Malkan v. City of Chicago

• Decision Date: 24 October 1905
• Citation: 75 N.E. 548,217 Ill. 471
• Parties: MALKAN v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

217 Ill. 471

75 N.E. 548

MALKAN

v.CITY OF CHICAGO.

Supreme Court of Illinois.

Oct. 24, 1905.

Appeal from Appellate Court, First District.

Action by Phillip Malkan against the city of Chicago and another. From a judgment of the Appellate Court, reversing a judgment for plaintiff against defendant city, plaintiff appeals. Affirmed.Frank M. Cox, for appellant.

Maclay Hoyne (Edgar Bronson Tolman, Corp. Counsel, of counsel), for appellee.

This is an action of assumpsit, begun on October 30, 1900, in the circuit court of Cook county by the appellant against the appellee, to recover the sum of $219.95 alleged to have been unlawfully exacted by appellee from appellant as a license fee for a certain basement saloon at 178 Quincy street, in the city of Chicago, from May 1, 1897, to October 8, 1897, by threatening to close up appellant's business at once unless he paid said license fee, which fee is alleged to have been paid by appellant under duress, and also to recover damages arising out of the alleged loss of money expended in fitting up said saloon, and for alleged decrease in the value of appellant's lease of said premises by reason of the closing of the basement saloon, which was closed up shortly after the payment of said fee. The suit was originally brought against appellee, the city of Chicago, and one Joseph S. Martin, the city collector at that time. The declaration was demurred to, and subsequently amended on December 7, 1902. The plea of the general issue was filed by the defendant on December 9, 1902. The cause was tried before the court and a jury. At the close of the evidence of the appellant, the plaintiff below, the trial judge, at the request of the defendant gave an instruction in writing to the jury to find the issues for the defendant Joseph S. Martin, but refused to give a similar instruction in writing to the jury to find the issues for the defendant the city of Chicago. The latter instruction was refused, and exception was taken thereto by the city of Chicago. At the close of all the evidence the defendant below, the city of Chicago, submitted to the court a written instruction to the jury to find the issues for defendant the city of Chicago. This instruction was refused, and exception was taken to such refusal by the city. Thereupon the trial judge, on the motion of the present appellant, plaintiff below, instructed the jury to find the issues for appellant, plaintiff below, and assess the latter's damages at the sum of $287.70, being said sum of $219.95 and interest thereon, whereupon defendant below, by its counsel, then and there duly excepted. Accordingly the jury rendered a verdict on January 5, 1904, finding the issues for the defendant Joseph S. Martin, and finding the issues for the appellant, and assessing the latter's damages at the sum of $287.70. An appeal was taken to the Appellate Court.

The Appellate Court has rendered a judgment, reversing the judgment of the circuit court without remanding the cause, and in its judgment making a finding of facts. The present appeal is prosecuted from such judgment of reversal entered by the Appellate Court; the latter court granting a certificate of importance. In the judgment of the Appellate Court, entered on April 10, 1905, after ordering that the judgment of the circuit court ‘be reversed, annulled, set aside, and wholly for nothing esteemed,’ the following finding of facts is made by the Appellate Court: ‘Appellee [the then appellee in the Appellate Court is the present appellant in this court] in February, 1897, rented the two-story and basement building, known as No. 178 Quincy street, in the city of Chicago, and fitted up two saloons therein; one in the basement and the other on the main floor. Each of these saloons had its separate entrance from the street. There was no way to go from one to the other of these saloons without going out into the street. March 16, 1897, appellee took out a city license to keep a saloon at that number. Immediately thereafter he operated and continued to run both of said saloons under this license. He was the sole owner and manager of these saloons. During the summer, or in the early fall, of 1897, appellee connected these saloons by an inside stairway. In October 1897, while appellee was still running both of these saloons, the city collector demanded of him that he pay a license fee from May 1, 1897, to the date of the demand, amounting to $219.95, due and arrear, as was alleged by said collector, because appellee during that period of time had sold liquors in said basement saloon without license. The city collector threatened to close both saloons unless appellee paid said sum to the city collector.’MAGRUDER, J. (after stating the facts).

The city contends in this case that the appellant was running two saloons at No. 178 Quincy street in Chicago, the latter being a two-story and basement brick building, under one license; that one of these saloons was in the basement and the other on the first floor of the building; and that he had no right so to run the two saloons under one license, but should have taken out a separate license for each saloon-that is to say, a license for the saloon in the basement and another license for the saloon on the first floor of the building above the basement. On the other hand, the contention of the appellant is that the demand of the city for the payment of a double license-that is to say, for the payment of a license fee for the period from May 1, 1897, to October 8, 1897-for the saloon in the basement of the building, in addition to the license fee already paid for the saloon on the first floor of the building, was illegal, and that appellant, under the law, had a legal right to operate the two saloons under one license, so long as they were on the premises known as No. 178 Quincy street, and so long as appellant remained the sole owner and manager thereof. The question presented by the record, then, is: Did the city, in view of the statute and ordinances, have the right to exact from appellant two license fees, one for the saloon in the basement, and the other for the saloon on the first floor of the building; both saloons being located in the same building, and both used by appellant and under his sole ownership and management?

First. In the case at bar the Appellate Court has rendered a judgment reversing the trial court without remanding the cause, and has recited in its judgment the facts as found by it. Under section 87 of the practice act (Starr & C. Ann. St. 1896, c. 110, par. 88) its finding of the facts in controversy is different from the finding of the facts made by the trial court. Where the Appellate Court thus reverses the judgment of the trial court, and makes a finding of the facts in its judgment, such judgment is final and conclusive, so far as the Supreme Court is concerned, as to all matters of fact in controversy. ‘The decision of the Appellant Court being conclusive on the questions of fact, we cannot review them on appeal.’ Hancock v. Singer Manf. Co., 174 Ill. 503, 51 N. E. 820;Williams v. Forbes, 114 Ill. 167, 28 N. E. 463;Schwartz v. Supreme Court of Honor, 194 Ill. 344, 62 N. E. 777. Here the Appellate Court has found as matter of fact that the appellant fitted up two saloons in the twostory and basement building, known as 178 Quincy street; one in the basement, and the other on the main floor. It has also found as a matter of fact that each of these saloons had its separate entrance from the street, and that there was no way to go from one to the other of these saloons without going into the street. It appears that the saloon on the first floor and that in the basement were connected some time in the summer or early fall of 1897 by an inside stairway; but it nowhere appears that this inside stairway existed during the period beginning on May 1, 1897, for which the payment was required of appellant as back license for the basement saloon. Section 1178 of the city ordinances introduced in evidence provides that the license year shall be divided into three periods-the first being from May 1st to August 30th, inclusive, the second, from August 31st to December 30th, inclusive, and the third, from December 31st to April 30th, inclusive. That appellant had fitted up and was operating two saloons, instead of one, in the building in question, is a fact found by the Appellate Court; and its finding in regard thereto is conclusive upon this court.

Second. In Sanders & Son v. Town Council, 50 Ga. 178, it was held that the question whether two rooms in a particular house in which it is proposed to sell spirituous liquors are in truth two distinct places is a question of fact; and in that case the Supreme Court of Georgia said: ‘It is not clear to us that in this case there is not an effort to get permission to set up two liquor shops under one license. These two rooms, under the admitted facts, are so situated as, in a very fair sense, to make two different places. They open on different streets. There is no communication inside between them, and they are on different stories. * * * We think it was no abuse of the exercise of the sound judgment of the council to conclude that each was a distinct place, and that the fact of one firm being the owner of both did not alter the case. How much further, when the business should be opened, this distinctiveness would go, is tolerably evident. Perhaps they are to be visited by different classes of people, sell at different prices and different quantities of the same named liquor, opened at different hours, and have entirely different manners, customs, and practices. How far the admitted facts make these two rooms different places the council has determined as a question of fact. We see nothing in the case to justify the conclusion that this decision is an abuse of power.’

Clause 46 of section 1 of article 5 of the Illinois act relating to cities and villages (Starr & C. Ann. St. 1896, c....