Northwestern University v. State

• Decision Date: 27 December 1977
• Docket Number: No. 76-943,76-943
• Citation: 371 N.E.2d 1046,13 Ill.Dec. 954,56 Ill.App.3d 305
• Parties: , 13 Ill.Dec. 954 NORTHWESTERN UNIVERSITY, Plaintiff-Appellee, v. STATE of Illinois, Defendant-Appellant, Bernard Carey, Defendant.
• Court: United States Appellate Court of Illinois

Page 1046

371 N.E.2d 1046

56 Ill.App.3d 305, 13 Ill.Dec. 954

NORTHWESTERN UNIVERSITY, Plaintiff-Appellee, v.STATE of Illinois, Defendant-AppellantBernard Carey, Defendant.

No. 76-943.

Appellate Court of Illinois, First District, Second Division.

Dec. 27, 1977.

William J. Scott, Atty. Gen. of the State of Illinois for defendant-appellant; Imelda R. Terrazino, Asst. Atty. Gen., of counsel.

William H. Thigpen, Frederick J. Artwick, Gerald L. Angst, Sidley & Austin, Chicago, James M. Perry, Evanston, for plaintiff-appellee Northwestern University.

STAMOS, Justice:

This appeal arises from an order entered by the circuit court of Cook County, denying defendants' Motions to Strike and Dismiss plaintiff's Amended Complaint for Declaratory Judgment and Other Relief, ¹ and denying defendantState of Illinois' Motion for Reconsideration.The circuit court held (1) that an actual controversy existed upon which declaratory judgment could properly be based; and (2) that the Illinois General Assembly impliedly repealed Section II of the First Amendment to the Charter of Northwestern University by enacting the Local Option Statute.Ill.Rev.Stat.(1975),ch. 43, par. 110.

Plaintiff, Northwestern University, is an Illinois corporation located in Evanston, Illinois.Plaintiff's charter, approved by the Illinois legislatureJanuary 28, 1851 and amended February 14, 1855 contains the following pertinent provisions:

Section II.No spiritous, vinous, or fermented liquors shall be sold under license, or otherwise, within four miles of the location of said University, except for medicinal, mechanical, or sacramental purposes, under a penalty of twenty-five dollars for each offense, to be recovered before any Justice of the Peace of said County in an action of debt in the name of the County of Cook: Provided, that so much of this act as relates to the sale of intoxicating drinks within four miles, may be repealed by the General Assembly whenever they may think proper.

First Amendment to Charter, Section II, approved February 14, 1955.

Section IX.Should the corporation at any time act contrary to the provisions of this chapter, or fail to comply with the same, upon complaint being made to the Circuit Court of Cook County, a scire facias shall issue, and the circuit attorney shall prosecute in behalf of the People of this State for forfeiture of this charter.Charter, Section IX, Approved January 28, 1851.

On February 11, 1975, plaintiff filed a complaint requesting a declaratory judgment (amended September 9, 1975) alleging, inter alia, that the prohibition contained in Section II of the First Amendment to the Charter was repealed by implication by Ill.Rev.Stat.(1934),ch. 43, par. 110.This legislation, commonly known as the Local Option Statute, provides in relevant part that:

"In every city, village or incorporated town, the city council or president and board of trustees, and in counties in respect of territory outside the limits of any such city, village or incorporated town the county board shall have the power by general ordinance or resolution to determine the number, kind and classification of licenses, for sale at retail of alcoholic liquor not inconsistent with this Act and the amount of the local licenses fees to be paid for the various kinds of licenses to be issued in their political subdivision, * * * ."

Ill.Rev.Stat.(1975),ch. 43 par. 110.

Motions to Strike and Dismiss the Amended Complaint for Declaratory Judgment were filed by defendantsBernard Carey and the State of Illinois.After a hearing on these motions the circuit court of Cook County found that an actual controversy existed.DefendantState of Illinois then filed a Motion to Reconsider and Vacate that part of the order finding an actual controversy.The circuit court, after a hearing, entered an order denying the motion.This order found that an actual controversy existed with respect to the allegations of the amended complaint and paragraph I of plaintiff's prayer for relief.The circuit court further found that Section II of the First Amendment to plaintiff's charter had been repealed by Ill.Rev.Stat.(1975),ch. 43, par. 110.It is from these findings that defendantState of Illinois appeals.

The Illinois Civil Practice Act authorizes the entry of a declaratory judgment "in cases of actual controversy."(Ill.Rev.Stat.1975, ch. 110 par. 57.1(1).)In searching for an "actual controversy"we must liberally construe the declaratory judgment statute.Roberts v. Roberts(1967), 90 Ill.App.2d 184, 234 N.E.2d 372.

Plaintiff has sought, and obtained, a declaration that Section II of the First Amendment to its charter has been impliedly repealed.If we affirm that declaration, plaintiff will undoubtedly endeavor to obtain a liquor license from the city of Evanston.If plaintiff had attempted to sell liquor in violation of the prohibition contained in its charter, plaintiff would have been subject to prosecution for forfeiture of the charter.(Charter, Section IX, Approved January 28, 1851.)Plaintiff need not act at its peril prior to seeking declaratory relief.Although no wrong has yet been committed, such is not necessary to obtain declaratory relief.The mere existence of a claim, assertion or challenge to plaintiff's legal interests, in which the ripening seeds of litigation may be seen and which cast doubt, insecurity, and uncertainty upon plaintiff's rights or status damages plaintiff's pecuniary or material interests and establishes a condition of justiciability.Roberts v. Roberts(1967), 90 Ill.App.2d 184, 234 N.E.2d 372.Accord, St. Joseph Hospital v. Corbetta Construction Co., Inc.(1974), 21 Ill.App.3d 925, 316 N.E.2d 51.

Plaintiff is, therefore, entitled to know whether or not a portion of its charter remains in force and effect.Doubt has been cast upon the validity of a charter provision.Consequently, we must agree with the circuit court's finding that an actual controversy exists.

We must now address ourselves to the status of Section II of the First Amendment to plaintiff's charter.Plaintiff contends that this section has been impliedly repealed by the passage of the Local Option Statute.Ill.Rev.Stat.(1975),ch. 43, par. 110.

An implied repeal results from some enactment the terms and necessary operation of which cannot be harmonized with the terms and necessary effect of an earlier act, and therefore the last expression of law prevails since it cannot be supposed that the lawmaking power intends to contradict and enforce laws which are contradictions.(Rosehill Cemetery Co. v. Lueder(1950), 406 Ill. 458, 94 N.E.2d 342.)It is also essential that the implication, to be operative, must be necessary.Rosehill Cemetery Co. v. Lueder, supra.

Repeal by implication is not favored, and even if there is an apparent inconsistency between two laws, they will be construed, insofar as possible, so as to preclude an implied repeal of the earlier by the later.(People v. Isaacs(1967), 37 Ill.2d 205, 226 N.E.2d 38.)It is only when there is a clear repugnancy and both acts cannot be carried into effect that the former is impliedly repealed.City of Genesco v. Illinois Northern Utilities Co.(1941), 378 Ill. 506, 39 N.E.2d 26;Dingman v. The People(1869), 51 Ill. 277.

The Illinois Supreme Court has had the opportunity to consider a factual pattern similar to that in the instant case, Dingman v. The People(1869), 51 Ill. 277, and, pursuant to a careful analysis of the charters involved, disposed of the case through the doctrine of implied repeal.In Dingman, appellant had been indicted for maintaining a place, within one mile of the site of the University of Chicago, for the sale of spirituous liquors, for other than mechanical or medicinal purposes, contrary to the charter of the University of Chicago.The charter, adopted on the 30th of January, 1857, provided, in relevant part, that:

"To enable the trustees to fulfill the trusts hereby committed to them, and to secure the ends of this corporation, it is hereby declared unlawful for any person to entice any student of said university into the practice of gaming, or to furnish to any student any device or instrument for gaming, or any intoxicating liquors.And any billiard room, bowling alley, race course, or other device or instrument for gaming, or any brothel or house of ill-fame, or place where intoxicating liquors are sold or furnished, except for medicinal or mechanical purposes, within one mile of the site of said university, is hereby declared a nuisance, and subject to abatement as such."

The revised charter of the City of Chicago, adopted on the 13th of February, 1863, conferred the power to grant or refuse licenses for the sale of liquors within city limits on the mayor and city council.

At trial, judgment was entered against the appellant based upon a violation of the charter of the University of Chicago.Accordingly, appellant was ordered to abate the nuisance he had created.The Illinois Supreme Court reversed, and precisely set forth its analysis in terms of the doctrine of implied repeal.With respect to the Dingman facts the court stated:

In such a case, the rule that a law will not be repealed by implication, in doubtful cases, does not apply, as there is here a direct conflict between the former and latter law; and when there is a clear repugnance between two laws, and the provisions of both can not be carried into effect, the later law must prevail, and the former yield to the last expression of the legislative will.We regard these two provisions of law as falling within that predicament.Dingman v. The People(1869), 51 Ill. 277, 279.

The "later law" was that encompassed by the charter of the City of Chicago and the court held that the enactment of this charter provision impliedly repealed the aforementioned provision of the University of Chicago charter.

The Dingman decision and the legal principles which form the basis of the doctrine of...