Darst v. People of State

• Court: Supreme Court of Illinois
• Writing for the Court: LAWRENCE
• Citation: 1869 WL 5327,51 Ill. 286,2 Am.Rep. 301
• Parties: JOHN DARST et al.v.THE PEOPLE OF THE STATE OF ILLINOIS.
• Decision Date: 30 September 1869

51 Ill. 286
1869 WL 5327 (Ill.)
2 Am.Rep. 301

JOHN DARST et al.
v.
THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

September Term, 1869.

WRIT OF ERROR to the Circuit Court of Woodford county; the Hon. S. L. RICHMOND, Judge, presiding.

The opinion states the case.

Mr. A. E. STEVENSON and Mr. J. A. BRIGGS, for the plaintiffs in error.

Mr. WASHINGTON BUSHNELL, Attorney General, for the people.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was an indictment for a riot. The defendants were convicted, and have prosecuted this writ of error.

The record shows, the town of Eureka, in Woodford county, had adopted an ordinance declaring a nuisance all intoxicating liquors kept within the limits of said town, for the purposes

[51 Ill. 287]

of being sold or given away, as a beverage, to be drank within said town. The ordinance further directed the police officers to abate said nuisance by removing the liquor beyond the town limits. One Moustier kept a grocery in the town, and on the 7th of January, 1869, the plaintiffs in error, two of whom were police officers and the rest trustees of the town, proceeded to Moustier's grocery, over which he and his wife lived, and demanded his liquor. He refused to deliver it, whereupon they went up stairs, and finding the door of the room occupied by his wife to be locked, on her refusing to open it, broke it down with a sledge-hammer, or some similar instrument, and taking several kegs of whiskey and beer, put them in a wagon and carried them beyond the limits of the town, leaving them on the ground. Moustier testifies he never saw his liquor again.

The plaintiffs in error sought to defend under this ordinance, but the circuit court most properly held such a defense unavailing. Even if the power were conceded to the town, of seizing, carrying away, and destroying this man's beer and spirits, if kept for sale to be drunk within the town, as to which we express no opinion, the question not having been argued, yet it certainly can not be denied, that such a power could be exercised only by some judicial instrumentality. Even under this ordinance, the beer and spirits were not a nuisance liable to summary destruction, unless they were kept for sale or gift, to be drunk within the town; and whether they were kept for that purpose was a question which the owner had the right to submit to a court of justice before his property could be taken away. The board of trustees of Eureka had no more power to...