Swarth v. People Ex Rel. Paxton.

• Decision Date: 15 May 1884
• Citation: 109 Ill. 621,1884 WL 9830
• Parties: AUGUST C. SWARTH et al.v.THE PEOPLE ex rel. Paxton.
• Court: Illinois Supreme Court

109 Ill. 621

1884 WL 9830 (Ill.)

AUGUST C. SWARTH et al.

v.THE PEOPLE ex rel. Paxton.

Supreme Court of Illinois.

Filed at Mt. Vernon May 15, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. ELLIOTT ANTHONY, Judge, presiding.

This is an appeal from a judgment of the Superior Court of the county of Cook, purporting to oust appellants from the exercise of “the franchise, privilege and license of selling intoxicating liquors at retail, in less quantities than one gallon,” and imposing a fine upon them for usurping “the franchise, privilege and license described in the information,” which was “the franchise and privilege of keeping a dram-shop and liquor saloon, and of selling intoxicating liquors at retail, in less quantity than one gallon.” This judgment is founded upon an information by the Attorney General, in the nature of a quo warranto, to test the validity of the license of appellants, purporting to have been issued to them on June 29, 1883, by the mayor of the city of Chicago, under the corporate seal of the city, and signed by the mayor and clerk, and purporting to license appellants “to keep a saloon or grocery at 385 and 387 N. Clark street,” in Chicago, and “to sell, barter,” etc., “wines and other liquors, whether malt, vinous, ardent or fermented, in quantities less than one gallon, from the date thereof until the first Monday of April, 1884.” The plea of appellants justified the keeping of a dram-shop under this license, and in response to a suggestion in the information, the plea claims that the act of June 15, 1883, (commonly known as the “Harper High License law,”) is unconstitutional and void. Various objections to the license were raised by the replications. By ordinances in force in Chicago at the time of the passage of the act in question, (June 15, 1883,) all saloon licenses expired on the last day of June next after the date of their issue, (sec. 1852, Revised Ordinances,) and by statute no such license could lawfully extend beyond the municipal year in which it was granted, (sec. 46, chap. 24,) and the current municipal year in Chicago never having been fixed by ordinance, would, unless changed by ordinance, terminate on the 1st day of April, 1884. (See sec. 88, chap. 24, and sec. 48, as amended March 9, 1877.) The act approved June 15, 1883, in force July 1, 1883, provides, “that hereafter it shall not be lawful for the corporate authorities of any city to grant a license for keeping a dram-shop, except on payment, in advance, into the treasury of the city granting the license, such sum as may be determined by the authorities of such city, not less than at the rate of $500 per annum,” etc. On June 18, 1883, an ordinance was passed by the city of Chicago, providing that “every such license hereafter granted, unless sooner revoked, shall expire on the first Monday of April next thereafter. For every such license issued hereafter, and prior to July 1, 1883, there shall be paid the sum of $103.” It will be observed that the first Monday of April, 1884, occurs on the 7th day of that month, while the current municipal year, as then defined, would end on the first Tuesday of April, which, in 1884, occurs on the 1st day of that month, and thus the ordinance of June 18, 1883, provided for the expiration of such licenses on a day beyond the period of the then municipal year. On June 28, 1883, another ordinance was passed, fixing the Monday after the first Tuesday of April for the beginning and ending of the municipal year, and extending the current municipal year to the 7th day of April, 1884, which is the first Monday after the first Tuesday.

On June 15, 1883, appellants were keeping a dram-shop in the city of Chicago, under a license issued to them by the city before that time, which, under the ordinances and laws then in force, and on its face, would expire on June 30, 1883. On June 29, 1883, after the current municipal year had been extended to the first Monday of April, 1884, by the ordinance of June 28, supra, and after the price of such license had been fixed, as above stated, at $103, and one day before their then license would expire, and two days before the act of June 15 came into force, appellants, without any application made therefor in writing, and without any petition signed by a majority of the voters of the town, election precinct or district in which their dram-shop is located, received a license from the city on payment of $103, and giving the bond required by law, under the signatures of the mayor and city clerk, and under the seal of the city, authorizing them to keep a dram-shop at the place named, in the city, from that date until the first Monday of April, 1884. The signatures of the mayor and city clerk were not written by them with a pen, but were stamped on the license by some other person. The objections presented to the validity of this license were, that the license was granted by the mayor, and not by the city council; that there was no previous application therefor made in writing; that the signatures were not signed to the same by the mayor and city clerk, but were stamped thereon by some other person; that a prior license was outstanding when it was issued; that the same was not issued in compliance with the High License law of June 15, 1883; that the ordinances of June 18 and June 28, and the issue of this license, constitute a fraud upon that statute, and that all these things were done for the fraudulent purpose of defeating the object of that statute, and the ordinance of June 18 extended the period of the license beyond the then municipal year.

Mr. AUSTIN BIERBOWER, Mr. HARRY RUBENS, and Mr. EDWARD ROBY, for the appellant.

Mr. F. S. WINSTON, Jr., for the city of Chicago. Mr. JAMES MCCARTNEY, Attorney General, Mr. GILBERT L. MILLER, assistant, Messrs. C. C. & C. L. BONNEY, and Mr. JAMES L. HIGH, for the appellees.

Mr. JUSTICE DICKEY delivered the opinion of the Court:

The court is unanimous in the opinion that the act of June 15, 1883, called the “High License law,” is valid and constitutional. That question was settled by the decision in Timm v. Harrison, (109 Ill., p. 593,) and needs no further discussion here. A majority of this court, after careful consideration, are of opinion that the judgment in this case should be reversed, and the information dismissed, and that is the judgment to be entered in this case.

We think the license set up by appellants is a valid license, and justifies their right and lawful authority to retail liquors, as claimed by them. A previous application in writing is not essential to the validity of such a license. It is enough, in this respect, that it be issued, and accepted by the licensees. Nor is it essential that the signatures of the mayor and city clerk be affixed with a pen. Such signature may be lawfully affixed by stamping a fac simile of the written signature of such officer, if done by him, or by another under his direction or at his request. The fact that the license was not granted upon the petition of voters in the town or election precinct, is not important, as the statute on that subject has no relation whatever to licenses granted by a city. It is true, the ordinance prescribing the duties of the mayor in issuing licenses, says that he shall, under certain circumstances, “““ grant” licenses to certain persons, while the statute authority to “ grant' DD”” such licenses is given only to the city council; but the substance of the ordinance is, that the city council grants licenses to a certain class of persons, upon certain conditions, by authorizing the mayor to ““grant,”--that is, to issue,--or cause license to be issued, when the conditions are complied with. This is not a delegation to the mayor of the power of the council. We see no objection to the form in which this power of the council is exercised, or the mode in which the license was issued.

Nor do we think it of the slightest importance that the ordinance fixing the time when the license shall expire was passed before the ordinance extending the municipal year to the same time. It is sufficient that at the time when the license was issued the municipal year had been extended, so that the period of the license was not beyond that of the municipal year. We think a license issued to extend to a time beyond the end of the then municipal year would nevertheless be valid for so much of the period named as does not extend beyond the end of such municipal year.

The objection that appellants, on the day they received their license, had already a former license under which they might have continued to sell for another day, can not affect the validity of the present license. No legal difficulty seems to exist to a man buying as many licenses as he chooses, to do the same thing. Each of them, if in other respects unobjectionable, would permit him to do the thing in question. Were this otherwise, the acceptance of the new license would be regarded as a surrender of the old.

The most important objections, and those most strenuously pressed upon our attention, are the allegations, first, that by a true construction of the act of June 15, 1883, it provides, “that after the date at which the act went into force it shall not be lawful for any person to sell intoxicating liquors except upon compliance with the act,”--that is, without having a license for which he has paid in advance at a rate not less than $500 a year; and second, that the passage of the ordinances passed after June 15, 1883, and the issuing of the license under the same, in the manner in which these things were done, is a fraud upon that statute, and that these proceedings were an unlawful and fraudulent evasion of the statute, designed and intended to defeat the objects of that statute.

If it were the intention of the legislature to provide that after July 1, 1883, it shall be unlawful for any person to keep a dram-shop without having a license for which he has paid...