Oligny v. City of New Richmond

SiebecKER, J. The foregoing statement shows that the plaintiff Hanson assails the validity of the special election, and alleges that if it be held valid it will cause him private injury, in that the city officers will not grant him a license to sell intoxicating liquors for the ensuing year, thereby de [549] stroying the good will of his business and greatly depreciating the value of his buildings, stock, and fixtures, heretofore devoted to the prosecution of his licensed business in intoxi‘Cating liquors. The threatened action of the city officers •does not in legal contemplation Jake from the plaintiff or ■destroy any of his vested property rights. By sec. 1548, ■Stats. (1898), the common council of the city may grant licenses permitting the sale of intoxicating liquors to such persons as they may deem proper to conduct such a business within the city. The allegations of the complaint charge no violation of an existing license, and are wholly directed to the effect of the threatened refusal to grant Hanson a license to do this business. However, the time for the issuance of licenses had not arrived when the action was commenced, and no steps for their issuance had been taken by either the plaintiffs or the city. Under such circumstances the threatened acts do not affect any vested rights. No person has in law a right to engage in this traffic unless a license has been obtained therefor under the conditions and upon the terms prescribed by the statutes. State v. Downer, 21 Wis. 274, and subsequent cases. It therefore follows that under the facts alleged no existing rights of the plaintiff are invaded by the threatened refusal of the city officers to license him to conduct this business, and hence plaintiff fails to allege any grounds tending to show an injury to a private right. The ease is therefore ruled by the principle which was applied in Nast v. Eden, 89 Wis. 610, 62 N. W. 409. It is there declared : “Equity does not revise, control, or correct the action of municipal officers at the suit of a private person, ‘except as incidental and subsidiary to the protection of some private right or the prevention of some private wrong, and then only when the case falls within some well-defined head of equity jurisprudence.’ ” It is insisted that State v. Robbins, 54 N. J. Law, 566, 25 Atl. 471, is a case in point. There an innkeeper prosecuted a writ of certiorari to determine the legality of a proceeding [550] under tbe statute for the ordering and holding of an election to determine what fee should be charged for a license to keep-an inn. The case as reported apparently went on the assumption that the prosecutor's rights to keep his inn were-threatened with invasion to his injury by the proposed illegal election proceeding under the law of that state. We do not regard the case as applicable to the situation presented in the instant case, and, in so far as the reasoning of the case implies that a threatened refusal to grant a license to sell intoxicating liquors results in a private injury to a prospective-applicant for a license to conduct such a business, it is contrary to the law as established in this state, and we must refuse to follow it. We are of the opinion that the trial court properly sustained the demurrer to the complaint upon the ground that-the complaint fails to state a cause of action. By the Gowrt. — The order appealed from is affirmed.