Matthews v. People ex rel. Streeter

• Citation: 159 Ill. 399,42 N.E. 864
• Parties: MATTHEWS v. PEOPLE ex rel. STREETER.
• Decision Date: 20 January 1896
• Court: Illinois Supreme Court

159 Ill. 399

42 N.E. 864

MATTHEWS

v.PEOPLE ex rel. STREETER.

Supreme Court of Illinois.

Jan. 20, 1896.

Appeal from appellate court, Second district.

Information in the nature of quo warranto, on the relation of A. J. Streeter, against Peter Matthews to test defendant's license to keep a dramshop. From an affirmance by the appellate court of a judgment of ouster (59 Ill. App. 146), defendant appeals. Reversed.

Pepper & Scott, for appellant.

J. M. Brock and Bassett & Bassett, for appellee.

CRAIG, C. J.

This was an information in the nature of a quo warranto, brought in the circuit court of Mercer county, against Peter Matthews, to test his right to keep a dramshop in the village of Windsor, Mercer county, under a license issued by the incorporated authorities of the village on the 17th day of May, 1893. The information contained three counts, which are substantially alike. The second, which, perhaps, contains a fuller statement than the others, is as follows: ‘That relator is a resident and taxpayer in village of Windsor, Mercer county, Illinois; that on May 17, 1893, the corporate authorities of said village granted to Peter Matthews a dramshop license; that such license was granted by such authorities, and received and acted on by Matthews, without complying with statute in relation to filing bond; that a pretended bond is on file, signed by said Matthews as principal, and by Sol. Frohlich and Henry Gardt as sureties, but that both of said sureties are residents of Knox county, and neither of them are freeholders in Mercer county; that said license to retail intoxicating liquors within corporate limits of Windsor, granted to said Peter Matthews, was not legally issued because of want of a proper bond; and that said Peter Matthews from May 17, 1893, has usurped and still usurps license to sell liquor in said village in less quantities than one gallon.’ To the information the defendant filed two pleas,-the first one substantially as follows: That the president and board of trustees of the village of Windsor, in Mercer county, Ill., under and by virtue of an ordinance of said village authorizing them so to do, on May 16, 1893, granted and caused to be issued to defendant a license to keep a dramshop in said village; that, prior to granting of such license, defendant made written application therefor, paid into the hands of the village treasurer money properly due therefor, at the rate of $500 per annum in advance, executed and delivered to the president and board of trustees bond in penal sum of $1,000, conditioned and executed as required by the ordinances of said village, and filed with the clerk of said village a bond in the penal sum of $3,000, payable to the people of the state of Illinois, conditioned as required by the statute in such case made and provided; that both of said bonds were approved by said president and board of trustees prior to the granting of said license; that the last-mentioned bond was executed by Sol. Frohlich and Henry Gardt as sureties, who were, at the time of executing such bond, residents of Galesburg, Knox county, Ill., and were both and each, at the same time, freeholders of the county of Mercer in the state of Illinois; that such sureties were freeholders of said county of Mercer by reason that, prior to execution of said last-mentioned bond, one William T. Hammond, being the owner in fee simple of lot 1 in block 118 in the village of Windsor, in Mercer county, Ill., sold and conveyed the same by statutory quitclaim deed to said Sol. Frohlich and Henry Gardt, and delivered said deed to them prior to the execution of said last-mentioned bond, whereby they became owners in fee simple of said lot, and freeholders of the said county of mercer, and so continued and were at the time of the execution of the last-mentioned bond, and so continue to this day; and that defendant under such license, from and after its issuance, has lawfully exercised the rights and privileges of licensed dramshop keeper in said village. The second plea, in addition to the facts set up in the first, states that the securities on the bond were, when the bond was executed, each in his own right worth $10,000, in unincumbered property in the state of Illinois, over and above all debts, exemptions, and liabilities. To the pleas a general demurrer was interposed by the statute, which the court sustained, and, the defendant electing to abide by his pleas, the court entered a judgment of ouster. The judgment was affirmed in the appellate court.

Section 5, c. 43, entitled ‘Dram Shops,’ provides: ‘No person...