Theurer v. People ex rel. Deneen

• Citation: 211 Ill. 296,71 N.E. 997
• Parties: THEURER v. PEOPLE ex rel. DENEEN.
• Decision Date: 24 October 1904
• Court: Supreme Court of Illinois

211 Ill. 296

71 N.E. 997

THEURER

v.PEOPLE ex rel. DENEEN.

Supreme Court of Illinois.

Oct. 24, 1904.

Appeal from Appellate Court, First District.

Information in the nature of quo warranto by the people, on the relation of one Deneen, to contest the validity of a dramshop license issued to Joseph Theurer. From a judgment of the Appellate Court affirming a judgment of ouster, respondent appeals. Affirmed.James J. Kelly, for appellant.

Charles S. Deneen, State's Atty.

(Church, McMurdy & Sherman, of Counsel), for appellee.

HAND, J.

This was an information in the nature of a quo warranto, filed by the state's attorney of Cook county against Joseph Theurer, to test the validity of a dramshop license issued by the mayor of Chicago, under which said Joseph Theurer was carrying on a saloon known as the Edelweiss Garden, at No. 5052 Cottage Grove avenue, in said city. A plea and replication were filed, and, by agreement, the case was tried by the court without a jury, which resulted in a judgment of ouster, which judgment has been affirmed by the Branch Appellate Court for the First District, and Joseph Theurer has prosecuted an appeal to this court.

The premises where the saloon was kept are located outside of the prohibition district in that part of the city which was formerly a portion of the village of Hyde Park, and under the ordinances of said village remaining in force after annexation, as construed by this court in Harrison v. People, 195 Ill. 466, 63 N. E. 191, it was necessary that a majority of the property owners upon both sides of the four streets surrounding the block in which the saloon was to be kept, also a majority of the bona fide householders and persons or firms living in or doing business on each side of the street in the block upon which the saloon shall have its main entrance, should sign an application in writing for said dramshop license, and the question here presented for decision is, was said application signed by the requisite number of owners of property upon the several streets surrounding the block in which said saloon was to be kept?

There are 4,640.19 feet of frontage on both sides of the four streets which surround the block in which said saloon was to be kept; the owners of 1,957.34 feet of which signed the application. Included in said 4,640.19 feet of frontage are 80 feet of frontage located upon the east side of Cottage Grove avenue and 905.35 feet of frontage on Fifty-First street, which form a part of Washington Park, and are under the control of the South Park Commissioners; and the contentionis made by appellant that that portion of said frontage should not be counted in determining the amount of frontage, the signatures of the majority of the owners of which was necessary to the application before a dramshop license could lawfully issue. The ordinance provides the ‘application shall be signed by a majority of the property owners, according to frontage, on both sides of the street in the block,’ etc. It is clear, we think, that all the frontage on both sides of the street in the block must be counted in determining the amount of frontage for which signatures must be obtained. It is said, however, that the park commissioners have no legal right to sign for the park frontage, and it is urged for that reason that frontage should be eliminated in determining the number of feet of frontage for which signatures of a majority must be obtained. If the contention of appellant that said commissioners have no power to sign for said property be conceded to be sound, we do not think it follows that the park frontage should not be considered in determining the amount of frontage for which signatures must be obtained. If a portion of the frontage belonged to a minor or a lunatic, such owner would have no legal right to sign the application for a dramshop license by reason of his minority or mental incapacity, but because of his nonage or insanity his frontage could not lawfully be eliminated from the total amount of frontage upon the four streets surrounding the block in which the dramshop was to be kept, but would be required to be considered. So, here, the park frontage must be taken into consideration in determining the amount of frontage for which the signatures of owners must be obtained.

We do not, however, think the contention correct that the park commissioners have no legal power to sign for the park frontage. The legal title to all park lands is in the commissioners. In People v. Salomon, 51 Ill. 37, it was said (page 52): ‘It is argued that this park property belongs to these commissioners as a corporation. This is so by the terms of the act. They hold the fee, but the usufruct is in the public; but holding it, they hold it as a public corporation for public purposes.’ The park board was created by an act of the Legislature approved February 24, 1869, as amended April 26, 1869, by which it is provided that all lands acquired by said commissioners shall be held, managed, and controlled by them and their successors as a public park, for the recreation, health, and benefit of the public, free to all persons forever; and it is also procided they shall have full and exclusive power to govern and manage said park, to lay out and regulate the same, to pass ordinances for the regulation and government thereof, and that said commissioners shall possess all the power and authority over said park now by law conferred upon the city council of the city of Chicago, in respect to public squares and places in said city. The powers thus conferred upon said commissioners over the real estate of the park, it will be observed, are very broad. It is the duty of the commissioners to improve and beautify said lands, and to make the park a safe and pleasant place for the resort of the entire community, and it is not unreasonable to hold that they are interested in protecting the park and the public who resort thereto from surroundings which may be unwholesome, obnoxious, or dangerous.

In Dexter v. Sprague, 22 R. I. 324, 47 Atl. 889, a statute provided that no license for the sale of liquor should be granted, where objections were filed by the owners or occupants of the greater part of the land, within two hundred feet of the place for which license was asked. It was held that the city of Providence was the owner or occupant of Roger Williams Park within the meaning of that statute. The court said: ‘Its control of the park for the purposes of this act was as complete as that of any owner of land. As a public resort the city has a peculiar interest in the surroundings of the park, and clearly should have the right to object to the locating of liquor saloons in the vicinity.’

In Paterson Railroad Co. v. Mayor, 24 N. J. Eq. 158, the statute required that parties seeking to lay a railway in any street should first obtain permission, for the purpose, of a majority of the owners of property fronting on the streets or avenues through which they proposed to lay the railway, and also of the mayor and aldermen of the city. A public park fronted on the route of the proposed road. It had been dedicated to public use by its previous owners, to be an open or public square or common forever, and was within the control of the city and the city authorities. The city had passed an ordinance authorizing the laying of the tracks, and it was held that this operated as an expression of its consent both as a municipal authority and as owner of the park. The court said: ‘The Legislature, in thus requiring the consent of the majority of the property owners, intended merely to make it a matter of choice with them whether the railroad should be laid or not. The city, in reference to the square, is an owner, within the meaning of the act. It is the duty of the city authorities, and they are the proper persons, to judge as to whether the railway in the street would be prejudicial to the public property or otherwise-and that, too, in regard to property dedicated to public use as well as to public property, the fee whereof is in the corporation.’

We think it clear that the South Park Commissioners, for the purpose of giving consent to the granting of a dramshop license authorizing the keeping of a saloon upon property abutting upon a street which adjoins park property, is an owner, within the meaning of said ordinance, and that the park frontage upon Cottage Grove avenue and Fifty-First street must be considered in determining whether the application filed by the appellant was signed by a majority of the property owners, according to frontage, upon the four streets surrounding the block in which the said dramshop was to be kept.

It appears from the record that Thomas Conlin, one of the signers of the application,...