Stead v. Fortner

• Decision Date: 26 October 1912
• Citation: 255 Ill. 468,99 N.E. 680
• Parties: STEAD, Atty. Gen., et al. v. FORTNER et al.
• Court: Illinois Supreme Court

255 Ill. 468

99 N.E. 680

STEAD, Atty. Gen., et al.

v.FORTNER et al.

Supreme Court of Illinois.

Oct. 26, 1912.

Appeal from Appellate Court, Third District, on Appeal from Circuit Court, Shelby County; J. C. McBride, Judge.

Proceedings by W. H. Stead, Attorney General, and others, against M. C. Fortner and others. A judgment for plaintiffs was modified and affirmed by the Appellate Court, and defendants appeal. Affirmed.W. C. & W. L. Kelley and Chafee & Chew, all of Shelbyville, for appellants.

W. H. Stead, Atty. Gen., F. E. Latch State's Atty., of Shelbyville, and W. Edgar Sampson, of Springfield (Emery Andrews, of Mattoon, of counsel), for appellees.

CARTWRIGHT, J.

The town of Shelbyville is a township of the county of Shelby, which is under township organization, and the city of Shelbyville is incorporated under the general laws of the state, situated within the township and covering only a part of its territory. On April 7, 1908, the proposition, ‘Shall the town of Shelbyville become anti-saloon territory?’ was submitted to the legal voters of the township under the act to provide for the creation and abolition of anti-saloon territory, in force July 1, 1907 (Laws of 1907, p. 297), and the proposition was carried by an affirmative vote. On April 21, 1908, the proposition, ‘Shall the city of Shelbyville become anti-saloon territory?’ was submittedto the legal voters of the city, and, a majority having voted in favor of the proposition, the city became anti-saloon territory. On April 7, 1910, the proposition, ‘Shall the town of Shelbyville continue to be anti-saloon territory?’ was submitted and the majority voted against the proposition, so that the township ceased to be antisaloon territory. No proposition on the question has been submitted to the legal voters of the city or voted upon by them since the election when the city was made anti-saloon territory. On May 9, 1910, the city council of the city passed an ordinance granting liquor licenses within the city. The ordinance was vetoed by the mayor, but was passed over the veto, and licenses were issued to the appellant M. C. Forther, and others. On May 1, 1911, licenses were again issued, and one of them was to Fortner, purporting to authorize him to sell intoxicating liquors at retail for one year. Since May 9, 1910, Fortner has openly, continuously, and willfully sold intoxicating liquor at retail in premises owned by the appellant Ross Ward, in pursuance of the ordinance and licenses. The city authorities have not taken any measures to prevent such sales, and on July 8, 1910, informations were filed in the county court charging Fortner and others with selling intoxicating liquors in violation of law and maintaining common nuisances, but the county judge refused to issue warrants on the informations. At the November term, 1910, and the March term, 1911, of the circuit court of Shelby county, lists of witnesses who would testify to sales of intoxicating liquors by Fortner and others were presented to the grand juries with requests that the witnesses be called, and, if the evidence was sufficient, indictments should be returned against persons violating the law, but each grand jury refused to hear the witnesses or consider the evidence or return any indictment. After these fruitless endeavors to have to the question tried and the alleged violators of the law punished by criminal process, the Attorney General and state's attorneyof Shelby county filed the bill in equity in this case stating the above facts, alleging that the sales of intoxicating liquors were illegal and in open and flagrant violation of the law and with the connivance and consent of the city and county authorities, and praying the court to declare the premises owned by Ward, where the business was carried on by Fortner, a common nuisance, and that such nuisance be abated by the order and injunction of the court restraining the appellants from using the premises for the illegal sale of intoxicating liquors. The appellants demurred to the bill, and the demurrer being overruled they elected to stand by it, whereupon the court heard the cause and entered a decree finding the facts in accordance with the allegations of the bill and adjudging the premises in question to be a common nuisance, ordering the appellants to abate the same, and perpetually enjoining them from permitting the building to be used as a place where intoxicating liquors could be sold, bartered, or given away. On appeal to the Appellate Court for the Third district that court ordered the decree modified, so that the injunction, instead of being perpetual, should continue until the voters of the city of Shelbyville should, if ever, vote that the territory should not remain anti-saloon territory, and in all other respects the decree was affirmed. A certificate of importance was granted, and an appeal to this court.

[1] The purpose of the act under which the elections were held is to give to the voters of each political subdivision, whether large or small, and whether a town, precinct, city or village, an opportunity to make such political subdivision anti-saloon territory. The unit of control on that question is the political subdivision, and, if the vote results in favor of making the political subdivision anti-saloon territory, it becomes such territory throughout its entire extent. The act confers no affirmative authority to issue licenses for the sale of intoxicating liquors, and does not purport to authorize such sales. No vote that can be taken under the act will of itself authorize the traffic or the issuance of licenses, but municipal legislation is necessary for fixing the license fee, providing for licenses and regulating the traffic. The township, therefore, could not by any vote authorize the issuance of licenses in the city of Shelbyville. If a city, incorporated town, or village becomes anti-saloon territory, and afterward the legal voters decide that it shall not continue to be such anti-saloon territory, all ordinances either restricting, regulating or prohibiting the sale of intoxicating liquor, as well as for the issuing of dramshop licenses, again become operative. If there were ordinances in force prohibiting the traffic when the political subdivision became anti-saloon territory, they are revived by a vote that the subdivision shall cease to be anti-saloon territory, and the only effect of such a vote would be that the municipal authorities could repeal the prohibitive ordinance and pass an ordinance authorizing licenses. By the township election in 1908 the whole township, including the territory within the limits of the city of Shelbyville, became anti-saloon territory, but the city was a political subdivision having a right, under the express terms of the statute, to decide whether it should become antisaloon territory, and the voters had a legal right to vote on that question on April 21, 1908, regardless of the result of the township election. If the election in the city had resulted against the proposition, there would still have been the prohibition created by the township election, but the fact that the township had become anti-saloon territory did not preclude the city from also voting to become anti-saloon territory, to remain such until both the township and city voted to abolish the restriction. The vote of the township in 1910 that the prohibition should not longer continue as to the township did not make the city of Shelbyville saloon territory, but it remained anti-saloon territory, and will remain such until the legal voters of the city decide to the contrary and remove the restriction. To give the statute, which was enacted solely for the purpose of creating anti-saloon territory, a construction that the legal voters of the township could make the city saloon territory against the will of the legal voters of the city would not be justified. A similar statute has been construed by the Supreme Court of Colorado in accordance with this view in an opinion which appears to us to be unanswerable. Schwartz v. People, 47 Colo. 483, 104 Pac. 92. It is true, as that court condeded, that the rule does not work both ways, but it was made plain that the court had nothing to do with that question and its only duty was to enforce the statute as made.

[2] It was in the discretion of the General Assembly, in the exercise of the police power, for the protection of the health, morals, and safety of the people and the promotion of their general welfare, to enact the statute, and our only function is to apply the law as made.

[3] Section 38 of the act in question (Hurd's Rev. St. 1911, c. 43) provides that all places where intoxicating liquor is sold in violation of any provision of the act shall be taken and held and are declared to be common nuisances and may be abated as such, but it is contended by counsel for appellants that the provision cannot be enforced through a court of equity or the public be protected against the nuisance because a court of equity will not restrain the violation of public or penal statutes and will not administer the criminal laws of the state. A court exercising equitable jurisdiction will not restrain, by injunction, the commission of illegal or immoral acts and will not enjoin one engaged in the sale of liquor from making sales which are punishable by the criminal law. But that is not the object of this suit. The law has a double purpose-to punish the person committing an illegal act and to prohibit the use of property for illegal purposes-and these are separate and distinct. Punishment for the act is a fine or imprisonment, or both, but it is not...