Picco v. Simon

• Decision Date: 20 February 1967
• Docket Number: Gen. No. 51269
• Citation: 80 Ill.App.2d 277,225 N.E.2d 389
• Parties: Charles L. PICCO, Plaintiff-Appellee, v. Seymour SIMON, Cook County Liquor Commissioner, Howard S. Cartwright, Chairman, Illinois Liquor Control Commission, Defendants, and Johnson & Johnson, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 389

225 N.E.2d 389

80 Ill.App.2d 277

Charles L. PICCO, Plaintiff-Appellee, v. Seymour SIMON, Cook County Liquor Commissioner, Howard S Cartwright, Chairman, Illinois Liquor Control Commission, Defendants and Johnson & Johnson, Defendant-Appellant.

Gen. No. 51269.

Appellate Court of Illinois, First District, First Division.

Feb. 20, 1967.

Leibman, Williams, Bennett, Baird & Minow, Chicago, George J. McLaughlin Jr., William P. Colson, Chicago, of counsel, for appellant.

Harold Bell, Chicago, for appellee.

MURPHY, Presiding Justice.

This is an administrative review action. The trial court reversed the decision of the defendant liquor control authorities and ordered the issuance of a liquor license, which the agencies had refused to issue because the application did not include 'frontage consents.' Defendant Johnson & Johnson, owner of property adjoining that sought to be licensed, appeals from the order of the trial court.

The sole issue is the present validity of a resolution of the Board of Commissioners of Cook County, adopted May 14, 1934, in the use of their authority to regulate the sale at retail of alcoholic liquor in Cook County and territory outside the cities, villages and incorporated towns therein. The resolution included the following:

'IT IS FURTHER RESOLVED AND ORDERED, that no license permitting the sale of alcoholic liquors shall be issued by the Local Liquor Commissioner unless the owner or owners of at least two-thirds of the frontage foot (along the street or road and streets and roads adjacent to such place of business for which a license is sought for a distance of two hundred feet in each direction from such proposed place of business) shall file with the Local Liquor Commissioner his or their written consent to such place for the sale of alcoholic liquors * * *.'

The Cook County Liquor Control Commissioner denied the application of Picco to retail alcoholic liquor in an unincorporated area of Cook County, on the ground that it did not contain frontage consents, as required by the foregoing resolution, and the Illinois Liquor Control Commission affirmed the denial. Plaintiff filed the instant complaint in the Circuit Court of Cook County and alleged that the only property owner from whom a frontage consent could be obtained was defendant Johnson & Johnson, a manufacturing corporation, which refused to give its consent. Plaintiff further alleged that the frontage consent resolution of May 14, 1934, was rendered inoperative by section 110 of Chapter 43 (Ill.Rev.Stat., as amended June 18, 1957.) After a hearing, the trial court reversed the decision of the two agencies and ordered the 'Cook County Liquor Control Commissioner' to issue a local liquor license to plaintiff.

Plaintiff contends that in 1941 section 110 of the Liquor Control Act (Ch. 43) was amended and thereby 'enumerated specifically certain reasons for which a liquor license may be denied and that frontage consents were not included in said list,' and 'therefore that part of the 1934 ordinance passed by the Cook County Board requiring frontage consents was superseded by the amendment * * * and thereby became inoperative.' Plaintiff cites Emm v. Sopher, 23 Ill.2d 376, 178 N.E.2d 289 (1961), where the Supreme Court said (p. 379, 178 N.E.2d p. 291):

'This amendment rendered inoperative local prohibitions against the sale of liquor in grocery, meat, and drug stores.'

Plaintiff further contends that the intention of the legislature is clearly stated in the wording of the Act, and the 'proviso' at the end of the Act, which states, 'provided, however, that in the exercise of any of the powers granted in this section, the issuance of such licenses shall not be prohibited except for reasons specifically enumerated in Sections 2, 8, 8a and 21 of Article VI of this Act', should be strictly construed. Citations include Doubler v. Doubler, 412 Ill. 597, 107 N.E.2d 789 (1952), where it is said (p. 600, 107 N.E.2d p. 790):

'Provisos in a statute, being designed to qualify or limit what is affirmed in the body of an act, should be strictly construed.'

In sum, plaintiff asserts, 'The local authorities were granted the powers by the...