Sager v. City of Silvis

• Decision Date: 19 January 1949
• Docket Number: No. 30904.,30904.
• Citation: 83 N.E.2d 683,402 Ill. 262
• Parties: SAGER et al. v. CITY OF SILVIS.
• Court: Illinois Supreme Court

402 Ill. 262

83 N.E.2d 683

SAGER et al.

v.CITY OF SILVIS.

No. 30904.

Supreme Court of Illinois.

Jan. 19, 1949.

Appeal from Circuit Court, Rock Island County; Ray I. Klingbiel, judge.

Suit by Hosie R. Sager and others against the City of Silvis to enjoin enforcement of liquor ordinance and to have the ordinance declared invalid. From adverse orders, complainants appeal.

Affirmed.

Arndt & Wingard, of Rock Island, for appellants.

Robert E. Lee, of East Moline, and Eagle & Eagle, of Rock Island, for appellees.

SIMPSON, Justice.

Appellants, members and officers of Silvis Aerie No. 1839 of the Fraternal Order of Eagles, a voluntary association, brought suit in chancery in the circuit court of Rock Island County against appellee, the city of Silvis, the purpose of which was to restrain appellee from enforcing its liquor ordinance of April 18, 1947, and to have that ordinance declared invalid. From orders of the circuit court dismissing the amended complaint, dissolving a temporary injunction theretofore issued and allowing attorney's fees for services in connection therewith this appeal is prosecuted. The trial court certified that the validity of a municipal ordinance is involved and that the public interest requires a direct appeal to the Supreme Court.

The amended complaint filed September 26, 1947, alleges that said aerie operates a buffet in its clubrooms at Silvis, where it sells malt, vinous and spirituous beverages to its members for consumption upon the premises, and that appellants as officers had charge of said buffet; that on June 19, 1945, appellee enacted an ordinance providing for the issuance of a class B license for $130 per year to clubs which sold liquor to members only; that said aerie was the sole purchaser of a class B license which expired April 30, 1947; that on April 18, 1947, appellee enacted an ordinance amending the former one by abolishing class B licenses and establishing a class A license at $1000 per year for all who sold liquor for consumption on the premises. Appellants allege that the aerie did not procure a class A license, and that the latter ordinance discriminates against it. The amended complaint avers further that the annual revenue in license fees raised by appellee under its ordinance of April 18, 1947, was more than sufficient to pay the salaries of all the appellee's officers and employees and is a revenue measure and a tax, and is therefore unconstitutional and void.

The court had originally issued a temporary injunction restraining the enforcement of the April 18, 1947, ordinance. Motion was made to dissolve this injunction and to dismiss the complaint and for allowance of attorney's fees to appellee for services rendered in an effort to have the injunction dissolved. The court dissolved the injunction, allowed appellee $500 for services of its attorney, and dismissed the complaint for failure to state a cause of action. In its motion to dismiss, appellee contended that the license fee provided for in a municipal liquor ordinance need not be limited to the cost of enforcement as there is no law requiring such limitation, and that the ordinance was not discriminatory.

The errors relied upon for reversal are that the court erred in dismissing the action on the ground that the complaint does not state a cause of action and in awarding the appellee its attorney's fees. The main question for decision is: May a municipality in Illinois fix its fee for a license to sell intoxicating liquors at retail at an amount which multiplied by the number of licenses issued would produce a sum greater than is needed to cover the cost of regulation and thereby obtain revenue for other purposes?

The complaint alleged that appellee raised yearly in license fees under the 1947 amendment the sum of $11,560, which is in excess of the cost of operating the police department, that being $6600 annually, and is more than adequate to pay the salaries of all of appellee's employees. These facts are admitted by the motion to dismiss. Stough v. Brach, 395 Ill. 544, 70 N.E.2d 585;Scully v. Hallihan, 365 Ill. 185, 6 N.E.2d 176.

The power to license, regulate or prohibit the traffic in intoxicating liquors rests in the police power of the State, and the State may delegate it to municipalities if it so desires. The only power a municipality has to regulate the sale of alcoholic beverages is that conferred upon it by the State. Walgreen Co. v. Lenane, 363 Ill. 628, 2 N.E.2d 894;City of Fairfield v. Pappas, 362 Ill. 80, 199 N.E. 292. By act adopted January 31, 1934, the legislature adopted the Liquor Control Act, providing for the control of all matters relating to alcoholic liquors (Ill.Rev.Stat.1947, chap. 43), and it is under this act that the city's power to license must be found.

Section 1 of article IV of the act provides, ‘In every city, village or incorporated town, the city council or president and board of trustees, * * * shall have the power by general ordinance or resolution to determine the number, kind and classification of licenses, for sale at retail of alcoholic liquor not inconsistent with this Act and the amount of the local liceasee fees to be paid for the various kinds of licenses to be issued in their political subdivision and the manner of distribution of such fees after their collection; * * * 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’. Section 1 of article I of the same act provides that it shall be liberally construed, to the end that the health, safety and welfare of the people of the State shall be protected and temperance in the consumption of alcoholic liquors shall be fostered and promoted by sound and careful control and regulation of the manufacture, sale and distribution of alcoholic liquors.

It will be noted that by said section 1 of article IV there is no limitation upon the fee which municipalities may charge for a license to sell intoxicating liquors at retail, nor is there any restriction upon the use which a municipality may make of the fees when collected. On the other hand, the section provides specifically that the city may determine the amount of such fees and manner of their distribution. We find nothing in the entire act which restricts the city in fixing the amount of such license fees, so it must have been the intention of the legislature to delegate the power of the State in that connection to municipalities. Authority for the...