People v. Smith
| Decision Date | 06 April 1938 |
| Docket Number | No. 24279.,24279. |
| Citation | 368 Ill. 328,14 N.E.2d 82 |
| Parties | PEOPLE v. SMITH. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Criminal Court, Cook County; Robert C. O'Connell, Judge.
Herbert M. Smith was convicted of selling at retail alcoholic liquors in territory in which sale of liquor was prohibited, and he brings error.
Affirmed.A. A. Pantelis and Peter D. Caloger, both of Chicago, for plaintiff in error.
Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and A. B. Dennis, of Danville (Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, and Donald Korshak, all of Chicago, of counsel), for the People.
Herbert M. Smith was indicted in the criminal court of Cook county for selling at retail alcoholic liquor in territory in which the sale of liquor was prohibited. A motion was made to quash the indictment which was denied. The defendant entered a plea of not guilty. Evidence was heard by the court without a jury. The defendant was found guilty and fined $50. Motions for a new trial and in arrest of judgment were overruled and the judgment was entered. The case is here on writ of error.
The defendant operated a tavern in an unincorporated section of New Trier township at Dundee road and Hohfelder lane in the northwest corner of the township outside the limits of the village of Glencoe which is an incorporated village. The evidence discloses that a Cook county highway police officer in the village of Morton Grove went to the defendant's tavern, purchased some beer, confiscated certain intoxicating liquor displayed on the bar, and arrested the defendant. The defendant, Smith, did not display a county license to sell liquor. He informed the police officer that he had a license earlier the day of his arrest, but it had been taken from him by a sergeant of the Cook county police department, acting as agent of the Liquor Control Commission of Cook county. The defendant was given a receipt for the license, which would expire on April 30, 1937. The defendant's license was not revoked on the day it was taken from him and it had not been marked as revoked or canceled. The defendant had a federal license and he had paid to the Liquor Control Commission of Illinois the required license fee and obtained a receipt therefor. The liquor confiscated contained alcohol by volume of 4.4 per cent.; by weight, 3.52 per cent.; and was 9.8 per cent. proof. Under the statute it was, therefore, intoxicating.
An election was held on April 10, 1934, in the unincorporated parts of four of the election districts of New Trier township, upon the proposition of whether the sale at retail of alcoholic liquor should be prohibited in that part of New Trier township lying without the corporate limits of any city, village, or incorporated town in said township. There were cast in favor of the proposition-that is, to prohibit the sale of liquor-114 votes, and against the proposition, 58 votes.
The contentions on behalf of the defendant are largely the same as those made upon the motion to quash the indictment. The principal question is whether the Legislature had the right to enact that part of the Liquor Control Act which authorizes portions of a township outside of incorporated cities, villages, and towns to pass on the question of whether liquor shall be sold in such unincorporated portions of a township. Section 1, article 9, of the Liquor Control Act, as amended in 1935, provides for a referendum vote on the question of the prohibition of the sale of alcoholic liquor in any city, village, or incorporated town of more than 200,000 inhabitants. Another part of the same paragraph gives the same right to such municipalities containing 200,000 inhabitants or less. A third part of the paragraph (the part here involved) provides that: ‘In all townships or road districts (or in a part thereof where part of such township or road district lies within and a part without a city, village or incorporated town) lying without the corporate limits of a city, village or incorporated town, the vote of any such township, road district or said part thereof, shall be as a unit.’ The paragraph provides for the submission of the proposition to the voters upon the filing in the office of the clerk of the township or road district a petition signed by not less than 25 per cent. of the legal voters of such township or road district or part thereof. Ill.Rev.Stat.1937, c. 43, § 167. By this paragraph the proposition may be submitted in any municipality of whatever population and in any unincorporated territory in the state. The act is, therefore, applicable to all the inhabitants of the state who wish to comply with the statute.
It is contended that townships cannot exercise the power of local self-government as they exist under the Constitution, but that they are only fiscal agents of the counties of the state; that local self-government is exercised only by municipal corporations proper, such as incorporated cities, villages, and towns; that the right to vote at a local option election is limited to the voters of incorporated cities and villages, as one of the principal reasons for their incorporation is that police powers and regulations peculiar to their own communities may be regulated by the inhabitants and voters thereof. It is true that a town under the township organization system is a civil subdivision of the county and is a subordinate agency to aid in the administration of the general state and local government, County of Cook v. City of Chicago, 311 Ill. 234, 142 N.E. 512, 31 A.L.R. 442;People v. Martin, 178 Ill. 611, 53 N.E. 309; but it is hardly accurate to say that townships exercise no powers of self-government and have no police power under any circumstances. One illustration will show that the statement is incorrect. Parks may be established in townships for the health and welfare of their citizens. The provision for the health and welfare is under the general police power. Great Atlantic & Pacific Tea Co. v. Mayor of Danville, 367 Ill. 310, 11 N.E.2d 388, 392. While article 10 of the Constitution, which relates to counties, provides, in section 5 thereof, that the General Assembly shall provide by general law for township organization, there is nothing in the article to negative the right of self-government in townships in respect to local option or other local concerns. Chapter 139 of the statutes, Ill.Rev.Stat.1937, is devoted to township organization. Article 4 of that chapter, section 37 et seq., relates to the corporate powers of towns. The electors at town meetings have power to take all necessary measures and give directions for the exercise of their corporate powers. Among other functions, townships may maintain within their limits, cemeteries, whose control and management need not differ essentially from the management and the control the cemeteries in municipalities.
There is no constitutional requirement that the Legislature must adhere to boundary lines of counties or townships in legislating upon subjects involving the prescribing of areas or districts. Parks in townships have been mentioned. They are not required to follow established boundary lines and are not confined in their government to the ordinary township offiers elected or appointed under township organization. Drainage and levee district boundaries are not required to be related to the boundaries of counties or townships.
There is no inherent right to sell intoxicating liquors. It is the policy of the...
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