Dingman v. People of State

• Decision Date: 30 September 1869
• Citation: Dingman v. People of State , 51 Ill. 277, 1869 WL 5325 (Ill. 1869)
• Parties: HIRAM DINGMANv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

51 Ill. 277

1869 WL 5325 (Ill.)

HIRAM DINGMAN

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

September Term, 1869.

WRIT OF ERROR to the Recorder's Court of Chicago; the Hon. EVERT VAN BUREN, Judge, presiding.

The opinion states the case. Messrs. WILSON & ASAY, for the plaintiff in error.

Mr. CHARLES H. READ, State's attorney, for the people.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an indictment presented by the grand jury to the Recorder's Court of Chicago, against plaintiff in error, for keeping a place, within one mile of the site of the University of Chicago, for the sale of spirituous liquors, for other than mechanical or medicinal purposes, contrary to the statute. Plaintiff in error filed a plea of not guilty, and a trial was had before the court and a jury, which resulted in a verdict of guilty. Motions for a new trial, and in arrest of judgment, were entered, but overruled by the court, and thereupon judgment was rendered, that plaintiff forthwith abate the nuisance, and that in default thereof, the sheriff proceed to abate the same, and that plaintiff in error should stand committed until the judgment of the court should be executed.

On the trial in the court below, plaintiff in error admitted that he kept a place within a mile of the site of the University of Chicago for the sale of intoxicating liquors, not being sold for mechanical or medicinal purposes. He then offered to prove that the place was a public inn, for the accommodation of man and beast, and that he held a license from the city of Chicago for the sale of such liquors at that place, and a license from the United States government, but the court refused to permit him to make this proof, and he, at the time, excepted.

It is urged, in support of this judgment, that the sale of all such liquors is prohibited by the charter of the University of Chicago, adopted on the 30th of January, 1857. The fourth section of that act declares that:

“To enable the trustees to fulfill the trusts hereby committed to them, and to secure the ends of this corporation, it is hereby declared unlawful for any person to entice any student of said university into the practice of gaming, or to furnish to any student any device or instrument for gaming, or any intoxicating liquors. And any billiard room, bowling alley, race course, or other device or instrument for gaming, or any brothel or house of ill-fame, or place where intoxicating liquors are sold or furnished, except for medicinal or mechanical purposes, within one mile of the site of said university, is hereby declared a nuisance, and subject to abatement as such.”

It appears, that by the revised charter of the city of Chicago, adopted by the general assembly on the 13th of February, 1863, the power to grant or refuse licenses for the sale of liquors within the city limits, is conferred on the mayor and city council. See sec. 13, chap. 4, city charter, and chap. 44, city ordinances. From this provision of the charter, it seems that the whole question of granting or refusing such licenses is conferred on the city, and the power seems to be co-extensive with the city. And when the legislature, in 1857, say, that liquor shall not be sold within one mile of the university, which territory embraces a portion of the city, and six years subsequently, say, that the mayor and city officers may or may not grant licenses for that purpose within such territory, there is a manifest conflict between these provisions. By the one it is prohibited, and by the other it is authorized.

In such a case, the rule that a law will not be repealed by implication, in doubtful cases, does not apply, as there is here a direct conflict between the former and latter law; and when there is a clear repugnance between two laws, and the provisions of both can not be carried into effect, the later law must prevail, and the former yield to the last expression of the legislative will. We regard these two provisions of law as falling within that predicament.

It is, however, contended, that the 4th section of the charter of the university is a grant to a private corporation, and, under the decision of the case of Dartmouth College v. Woodward, 4 Wheaton, 518, this grant became vested and beyond legislative control, and any subsequent enactment, in conflict with its provisions, is unconstitutional and void.

There can be no reasonable doubt that the legislature, in the exercise of its power to regulate the police of the State, may prohibit the sale of intoxicating liquors throughout the State, or in specified localities. This has been held in a number of cases in this court, whereby by-laws of cities and towns, made in pursuance to their charters, prohibiting its sale, have been sustained. Jones v. The People, 14 Ill. 196, Godard v. Town of Jacksonville, 15 Ill. 588, Byers v. Town of Olney, 16 Ill. 36, City of Pekin v. Smelzel, 21 Ill. 468. But such an enactment has...