#### The State ex rel. Schaefer, Respondent, vs. Schroff, City Clerk, Appellant.

*September 30*

October *18, 1904.*

*Intoxicating liquors : ¡License:*Certiorari: *When writ will be issued: Oollateral attach.*

1. Where the record of proceedings of a common council disclosed that the whole proceeding was an inquiry and attempt to decide upon the question whether a license to sell intoxicating liquors was valid originally, or void hy reason of fraud perpetrated upon the council in obtaining it, such proceeding is not an attempt to exercise the jurisdiction conferred upon the council hy sec. 1558, Stats. 1898 (authorizing the revocation of a license, valid at its inception, hut which, hy reason of subsequent misconduct, the council is authorized to recall).

2. In such case, it is not necessary to consider whether the council acquired jurisdiction under sec. 1558, Stats. 1898,, or, by improper proceeding, lost such jurisdiction.

3. Under an ordinance of the city of Racine the consent of certain neighbors was a condition precedent to the granting of a license to sell intoxicating liquors. After the granting of such a license it was assailed because such consents were obtained *99by fraud and misrepresentation, whereupon the council adopted a resolution declaring such license void for those reasons. *Held,*that the license was not invalid hy -reason of such resolution.

4. In such case, the resolution was not subject to review on *certiorari,*since in the absence of any charter or statutory authority for the action of the common council it concluded no one, but'- might be attacked collaterally, and wholly disregarded by the forum in which the validity of the license might be presented for consideration and discussion.

5. A writ of *certiorari*should not issue to revoke the action of a common council when such action is so entirely beyond its jurisdiction as to be innocuous, and if issued should be dismissed upon the' filing of the return.

Appeal from a judgment of the circuit court for Eacine county: E. 33. Belden, Circuit Judge.

*Reversed.*

The relator obtained an ostensible license in July, 1903, to sell liquor in a part of the city of Eacine, -where an existing ordinance required the consent of certain neighbors as a condition precedent. In October it was represented to the council that such consents had been obtained by fraud and misrepresentation, and reversal of their action in granting the license was prayed; whereupon the council caused notice to be given to the relator to appear and show cause why his license should not be declared void for the specified reasons. Thereafter, in December, after some hearing and investigation, the council adopted a resolution that said license “be and is hereby declared void and of no effect, and that the city clerk be and hereby is ordered to notify said *Leonard Schaefer*of the adoption of this resolution, and, further, that the money tendered by said *Leonard Schaefer*will be returned to him.” The relator sued out writ of *certiorari*to review the validity of this -resolution, to which return was made by the respondent as city clerk, showing substantially the situation above stated. The circuit court held, as matter of law, that the council had no jurisdiction or power to declare said license void, except upon the grounds and by the procedure specified by sec. 1558, Stats. 1898, for a revoca*100tion, and'entered judgment reversing, annulling, vacating,, and setting aside tbe resolution of tbe council.

M. *E. Walicer,*for tbe appellant.

For tbe respondent there was a brief bj Kearney, *Thompson &*Myers, and oral argument by W. *D. Thompson.*

Dodge, J.

We deem it entirely plain, upon inspection either of tbe return or petition, that tbe council was in nowise attempting to exercise tbe jurisdiction conferred upon it by sec. 1558, Stats. 1898, to revoke a license, valid at its inception, but which, by reason of .subsequent misconduct, tbe common council is authorized to recall. Tbe petition of neighbors, tbe notice to *Mr.*Schaefer, tbe facts investigated, and tbe final resolution mark an inquiry and attempt to decide-upon tbe question whether tbe license was valid originally, or void by reason of fraud perpetrated upon tbe council in obtaining it. Hence we need not consider whether tbe council acquired jurisdiction to act in revocation of this license under sec. 1558, or, by improper proceeding, lost sucb jurisdiction. Tbe act done was to declare that tbe license was, and always bad been, void. And it may be conceded to tbe relator that there is much in tbe record indicating tbe idea, both on the. part of tbe petitioners and on tbe part of tbe council, that such resolution might have conclusive effect as an adjudication of" tbe invalidity of tbe license. As relator urges, however, there is nowhere in tbe statute or charter any authority given to the-city council to make any such decision. Of course, there is-, an inherent power in tbe city to investigate, and to reach conclusion as to tbe attitude which it will take — whether to contend for tbe invalidity of such a license or not to make such contention; just as there is tbe right in any individual to investigate facts, and make up bis own mind as to bis attitude-with reference to tbe legal validity of an act done by him. But, in absence of some authority of law, tbe city council could go no further. Tbe license was neither more nor less-*101valid by reason of tbe resolution here assailed. Snob resolution concluded no one, and might not only be attacked collaterally, but wholly disregarded by any forum in which the validity of the license might be presented for consideration and decision. To this view both parties accede, and of its correctness we can have no doubt. As a result, however, it is obvious that it does no injury to the relator. It took away no right which he previously had. Its utmost effect was to notify him that the council purposed to contend that his ostensible license was invalid. But, if that question was ever presented in a judicial forum for investigation or decision, his right to have the same tried as an independent and original one was not in any respect affected by the decision. *Cer-tiorari*is a discretionary writ, which should issue only when necessary to prevent injustice or unlawful injury. Courts will not concern themselves, by this extraordinary writ, to declare the invalidity of nonjurisdictional acts when the relator suffers no injury thereby. *Knapp v.*Heller, 32 Wis. 467; *State ex rel. Schintgen v.*Mayor, 101 Wis. 208, 77 N. W. 167. In both of these cases the issue of the writ by circuit -court was reviewe/1, and reversed on the ground that the cases presented failed to show equity in the relator; hence, that the issue of the writ was an abuse of the discretion of the lower ■court. In *State ex rel. Anderson v.*Timme, 70 Wis. 627, 36 N. W. 325, on an application to the original jurisdiction of the supreme court for a writ of certiorari, it was decided that the writ should not be issued, because the action of the land commissioners in investigating and declaring void a land patent was so entirely beyond their jurisdiction as to be wholly innocuous. Complete analogy exists between the action of the land commissioners there considered and the action of the council now before us; at least from the standpoint of the relator. The action in each case was wholly without jurisdiction, could be of no possible force save as the mere gratuitous declaration of the opinion of the body from which *102it emanated, or at most a notification of that opinion and of tbeir intended attitude; in one case toward tbe patent, in tbe other toward tbe license. We deem tbe reasoning of that case conclusive bere — that it would be so needless an exercise of a court’s power to review and pass upon tbe validity of that declaration that no court, in tbe proper exercise of its discretion, should issue its extraordinary writ of *certiorari.*Upon tbe same reasons it became tbe duty of the court, having issued tbe writ, upon being perhaps further enlightened as to tbe situation by tbe return, to have dismissed tbe proceedings.

*By the Court.*— Judgment reversed, and cause remanded ’'"Rh directions to quash tbe writ and dismiss tbe proceedings.