Retail Liquor Dealers Protective Ass'n of Illinois v. Schreiber

• Decision Date: 16 March 1943
• Docket Number: No. 27006.,27006.
• Citation: 47 N.E.2d 462,382 Ill. 454
• Parties: RETAIL LIQUOR DEALERS PROTECTIVE ASS'N OF ILLINOIS et al. v. SCHREIBER et al.
• Court: Illinois Supreme Court

382 Ill. 454

47 N.E.2d 462

RETAIL LIQUOR DEALERS PROTECTIVE ASS'N OF ILLINOIS et al.

v.SCHREIBER et al.

No. 27006.

Supreme Court of Illinois.

March 16, 1943.

Appeal from Circuit Court, Cook County; John Prystalski, judge.

Action by the Retail Liquor Dealers Protective Association of Illinois and another against Ludwig D. Schreiber and others for a writ of mandamus commanding respondents to cancel a liquor license issued to one Ada Shiffman and all licenses issued in violation of a city ordinance and to cease issuing such licenses. The complaint was stricken on motion and the cause dismissed, and plaintiffs appeal.

Judgment affirmed.Halfpenny & Hahn and O'Farrell & Ames, all of Chicago, for appellants.

Barnet Hodes, Corporation Counsel, of Chicago (Martin H. Foss, of Chicago, of counsel), for appellees.

STONE, Chief Justice.

Appellants, The Retail Liquor Dealers Protective Association of Illinois, a corporation, and one John J. Quinlan, filed a complaint in the circuit court of Cook county seeking a writ of mandamus against defendant Edward J. Kelly as mayor and liquor commissioner of the city of Chicago, and the defendant Ludwig D. Schreiber, city clerk of that city, commanding them to cancel a liquor license issued to one Ada Shiffman, and all like liquor licenses issued in violation of a city ordinance designated as city ordinance 147-8 of the City Code of Chicago, and to cease issuing such licenses. The complaint was stricken on defendants' motion and the cause dismissed. The trial judge has certified that the validity of a municipal ordinance is involved and that the public interest requires an appeal direct to this court.

The complaint alleges that the plaintiff Quinlan is a taxpayer and resident of the city of Chicago and that the Retail Liquor Dealers Protective Association, a nonprofit corporation, is an organization of retail liquor dealers. Both parties allege an interest in the proper regulation of retail liquor sales and the ordinances pertaining thereto. It is also in the complaint alleged that the ordinance referred to herein as 147-8 of the City Code of Chicago, was passed, to become effective October 31, 1941, by virtue of powers conferred upon the city by section 1 of article IV of the Illinois Liquor Control Act (Ill.Rev.Stat.1939, chap. 43, par. 110). The complaint also sets out that section 1 of article IV of the Liquor Control Act was, on July 11, 1941, amended, but that such amendment does not supersede or repeal the ordinance 147-8 for two reasons, first, it was not the intention of the General Assembly that it should do so, and, second, the amendment is invalid for the reason that it cannot be given an intelligible application, is in conflict with itself and unworkable, and is therefore void and unconstitutional.

The complaint sets out that the defendants issued to Ada Shiffman a liquor license contrary to the provisions of ordinance 147-8 and prays that the writ of mandamus issue to compel the mayor, as liquor commissioner, and the city clerk, to cancel that license and all other licenses issued in violation of said ordinance, and ‘to cease and stop issuing licenses in violation of said ordinance.’

The defendants moved to strike and dismiss the complaint as not stating a cause of action, for the following reasons: (1) Mandamus is not a proper remedy; (2) neither plaintiff is entitled to maintain the action, as neither has any interest therein or has property rights affected thereby; (3) the ordinance 147-8 was nullified by the valid amendment of the act in 1941.

Prior to the amendment of section 1, article IV of the Illinois Liquor Control Act, that section, insofar as material here, gave to cities and villages power to, by general ordinance, determine the number, kind and classification of licenses for the sale of alcoholic liquor, and ‘to establish such further regulations and restrictions upon the issuance of and operation under local licenses not inconsistent with law as the public good and convenience may require.’ Ordinance 147-8 to become effective October 31, 1941, after various ‘Whereases,’ provided, in part, as follows: ‘No City retailer's license for the sale of alcoholic liquor shall be issued for any premises wherein any commodities other than alcoholic liquors are to be sold (food and beverage for consumption on said premises, and cigars and cigarettes excepted). This section shall not apply to the lobbies of hotels and clubs.’ The amendment to section 1 of article IV, effective July 1, 1941, after general provisions similar to the original section and further provisions that women or minors, other than the licensee or the wife of a licensee, should not pour, mix or draw alcoholic liquors as an employee of the retail licensee and prohibiting minors from attending bar, empowered cities and villages ‘to establish such further regulations and restrictions upon the issuance of and operation under local licenses not inconsistent with law as the public good and convenience may require; 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.’

Section 2 of article VI of the act, defines persons ineligible to receive such licenses. Section 8 of article VI prohibits the issuance of licenses for the sale of liquor at retail within one hundred feet of any church, school, hospital, or home for the aged or indigent, and other places therein designated. Section 8a provides ‘no license shall be issued to any...