People ex rel. Hinch v. Harrison

• Decision Date: 17 April 1900
• Citation: 185 Ill. 307,56 N.E. 1120
• Parties: PEOPLE ex rel. HINCH v. HARRISON, Mayor.
• Court: Illinois Supreme Court

185 Ill. 307

56 N.E. 1120

PEOPLE ex rel. HINCH

v.HARRISON, Mayor.

Supreme Court of Illinois.

April 17, 1900.

Original petition for mandamus by the people of the state of Illinois, on the relation of John T. Hinch, against Carter H. Harrison, mayor of the city of Chicago, to compel him to issue to relator a license to keep a dramshop. A demurrer to the petition was sustained, and mandamus denied.

S. S. Gregory, for petitioner.

Charles M. Walker, Corp. Counsel, Walker & Payne, and Edwin Burritt Smith, for respondent.

CRAIG, J.

This was a petition filed in this court in the name of the people of the state, upon the relation of John T. Hinch, for a mandamus against Carter H. Harrison, mayor of the city of Chicago, to compel him to issue to relator a license to keep a dramshop at No. 773 East Fifty-First street, in the said city. The petition sets out in full chapter 15 of the Municipal Code of Hyde Park, passed March 28, 1887, which embraces in 21 sections the general subject of dramshop licenses. Sections 5, 6, and 10 are as follows:

‘Sec. 5. No person without a license to keep or maintain a liquor or beer wagon shall, by himself or another, either as principal, agent, clerk or servant, directly or indirectly, sell or give away or deliver any intoxicating liquor in any less quantity than four gallons, by, from or with any liquor or beer wagon, or employ, control, manage or use any conveyance for such purpose.

‘Sec. 6. The president and board of trustees, by resolution, may grant licenses to keep so many dramshops, saloons or beer wagons in the village of Hyde Park, outside of prohibited districts, as they may think the public good requires; but they expressly reserve the power to revoke any license at their discretion, and whenever revoked for any violation of the laws of the United States or state of Illinois or ordinance of the village of Hyde Park, whether passed before or after the date of such license, the license fee shall be forfeited to the village of Hyde Park.’

‘Sec. 10. No person shall receive a license to keep or maintain a dramshop, saloon or liquor or beer wagon within the limits of the village of Hyde Park except upon the payment in advance to the comptroller of the village, to be by him paid into the village treasury, of a sum at the rate of $500 per annum for each dramshop, saloon, liquor or beer wagon.’

On April 4, 1889, another ordinance relating to the granting of licenses was passed by the president and board of trustees of Hyde Park, as follows:

‘Be it ordained by the president and trustees of the village of Hyde Park: Any person who shall desire to obtain a license to keep a saloon or dramshop shall, in addition to the requirements now provided by ordinance, present his application in writing to the village comptroller for such license, in which shall be stated the name of the person or firm to whom the license is to be issued and the place where such saloon or dramshop is to be kept, which application shall be signed by a majority of the property owners, according to frontage on both sides of the street in the block upon which such dramshop is to be kept, and shall also be signed by a majority of the bona fide householders and persons or firms living in or doing business each side of the street in the block upon which such dramshop shall have its main entrance: provided, however, that any person or firm who shall have made application as aforesaid, and received a license to keep a dramshop, shall not be required to present an application as above in order to obtain a renewal of the license to himself or firm until at least one-quarter (1/4) of the property owners or bona fide householders, persons and firms doing business upon both sides of the street in the block upon which the said dramshop has its main entrance, shall file with the village comptroller, at least thirty (30) days prior to the time for the renewal of such license, a notice stating that the signers thereof object to the granting or renewing of the license to said person or firm. Upon receiving such notice the village comptroller shall notify the captain of police that such notice has been filed, and the captain of police shall at once notify or cause to be notified the holder or holders of the license; but a failure to give such notification shall not be construed as a waiver of the necessity for filing the application as provided above.’

The petition sets out that this ordinance was in full force and effect until the passage and adoption of the following ordinance, May 8, 1889:

‘Be it ordained by the president and board of trustees of the village of Hyde Park: That sections five (5), six (6), and ten (10) of chapter fifteen (15) of an ordinance entitled ‘The Municipal Code of the Village of Hyde Park,’ approved by the president of the board of trustees the 28th day of March, A. D. 1887, be and they are hereby amended so as to read as follows:

‘Sec. 5. No person shall, by himself or another, either as principal, agent, clerk, servant or employé, directly or indirectly, sell, give away or deliver any spirituous, vinous or malt liquor in any less quantity than four gallons, in any one package, to any one, at any place other than a regularly licensed saloon or dramshop, or from or with any liquor, beer or express wagon, or employ, control, manage or use any conveyance for such purpose; and hereafter no license shall be granted to keep or maintain any liquor or beer wagon within the village of Hyde Park. Any person violating any provision of this section shall, upon conviction, be fined not less than twenty dollars ($20) nor more than two hundred dollars ($200) for each offense.

“Sec. 6. The president and board of trustees, by resolution, may grant licenses to keep so many dramshops or saloons in the village of Hyde Park, outside of prohibited districts, as they may deem proper; but they expressly reserve the power to revoke any license at their discretion, and when so revoked may declare the license fee forfeited to the village of Hyde Park.'

“Sec. 10. No person shall receive a license to keep or maintain a dramshop or saloon within the village of Hyde Park except upon payment in advance to the village comptroller, to be by him paid into the village treasury, of a sum at the rate of five hundred dollars ($500) per annum for each dramshop or saloon, payable in three equal installments, on the first day of April, August and December of each fiscal year. Every license so granted, unless sooner revoked, shall expire at the end of the current fiscal year. Such license shall be dated as of the day of application, and no person shall be deemed duly licensed to whom a license has not been actually issued as herein provided.'

‘Sec. 2. All ordinances and parts of ordinances in conflict with this ordinance are hereby repealed.’

The petition avers that the ordinance of April 4, 1889, was, as matter of law, repealed by the ordinance of May 8, 1889, and at the time of the annexation of said village of Hyde Park to Chicago was of no force and effect in law; that said premises, No. 773 East Fifty-First street, are not within the territory mentioned in the village ordinances of Hyde Park within which no licenses to sell intoxicating liquor should be issued, but are within other territory in which licenses are permitted to be issued; that relator, for the year ending April 30, 1899, had such license duly issued by the said Carter H. Harrison, mayor, and under it conducted a dramshop on said premises, but that shortly prior to the expiration of this license more than onequarter of the property owners on the street in the block upon which the said dramshop was located filed with the proper authorities of the city of Chicago a protest or objection to the renewal of said license, as provided by the said ordinance of Hyde Park approved April 4, 1889, of which relator was notified; that relator applied on the 1st day of May, 1899, to the mayor for a renewal of his license for the year ending April 30, 1900, and tendered the customary bonds required by law and the ordinances, with good and sufficient sureties, which were filed with the city collector, and tendered and offered to pay the comptroller of Chicago the sum of $500 required for license; that Carter H. Harrison, mayor, refused to renew or issue such license to relator on account of the objection made by the property owners in the block upon which said dramshop was situated; that said Carter H. Harrison insists the said ordinance is still in force, and refuses to consider or examine relator's application for a...