City of Chicago v. Shayne

• Decision Date: 06 January 1964
• Docket Number: Gen. No. 49170
• Citation: 196 N.E.2d 521,46 Ill.App.2d 33
• Court: United States Appellate Court of Illinois
• Parties: CITY OF CHICAGO, a Municipal Corporation, Appellee, v. Herman O. SHAYNE et al., Appellees. The CHICAGO CITY BANK & TRUST COMPANY, Trustee, Trust #4462, Appellees, v. Francis S. LORENZ, Treasurer of Cook County, et al., Third-Party Defendants In Condemnation. Irving L. BUTLER and Willie Mae Atkinson, Appellants, v. CHICAGO CITY BANK & TRUST CO., etc., et al., Appellees. Action in Trespass.

Page 521

196 N.E.2d 521

46 Ill.App.2d 33

CITY OF CHICAGO, a Municipal Corporation, Appellee, v.Herman O. SHAYNE et al., Appellees.

The CHICAGO CITY BANK & TRUST COMPANY, Trustee, Trust #4462, Appellees, v.Francis S. LORENZ, Treasurer of Cook County, et al.,

Third-Party Defendants In Condemnation.

Irving L. BUTLER and Willie Mae Atkinson, Appellants, v.CHICAGO CITY BANK & TRUST CO., etc., et al., Appellees.

Action in Trespass.

Gen. No. 49170.

Appellate Court of Illinois, First District, First Division.

Jan. 6, 1964.

Rehearing Denied Feb. 18, 1964.

Royal E. Spurlark, Jr., Chicago, for appellants.

John C. Melaniphy, Corp.Counsel of the City of Chicago, Sydney R. Drebin, Marsile J. Hughes, Chicago, of counsel, Samuel W. Block, Thomas W. McNamara, Chicago, Thompson, Raymond, Mayer & Jenner, Chicago, of counsel, for appellees.

MURPHY, Justice.

This appeal arises from a consolidation of two cases in the trial court--an action for trespass commenced by appellants and a third party proceeding in a condemnation action, in which appellants were the third party defendants.In the trespass action, a $4,000 verdict and judgment was entered in favor of appellants and against the City of Chicago.In the third party defendant proceeding, the court directed a verdict against appellants for lack of proof of any fair market value of their leasehold interest.Appellants' appeal to the Supreme Court, on the ground of the invalidity of a statute, was transferred to this court.

On December 12, 1955, appellantsIrving L. Butler and Willie Mae Atkinson entered into a lease with the Chicago City Bank & Trust Company, as trustee, for the rental of two floors at 1351 East 47th Street, to be used as a restaurant and tavern.The period covered by the lease was from June 1, 1956, to May 31, 1961(without renewal privilege), at a rental of $250 a month until May 31, 1958, and $300 a month thereafter.

On August 25, 1960, the City of Chicago filed condemnation proceedings in the Superior Court of Cook County to condemn the building as part of a renewal plan.Appellants were not named, served, or represented in the condemnation case, in which a jury awarded the bank, as fee owner, the sum of $135,000 for the whole property.The City took possession of the property on January 31, 1961, by depositing the award with the County Treasurer.

On February 9, 1961, appellants ceased doing business pursuant to notification by the City that they would have to close their tavern, in compliance with the Liquor Control Act(Ill.Rev.Stat.1959, Ch. 43, p130), which provides in part:

'No alcoholic liquors shall be sold or delivered in any building belonging to or under the control of the State or any political subdivision thereof; * * *.'

On May 18, 1961, appellants moved their property from the premises and surrendered their keys to the Community Conservation Board.They filed a claim with the Board for $2,611.01 for moving expenses and loss of fixtures and equipment and were allowed $2,496.18 on their claim, which amount was either paid them or disbursed at their request and direction.

On February 16, 1961, appellants filed a complaint in trespass in the Circuit Court of Cook County, seeking damages of $250,000 for the wrongful taking of their business, against the City of Chicago and others.On March 16, 1961, by petition, the Chicago City Bank & Trust Company, a defendant in the Superior Court condemnation proceeding, made appellantsthird party defendants in that proceeding, seeking an adjudication of appellants' claim, as tenants, to share in the condemnation award.Subsequently, both matters, by order of the Circuit Court, were consolidated for trial in the Superior Court.No objection to the consolidation order appears of record.

The consolidated cases were tried before a jury.In the condemnation matter, the trial judge directed a verdict in favor of the bank, as fee owner, because of lack of proof of any fair market value of appellants' leasehold interests.In the trespass action, all parties except the City were dismissed before the commencement of the trial, and the jury returned a verdict of $4,000 against the City, upon which judgment was entered.This appeal followed.

Appellants' substantive contentions are: (1) that the condemnation did not terminate the lease and their contract right to operate a tavern was violated; (2) that the $4,000 verdict in the trespass action was grossly inadequate; (3) that the court erred in directing a verdict in the third party defendant proceeding; and (4) that they were prejudiced by trial errors and the consolidation of the actions.

We consider, initially, appellants' contention that they had a vested property right in the operation of a tavern in the leased premises, which right was violated by the City's entrance on the premises.The nature of a license to sell liquor is stated in Hornstein v. Liquor Control Com., 412 Ill. 365, 369, 106 N.E.2d 354, 357(1952):

'The statute provides: 'A license shall be purely a personal privilege, * * * and shall not constitute property, * * *.'(Ill.Rev.Stat.1951, chap. 43, par. 119.)The right to deal in intoxicating liquors is not an inherent right, but is always subject to the control of the State in the legitimate exercise of its police power.* * * Legislation with respect to liquor traffic does not come within the protection of the fourteenth amendment to the Federal constitution unless it is apparent that its real object is not to protect the community or to promote the general well-being but, instead, under the guise of police regulation, to deprive the owner of his liberty or property without due process of law.'

A license to sell liquor is not a contract and creates no vested rights.It is merely a temporary permit to do what would otherwise be an offense against the law.(Schreiber v. Illinois Liquor Control Com., 12 Ill.2d 118, 122, 145 N.E.2d 50(1957).)It is a condition of the license that summary action may be taken, if necessary.This applies in the present situation where the City terminated the liquor business in a summary fashion.The privilege of being in the liquor business was derived from the license and not the lease, and no contractual obligation under the lease was impaired by the City action.

In the trespass action, the City recognizes that it 'exceeded its rights in extending the closing order to the barbecue business,' but maintains plaintiff's use was curtailed only for the remaining term of the lease--four months.The City contends that the jury verdict of $4,000 is within the range of the damages established by appellants' evidence--a net income of approximately $1100 a month for 1960, or $4,000 for the period involved.

The appellants argue, however, that the City's trespass warranted submission of exemplary damage instructions to the jury.The purpose of exemplary damages is not the compensation over and above actual damages sustained but to deter the commission of other acts.Exemplary damages are not a favorite in the law and will be allowed with caution and confined within narrow limits.Exemplary damages are recoverable only when the conduct is accompanied by aggravating circumstances, such as wantonness, willfulness, malice, fraud, or violence.(I.L.P., Damages§ 132.)It is within the court's discretion to make this determination, and we find no abuse of that discretion here.

As to the third party proceedings, appellants contend that the City failed to notify and join them as parties having right, title, or interest...