Town of Flora v. Lee

• Decision Date: 28 February 1880
• Citation: 5 Ill.App. 629,5 Bradw. 629
• Parties: TOWN OF FLORAv.THOMAS L. LEE ET AL.
• Court: United States Appellate Court of Illinois

5 Ill.App. 629

5 Bradw. 629

TOWN OF FLORA

v.THOMAS L. LEE ET AL.

Appellate Court of Illinois, Fourth District.

February Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Clay county; the Hon. THOMAS S. CASEY, Judge, presiding. Opinion filed April 2, 1880.

Messrs. HOFF & ALLEN, for appellants; that the burden was upon defendant to bring himself within the exception of the ordinance, cited Noecker v. The People, Ill. Sup. Ct. 1879.

Where the verdict is clearly against the evidence, it will be set aside: Miller v. Hammers, 51 Ill. 175; Adams Ex. Co v. Jones 53 Ill. 463; Summers v. Stark, 76 Ill. 208; Geurdon v. Corbitt, 87 Ill. 272.

Underscoring particular words in an instruction should be condemmed: Wright v. Bosseau, 73 Ill. 381.

No execution for costs could be awarded against appellant: Trustees v. Shroeder, 58 Ill. 353; Kinmundy v. Mahan, 72 Ill. 462.

Mr. RUFUS COPE, for appellees; as to former recovery, cited Schmidt v. Lahensdorf, 30 Iowa, 498; Ramsey v. Herndon, 1 McLean, 450; Smith v. Whitney, 11 Mass. 445; Street v. Beckman, 43 Iowa, 497.

In a suit before a justice for violation of an ordinance, a recovery may be had for several violations, so that the judgment shall not exceed his jurisdiction: Hensoldt v. Town of Petersburg, 63 Ill. 111.

BAKER, P. J.

The charter of the town of Flora confers on it power to license, regulate and prohibit the sale of liquors; and to restrain, prohibit and suppress dram shops and tippling houses. Section 38 of chapter 10 of the ordinances of the town provides that “any person who shall, by himself or agent, or any person who, as agent for another, shall sell or give away any vinous, spirituous or malt liquors, shall be fined $50 for each offense.”

Section 39 provides that section 38 shall not apply to sales made in good faith by a bona fide druggist, for certain purposes mentioned, and under certain specified circumstances.

In February, 1879, the town commenced its action of debt in the Clay Circuit Court against appellees for $2,500; and on the 4th of March following, filed in said suit its declaration containing fifty counts, each count charging a violation of this ordinance and proceeding for the recovery of the $50 penalty for such violation. The defendants pleaded “ nil debet,” “not guilty,” and two pleas of former trial and acquittal before a justice of the peace. To these two latter pleas, the town replied, that the several violations of said ordinance in the declaration mentioned, were not, nor was any or either of them, or any one of the named identical violations of said ordinance, or those, or any of those, in the said pleas mentioned. The verdict and judgment were for the defendants. The pleas of former adjudication were not sustained by the evidence. The ordinance imposed a penality of $50 for each offense, and the testimony of the defendants themselves, conclusively showed that no single one of the alleged violations of the ordinance inquired of in this suit was investigated in the suit before the justice of the peace. No single witness who testified in the case at bar, was a witness before the justice, nor was any sale testified to in this suit mentioned or suggested on that trial. It must be presumed the suit commenced before the justice of the peace, while this suit was pending in court, was for other and different alleged violations of the ordinance. Nor was...