Martens v. People ex rel. Rock Island Cnty. Attorney

• Decision Date: 21 June 1900
• Citation: 57 N.E. 871,186 Ill. 314
• Parties: MARTENS v. PEOPLE ex rel. ROCK ISLAND COUNTY ATTORNEY.
• Court: Illinois Supreme Court

186 Ill. 314

57 N.E. 871

MARTENS

v.PEOPLE ex rel. ROCK ISLAND COUNTY ATTORNEY.

Supreme Court of Illinois.

June 21, 1900.

Appeal from appellate court, Second district.

Quo warranto proceedings in the name of the people, on the relation of the county attorney of Rock Island county, against John Martens, to determine the validity of a license to sell intoxicating liquors. From a judgment of the appellate court affirming a judgment in favor of relator (85 Ill. App. 66), respondent appeals. Affirmed.

Joseph L. Haas, for appellant.

Chas. J. Searle, State's Atty. (S. W. Odell, of counsel), for appellee.

WILKIN, J.

This is an appeal from the appellate court for the Second district, affirming a judgment of the circuit court of Rock Island county against appellant in a quo warranto proceeding begun in that court by the state's attorney of Rock Island county. The motion for leave to file the information stated that appellant claimed and was attempting to exercise the right to keep a dramshop under a license issued to him by the mayor of the city of Moline on November 4, 1898, contrary to the ordinances of said city and the statute in such case made and provided; that no petition, as required by the ordinances of the city, accompanied the application for license; and that no sufficient bond was filed by appellant as provided by law. The motion was supported by affidavits. Leave was granted, and the information filed. It appears from the allegations of the information that at the time the license was issued to appellant there was an ordinance in force in the city to the effect that in any block where no saloon then existed no license should be issued to keep a saloon there, without a petition, signed by two-thirds of the freeholders in such block, praying that such license be issued; that when the license in question was issued no saloon then existed in block No. 2 in South Moline, where the saloon was attempted to be licensed, and that no saloon had ever existed or been opened in said block; that no application in writing was made to the mayor as provided by the ordinances of said city, nor was any petition presented, signed by two-thirds of the freeholders in said blcok No. 2, praying for the issuing of such license, as provided by the ordinances; also, that the bond filed by appellant upon the issuing of the license was not in compliance with the ordinance of the city, in that it was not signed by two good and sufficient sureties who were at that date freeholders in Rock Island county. Appellant entered a motion to vacate the leave to file the information, supported by affidavits, but the motion was denied. A general demurrer was then filed to the information and overruled. Appellant electing to stand by his demurrer, the court entered a judgment of ouster against him, and imposed a fine of $250.

It is first contended that the circuit court should have denied the leave to file the information, for the reason that it was presented, not to subserve the public interests, but to gratify personal spite and prejudice, and for private and personal ends. The point is without substantial merit. As we said in People v. North Chicago Ry. Co., 88 Ill. 537: ‘The granting of leave to file an information in the nature of a quo warranto is in the sound discretion of the court or judge to which the application is made. Leave, on the one hand, is not granted as a matter of right upon the part of the relator; and, on the other hand, a court is not at liberty to arbitrarily refuse, but must exercise a sound discretion in accordance with principles of law,’-citing People v. Waite, 70 Ill. 25, and People v. Callaghan, 83 Ill. 128. From an examination of the affidavits filed in the case both by relator and the respondent, we are satisfied that the record fails to show any abuse of the discretion reposed in the court to permit the information to be filed.

The contention that the validity of a saloon license cannot be tested by an information in the nature of a quo warranto is also without merit; this court, in the case of Swarth v. People, 109 Ill. 621, having held it to be a...