Churchill v. Herrick , 32 Wis. 357 ( 1873 )

Lyon, J.

The general excise law of the state (R. S., ch. 35), which, by its terms, is applicable to cities as well as to villages and towns, provides that in counties where the county system of supporting paupers has been adopted, all moneys received for licenses granted under the provisions of that chapter, to sell spirituous or intoxicating liquors or drinks, shall be paid into the county treasury, and applied solely for the purpose of paying the pauper expenses of such counties. (Sec. 16.) In the county of St. Croix the county system of supporting paupers had been adopted, and was in operation when the license moneys in controversy were received and paid over to the county treasurer. Hence the moneys belong to the county, unless there is some law, enacted since the Revised Statutes, which takes away its right thereto. It is claimed on behalf of the appellant that there are two such enactments which give these moneys to the city of Hudson.

1. The charter of that city, as revised and consolidated in 1867, confers upon the common council of the city the power, by ordinance, resolution or by-laws, to license and regulate “groceries, taverns, lager beer saloons, victualling houses, and all persons vending, dealing in, or disposing of spirituous, vinous, inalt or fermented liquors.” P. & L. Laws of 1867, ch., Ill, sub-ch. IV., sec. 8. It is argued that this provision of the charter is repugnant to the general excise law, and repeals it by implication so far as it relates to the city of Hudson; and that, therefore, the moneys in controversy were not derived from licenses granted under the provisions of the general excise law of the state, but from licenses granted under the above provisions of the city charter.

But we think the charter in this respect is not repugnant to the general law. The latter confers the power to grant licenses for the sale of spirituous, strong, ardent or intoxicating liquors or drinks, upon the aldermen of cities, while the charter provides that the common council (which is composed of the aldermen) may do so by ordinances, resolutions or by-laws. That is to say, the general law grants the power, and the charter prescribes the manner in which it may be exercised. After careful examination of such charter, we are entirely unable to find in it any evidence that the legislature intended thereby to exempt the city of Hudson from the operation of the general excise law of the state.

2. It was provided in the original charter of the city of Hudson, that The treasurer shall receive all moneys belonging to the city.” This refers to the city treasurer. P. & L. Laws of 1857, ch. 275, sub-ch. III., sec. 6. The corresponding provision in the charter of 1867 is as follows: “ The treasurer shall receive all moneys belonging to the city, including license money and fines."

It is insisted that this change of phraseology indicates an intention by the legislature to give the license moneys in controversy to the city, and that such is the effect thereof, even though such moneys were paid for licenses granted under the general excise law. Ye think otherwise. Ye are acquainted with no rule of statutory construction sufficiently broad to sustain the position of the counsel for the city. His argument is, that unless the last provision of the charter be construed to give these license moneys to the city, the words “ including license money and fines ” are inoperative and meaningless. This is not necessarily so. The common council has power to grant licenses for a great many purposes other than the sale of liquors, and to charge and collect fees therefor, which would belong to the city. Perhaps also fines imposed by the police justice for the violation of certain city ordinances may belong to the city (unless the provisions of art. X., sec. 2, of the constitution, are in the way). All such licenses would ordinarily, if not necessarily, be issued by the city clerk, who is the custodian of the records of the proceedings of the council and of the corporate seal of the city, and, in the absence of any provision on the subject in the charter, the fees for licenses would doubtless be frequently, perhaps usually, paid to the clerk when he issued the licenses. Now the change in the phraseology of the charter may have been made for the purpose of settling beyond question tbe right of the city treasurer to the custody of license moneys belonging to the city. The above observations apply also to cases of fines belonging to the city, which have been paid to the police justice, if any fines can belong to the city under the above provision of the constitution.

But were we unable to suggest a plausible reason for the change in the phraseology of the charter in the particular under consideration, it would be difficult, we apprehend, to find a rule of statutory construction which will justify us in holding that such change operates to deprive the county of an important source of revenue, and to bestow it upon the city.

It results from the foregoing views, that the judgment of the circuit court should be affirmed.

By the Court. — Judgment affirmed.