O'Connor v. Rathje

• Decision Date: 09 February 1938
• Docket Number: No. 24409.,24409.
• Citation: 368 Ill. 83,12 N.E.2d 878
• Parties: O'CONNOR et al. v. RATHJE.
• Court: Illinois Supreme Court

368 Ill. 83

12 N.E.2d 878

O'CONNOR et al.

v.RATHJE.

No. 24409.

Supreme Court of Illinois.

Dec. 22, 1937.

As Modified on Denial of Rehearing Feb. 9, 1938.

Action by Anne O'Connor against Frank C. Rathje, successor trustee, and others. From a judgment for the plaintiff, the named defendant appeals.

Cause transferred to the Appellate Court for the First District.Appeal from Superior Court, Cook County; Albert M. Crampton, judge.

Lord, Lloyd & Bissell and Levinson, Becker, Peebles & Swiren, all of Chicago

(Curt H. G. Heinfelden, Benjamin V. Becker, and Don M. Peebles, all of Chicago, of counsel), for appellant.

Jacob Stagman, of Chicago (James C. O'Brien, Jr., and Thomas J. O'Malley, Jr., both of Chicago, of counsel), for appellee Anne O'Connor.

WILSON, Justice.

The plaintiff, Anne O'Connor, instituted an action under article 6 of the Liquor Control Law, generally referred to as the Dram Shop Act, Ill.Rev.Stat.1937, p. 1377, c. 43, § 119 et seq. against Frank C. Rathje, as successor trustee, as the owner of a certain building located at 3439 to 3447 1/2 West Madison street in Chicago. Defendant James A. Murphy, the tenant in possession, and another defendant, Frank McGovern, his business partner, operated a tavern in a portion of the premises where they sold intoxicating liquor. The fourth amended complaint charged that Joseph O'Connor, son of the plaintiff, was killed, while in the tavern by one Richard Rogers who was intoxicated by reason of the consumption of liquor sold to him at the described location. A jury trial resulted in a verdict in favor of plaintiff. The court ordered a substantial remittitur and entered judgment on the verdict, as decreased. Rathje (hereinafter referred to as the defendant) has prosecuted an appeal directly to this court on the ground that the constitutionality of a statute is involved.

The initial question naturally presenting itself for consideration is whether a constitutional question can fairly be said to be involved. Various sections of the Dram Shop Act have been before this court on different occasions and, without exception, their validity has been upheld adversely to the contentions advanced. Garrity v. Eiger, 272 Ill. 127,111 N.E. 753, 738, affirmed 246 U.S. 97, 38 S.Ct. 298, 62 L.Ed. 596;Wall v. Allen, 244 Ill. 465, 91 N.E. 678,18 Ann.Cas. 175. Where a constitutional question has previously been settled by this court, a direct appeal for the purpose of again raising the same question will not be entertained. People v. Blenz, 317 Ill. 639, 148 N.E. 249.

It is again urged, in this proceeding, that section 14 of article 6 of the Dram Shop Act, Ill.Rev.Stat.1937, c. 43, § 135, violates section 2 of article 2 of our State Constituion, and further contravenes the Fourteenth Amendment to the Federal Constitution. Section 2 of article 2 of the Illinois Constitution of 1870 guarantees that no person shall be deprived of life, liberty, or property without due process of law. The guaranty of due process of law, as comprehensively defined by this court in People v. Niesman, 356 Ill. 322, 190 N.E. 668, 670, ‘requires that every man shall have the protection of his day in court and the benefit of the general law,-a law which hears before it condemns, which proceeds not arbitrarily or capriciously, but upon inquiry, and renders judgment only after trial, so that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society. [Citing cases.] An orderly proceeding in which a person is served with notice, actual or construcitive, and has an opportunity to be heard and to protect and enforce his rights before a court having power to hear and determine the cause, is due process of law. City of Chicago v. Cohn, 326 Ill. 372, 158 N.E. 118, 55 A.L.R. 196.’

In the case before us there was service of summons and an appearance by the defendant, a trial in which he participated, a verdict followed by a remittitur, and judgment on the reduced verdict. No constitutional issue was raised during the course of the proceeding but, for the first time, on a motion for judgment non obstante veredicto. Waiving plaintiff's contention that the defendant is precluded by reason of the fact the question was not presented to the trial court at the earliest opportunity, we are, nevertheless, of the opinion that no new issue with respect to the due process clause of the State Constitution has been advanced. The same question was fairly before this court in Garrity v. Eiger, supra, and there the contention based on section 2 of article 2 of the Constitution was decided against the property owner. Moreover, a constitutional question is not involved, so as to give this codurt jurisdiction of a direct appeal where the judgment or decree is attacked on the ground that its enforcement will deprive the person against whom enforcement is sought of his property without due process of law. Genslinger v. New Illinois Athletic Club, 332 Ill. 316, 163 N.E. 707. The question in such case is merely the validity of the judgment or decree. De La Cour v. De La Cour, 363 Ill. 545, 2 N.E.2d 896.

Section 1 of the Fourteenth Amendment to the...