People ex rel. Healy v. Heidelberg Garden Co.

• Decision Date: 09 April 1908
• Citation: 84 N.E. 230,233 Ill. 290
• Court: Illinois Supreme Court
• Parties: PEOPLE, on Inf. of HEALY, State's Atty., v. HEIDELBERG GARDEN CO.

233 Ill. 290

84 N.E. 230

PEOPLE, on Inf. of HEALY, State's Atty.,

v.HEIDELBERG GARDEN CO.

Supreme Court of Illinois.

Feb. 20, 1908.

Rehearing Denied April 9, 1908.

Appeal from Appellate Court, First District, on Appeal from Superior Court, Cook County; Axel Chytraus, Judge.

Quo warranto by the people, on information of John J. Healy, state's attorney of Cook county, against the Heidelberg Garden Company. From a judgment for defendant, affirmed by the Appellate Court (124 Ill. App. 331), petitioner appeals. Affirmed.John J. Healy, State's Atty. (Church McMurdy & Sherman, of counsel), for appellant.

M. Henry Guerin, for appellee.

On July 6, 1904, the state's attorney of Cook county, by leave, filed an information in the nature of quo warranto in the superior court of Cook county against appellee, an Illinois corporation, challenging the validity of a dramshop license issued to said company by the mayor of Chicago. Five pleas were filed to this information, the third of which was stricken from the files on motion, and demurrers to the other four were sustained. The respondent standing by its pleas, there was final judgment of ouster. From that judgment an appeal was prosecuted to the Appellate Court, where that part of the judgment of the superior court sustaining the demurrers to the first and second pleas was affirmed, and so much of the judgment as sustained the demurrers to the fourth and fifth pleas was reversed and remanded. Heidelberg Garden Co. v. People, 124 Ill. App. 331. When the case was redocketed in the superior court, the demurrers to the said fourth and fifth pleas were overruled,and, appellant standing by said demurrers, the court entered final judgment for the defendant. On appeal to the Appellate Court the judgment of the superior court was affirmed, and this appeal followed.

The information stated that the Heidelberg Garden Company claimed to hold, and exercised, a certain privilege and license of keeping a dramshop in that part of the city of Chicago formerly the village of Hyde Park, issued by the mayor of said city on June 4, 1904, said dramshop being at 884 East Fifty-First street, which said privilege and license was issued by said city of Chicago improperly and without warrant of law, and which said privilege or license the said Heidelberg Garden Company has usurped and still does usurp and unlawfully hold and exercise, etc. Only the fourth and fifth amended pleas now before us need be considered.

The fourth amended plea recited appellee's incorporation and charter provisions, and alleged that the city of Chicago, by an ordinance of the city council, provided that licenses might be granted by the mayor to residents of the city of Chicago, on notice to the city clerk by the city collector that the license fee had been paid, and that then the city clerk should issue a license; that the license fee was $500. It then alleged, in some detail, the steps taken by appellee to comply with said ordinance and the statutes in order to secure the issuance of the license to keep a dramshop at the place mentioned; that such license was issued to appellee for a period commencing May 1, 1904, and ending April 30, 1905; that an acceptable bond was furnished by appellee in conformity with the provisions of the law; that during said time appellee has exercised said privilege and license, and neither exercises nor claims to exercise any other privilege or license; and that by this warrant, under its charter and license, it exercises the privilege of keeping the dramshop in question and is not usurping the privileges mentioned in the information.

The fifth amended plea sets out more at length (apparently in haec verba) the general ordinance of the city of Chicago concerning dramshop licenses so far as it applies to this case, and alleges in detail the compliance by appellee with the provisions of such ordinance in its application for the license and the issuing of the same, and claims that the acts and doings complained of were done and performed under and by virtue of such license.

CARTER, J. (after stating the facts as above).

The validity of a dramshop license is properly challenged by quo warranto proceedings. Martens v. People, 186 Ill. 314, 57 N. E. 871;Swarth v. People, 109 Ill. 621;People v. Chicago Telephone Co., 220 Ill. 238, 77 N. E. 245; Hurd's Rev. St. 1905, c. 112, § 1, p. 1549. The contention of appellee to the contrary cannot be upheld.

The final order of the superior court on the second hearing was that the information be dismissed. It is contended, as no exception was preserved to the entering of this order, that there is nothing for this court to pass upon. A sufficient answer to this contention is that the case was heard and decided on the information, pleas, and demurrer thereto, and the errors, if any, must appear on the face of the pleadings.

The allegations in any information in quo warranto may be of a general character, while the defendant is required to set forth particularly the grounds of his claim and the continued existence of his right. Clark v. People, 15 Ill. 213;Carrico v. People, 123 Ill. 198, 14 N. E. 66;Catlett v. People, 151 Ill. 16, 37 N. E. 855;People v. Bruennemer, 168 Ill. 482, 48 N. E. 43;Place v. People, 192 Ill. 160, 61 N. E. 354. Although the information is somewhat informally drawn, we do not think the proceedings should fail on that account. The chief contention of appellant is as to the sufficiency of the fourth and fifth amended pleas. As we understand that contention, it is to the effect that these pleas should state that they set forth all the ordinances in force governing the issuing of licenses as to all parts of the city of Chicago. With this contention we cannot agree. It is practically admitted that such a statement is not required, if the rules governing pleading in this proceeding are the same as those governing pleading in ordinary common-law actions. In recent years the general tendency of all courts has been to regard an information in quo warranto in this character of proceeding as a summary remedy invoked for the settlement of civil rights, and while still retaining, in some instances, its criminal form, ‘the better doctrine now is that the pleadings should conform, as far as possible, to the general principles and rules of pleading which govern in ordinary civil actions.’ High on Ex. Legal Remedies (3d Ed.) § 710. ‘It has been frequently held that the proceeding is civil in its nature and governed by the rules of practice applicable to such trials.’ Independent Medical College v. People, 182 Ill. 274, 55 N. E. 345. ‘Under our statute the course of pleading is the same in quo warranto as in other forms of action, and, in fact, the statute itself so provides.’ People v. Central Union Telephone Co. 192 Ill. 307, 61 N. E. 428,85 Am. St. Rep. 338. ‘The action of quo warranto is a purely civil one.’ People v. Bruennemer, supra. We have also held that the plea should be drawn so as to set out appropriately what was desired in accordance with common-law pleading. People v. Munroe, 227 Ill. 604, 81 N. E. 704.

It needs no citation of authorities to show that, except as where changed by statute, common-law pleadings govern in this state in civil actions, and section 10 of the practice act (Hurd's Rev. St. 1905, p. 1532, c. 110) shows clearly that it was intended therein that the pleadings in matters of this kind should be in accordance with the common law. See, also, on this point, 17 Ency. of Pl. & Pr. p. 457; People v. Healy, 230 Ill. 280, 82 N. E. 599;Bishop v. People, 200 Ill. 33, 65 N. E. 421;Hepler v. People, 226 Ill. 275, 80 N. E. 759. While it is true that we have held that a defendant, in pleading to an information of this kind, must either disclaim or justify, and that if he pleads justification he must necessarily state specifically the grounds of his defense, still ‘it is not necessary or proper for a plea to anticipate a matter which should come from the other side, but matter that is proper for replication need not be anticipated in the plea.’ Massey v. People, 201 Ill. 409, 66 N. E. 392. ‘It is a general rule of pleading that matter which should come more properly from the other side need not be stated. In other words, it is enough for each party to make out his own case or defense. He sufficiently substantiates the charge or answer for the purpose of pleading if his pleading establish a prima facie charge or answer. He is not bound to anticipate, and therefore is not compelled to notice and remove in his declaration or plea, every possible exception, answer, or objection which may exist and with which the adversary may intend to oppose him.’ 1 Chitty's Pl. (Perkins' 16th Am. Ed.) *245. To the same effect are Golud's Pl. (5th Ed.) § 193, p. 155; 17 Ency. of Pl. & Pr. p. 470; High on Ex. Legal Remedies (3d Ed.) § 719; Stephens' Pleading in Civil Cases, p. 354.

The fourth and fifth amended pleas set out the grounds upon which appellee relied; each of them showing plainly a prima facie right to the license. In quo warranto proceedings to test the right of certain people to hold the office of drainage commissioners in a special drainage...