State ex rel. Dick v. Kalaher

KerwiN, J. Subd. 5 of sec. 1548, Stats. (Supp. 1906: Laws of 1905, cb. 385),- provides in substance tbat after June 30, 1905, no license shall be granted to any person for the sale of liquors in any building or place for which a license is not in force on June 30, 1905, within a distance of 300 feet of any public or permanently established parochial school grounds, such distance to be measured upon the streets from the boundaries of the schooí grounds, and that whenever after January 1, 1908, a list of all the parents and lawful guardians of the children enrolled as pupils in any public school or permanently established parochial school, together with a remonstrance in writing signed and acknowledged before a notary public by a majority of such parents and lawful guardians, are filed with the city, village, or town clerk, as the case may be, describing the premises for which a license had previously been issued within 300 feet of the grounds of such school and demanding that no license be granted, no such license shall thereafter be granted to any person for the sale of liquors on such premises. Subd. 6 of see. 1548 provides in effect that the foregoing provisions shall not apply to drug ■stores, hotels, nor restaurants actually established and maintained as such prior to February 1, 1905, and further provides that it shall be the duty of the city, village, or town clerk, as the case may be, to receive, file, and record such list and remonstrance. The respondent attempted to proceed under this law and filed a list and remonstrance with the city clerk, which list and remonstrance were considered by the council on the application of the appellant for a license at 404 Oak street, and the matter referred to the license committee appointed by the common council, which committee reported, and their report was confirmed by the common council and the license granted to appellant. A great many errors are assigned and argued by counsel for appellant which were not considered or determined by [246] the court below, and which, as we view the case, are not necessary to be considered or decided here. It appears from the return of the city clerk to the writ of certiorari that the license committee to whom was referred the remonstrance and list of parents and lawful guardians of children enrolled in the public school the grounds of which are within 300 feet of the building situate at 404 Oak street, wherein the respondent had applied for a license, found that the list presented did not contain a list of all the parents and lawful guardians of children enrolled as pupils in the school situated on the high school grounds; that the list and remonstrance contained names of divers persons called or calling themselves guardians who were not in fact the lawful guardians of the respective children mentioned therein; and that the names on the list and signatures to the remonstrance of the persons so appearing as parents of children not enrolled or as guardians of children of whom they are not lawful guardians should not be counted; that the list presented does not contain the names of all parents and lawful guardians in the seventh and eighth grades of said school, containing in the aggregate 170 pupils whose parents and guardians do not appear on such list. The committee further found that the remonstrance did not comply with the statute and was not signed and acknowledged by a majority of all parents and lawful guardians of children enrolled as pupils in said school; that there were approximately 638 parents of children so enrolled, and the highest number of signers to the remonstrance was 263. This report was confirmed by the council, as appears from the return, after due consideration and after hearing the respondent in support of the remonstrance. There is substantially no dispute on the facts, and the only question which it is necessary to consider on this appeal is whether the list and remonstrance were sufficient. This inquiry involves the construction of the statutes as to what constitutes a school. If the pupils in both the high [247] school and tbe grades constitute tbe school contemplated by the statute, then it is established by the record that neither the list nor the remonstrance was in compliance with the statute. If, on the other hand, either the grade school or the high school constitutes a school within the statute (a point we do not decide), then it is equally clear that there was no compliance with the statute, for the reason that it does not appear that all the parents and guardians of pupils in either of such schools are included in the list, or that a majority of all the parents and guardians of pupils in either school signed the remonstrance. The learned trial judge below held that the phrase “public school” in the statute means a school maintained in one public school building, and that a majority of all parents and guardians of pupils in the high school building signed the remonstrance; therefore the common council was without authority to grant the license to the appellant. We cannot agree with the learned court below in this regard. The limits of a school building do-not necessarily constitute the limits of a school. Parts of different schools may be in the same building, or one school may occupy two or more buildings. There were in this high school building high school pupils and grade school pupils. As we have before •observed, if all of the pupils constituted but one school, clearly the list and remonstrance were insufficient, and if there were two schools it is not material whether pupils of such schools were in one building or in two; they would still continue to be two schools or separate institutions. A school is defined to be “an institution of learning of a lower grade, below a college or a university. A place of primary instruction. The term generally refers to the common or public schools, maintained at the expense of the public.” Black, Law Diet. “School is a generic term, and denotes an institution for instruction or education.” American Asylum v. Phoenix Bank, 4 Conn. 172; 7 Words & Phrases, 6343. The word “school” is applied to institutions which are con [248] fined to some special grades of instruction. Comm. v. Banks, 198 Pa. St 397, 48 Atl. 277. A school or institution of learning is not measured by the walls of a building. It may occupy one building or it may occupy two or more. So we think the trial court was in error when it held that the high school building and the pupils therein constituted a school within the meaning of the statute. We do not decide here whether all the pupils in the different departments of the school on the school grounds constituted but one school, because it is unnecessary to the decision of the case. But if there be more than one school on the grounds, which schools are attempted to be covered by the list and remonstrance, it is clear from the record that no school has complied with the law. Some points are made by counsel for respondent and which were not passed upon by the court below, respecting sufficiency of publication of the application of appellant for a license, approval of the bond under ck. 336, Laws of 1909, and the regularity of the proceeding by the common council to determine the issues raised by the application and the remonstrance. We do not find that the respondent was prejudiced by any of -the alleged irregularities complained of, even if he could raise them here. It follows that the judgment of the court below must be reversed. By the Court. — The judgment of the court below is reversed, and the cause remanded with directions to quash the writ.