State v. Froelich

• Decision Date: 17 February 1925
• Docket Number: No. 16447.,16447.
• Citation: 316 Ill. 77,146 N.E. 733
• Parties: STATE v. FROELICH.
• Court: Illinois Supreme Court

316 Ill. 77

146 N.E. 733

STATE

v.FROELICH.

No. 16447.

Supreme Court of Illinois.

Feb. 17, 1925.

Error to Circuit Court, Lake County; Claire C. Edwards, Judge.

Edward Froelich was adjudged guilty of contempt, and he brings error.

Affirmed.

Heard, J., dissenting in part.E. V. Orvis, of Waukegan (John T. Murray, of Chicago, of counsel), for plaintiff in error.

Edward J. Brundage, Atty. Gen., Ashbel V. Smith, State's Atty., of Waukegan, Albert D. Rodenberg and Virgil L. Blanding, both of Springfield, and George C. Dixon, of Dixon (Sidney H. Block, of Waukegan, of counsel), for the State.

DE YOUNG, J.

A bill for an injunction under the Prohibition Act (Laws of 1921, p. 681) was filed in the circuit court of Lake county on September 20, 1921, in the name of the state of Illinois, by Ashbel V. Smith, state's attorney of that county, against Edward Froelich, Minnie Rosenverg, and Andreas Rosenberg. The bill alleges that a certain parcel of real estate situated in Lake county, particularly described, is improved by a 2-story frame building known as Willis Inn; that the premises are used and maintained by Froelich as a place where intoxicating liquor, as defined by section 2 of the Prohibition Act, is manufactured, sold, kept or bartered in violation of the provisions of the act; that the premises, and all intoxicating liquors kept and maintained therein, are a public nuisance, as defined by section 21 of the act; that Froelich is the owner and proprietor of the business conducted on the premises; that Minnie and Andreas Rosenberg are the owners of the premises, and have knowledge that the building is occupied and used for the sale of intoxicating liquor contrary to the provisions of the act, and allow such occupation and use, and that unless restrained Froelich will continue to keep, maintain, and use the premises as a place where intoxicating liquor is manufactured, sold, kept, and bartered in violation of and as a common public nuisance, as defined in section 21 of the act. The prayer was for process directed to the sheriff commanding him summarily to abate the nuisance, for a temporary injunction pendente lite, and for a permanent injunction upon the final hearing. The bill was verified by the state's attorney. Summons was issued and personally served upon Froelich on September 23, 1921. The joint affidavit of Robert E. Jeske and Fred Muenchen, stating that they had on different days purchased beer at Willis Inn, which, in their opinion, was intoxicating and contained more than one-half of 1 per cent. of alcohol by volume, was filed on October 10, 1921. On the same day a temporary injunction was issued but the writ was not served on Froelich. Although served with summons, Froelich did not appear but defaulted, and by order the bill was taken as confessed against him. The proof in support of the bill was not confined to affidavits, but testimony also was heard. On June 8, 1922, a decree for a permanent injunction was entered, in which after finding, among other things, that the premises situated in Lake county, Ill., were used and maintained by Froelich as a place where intoxicating liquor was manufactured, sold, kept or bartered in violation of the Prohibition Act, and that the premises, and all the intoxicating liquor and property kept, used, and maintained therein, were a public and common nuisance as defined and declared by the act, the court enjoined Froelich and his agents and servants from manufacturing, selling, bartering or storing upon the premises any liquor containing one-half of 1 per cent. or more of alcohol by volume, and ordered that the premises should not be occupied or used for one year unless permitted by subsequent modification of the decree, and that the sheriff close and lock the premises forthwith. On August 11, 1924, a petition in the name of the people of the state of Illinois, by Ashbel V. Smith, state's attorney, was filed, which charged that since the issuance of the permanent injunction Froelich had sold intoxicating liquors on the premises to different persons. The prayer of the petition was for a citation against Froelich and certain of his agents and employees, commanding them to show cause why they should not be held in contempt of the court for violating the injunction. Such a rule was entered. Froelich filed his answer thereto, in which he admitted the filing of the bill and the issuance of the permanent injunction, but denied the other allegations of the petition, and prayed that the citation be quashed. On the hearing testimony was offered in support of the petition. The court found that Froelich had violated the permanent injunction and adjudged him guilty of contempt, and fixed his punishment at imprisonment in the county jail of Lake county for 90 days. He seeks a review by this writ of error.

The contentions os plaintiff in error, in substance, are: (1) That the proceedings under the Prohibition Act in which he was adjudged guilty of contempt of court constitute a criminal prosecution; (2) that as a criminal prosecution the proceedings are governed by section 33 of article 6 of the Constitution, and from their inception should have been carried on in the name and by the arthority of the people of the state of Illinois, and concluded against their peace and dignity; (3) that section 25 of the Prohibition Act, which provides that the court may summarily try and punish the defendant for the violation of any injunction granted pursuant to the provisions of the act, violates the fifth and ninth sections of the second article of the state Constitution, and the fifth and sixth amendments to the federal Constitution, which grarantee the right of trial by jury; (4) that he did not have 5 days' writen notice of the granting of the temporary injunction, as provided by section 22 of the Prohibition Act, and for that reason could not be adjudged guilty of contempt; (5) that his sworn answer denied all the material allegations of the petition which charged violations of the permanent injunction, and upon that answer he was entitled to his discharge; (6) that the violations charged should have been shown by proof beyond a reasonable doubt; (7) that the venue was not established; and (8) that the order adjudging him in contempt of court is void because it fails to fix the beginning and termination of his imprisonment.

The proceedings in the circuit court were conducted by authority of the Prohibition Act (Laws of 1921, p. 681), and to determine their character a consideration of the applicable provisions of that act is necessary. Section 21, among other things, declares that any room, house, building, boat, vehicle, structure or place where intoxicating liquor is manufactured, sold, kept or bartered in violation of the act, or where property designed for the illegal manufacture of liquor is kept, and all intoxicating liquor or other property so kept and used, are a common nuisance, and that a single unlawful sale, barter or act of manufacturing liquor shall constitute such a nuisance. The twenty-second section provides that an action to enjoin a nuisance defined in the act may be brought in the name of the state of Illinois by the Attorney General, or any state's attorney or other designated public officer, or by any citizen of the county where such a nuisance exists; that such action shall be brought and tried in equity by the court without a jury; that a temporary injunction prohibiting the continuance of the nuisance, and an order restraining the removal of or interference with the liquor, fixtures or other things used in violating the act may be issued pending the suit, and that upon the trial of the cause, if the material allegations of the petition are found to be true, the court shall enjoin the manufacture, sale, barter or storage of liquor in such room, house, building, boat, vehicle, structure or place, or any part thereof, and may, upon ordering the abatement of such nuisance, direct that any such place shall not be occupied or used for one year, or, in its discretion, may permit it to be occupied or used if the owner, lessee, tenant or occupant shall give bond, with sufficient surety. conditioned that intoxicating liquor will not thereafter be manufactured, sold, bartered, kept or otherwise disposed of therein, and that he will pay all fines, costs and damages that may be assessed for any violation of the act upon the property. The twenty-fifth section provides that in case of the violation of any injunction, temporary or permanent, granted pursuant to the act, the court, or, in vacation, a judge thereof, may summarily try and punish the defendant.

[1][2] The sole object of the bill of complaint was to restrain the maintenance of a nuisance. It did not seek to enforce any criminal liability or to impose any punishment. Section 22 of the Prohibition Act (Laws of 1921, p. 690), expressly provides that the suit ‘shall be brought and tried as an action in equity by the court, without a jury.’ By the form and substance of the bill and the relief sought, as well as the express provision of the act under which the suit was brought, the remedy is civil. Likewisethe proceeding to punish for contempt of court in violating its injunction is for the purpose of advancing the remedy of the complainant. It is from its inception to its conclusion essentially a civil chancery proceeding, conforming itself, in its pleadings, character, and quantity of proof required, to the rules and practice applicable to other chancery proceedings. People v. Buconich, 277 Ill. 290, 115 N. E. 185;Rothschild & Co. v. Steger Piano Co., 256 Ill. 196, 99 N. E. 920,42 L. R. A. (N. S.) 793, Ann. Cas. 1913E, 276;Hake v. People, 230 Ill. 174, 82 N. E. 561;O'Brien v. People, 216 Ill. 354, 75 N. E. 108,108 Am. St. Rep. 219,3 Ann. Cas. 966. Hence plaintiff in error was adjudged in contempt of court in a civil proceeding and not by a criminal prosecution.

[3][4][5][6][7][8][9][10] Section 33 of...