Timm v. Harrison

• Decision Date: 15 February 1884
• Citation: 1884 WL 9827,109 Ill. 593
• Parties: AUGUST TIMMv.CARTER H. HARRISON, Mayor.
• Court: Illinois Supreme Court

109 Ill. 593

1884 WL 9827 (Ill.)

AUGUST TIMM

v.CARTER H. HARRISON, Mayor.

Supreme Court of Illinois.

Feb. 15, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.

Mr. MELVILLE W. FULLER, Mr. HARRY RUBENS, and Mr. EDWARD ROBY, for the appellant.

Mr. F. S. WINSTON, and Mr. JAMES MCCARTNEY, Attorney General, (with whom were Mr. J. L. HIGH, and Messrs. C. C. & C. L. BONNEY, as amici curiæ,) for the appellee.

Mr. CHIEF JUSTICE SHELDON delivered the opinion of the Court:

This was an application, made November 3, 1883, for a writ of mandamus to compel the mayor of Chicago to issue to the petitioner a license for the sale of intoxicating liquors, upon tender of $103, the amount alleged to be the proper license fee under the ordinances of the city of Chicago, the petitioner alleging full compliance with the requirements of the city ordinances. Defendant, by his answer, admitted such tender and compliance with the city ordinances, but justified his refusal to grant the license, under an act of the General Assembly, entitled “An act to restrict the power of counties, cities, towns and villages in licensing dramshops, to provide for granting a license to retail malt liquors separately, and for punishing persons holding such separate license, for unlawful sale and gifts,” approved June 15, 1883, in force July 1, 1883, by which act cities, towns and villages are prohibited from granting licenses for the keeping of dram-shops except upon payment of a sum not less than at the rate of $500 per annum, or not less than $150 per annum when the license is for the sale of malt liquors only. Petitioner excepted to the answer, averring that the act of the General Assembly in question was unconstitutional. The court overruled the exception and dismissed the petition, and the petitioner appealed. The record thus presents the sole question of the constitutionality of the act of the General Assembly in question. It is insisted that the act of June 15, 1883, is in effect an amendment of chapter 43 of the Revised Statutes of 1874, known as the “Dram-shop act,” and that it violates the provision of section 13, article 4, of the constitution of 1870, that “no act hereafter passed shall embrace more than one subject, and that shall be expressed in the title,” in that the title of the act does not profess to make such amendment. It is said that if an existing law is amended, the fact that the new act is in amendment of the prior law must be expressed in the title of the new act, because such fact is the “subject” of the new law. The subject matter of each of the three sections of the act of June 15 is embraced in the title. If such subject matter operates to amend or to repeal any prior law, that will be but the effect of the subject matter; and it is only the subject which the constitutional provision requires to be expressed in the title, and not the effect thereof. This precise question we regard as determined by the decision in The People v. Wright, 70 Ill. 388. The court there say of the act which they were called upon to construe: “Although that act does not, in terms, profess to be an amendment of the charter of the city of Chicago, it is manifest that such was its necessary effect. It is entitled ‘An act to establish a board of police in and for the city of Chicago, and to prescribe their powers and duties.’ It requires the organization of an executive department of the municipal government of the city, to be known as the ‘board of police of the city of Chicago,’ and to this board it transfers the control and management of the entire police of the city, and also of all public police property. Certain powers theretofore exercised by the mayor and common council are thereafter to be exercised by the board of police. * * * It (the act) became fundamental--a part of the organic law of the municipality,--in other words, an amendment of its charter; and the mere fact the act in its title does not profess to amend the city charter, is unimportant. It professes to, and does, enact that which makes new organic law for the city government, and this is sufficient.” The act in that case was passed in 1861, but the then constitution of 1848 contained this same provision as to every private or local law,--that it should not embrace more than one subject, and that should be expressed in the title. The repeal of a statute on a given subject, it is held, is properly connected with the subject matter of a new statute on the same subject, and therefore a repealing section in the new statute is valid, notwithstanding the title is silent on that subject. (Cooley's Const. Lim. 145. And see Burke v. Monroe County, 77 Ill. 610.) We think the same may be said of an amendment by implication. In Town of Abington v. Cabeen, 106 Ill. 207, upon a review of the decisions in this State upon this question of title, this court say: “The title adopted being sufficient to apprise the legislators fairly of the general subject matter of the act, all the provisions therein fairly related to that general subject, and designed to conduce to the building of the road named, must, in the light of previous decisions of this court, be held to be fairly embraced in the title adopted.”

It is claimed that this act of June 15, 1883, violates the further provision of said section 13, of article 4, of the constitution, that “no law shall be revived or amended by reference to its title only, but the law revived, or the section amended, shall be inserted at length.” The act of 1883 contains three sections. Section 1 forbids the granting of a license for the keeping of a dram-shop by the corporate authorities of any city, town or village, except upon payment of a sum not less that $500, except that a license for the sale of malt liquors may be granted upon payment of not less than $150. Section 2 imposes like limitations upon the exercise of the like power by county boards. Section 3 prescribes a penalty for selling liquors other than malt liquors under a license to sell malt liquors only. The act does not profess to be amendatory of any other act. Section 2 of the act, aside from the change in the amount of the license fee to be imposed by county boards, contains all that is embraced in section 3 of the Dram-shop act, with the further provision: “ Provided, that in all cases where a license is granted for the sale of malt liquors only, such board may grant the same upon payment into the county treasury of a sum not less than $150 per annum for each license.” So that as respects section 2 of the act of 1883, section 3 of the Dram-shop act is, with the changes above indicated, inserted at length in the former act, making, as respects section 2, a full compliance with the constitutional requirement that the section amended shall be inserted...