The City of East St. Louis v. Wehrung

• Court: Illinois Supreme Court
• Writing for the Court: WALKER
• Citation: The City of East St. Louis v. Wehrung, 50 Ill. 28, 1869 WL 5160 (Ill. 1869)
• Decision Date: 31 January 1869
• Parties: THE CITY OF EAST ST. LOUISv.PHILIP H. WEHRUNG.

50 Ill. 28

1869 WL 5160 (Ill.)

THE CITY OF EAST ST. LOUIS

v.PHILIP H. WEHRUNG.

Supreme Court of Illinois.

January Term, 1869.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of St. Clair county; the Hon. J. GILLESPIE, Judge, presiding.

The opinion states the case.

Mr. WILLIAM H. UNDERWOOD, for the appellant.

Mr. G. KOERNER, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action before the city judge of East St. Louis, against Philip H. Wehrung, for the violation of an ordinance of the city prohibiting the sale of spirituous, alcoholic, vinous, mixed, intoxicating, malt or other liquor or cider, without a license. After trial, the case was removed by appeal to the circuit court, and from that to this court. The 6th section of article II, of ordinance 56, declares that “licenses may be granted under this article to proper persons, for a period of not less than one month nor more than six months, to be determined by the city treasurer in each case, but the city treasurer may, in his discretion, reject any application for license under this article for a longer period than one month, and, with the concurrence of the mayor, he may reject any application for license under this article.”

Sec. 2 declares that dram-shop keepers shall pay an amount to be fixed in each case, not less than at the rate of $50 for six months, to procure a license to keep such dramshop.

Sec. 7 of the same article provides that any person desiring to obtain a license to sell such liquors, shall present, at the time of making application, to the city treasurer, a good and sufficient bond in the sum of $500, with one or more securities approved by the mayor, conditioned that the applicant shall keep an orderly house, and in case of failure to do so, the bond and license to become forfeited. The ordinance declares that any person violating its provisions shall forfeit not less than $3 nor more than $100 for each offence.

It was agreed that appellee was a dram-shop keeper on and after the 1st of September, 1867, and on the 2d day of that month tendered to the treasurer of the city the amount required of him for a license as a dram-shop keeper for six months, from and including the 1st day of that month, in a certificate of indebtedness issued by the Metropolitan Police Commissioners of the city, and demanded a receipt for the amount upon which to obtain a license, and the treasurer refused to receive the certificate and give a receipt therefor; that appellee continued to keep a dram-shop as he had done, and is prosecuted, under the ordinances of the city, for keeping a dram-shop without a license.

The case was tried in the circuit court, where, upon the agreed facts, the court found for appellee, whereupon appellant entered a motion for a new trial, which was overruled and judgment rendered against the city, to reverse which, this appeal is prosecuted.

The ordinance under which this proceeding was instituted, delegates to the treasurer of the city the power to determine the amount that each applicant for a license shall pay--not less than $50 for six months. As a general rule, where power is conferred upon a municipal corporation to regulate any calling or business, they are powerless to delegate a discretionary authority to others, or to an individual. In creating...