Town of Carthage v. Buckner

• Decision Date: 31 May 1879
• Citation: 4 Bradw. 317,4 Ill.App. 317
• Parties: TOWN OF CARTHAGEv.CHARLES P. BUCKNER.
• Court: United States Appellate Court of Illinois

4 Ill.App. 317

4 Bradw. 317

TOWN OF CARTHAGE

v.CHARLES P. BUCKNER.

Appellate Court of Illinois, Third District.

May Term, 1879.

OPINION TEXT STARTS HERE

ERROR to the County Court of Hancock county; the Hon. JOHN B. RISSE, Judge, presiding. Opinion filed October 2, 1879.

Messrs. MANIER & MILLER and Mr. S. H. BENSON, for plaintiff in error; that the ordinance was proper evidence in the case, it having been properly adopted and published, cited Hensoldt v. Town of Petersburg, 63 Ill. 111; Byars v. City of Mt. Vernon, 77 Ill. 467.

No written complaint was necessary to commence the suit: Town of Jacksonville v. Block, 36 Ill. 507.

It was the duty of the court to hear and determine the cause in a summary manner, according to its merits: Town of Jacksonville v. Block, 36 Ill. 507; Byars v. City of Mt. Vernon, 77 Ill. 467; Powell v. Feely, 49 Ill. 143; Harbaugh v. City of Monmouth, 74 Ill. 367.

As to power to enact such an ordinance: King v. Town of Jacksonville, 2 Scam. 305; Goddard v. Town of Jacksonville, 15 Ill. 588.

A physician must practice his profession upon such terms and under such restrictions as the law-making power in its discretion may deem most for the interest of the community: Cohen v. Wright, 22 Cal. 194; Simmons v. State, 12 Mo. 271; State v. Glazay, 5 Ohio, 22; Goldthwaite v. City of Montgomery, 50 Ala. 486; Aiken v. Board of Health, 11 Chicago Legal News, 35.

By giving a prescription for the druggist to fill, the physician becomes an actor in the sale: Johnson v. The People, 83 Ill. 431.

Defendant must prove that he gave the prescription in good faith: Harbaugh v. City of Monmouth, 74 Ill. 367; The People v. Safford, 5 Denio, 114.

Mr. W. E. MASON, for defendant in error; argued that all legislative power is vested in the General Assembly, and cannot be delegated to any other tribunal, and cited Constitution Art. IV, § 1; Thorne v. Cramer, 15 Barb. 112; Mays v. State, 4 Ind. 342; Wayman v. Southard, 10 Wheat, 1.

The powers of corporations are limited by the grants in their charters: Town of Petersburg v. Metzker, 21 Ill. 205.

Ordinances must be reasonable, and not inconsistent with the Statute or Constitution: City of Chicago v. Rumpff, 45 Ill. 90; Dillon on Municipal Corporation, 308; People v. Throop, 12 Wend. 183; Pedrick v. Bailey, 12 Gray, 161; Durham v. Rochester, 5 Cow. 462; Paris v. Graham, 33 Mo. 94; Sullivan v. City of Oneida, 61 Ill. 242; Sullivan v. City of Stephenson, 62 Ill. 290; City of Clinton v. Phillips, 58 Ill. 102; Peoria v. Calhoun, 29 Ill. 320; St. Paul v. Coulter, 12 Minn. 41; Wiggins v. City of Chicago, 68 Ill. 372.

Whether an ordinance is unreasonable or inconsistent with the statute, is a question of law for the court: Peoria v. Calhoun, 29 Ill. 320; Austin v. Murray, 16 Pick. 121; Buffalo v. Webster, 10 Wend. 100.

Under the power to regulate the sale of liquor, the town had no right to pass an ordinance subversive of a common or private right: City of Clinton v. Phillips, 58 Ill. 102; Sullivan v. City of Oneida, 61 Ill. 242.

The ordinance makes special and unwarranted discrimination: St. Louis v. Cafferata, 24 Mo. 94; St. Louis v. Benton, 11 Mo. 6; Chicago v. Reumpff, 45 Ill. 90; Municipality v. Blineau, 3 La. An. 688.

If the prescription, on its face, is for medical purposes, it is sufficient to protect the druggist under this ordinance: People v. Safford, 5 Denio, 114.

He who affirms a material fact, must prove it: Hinman v. Pope, 1 Gilm. 131; Watt v. Kirby, 15 Ill. 200; Ross v. Utter, 15 Ill. 402; G. W. R. R. Co. v. Bacon, 30 Ill. 347.

It must appear that there was bad faith in giving the prescription: Conkright v. The People, 35 Ill. 204.

Bad faith will not be presumed against the defendant: Waddle v. Duncan, 63 Ill. 223; Booth v. Town of Carthage, 67 Ill. 102; Town of Collinsville v. Scanland, 58 Ill. 221; Kinder v. Gillespie, 63 Ill. 88.

A defendant must be apprised of the nature of the action against him; and under a complaint for violation of an ordinance, setting forth the offense, an entirely different offense cannot be shown: Brookbank v. Smith, 2 Scam. 78; Bates v. Buckley, 2 Gilm. 389; Webb v. Lasater, 4 Scam. 543; Gates v. City of Aurora, 44 Ill. 122.

HIGBEE, J.

This was a suit by the town of Carthage against defendant, Charles P. Buckner, for the violation of an ordinance of said town. By its charter the town was authorized to license, regulate, or suppress and prohibit, the selling, bartering, exchanging or giving away of any vinous, malt, fermented, spirituous or intoxicating liquor within its limits.

Acting under this authority, the town, on the 12th day of February, 1873, passed an ordinance containing the following sections:

“SECTION 1. Be it ordained by the Town Council of the town of Carthage, that it shall be unlawful for any person or persons to sell, barter, exchange or give away, within said town, in a less quantity than five gallons, any brandy, whisky, rum, gin, wine, ale, beer, cider, or other vinous, malt, fermented, spirituous or intoxicating liquors, or any beverage or drink in which any of the aforesaid liquors is mixed or contained. And any person or persons so offending shall be adjudged guilty of a nuisance, and upon conviction thereof shall be fined in the sum of ten dollars for each and every offense.”

“SECTION 10. None of the provisions of this ordinance shall apply to any person or persons duly licensed by the authorities of said town to vend and sell the liquors, drinks or beverages aforesaid, or to their clerks, agents, servants or employes; and no prosecution shall be had thereunder against any established druggist or apothecary who shall sell, barter, exchange or give away wine for purely sacramental purposes; or any of the liquors aforesaid to any other person upon the written prescription of any respectable practicing physician for medical purposes; and to no practicing physician who shall, in good faith, sell or give away to any patient any of the liquors aforesaid for medical purposes; and the fines above provided shall not be applicable to any person who shall sell, barter, exchange or give away cider for the use and consumption of any person at his private residence or in his family for culinary purposes, nor to any person who shall in good faith give away any of said liquors at his or her place of residence.”

“SECTION 11. That it shall be unlawful for any physician to give a prescription to any well person or persons, who is or are apparently in good health, to enable him or them to get any of said liquor, beverage or drink, to be used as a beverage; and any physician so offending shall be adjudged guilty of a nuisance, and upon conviction thereof, shall be fined in the sum of ten dollars for each and every offense.”

“SECTION 12. It shall be the duty of the president, trustees, constable and all police officers of the town, to give notice to the town attorney of every breach of this ordinance, which may come to their knowledge, and the town attorney, upon said complaint being made and signed by the party so complaining shall prosecute suit against the person or persons so offending.”

This suit is brought for a violation of section eleven of the ordinance, and the plaintiff charges that defendant was a practicing physician of said town, and as such, gave to divers well persons, who were apparently in good health, prescriptions to enable them to obtain spirituous liquors to be used and drank as a beverage.

It is urged by defendant in error, that section eleven is unauthorized by the charter, and that it is void because it is unreasonable, oppressive, and discriminates against a particular class of persons.

The town had the power under its charter to prohibit entirely the sale of spirituous liquors within its limits by ordinance, or to permit the limited sale under such reasonable regulations and restrictions as it should deem proper.

The latter course was adopted, and sales allowed in certain excepted cases named in the ordinance, one of which was when made on the written prescription of a physician for medical purposes.

No physician was bound to act under the ordinance, but if he saw proper to avail himself of the privilege given, he was bound by its terms, and could only give a prescription for the purpose named in the ordinance, and for no other.

The object was to suppress the evils of intemperance, but not to prohibit the use of spirituous liquors for medical purposes. Who was more competent to determine when it was needed for such purposes than a practicing physician?

In clothing him with this power, was it unreasonable, oppressive, or unjustly discriminating against his profession to require him to act...