People ex rel. Krause v. Harrison

• Decision Date: 19 June 1901
• Citation: 61 N.E. 99,191 Ill. 257
• Parties: PEOPLE ex rel. KRAUSE v. HARRISON, Mayor, et al.
• Court: Illinois Supreme Court

191 Ill. 257

61 N.E. 99

PEOPLE ex rel. KRAUSE

v.HARRISON, Mayor, et al.¹

Supreme Court of Illinois.

June 19, 1901.

Appeal from appellate court, First district.

Petition for mandamus by the people of the state of Illinois, on the relation of Felix F. Krause, against Carter H. Harrison, mayor of the city of Chicago, and others. From a judgment of the appellate court (92 Ill. App. 643) reversing a judgment granting the writ, relator appeals. Affirmed.

Magruder, J., dissenting.

Moran, Mayer & Meyer, for appellant.

Charles M. Walker, Corp. Counsel, and Roswell B. Mason, Asst. Corp. Counsel (Walker & Payne and Edwin Burritt Smith, of counsel), for appellees.

PER CURIAM.

The branch appellate court, in deciding this case, rendered the following opinion:

‘This is an appeal from an order of the circuit court granting a peremptory writ of mandamus to compel the mayor and certain other officers of the city of Chicago to approve the relator's bond, and to sign and deliver a license to him, authorizing and permitting the said relator to sell and offer for sale within the city of Chicago, at his premises on Cottage Grove avenue (within what is known as the ‘prohibition district’ of the former village of Hyde Park), malt liquors in quantities of one gallon or more at a time, and there to carry on the business of a wholesale malt liquor dealer. The petition for the writ set forth that the relator had resided in and carried on at the said premises, constituting a store or place of business, for more than seven years last past, a meat market and grocery business, and during said time was not a brewer, or engaged in any other business except as aforesaid. No question is raised by appellant as to the sufficiency of the allegations of the petition to entitle the relator to the mandamus prayed for, if, under the law, he is entitled to a license at the place in which he conducts his business. The answer filed in behalf of the respondents raises no issue of fact, and the case was determined by the circuit court as a matter of law arising on the pleadings. It was recited in the decree or judgment of the court: ‘The relator, and each of the respondents herein, by their respective counsel, having heretofore stipulated and agreed in open court that this cause should be heard by this court on the pleadings now on file, and that no evidence shall be introduced on the hearing of this cause; that the material facts, as alleged in said petition, shall be taken as true, except that it is not admitted by the respondents that the ordinances, with their amendments, of the village of Hyde Park, set forth in the petition herein, are no longer in force and effect; and that the court, from the pleadings on file, shall determine, as a question of law, whether the relator is legally entitled to a writ of mandamus, or whether the respondents are legally justified in refusing to grant the license, as prayed for in said petition.’

‘The ordinance under which the relator applied for a license was passed by the city of Chicago, and approved April 9, 1897, being article 3, c. 39, of the Revised Code of the city of Chicago. The village of Hyde Park was annexed to the city of Chicago June 29, 1889, under and in pursuance of an act of the general assembly of the state to provide for the annexation of cities, etc., commonly known as the ‘Annexation Act,’ approved and in force April 25, 1889. Section 18 of that act is as follows: ‘When a part or the whole of an incorporated town, village or city is annexed, under the provisions of this act, to another city, village or incorporated town, and prior to such annexation an ordinance was in force prohibiting the issuing of licenses to keep dram-shops within said territory so annexed, or any part thereof, or providing that such licenses shall not be issued except upon petition of a majority of the voters residing within a certain distance of such proposed dram-shops, then such ordinance shall continue in full force and effect, notwithstanding such annexation: provided, the city council or board of trustees, as the case may be, may, on petition of one-fourth of the voters of the territory over which said ordinance extends, submit at an annual municipal election, but not oftener than every other municipal election, the question to the voters of such territory whether or not an ordinance shall be passed authorizing the issuing of dram-shop licenses for such territory: and provided further, that upon petition in such case of one-fourth of the voters within any part of said annexed territory not less than one-half square mile in extent, asking that any such ordinance shall be continued in force in said portion of said annexed territory, said question of issuing dram-shop licenses shall be submitted separately to the voters of said portion of said annexed territory, and if a majority of the voters voting on such question vote against dram-shops, then said ordinance shall continue in force in said portion of said territory, otherwise not. The ballots cast at such election shall be written or printed, or partly written and partly printed ‘For Dram-shops,’ or ‘Against Dram-shops,’ respectively, and shall be received, canvassed and returned the same as ballots cast at said election for municipal officers, and if it shall appear that a majority of the voters so voting upon the question vote ‘For Dram-shops,’ then licenses may be issued for said territory on the same terms and conditions as licenses are granted by ordinance within other parts of the municipality. It is intended by this section to continue in full force and effect, all ordinances of any municipality, the whole or part of which is annexed to another city, incorporated town or village, whereby the licensing of dramshops is prohibited or regulated within said city, village or incorporated town, or any part thereof, without the voters of the territory so affected consent, as hereby provided, to the repeal of such ordinance by the city, village or incorporated town to which the territory is annexed.' It is set up in the answer of the respondents that section 18 of the annexation act was passed by the legislature with reference to the annexation of Hyde Park, and the protection of its inhabitants in the security afforded to them by the liquor ordinance of that village. But it is, in effect, argued by the relator that by the terms of that act such ordinances were in fact impaired to the extent of preserving only the licensing, prohibiting, and regulating of dramshops, as such. At and before the time Hyde Park was annexed to Chicago, there were in force in that village certain ordinances placing restrictions upon the liquor traffic within its boundaries. These are shown in chapter 15 of the Revised Municipal Code of the village (consisting of twenty-one sections) entitled ‘Dramshops,’ and in two amendments thereto, which became laws on May 8, 1889, and June 24, 1889. This last amendment became a law only five days before annexation was accomplished. Without reproducing these several ordinances and amendments, it is enough to say of them that before the annexation of Hyde Park, and while they were unquestionably in force, it would not have been possible for a license such as is here involved to have been granted. The gist of the argument of the relator is based upon the proposition that only the provisions of the Hyde Park ordinances prohibiting and regulating the licensing of dramshops were kept in force by the annexation act. We are free to admit that, in the absence of countervailing legislation, the ordinances of Chicago, upon the annexation of Hyde Park, eo instanti, of their own vigor, extended to and became operative over the annexed territory, and that from that instant the territory annexed became a constituent part of the city, and subject to the same laws, the same municipal organization, and the same polity which the statutes in force had already provided, for the government of the city and its institutions. McGurn v. Board, 133 Ill. 122, 24 N. E. 529;People v. Cregier, 138 Ill. 401, 28 N. E. 812. Of course, such being the law as to the extension of existing ordinances over annexed territory, subsequent ordinances of the city to which annexation has been made would have at least equal vigor over the annexed territory, in the absence of a statute saving to such territory the force of its own former ordinances.

‘At the time Hyde Park was annexed there was in force in Chicago an ordinance of that city, passed January 29, 1883, regulating the sale of ale, beer, or other malt liquors in quantities in excess of one gallon at one time, and the contention of the relator is that that ordinance became at once operative in the annexed district of Hyde Park, and governed in that regard until the passage by the city of Chicago, on April 9, 1897, of an ordinance relating to the licensing of wholesale malt liquor dealers. That ordinance permitted the selling by grocers of malt liquors in quantities of one gallon or more at a time, they first having obtained a license therefor; and it is under that ordinance that the relator has asked for the mandamus in question. The question, then, recurs, did section 18 of the annexation act keep in force the ordinances of Hyde Park relating to the subject in controversy? Coming to read the ordinance of Hyde Park, as embodied in chapter 15 of its Revised Code of 1887, and the ordinances amendatory thereof, it is apparent that the whole subject of liquor traffic within the limits of that village was covered, and not merely the keeping of dramshops. They provided for the creation of prohibition districts (and the place in question is included therein), within which no license for the keeping of a saloon or dramshop could be granted, and prohibited the granting of licenses anywhere in Hyde Park for the sale of liquor in quantities less than four gallons in a single package, except at a regularly licensed saloon or dramshop....