Sullivan v. the City of Oneida.

• Decision Date: 30 September 1871
• Citation: 1871 WL 8239,61 Ill. 242
• Parties: DANIEL SULLIVANv.THE CITY OF ONEIDA.
• Court: Illinois Supreme Court

61 Ill. 242

1871 WL 8239 (Ill.)

DANIEL SULLIVAN

v.THE CITY OF ONEIDA.

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.

Messrs. CRAIG & HARVEY, for the appellant.

Messrs. WILLOUGHBY & GRANT, for the appellee.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

We propose only to consider the character and validity of the section of the charter, and the ordinances read in evidence.

The warrant issued commanded the officer to search the dwelling and out-houses of the accused, and if spirituous liquors were found to seize the same and bring them before the magistrate.

The ordinance greatly transcends the power granted to the council.

The charter empowered the council to declare the selling, giving away, or the keeping on hand for sale, of any spirituous or intoxicating liquors, ale, beer, or any kind of fermented liquors within the city, a nuisance.

The necessary import and plain construction is, that the liquors must be kept to sell within the city. It could never have been intended to prohibit the possession of liquors within the city, designed for sale elsewhere.

The corresponding sections of the ordinance are:

“ Sec. 3. If any person shall, within the city, keep on hand for sale, any spirituous liquors,” etc. “ Sec. 4. Whenever complaint, on oath, shall be made before the police magistrate that any person within the city has, in his, her or their possession, any intoxicating liquors,” etc.

It will be seen at a glance that the ordinance exceeds the power conferred. Possession within the city, without any intention of selling therein, is made the offense.

There is as great a divergence between the charter and ordinance in regard to the search warrant.

The charter only contemplated a search in the event that liquors were in the possession of some person, for sale within the city.

The ordinance plainly authorized the search and seizure if the liquors were kept in the city, whether the intention was to sell them, or ship them and sell elsewhere.

The commission man might have, upon storage, the liquors of his correspondent, for shipment to Chicago or St. Louis, and for sale there, and yet his business house is not secure from an unreasonable search or the property from unreasonable seizure and, it may be, confiscation. If the city of Oneida was of sufficient importance to make it a place of deposit for large quantities of liquors intended for shipment to other States and territories, though imported and in the original packages, the ordinance would interfere with commerce between the States, and it might be with foreign commerce. But confine the operation of the ordinance to the ordinary traffic between Oneida and its neighboring towns and cities, and it is unjust and illegal.

It is apparent that the ordinance is ultra vires and void.

It may be said that, in the cases supposed, the party in possession may prove his innocence--may show the purpose to be lawful. The law ought not to be guilty of such harshness and absurdity as to require a man to prove his innocence when there is not even the suspicion of guilt. The mere kindness and courtesy of giving a glass of wine to a friend may constitute a nuisance and be visited with severe punishment. That the legislature may prohibit the retail of intoxicating liquors has been often decided by this court; but this charter has taken a long step in advance of all previous legislation. It empowers the council to license, regulate and tax the sale of spirituous liquors; to declare the sale, and the keeping on hand for sale, a nuisance; to provide for its summary abatement and suppression; and it confers the power upon the police magistrate to issue warrants commanding the search of the premises of persons suspected of selling. Then it makes the mere possession prima facie evidence of unlawful intent; and, without satisfactory explanation, sufficient evidence of a sale and of keeping on hand for sale.

By the ordinance, the possession for sale may be adjudged a nuisance, and upon complaint that any person has in his possession, for the purpose of sale, intoxicating liquors exceeding in quantity one gallon, a warrant shall issue for the search of his dwelling house, and if the liquors are found they shall be seized and the person arrested, and both shall be brought before the magistrate, who shall immediately proceed to try the person, and if he should not offer to the justice a satisfactory explanation and show that he had the liquors for a lawful purpose, he shall be found guilty of a nuisance and fined, and ordered to the common jail until the fine and costs are paid; and the liquors seized shall be ordered to be sold on execution as other property, and the proceeds shall be applied to the payment of the fine and costs.

One remarkable feature of the ordinance is, that while seemingly intended for the abatement of a designated nuisance, it really maintains it. Blackstone says, a nuisance is anything that worketh hurt or damage. The nuisance aimed at in this instance must be termed of a public character as affecting public morals. It must have been regarded as noxious and injurious to the public welfare. Yet the council, while bitterly denouncing the offensive thing upon paper, made no provision for its destruction, as a due regard to the...