Duncan v. Marcin
| Decision Date | 31 March 1980 |
| Docket Number | No. 78-1942,78-1942 |
| Citation | 82 Ill.App.3d 963,403 N.E.2d 653,38 Ill.Dec. 422 |
| Court | United States Appellate Court of Illinois |
| Parties | , 38 Ill.Dec. 422 Newell DUNCAN, Isadore James, Wade Chatman, Jr., John R. Lee, Michelle K. Wyatt, Robert Ross, Sr., Robert Ross, Jr., and Allie M. Netter, Plaintiffs- Appellants, v. John C. MARCIN, City Clerk of the City of Chicago, and the Board of Election Commissioners of the City of Chicago, Defendants-Appellees. |
Andrew M. Raucci and Michael P. McClelland, Chicago, for plaintiffs-appellants.
William R. Quinlan, Corp. Counsel, Chicago (Robert Retke, Asst. Corp. Counsel, Chicago, Jetta Norris Jones, Chicago, of counsel), for defendants-appellees.
The plaintiffs instituted an action against the defendants, John C. Marcin, City Clerk of the City of Chicago, and the Board of Election Commissioners of the City of Chicago, to contest the validity of a local option election held pursuant to the Liquor Control Act (Ill.Rev.Stat.1975, ch. 43, pars. 166-182) in which the sale at retail of alcoholic liquor was prohibited by a vote of 271 to 81 in the 46th precinct of the 6th ward. The defendant, John C. Marcin, filed a motion to strike and dismiss the complaint. The trial court entered an order on November 8, 1977 sustaining the defendant's motion, and the plaintiffs' motion to vacate the order was denied. On appeal, the plaintiffs have raised the following issues: (1) that the statutory system violates the home rule provisions of the Illinois Constitution of 1970; (2) that the statutory system is invalid as an improper delegation of legislative authority; (3) that the differences in procedures for referendums in communities with populations in excess of 200,000 renders the statute invalid; (4) that the complaint sets forth sufficient grounds to contest the results of the election; and (5) that substantive and procedural due process is a necessary prerequisite before the plaintiff's business can be terminated.
We affirm.
The plaintiffs filed a two count complaint and in the first count alleged that voting irregularities occurred in "that votes were counted in favor of the proposition which should not have been counted" and "votes against the proposition were not counted." The plaintiffs further claimed that ineligible persons voted, that vote totals were inaccurate, that ballots were not folded and cast in compliance with the election procedures, and that a vote recount would show that the proposition had been defeated.
The plaintiffs also alleged that the local option election did not comply with Article IX of the Liquor Control Act (Ill.Rev.Stat.1975, ch. 43, pars. 166-182); that the Liquor Control Act (Ill.Rev.Stat.1975, ch. 43, pars. 166-182) violated the United States Constitution and the Illinois Constitution of 1970 in that the election procedures differentiated between communities with populations of 200,000 or less and communities with populations in excess of 200,000. The plaintiffs claimed this classification was a denial of due process and equal protection, and did not provide a uniform law to conduct the elections.
The plaintiffs' last argument as to Count I was that the referendum conferred legislative authority to the voters in contravention of the legislative authority granted to the City of Chicago pursuant to the Illinois Constitution of 1970.
Count II alleged that one of the plaintiffs, Allie M. Netter, was a licensee of a business which sold alcoholic liquor at retail, and that the prohibition deprived her of privileges and immunities under the United States Constitution, the Illinois Constitution of 1970, and that the provisions for local option elections were unconstitutional as to the plaintiff.
The defendant in the motion to strike and dismiss argued that the constitutionality of local option elections had been upheld by the Illinois courts; that the complaint was vague and indefinite as to voting irregularities and non-compliance with election procedures, and further, that the plaintiffs did not contest the validity of the petitions within the time specified in the Liquor Control Act. (Ill.Rev.Stat.1975, ch. 43, par. 169.) The court sustained the defendant's motion to strike and dismiss the complaint and the plaintiffs appealed.
The plaintiffs argue that the statutory system violates the home rule provisions of the Illinois Constitution of 1970 (Ill.Const.1970, art. VII, sec. 6) in that the provisions for local option elections limit the home rule powers of a municipality to regulate for the public health, safety, morals, and welfare. The plaintiffs argue that the City of Chicago through its zoning ordinance has determined that public safety is not jeopardized in the precinct by the sale at retail of alcoholic liquor; in addition, the plaintiffs claim that the zoning ordinance must take precedence over the Liquor Control Act since it was enacted and amended by the City of Chicago as part of its home rule powers.
The plaintiffs' argument was previously raised in Hall v. Marcin (1977), 49 Ill.App.3d 528, 7 Ill.Dec. 388, 364 N.E.2d 549, and there the court did not consider the issue appropriate for review since a specific city ordinance was not indicated. However, in Malito v. Marcin (1973), 14 Ill.App.3d 658, 303 N.E.2d 262, where the local option election was held prior to the adoption of the Illinois Constitution of 1970, the court considered a similar question, and the court's discussion in Malito is pertinent to the instant appeal. The question presented in Malito was whether the local option provisions interfered with city planning by eliminating some of the uses of property that were originally contemplated and permitted in the zoning ordinance. The court stated:
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