Deneen v. Town of Thornton

• Decision Date: 21 June 1900
• Citation: 57 N.E. 841,186 Ill. 162
• Parties: PEOPLE et rel. DENEEN v. TOWN OF THORNTON.
• Court: Illinois Supreme Court

186 Ill. 162

57 N.E. 841

PEOPLE et rel. DENEEN

v.TOWN OF THORNTON.

Supreme Court of Illinois.

June 21, 1900.

Error to superior court, Cook county; Jonas Hutchinson, Judge.

Application by Charles S. Deneen, state's attorney, for leave to file an information in the nature of quo warranto, on relation of Clarence E. Mooar, against the town of Thornton, for exercising powers not conferred on it by law in licensing the sale of intoxicating liquors. From an order denying leave to file the information, relator brings error. Reversed.Edward C. Akin, Atty. Gen., Charles S. Deneen, State's Atty., George McA. Miller, and Samuel W. Packard, for plaintiff in error.

Isaiah T. Greenacre and Frederic R. De Young, for defendant in error.

In this case the state's attorney for the county of Cook filed in the superior court of Cook county a petition for leave to file an information in the nature of quo warranto, upon the relation of Clarence E. Mooar, against the town of Thornton, in Cook county, alleging that the said town is a public corporation, existing under the laws of Illinois, and had been for more than two years last past exercising powers not conferred by law in the matter of licensing the sale of intoxicating liquors, and that said state's attorney had reason to believe that such allegations could be established by proof. The petition is dated February 13, 1899, and verified by the affidavit of said Mooar, sworn to on February 14, 1899. On February 18, 1899, the superior court entered an order requiring the respondent, the town of Thornton, to show cause, within 10 days, why said information should not be filed. On March 4, 1899, the respondent answered the rule by filing an answer, verified by the affidavits of the supervisor of the town and of the town clerk. On July 13, 1899, the court entered an order wherein, after reciting that the cause came on to be heard on the petition or motion of the state's attorney for leave to file the information and the answer thereto, and after further reciting that the court had read the information and listened to arguments of counsel, it was ordered that the motion for leave to file the information be denied. In other words, the court entered an order refusing to allow the information to be filed, and entered judgment in favor of the respondent, the town of Thornton, against the petitioner, for costs. To this ruling the relator excepted. The present appeal is prosecuted from the order of the court denying the motion or petition of plaintiff in error for leave to file the information in the nture of a quo warranto.

The information which the state's attorney asked leave of the court to file on the relation of said Clarence E. Mooar alleges that the town of Thornton is a public corporation in Cook county, organized under the act of the general assembly of Illinois, entitled ‘An act to revise the law in relation to township organization,’ approved and in force March 4, 1874; that said town, by its officers, has, for three years last past and more, been exercising, without any legal authority, the power of licensing the sale of intoxicating liquors within its corporate limits; that on July 1, 1898, it issued to George S. Freeman and to William McClatchey, respectively, a license to keep a dramshop within the limits of said corporation; and that said persons, since then, have been selling, and still do sell, intoxicating liquors under said licenses. The information further alleges, in addition to the allegations above set forth, that the said town exercises, without legal authority, the power of licensing the sale of intoxicating liquors within two miles of the corporate limits of the cith of Harvey, which city is incorporated under the laws of the state, and has authority to license, regulate, restrain, or prohibit the sale of intoxicating liquors within its corporate limits, and is located within the corporate limits of said town of Thornton; and that said town, by its officers, issued to the persons above named, on July 1, 1898, a license to sell intoxicating liquors within the corporate limits of said town of Thornton, and within two miles of the corporate limits of said city of Harvey. The answer to the rule to show cause sets forth various alleged reasons why the information should not be filed. Among these are that the allegations of the petition for leave do not establish probable grounds for the proceeding; that the town of Thornton is not a corporation against which such an information will lie; that the power of licensing is exercised by the board of auditors of the town, and has been so exercised without question and by universal acquiescence for more than 27 years last past; and that the proceeding is one for private relief. The answer then relies upon the statute of limitations, and charges that the proceeding is barred by the lapse of time. The answer further alleges that the proceeding should be brought against the persons exercising privileges under such licenses, and not against the town; that relator, Mooar, is a mere interfering volunteer; that, if any relief is proper, it can be obtained in a proceeding at law. The answer further asserts that the court should, in the exercise of a sound discretion, discharge the rule upon the alleged ground that the relief sought is not necessary, and is contrary to public policy; that the relator, Mooar, has no legal interest in the subject, and his motives are not proper; that the proceeding will be a public inconvenience, and result in no practical benefit. After alleging the reasons above set forth, the answer to the rule then proceeds to state that the town of Thornton was organized under the general township organization laws of the state before the year 1869; that on March 26, 1869, an act was passed, and went into effect, entitled ‘An act to confer additional powers on the board of auditors of town accounts, and the commissioners of highways of the town of Thornton in the county of Cook,’ which act was therein declared to be a ‘public act,’ and has ever since been, and still is, in full force; that said act, among other things, provided that ‘the board of auditors of town accounts of the town of Thornton in the county of Cook, in addition to the powers now conferred by law, shall have power, and it is hereby made their duty, at any regular or special meeting, to make, ordain and establish such ordinances, rules and regulations, and to fix and determine such fines, penalties and forfeitures, and grant license, in and concerning: * * * The regulating and licensing of all places kept for the purpose of retailing, selling or giving away any rum, gin, brandy, whisky, bitters, ale, lager beer, or any other fermented, spirituous, mixed or intoxicating liquors, in less quantity than one quart;’ that, from the year 1869, licenses have been issued each year by said board to run saloons, but always within said town, and without the corporate limits of any incorporated city or village therein; that said town has within its limits 48 sections, about 16 of which are included within the limits of the city of Harvey, and 7 incorporated villages, in none of which has said board ever issued a license to maintain a saloon; that all the land in the town not within the limits of the said city and villages, called ‘outside territory,’ contains widely separated settlements with intervening farm lands traversed by many highways, which have been kept in repair and maintained largely by the funds received from said licenses; that no part of the lands within the town, outside of said city and villages, is more than two miles from the limits of the city or some one of said villages; that the city and villages have no power to license beyond their respective boundaries, and the county board cannot license saloons within two miles of any city or vaiiage; that the road and bridge tax of said town is inadequate to maintain the roads in said outside territory, and is now aided by the licensed revenue; that all the saloons so licensed are under adequate police supervision, and are the only places accessible to farmers traveling to town to market their produce; that since 1869 the board of auditors of said town and the county board of Cook county have construed the law as permitting saloons to be licensed in said town by said board of auditors, and not otherwise, but since 1869 no licenses have been issued for saloons in said town by the county board, or any other body or person, except said board of auditors, and, in said city or villages, their respective authorities; that such has been the universal construction of the law of this state, after as well as before the dramshop acts of 1874 and 1883, by the officers charged with the execution of the laws relating to saloons or dramshops; and that the relator, Mooar, is not injured in person or property, or otherwise, by the licensing of saloons in said town.

MAGRUDER, J. (after stating the facts).

1. The court below refused to allow the information in the nature of quo warranto to be filed upon the motion or petition of the state's attorney. Under the practice in this state in relation to quo warranto, two courses may be pursued by the court to which application is made for leave to file the information. One course is the submission of a motion or petition, based on affidavit, for leave to file an information in the nature of a quo warranto, and the entry by the court of a rule nisi upon the respondent to show cause why the information should not be filed, in response to which rule the respondent answers by counteraffidavits. People v. Waite, 70 Ill. 25;People v. Moore, 73 Ill. 132;People v. North Chicago Ry. Co., 88 Ill. 537. The other course of proceeding is to act upon the petition of the relator without first laying a rule upon the respondent to show cause. In the latter case, if the court or judge is satisfied that there are probable grounds for the filing of an information, such c...