State ex rel. Treat v. Hammel

SiEBECKER, J". Tbis is an application for a writ of mandamus to compel the revocation of a license to deal in intoxicating liquors. To entitle a party to snob relief it must appear tbat tbe relief asked for can be enforced by tbe writ. Tbe writ will not issue if it is too late to be available as a remedy to enforce tbe right alleged to bave been violated. State ex rel. Smith v. Drake, 83 Wis. 257, 53 N. W. 496; State ex rel. Gold v. Secrest, 33 Minn. 381, 23 N. W. 545; 13 Ency. Pl. & Pr. 493, 494, note 1. In tbis case it is apparent tbat tbe license wbicb it is sought to bave tbe common council revoke has expired by limitation of time under tbe statute, and a compliance with such a mandate would be fruitless and nugatory in its effects. Though tbis situation is decisive of the question and the writ therefore should not issue since there is no function for it to perform, yet tbe inquiry whether tbe lower court, when tbe writ was denied, should bave granted it and bave given tbe relief sought is a proper one to determine, and, if it was then improperly denied, relator is entitled to a reversal of tbe judgment, with costs, and a direction tbat be recover bis costs in tbe lower court. State ex rel. Bunge v. Anderson, 100 Wis. 523, 76 N. W. 482. Erom tbe record it appears that Each applied for a license on November 1, 1906, and tbat on November 3, 1906, be paid to tbe city treasurer $133.33 and filed bis receipt therefor, together with tbe bond required by tbe statutes, with tbe city clerk, and that tbe common council on November 7th following voted to grant him a license covering tbe period from November 1, 1906, to tbe first Tuesday of July, 1907. Do these facts show compliance with tbe statutes; and, if not, then under tbe circumstances was tbe license attempted to be granted valid? Erom tbe provisions of tbe statutes on the subject it is manifest tbat they prescribe tbe terms and conditions upon wbicb persons may be granted tbe right to engage in tbe business of selling intoxicating liquors. Sec. 1548, [66] cb. 66, Stats. (1898), provides that the common councils of cities may grant licenses witbin their respective cities to such persons as they deem proper, “under the conditions and restrictions” contained in the chapter, and that the minimum “sum to be paid for such license shall be ... in all cities . . . two hundred dollars. . . .” It is also enacted that: “All such licenses shall remain in force until the first Tuesday of July nest after the granting thereof . . . ; they shall be attested by the . . . city . . . clerk and shall not be delivered until the applicant shall produce and file with the clerk a receipt showing the payment of the sum required therefor to the proper treasurer and until the filing with the clerk of the bond provided for in sec. 1549.” It is manifest that these terms of the statute require that the license fee shall be collected before the license issues and that a uniform fee is prescribed for all licenses. No authority is given the common council to accept any sum less than the amount established by law. The terms of the statute do not permit of a construction authorizing a common council to accept less than the prescribed amount before issuing a license, though the license may cover only a part of the license year expiring on the following first Tuesday of July after its issue. No provision indicates that a license may lawfully issue for a part of the license year by the payment of a part of the license fee proportionate to the part of such year for which it is granted. Nothing less than the receipt of the full fee can authorize a common council to grant a license even for a part of the license year. The-terms of the statute are also clear that payment of the full license fee must be made to the city treasurer and that the receipt therefor, together with the proper bond, must be filed with the city clerk, in order to authorize the delivery of the license to the licensee. This construction was given to a like provision of the excise statute in the early cases of State v. Fisher, 33 Wis. 154, and State ex rel. Henshall v. Luding [67] ton, 33 Wis. 107. In the opinion in the former case, dealing with this provision, it is said: “We are clearly of the opinion that the giving of the bond required by the law is an essential condition precedent to the validity of the license. . . . RTo snch bond having been given, the license is mill and void, and affords no protection to the defendant.” It is manifest from the contest of the statute that payment of the full fee as prescribed before the license shall issue is also such a condition precedent to the validity of a license. That such payment of the license fee is as imperative as the filing of the requisite bond is obvious from the context of the statute imposing these terms and conditions. The provisions of the city charter of Appleton are in accord with these enactments. Upon these considerations the conclusion is inevitable that the common council of the city of Appleton had no authority to grant' Bach a license unless he paid the full sum of $200 to the city treasurer, and no valid license could be delivered to him until he had filed a receipt therefor and the bond provided by the statute with the city clerk. It is admitted that the license, in question was granted and delivered to him without requiring the payment of the full license fee of $200. This omission renders the license, for the revocation of which the proceedings before the council were instituted, null and void. Consequently there was no license to revoke. The result of this situation would also render the issuance of a writ of mandamus for the revocation of such' license a mere idle act, fruitless in its effects, and this requires affirmance of the holding of the trial court denying the writ. State ex rel. Henshall v. Ludington, 33 Wis. 107, 119. By the Court. — ‘Judgment affirmed.