State ex rel. Owen v. Schotten

Vinje, J. The defendant contends that the village council had the power to, and did on August 3d, correct the minutes of the regular meeting of June 19, 1916, to correspond with- the fact that defendant was granted the second license. Assuming that the language of the motion is adequate to express the fact that an error was made in the original minutes and that such error was corrected to correspond to the fact, namely, that the second license was granted to the defendant; and assuming further that the motion' was carried, — an assumption negatived in Oconto Co. v. Hall, 47 Wis. 208, 2 N. W. 291, — we are of the opinion that the council had no power to make such correction because the rights of third parties had intervened and would be prejudicially affected by such correction. The original minutes showed that Mr. White was voted the second license and the evidence shows a license was issued to him. On July -6, 1916, the minutes of the meeting of June 19th were read and approved, and no effort was made to correct them till August 3d, after this action was begun. In the meantime Mr. White, relying upon the fact that the minutes correctly showed that he was granted the second license, paid for it, and presumably has operated under it. Should the minutes be permitted to be corrected as it is claimed they were, he would be subject to the penalties prescribed for run [91] ning a sajoon without a license, if only two licenses could be legally granted by the village. He would thus not only lose bis license fee, but would be subject to severe penalties, not through any fault or neglect on his part, but solely because he was led astray by a record upon which he had a right to rely. Dillon states the rule thus: “The council, unless private rights have attached, may, doubtless, order the record of its own proceedings, even after it has once been approved, to be corrected according to the facts. But if third parties have acted in reliance upon the record, and private rights have accrued thereunder, the rec- ■ ord cannot be amended.” 2 Dillon, Mun. Corp. (5th ed.) § 554; Sawyer v. M. & K. R. Co. 62 N. H. 135; California Imp. Co. v. Moran, 128 Cal. 373, 60 Pac. 969; New Haven, M. & W. R. Co. v. Chatham, 42 Conn. 465. Defendant further contends that under the proviso in see. 1565d, Stats: 1915, three valid licenses could be issued notwithstanding the fact that no licenses were issued for the year ending July 1, 1916, since three valid licenses had been issued by the village before it voted dry in 1915. The claim is that a vote of no license for a year or more and the failure to grant licenses during a no-license period does not constitute a lapse within the meaning of the proviso of sec. 1565d so as to bring the number back to that prescribed in the first part of the section, viz. one license for every 500 inhabitants or fraction thereof. The claim is not well founded. As explained in the cases of State ex rel. Marvin v. Larson, 153 Wis. 488, 140 N. W. 285; Zodrow v. State, 154 Wis. 551, 143 N. W. 693; and Koch v. State, 157 Wis. 437, 147. N. W. 366, the purpose of the proviso was to protect existing saloon business in such a way as to create as little hardship thereto as possible and at the same time provide a method for reducing the number of saloons to the ratio prescribed in the first part of the section. A saloon that has been out of business for one year, -due to the inability to secure a valid license, is no longer an existing business. It [92] needs no protection because it has no existence. It was not the object of the statute to foster or create new business beyond the limit of the ratio. On the contrary, it sought to reduce the number down to the ratio limit as speedily as possible without disturbing existing business. A vote of “no license” destroyed all the saloon business for a year. At the end thereof there was no existing business to invoke the aid of the proviso. If a no-license vote of one year did not have this effect, then a no-license vote for ten years or more would not have it. Since the defendant is unable to show an existing business entitled to the protection of the statute, he fails to show that a valid license was issued to him, for confessedly the village could grant but two valid licenses under the ratio limit. By the Court. — Judgment affirmed.