People Ex Rel. Joseph N. Besse v. the Vill. of Crotty.

• Decision Date: 30 September 1879
• Parties: THE PEOPLE ex rel. Joseph N. Bessev.THE VILLAGE OF CROTTY.
• Court: Illinois Supreme Court

93 Ill. 180

1879 WL 8601 (Ill.)

THE PEOPLE ex rel. Joseph N. Besse

v.THE VILLAGE OF CROTTY.

Supreme Court of Illinois.

September Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court of the Second District; the Hon. NATHANIEL J. PILLSBURY, presiding Justice, and Hon. JOSEPH SIBLEY and Hon. E. S. LELAND, Justices.

On the 23d of May, 1878, appellant filed in the LaSalle county circuit court a petition for a mandamus against appellee for the purpose of compelling the latter to issue to him licenses authorizing him to keep a dram-shop and pool table within the corporate limits of the village of Crotty.

The petition is in substance and to the effect following: That petitioner is a citizen of LaSalle county, Illinois, residing in the village of Crotty, in said county. That said village is a municipal corporation, incorporated under an act of the General Assembly of said State, entitled “An act to provide for the incorporation of cities and villages,” approved April 10, 1872, and in force July 1, 1872. That by virtue of the power vested in said village, by said act of the General Assembly, in relation to licensing the sale or giving away of any intoxicating liquors, it, the said village of Crotty, by and through its president and trustees, passed a resolution or order on May 4, 1878, in the words and figures following to-wit: “At a special meeting of the board, May 4, on motion of Graves, that license to keep dram shops for the present municipal year be fixed at $130. Approved. On motion of Prickett, that said license to keep dram shops be for every dram shop $80 in advance and $50 on or before November 1, 1878. Approved,”--all of which will more fully appear at the hearing hereof, reference being had to the records and files in the office of the clerk of said village. That at the special meeting aforesaid of said president and trustees, it was, among other things, ordered that a license for billiard and pool tables be passed, in the words and figures following, to-wit: “On motion of Prickett, that the license to keep billiard tables, bagatelle, pool tables, shooting galleries or other games of chance, be for every such privilege $5. Approved,”--all of which will more fully appear, reference being had to the records and files in the office of said clerk. That said president and board of trustees appointed one Thomas Morrissy clerk of said village, and one Alexander Vaughey treasurer of said village. That the petitioner knows of no other ordinance, by-law, resolution or order now in force or ever passed by said village and becoming a law or order of said village, and now in force, in relation to the keeping of dram shops, or the keeping of billiard, pool and bagatelle tables therein, save and except the orders or resolutions of said president and trustees hereinbefore set forth, and the petitioner is informed, believes and so states the fact to be, that there are none other than the orders or resolutions aforesaid. That on or about May 9, 1878, a large number of persons, residents of said village, made application to said president and trustees for a license to retail spirituous, vinous and malt liquors, and for a further license to keep billiard, bagatelle and pool tables, and in accordance with the rules and regulations so passed as hereinbefore set forth; and that said president and trustees licensed and authorized said persons to keep said tables as aforesaid, and to sell by retail such liquors as aforesaid within said village, the names of the parties so licensed being as follows: Lawrence Apple, John Domm, Gaspert Singe, John Maher, Cornelius O'Laughlin, Valentine Mower, Edward Battles, John Hayden and Margaret McGettrick. That on or before said 9th day of May, 1878, and at the same time the aforesaid parties applied for license, the petitioner, conforming himself to said rules and regulations, and in conformity to the laws of said State now and then in force in relation to the granting of licenses for selling or giving away intoxicating drinks, and in the same manner as the aforesaid parties had done in applying to said president and trustees for license as aforesaid, presented to said clerk a bond in the penal sum of $3000, payable to the People of the State of Illinois, with two good and sufficient sureties, freeholders of said county, each of whom, namely Richard Wolfe and Samuel Goodrich, was ready and willing to swear that he was worth over and above the sum of $10,000, free from all liens or incumbrances, and that, further complying with said rules and regulations, he presented and tendered to said treasurer the sum of $80 for said license to keep a dram-shop as was provided by the resolution aforesaid, and the further sum of $5 for keeping a pool table as provided by the order aforesaid; but said treasurer refused, and still refuses to receive the same, though petitioner avers said treasurer is the only person authorized by law to receive money belonging to said corporation. That said clerk received said bond, but did not approve the same, nor grant to your petitioner a license for either of the purposes aforesaid, though requested so to do. That said clerk has now the possession of said bond, and has not approved the same, and is the only officer authorized by order of said village to issue licenses for the purposes aforesaid. That said clerk, on said 9th day of May, at a special meeting of said president and trustees, presented to said president and trustees said bond of the petitioner for approval in the same manner as said clerk had presented the bonds of the persons aforesaid who applied for license for the purpose of keeping a dram-shop, and said clerk presented a petition to said municipal authorities of your petitioner for license to keep a pool table, as was in accordance with the practice and regulations of said president and trustees, and under the direction of said president and trustees; but the petitioner avers, and so states the fact to be, that said president and trustees have not approved said bond, and have neither granted nor refused either of said licenses so requested and desired by the petitioner, but refused and still refuse to either issue or deny the same, though they, the said municipal authorities, have had ample time and opportunity so to do, and have issued to the persons aforesaid, at and since the date aforesaid, licenses for like purposes as those claimed as of right by the petitioner, to numerous other applicants for like licenses. That the petitioner, in making his application as above set forth, namely: by presenting a good and sufficient bond to the clerk, to be approved, and by presenting and tendering the $80 aforesaid, in all things complied with the law, practice and rules of said village governing applicants for license to keep a dram-shop, and in presenting the petition aforesaid for license to keep a pool table, and in tendering the sum of $5 therefor, as aforesaid, he in all things complied with the rules and regulations of said village governing the issuing of said licenses, and he avers that having done all that was necessary and proper in law to entitle him to said licenses, the said village has neglected and refused to perform their duty in the premises to have said license issued to the petitioner, as in law they are bound to do, though often requested so to do by the petitioner, by means whereof the petitioner is prevented from carrying on and exercising the business of retailing the liquors aforesaid, and from carrying on and exercising the business of...