(Dissenting). The majority opinion gives Wisconsin’s local legislative bodies the green light to restrict competition in the retail liquor business by granting a monopoly to the politically powerful liquor store owners and placing them behind the impenetrable protective shield of the virtually irrebuttable presumption of the constitutionality of an ordinance regulating the sale of liquor. Because I believe the shield raised to defend the ordinance in question protects that which is not worthy of protection, I dissent. Specifically, I assert that section 90-25.1(2) of the Milwaukee City Code of Ordinances, requiring a holder of a Class “A” liquor license to receive at least one-half of its income for the premises from liquor sales, creates an irrational and *224arbitrary classification and is therefore both an unreasonable and arbitrary exercise of police power and a denial of equal protection of the law.
The sale of liquor falls within the class of business pursuits that is considered intrinsically harmful to the public welfare. This type of business is ordinarily subjected to more stringent requirements than can be applied to more innocuous pursuits.1 However, conceding this, as well as that in considering classifications courts are obligated to give the law the benefit of the doubt and the burden of proving the unconstitutionality of the law beyond a reasonable doubt is upon the challenger,2 the question still remains whether the ordinance involved is so unreasonable and arbitrary as to offend the constitution.
An ordinance regulating business under the police power must be directed toward the protection of a basic interest of society rather than to the advantage of certain individuals or businesses.3 In Affiliated Distillers Brands Corp. v. Sills4 the court addressed the issue of the constitutionality of a statute that prohibited any manufacturer or wholesaler of alcoholic beverages from participating directly or indirectly in the retailing of alcoholic beverages. Before addressing the merits the court recognized that the legislation in question was the product of the self-interest of the state Wine and Spirit Wholesalers Association and, although this fact alone does not render the legislation invalid, “ [i] t does seem to be a matter of common sense to weigh more critically a legislative result produced by a small, selfish and pow*225erful group than a statute resulting from a broad public demand.”5
In Affiliated Distillers, the court noted that:
[the] alcoholic beverage industry is in private hands. It is basic with us that, though subject to controls, it be competitive, not monopolistic. Competition per se is not an evil. Though there may be too many'bars for the reasonable needs of a given community, the essence of the evil there is the excessive number, and for proper correction there should be a reduction to a point where reasonable competition will be restored. We have no excessive competition at the wholesaler-retailer level. The numbers already mentioned and the heavy concentration of the business in the hands of a few licensees show that. There is no public good in sheltering a small group of licensees from the competition which our system dictates they should face.6 [Emphasis added.]
I agree with the posture taken by the Affiliated Distillers court.
Section 90-25.1(2) does not attempt to limit the number of licenses which can be issued in an effort to control the amount of alcoholic beverages sold in Milwaukee. Nor does it altogether prohibit the sale of alcohol in certain areas of the city to protect those areas from the presence of alcohol. Such nondiscriminatory legislation might be permissible as rationally related to the public welfare. Rather, the ordinance simply prohibits an entire class of businesses from selling alcoholic beverages.
In Eskind v. City of Vero Beach,7 the Florida Supreme Court struck down an ordinance prohibiting the display of outdoor rate signs by operators of lodging accommodations. The ordinance was supposedly designed to protect the attractive appearance of the area, but had the *226curiously coincidental effect of preventing smaller, cheaper hotels (whose appeal is low rates) from competing with larger, more expensive hotels for tourist business. The court found that there was no rational reason to prohibit motel signs advertising rates but permitting other kinds of ads.
The employment of the police power will not be upheld when its exercise imposes an unreasonable restriction on private business on the pretense of promoting the community interest.
. . . [T]he subject ordinance is nothing less than an attempted exercise of the police power to restrict competition between favored and unfavored segments of the same business activity.8
The validity of the ordinance in question here, both from a police power and equal protection standpoint, rests on the rationality of the classification: those businesses whose liquor sales amount to one-half of its income for the premises; and, those businesses whose liquor sales amount to less than one-half of its income for the premises. Whether one views this as a “rational” distinction in terms of the general welfare depends upon one’s acceptance of the magical premise that those who make more than one-half of their income from liquor sales are more likely to comply with liquor laws than those who make less than one-half of their income from liquor sales. This premise is entirely without support, but by accepting it without question, the majority is able to uphold an ordinance obviously designed to protect the liquor store owner from competition from grocery stores. Under this theory, a similar ordinance might be passed to protect bakeries and butcher shops, if the necessary political influence exists. Is a butcher shop owner more likely to comply with laws regulating the sale of fresh meat than a grocery store owner? Grocery *227stores do not have sufficient interest in any one item sold to overcome the presumption under this theory that they are less likely to comply with laws regulating the sale of various items than certain specialty shops.
In my view section 90-25.1 (2) is a legislative restriction of competition without justification. It makes a distinction between grocery stores and liquor stores without any supportable rational basis in terms of the general welfare. I believe that the record shows beyond a reasonable doubt that the ordinance is unconstitutional.
See Moedern v. McGinnis, 70 Wis.2d 1056, 1068-70, 236 N.W.2d 240, 246 (1975); 7 E. McQuillin, The Law of Municipal Corporations, (hereafter “McQuillin”) §24.825 (3d ed. 1968 Rev. Vol.).
McGinnis, supra note 1, at 1068, 236 N.W.2d at 246; City of Milwaukee v. Piscuine, 18 Wis.2d 599, 609, 119 N.W.2d 442, 447 (1963).
See 7 McQuillin §24.323.
106 N.J. Super. 458, 256 A.2d 92 (1969).
Id. 256 A.2d at 99.
Id. 256 A.2d at 105.
159 So.2d 209 (Pla. 1963).
Id. at 212.