People ex rel. Conlon v. Mount

• Decision Date: 19 October 1900
• Citation: 186 Ill. 560,58 N.E. 360
• Parties: PEOPLE ex rel. CONLON v. MOUNT Mayor of Joliet.
• Court: Illinois Supreme Court

186 Ill. 560

58 N.E. 360

PEOPLE ex rel. CONLON

v.MOUNT Mayor of Joliet.

Supreme Court of Illinois.

Oct. 19, 1900.

1. Under Dramshop Act June 15, 1883, § 1, declaring it unlawful for cities to grant a dramshop license, except on payment in advance of such sum as may be determined by the city authorities, not less than at the rate of $500 per annum, and the city and village act, empowering the city council to license the sale of liquor, and to determine the amount to be paid for the license, an ordinance which does not require the fee to be paid in advance, or fix the amount to be paid, but merely provides for issuance of license on payment at a rate that may from time to time be established, is invalid.

2. The power given the city council by City & Village Act, art. 5, § 1, pars. 4, 46, to license the sale of liquor, and fix the amount, terms, and manner of issuing licenses, can be exercised only by ordinance, and not by resolution; article 3, § 1, providing that the city council shall consist of the mayor and aldermen, and the mayor being given power by article 3, § 18, to veto ordinances, while mere resolutions do not need to be submitted to the mayor for his approval.

3. City & Village Act, art. 5, § 1, par. 46, empowering city councils to license the sale of liquor,-the license not to extend beyond the year in which it is granted,-and to determine the amount to be paid for such license, does not require that the amount of the license be fixed every year, but the amount so fixed will so remain till changed.

4. An ordinance cannot be repealed or modified by a mere resolution.

5. An invalid part of an ordinance cannot repeal another ordinance.

6. An ordinance, the subject-matter of which is the granting of licenses and the conditions imposed on those desiring to sell intoxicating liquors, is not inconsistent with, so as to repeal, one the subject of which is the rate to be paid by such parties for the privilege.

Appeal from appellate court, Second district.

Mandamus by the people, on the relation of William Conlon, against John B. Mount, mayor of Joliet. From a judgment of the appellate court (87 Ill.App. 194) affirming a judgment denying the writ, relator appeals. Affirmed.

This is a petition filed on July 7, 1899, by the people, upon the relation of William Conlon, for a writ of mandamus to compel appellee, as mayor of the city of Joliet, to sign a dramshop license. The respondent filed his answer, setting forth the reasons why he refused to sign said license. Issues were joined, and a jury was waived. The court, having heard the proofs, found for the respondent, and denied the writ, and rendered judgment against the relator for the costs. An appeal was taken from the judgment of the circuit court to the appellate court, and the judgment of the circuit court was affirmed by the latter court. The present appeal is prosecuted from such judgment of affirmance.

The petition for mandamus recites that the city of Joliet is incorporated under the general laws of the state, and authorized by its charter to license and regulate the sale of intoxicating liquors; that before filing the petition the city had adopted an ordinance in regard to the sale of intoxicating liquors, providing therein that licenses should be granted to applicants upon their complying with certain specified requirements, and “paying for such license for the use of said city at a rate that may be from time to time established per annum”; that since July 1, 1892, and before the beginning of each municipal and fiscal year, the city council has regularly established the dramshop license fee for each of said years, as provided by said ordinance; that on June 26, 1899, the city fixed by resolution said license fee for the year commencingJuly 1, 1899, and ending June 30, 1900, at the sum of $500; that on June 27, 1899, the relator petitioned the city council to grant him a license to keep a dramshop for the municipal and fiscal year beginning July 1, 1899, and filed with the city clerk two dramshop bonds, conditioned as required by the ordinance of the city and the laws of the state, which bonds were approved by the city council; that on July 1, 1899, relator paid to the city treasurer the sum of $500 as a license fee, taking the treasurer's receipt therefor; that he presented this receipt to the city clerk, and made demand upon him for a dramshop license; that the clerk thereupon prepared and countersigned a license in the form prescribed in the ordinance, authorizing the relator to conduct a dramshop from July 1, 1899, to July 1, 1900; that relator presented said license and receipt to the appellee, and requested him, as mayor, to sign said license, but that appellee (the respondent below) refused to sign the same; that by the ordinances of the city no license shall be granted for a longer period than one year, and all licenses shall be signed by the mayor and countersigned by the city clerk under the corporate seal; that it was the duty of the appellee to sign said license; and that his refusal so to do was unlawful and illegal. The answer of the appellee based his refusal to sign the license upon the grounds that the city council was not authorized and empowered to fix or establish the license fee to be paid by dramshop keepers for the municipal and fiscal year beginning July 1, 1899, by mere resolution or motion; that if the council could lawfully fix such license fee by resolution or motion, and did do so on June 26, 1899, then such resolution was a legislative act, and was subject to the veto of the mayor; that said resolution was subsequently vetoed by the appellee, as mayor, at the time and in the manner prescribed by the charter of the city, and was not passed over such veto, nor was any attempt made to pass it over such veto in the manner provided by law; that, at the time of the adoption of said resolution fixing the license fee at $500, there was in full force an ordinance, numbered 796, entitled “An ordinance concerning dramshop licenses,” passed by the city council of the city of Joliet on the 27th day of June, A.D. 1889, and approved by the mayor of said city on the 28th day of June, A.D. 1889, which fixed the license fee at the sum of $1,000 per annum, payable in advance; that said Ordinance No. 796 has continued in force from the date of its approval, and is in full force and effect, and in no manner repealed, superseded, or otherwise vacated; and that relator's bond was not, and never had been, approved in the manner provided by section 5 of the dramshop act.

The facts, as shown by the pleadings and proofs in the case, are substantially as follows:

The city of Joliet is organized under the general incorporation act of 1872. It has seven wards and fourteen aldermen, two being elected from each ward. In 1884 the ordinances of the city were revised, and by chapter 25 of such revision the city council was authorized to grant a license to keep a dramshop to any person applying therefor in writing, upon such person complying with certain requirements therein set forth, “and paying for such license for the use of the said city at a rate that may be from time to time established per annum.” On June 27, 1889, said Ordinance No. 796 was adopted, and on the next day approved by the then mayor of the city, and is as follows:

“An ordinance concerning dramshop licenses.

“Be it ordained by the city council of the city of Joliet:

“Section 1. That the dramshop license of said city is hereby fixed at $1,000.00 per annum payable in advance.

“Sec. 2. All ordinances and parts of ordinances in conflict herewith are hereby repealed.”

In 1891 the ordinances of the city were again revised. Chapter 33 of the revision of 1891 was entitled, “IntoxicatingLiquors;” and, among other things, it authorized the city council to grant a license to keep a dramshop to any person applying therefor in writing, upon such person complying with certain conditions and requirements therein prescribed, “and paying for such license for the use of the said city at a rate that may be from time to time established per annum.” The provision in regard to the payment of a license fee was the same as that in the revision of the ordinances made in 1884.

The revision of 1891 contained, also, the following section: “All ordinances of the city of Joliet heretofore passed in relation to the subject-matter of or inconsistent with any of the provisions of the following chapters [naming them, chapter 33 included] be and the same are hereby severally repealed.” On June 27, 1892, the committee on licenses, to whom had been referred the several applications for dramshop licenses, made a report, which was adopted, and recommended that such applicants “be granted licenses and bonds approved upon their paying into the city treasury the sum of $1,000.00.” On June 28, 1893, said committee made a report, which was adopted, recommending that licenses be issued to the applicants therein named on their “complying with the ordinance.” On July 2, 1894, the following resolution was adopted: “Resolved, that the dramshop license for the fiscal year commencing July 1, 1894, is hereby fixed at $1,000.00, payable in advance.” On June 27, 1895, said committee made a report, which was adopted, directing the mayor and city clerk to issue licenses to the applicants therefor therein named “upon payment into the city treasury of the license fee of $1,000.00 each.” On June 29, 1896, a resolution was adopted by the council fixing the license fee at $1,000 per annum, payable in advance. On June 30, 1897, said committee made a report, which was adopted, authorizing and instructing the mayor and clerk to issue licenses to certain applicants upon their paying into the city treasury the license fee of $1,000. On June 27, 1898, the same committee made a similar report, which was adopted, recommending the issuance of licenses upon the payment into the city treasury of a license fee of $1,000. On June 26,...