O'leary v. the County of Cook

• Decision Date: 30 April 1862
• Parties: JOHN O'LEARY, Appellant,v.THE COUNTY OF COOK, Appellee.
• Court: Illinois Supreme Court

28 Ill. 534
1862 WL 3361 (Ill.)
18 Peck (IL) 534

JOHN O'LEARY, Appellant,
v.
THE COUNTY OF COOK, Appellee.

Supreme Court of Illinois.

April Term, 1862.

APPEAL FROM COOK.

A provision in, or amendatory of an act incorporating a college, which prohibits the sale of ardent spirits within a distance of four miles, although no such object or subject is named in the title of the bill, is not unconstitutional.

Such a provision, although in a private or local law, incorporating a college, is so germain to the primary object of the charter, as not to conflict with that provision of the constitution, which declares, that no private or local law shall embrace more than one subject, which shall be expressed in the title.

THIS action was brought by the County of Cook against John O'Leary, to recover the penalty prescribed by the second section of an act of the legislature of the State of Illinois, approved February 14, 1855, entitled “An Act to amend an act entitled ‘An Act to incorporate the North-Western University,’ ” approved January 28, 1851, for selling liquor within four miles of the location of the North-Western University, in violation of the said section.

The action was commenced and tried before a justice of the peace in said Cook county; and upon the trial before the justice, judgment was rendered in favor of the said county of Cook, for the sum of $25 and costs; from which judgment O'Leary appealed to the Circuit Court of Cook county.

The cause came on for trial before MANIERRE, Judge of the Circuit Court, without a jury, on the following facts agreed upon by the counsel for the respective parties:

“That the North-Western University, mentioned in an act entitled ‘An Act to amend an act entitled ‘An Act to incorporate the North-Western University,’' approved January 28, 1851, is located in the town of Evanston, in Cook county, Illinois.

That the said O'Leary did, within one month previous to

[28 Ill. 535]

the bringing of this suit, sell to one Mortimer Russell spirituous liquor at this defendant's house, within two miles of the location of said university, in violation of said act.

That a portion of the towns of Niles and New Trier are included within the distance of four miles from the location of said university.

That all facts necessary to maintain the action under said law are admitted by O'Leary, he only reserving to himself the right to insist that the said law is unconstitutional.”

The court found for the plaintiff below, for $25 and costs.

Thereupon the appellant took an appeal, and assigns for error the following: That the court erred in deciding said cause in favor of the plaintiff below, the said law being unconstitutional.

HOPKINS & HIRSCHBACH, for Appellant.

That the act of the legislature, approved February 14, 1855, (Laws of 1855, p. 483), entitled “An Act to amend an act entitled ‘An Act to incorporate the North-Western University,’ ” approved January 28, 1851, is in contravention of the 23rd section of article 3 of the constitution--which provides that no private or local law shall embrace more than one subject, and that shall be expressed in the title--in this: that it embraces two separate and independent subjects--the one of a private character, viz., the amendment of the corporate powers of the university; the other of a public nature, viz., prohibition of the sale of liquor within a given locality under a penalty--two subjects not germain to one another, and having no natural or necessary connection with each other, while only one subject is expressed in the title of the act. Session Laws 1855, p. 483; Constitution, Art. 3, Sec. 23.

The second section of the act prohibits the sale of liquor under a penalty given to the county, and though affecting a particular locality, it affects public interests, and applies to all persons. It is, therefore, of a local, public nature. Sedgwick on Con. and Stat. Law, p. 33; Case of Rodgers, 2 Greenl. 303; Henridia v. Ayres, 12 Pick. 334; Pierce v. Kimball, 9 Greenl. 54.

[28 Ill. 536]

The other sections of the act are manifestly of a private character.

The character of an act is to be determined by its provisions, and not by its title. 16 New York, 61.

That the object of this section of the constitution was to place a restriction on the practice and procedure of the legislature. Davis v. State, 7 Maryland, 151; Sedgwick on Con. and Stat. Law, 567; Sun Mutual Ins. Co. v. Mayor, etc., 1 Selden, 252; Conner v. Mayor, etc., 1 Selden, 285; Opinion of Ch. J. Ruggles, 1 Selden, 293; Walker v. Caldwell, 4 Ann. Rep...