But it is not a suit for construction of the statute. The point at issue is whether the plaintiff in error has been proven guilty. The construction of the statute is before us only so far as it is involved in the question of the guilt or innocence of the accused under the pleadings and evidence.
The instant case differs someAvhat from State ex rel. Marvin v. Larson, 153 Wis. 488, 140 N. W. 285. The latter was a suit in equity in which it was established by findings of the trial court that prior to the license there in question the city had issued licenses in number more than one for each 250 persons. Also that the number of licenses outstanding on June 30, 1907, was 154. Six of these places were thereafter used and kept for other purposes and three other places torn down and destroyed and not rebuilt, thus leaving not to exceed 145 places which had licenses on June 30, 1907.
After mature reflection I am convinced that nothing is gained in the way of interpretation by creating or imagining several classes of cities affected by this act. It is commonplace that classification is easy and interminable, and we should not deceive ourselves into the belief that we have gained a step forward in the solution of a problem because we have achieved the easy but often unhelpful step of segregation of a class. Again, so far as classification rests on the fact that the city had on June 30, 190V, more retail liquor licenses issued and outstanding than one for every 250 persons, La Crosse in the case mentioned and Milwaukee in the instant case would be in the same class. We must constantly keep in mind that the city council is not by this act obligated to issue license to any person or place.
In State ex rel. Marvin v. Larson, supra, this court agreed upon a construction of the statute in question substantially to the effect that a city might exceed the limitation of one license .to 250 persons only in ease'such additional licenses were within the number in force and outstanding on June 30, 1907, and only t,o applicants proposing to conduct the retail liquor business at a place licensed on June 30, 1907, except in cases where the owner had refused to lease his premises for saloon purposes, or in case of the destruction of the premises .by fire* or by the elements, or in case where the license of such former place is refused by operation of law, or in case where
It is manifest that these commands cannot all be complied with unless we give “places” priority of choice or the first call for a license. If there are the same places in existence as were licensed on June 30, 1907, all desiring a license, no owners refusing to lease for such purpose, no place destroyed by fire or the elements, no place refused by operation of law or under the provisions of ch. 484, supra, and each place is represented by a person of proper character, such places fix and limit the number of licenses that may be issued. Where any of these places drop out of the saloon business by reason of any or either of these four enumerated causes, the number of licenses which may be issued is not thereby diminished. But where any of the places licensed on June 30, 1907, drops out of the retail liquor business for any cause not covered by either of the four enumerated causes aforesaid, the number of licenses in excess of one for each 250 persons which can be lawfully issued is diminished accordingly. This follows from the rule expressio unim exclusio alterius. In no case can the number of licenses issued exceed those in force on June 30, 1907, and in case those in force on the latter date
In State ex rel. Marvin v. Larson, supra, it was established that the license there in question was issued after the council had issued licenses amounting to more than one for every 250 persons, while in the instant case no such concession is made, but the council issued at one and the same time 1,822 licenses, among which was the defendant’s license. This exceeded the number of licenses which the city would be authorized to grant at the ratio of one to every 250 persons, which according to the United States census of 1910, of which we take judicial notice, would have been 1,496. The population of Milwaukee at that time was 373,857. Some 'additional territory was included within the city limits, but
