Town of Greenfield v. Mook

• Decision Date: 30 November 1882
• Citation: 12 Ill.App. 281,12 Bradw. 281
• Parties: TOWN OF GREENFIELDv.PHILIP G. MOOK.
• Court: United States Appellate Court of Illinois

12 Ill.App. 281

12 Bradw. 281

TOWN OF GREENFIELD

v.PHILIP G. MOOK.

Appellate Court of Illinois, Third District.

November Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Greene county; the Hon. C. EPLER, Judge, presiding. Opinion filed January 16, 1883.

Mr. W. M. WARD, for appellant; that the ordinance is val id except as to the maximum penalty, cited Baker v. Normal, 81 Ill. 108; Hinge v. The People, 92 Ill. 406; East St. Louis v. Kase, 9 Bradwell, 409; Harbaugh v. Monmouth, 74 Ill. 367; Chicago v. Quinby, 38 Ill. 274.

An ordinance discriminating in granting licenses is valid: Crotty v. The People, 3 Bradwell, 465.

Had appellee been dealing legitimately in liquors and applied for a permit, he would have been entitled to one under the ordinance: Noecker v. The People, 91 Ill. 468; Wright v. The People, 101 Ill. 126.

As to the proof of publication: Moss v. Oakland, 88 Ill. 109.

Mr. JAMES R. WARD, for appellee; that this is a quasi criminal case, cited Naylor v. Galesburg, 56 Ill. 287; Day v. Dinton, 6 Bradwell, 479; Laws 1879, p. 70.

As to the right of appeal from justices of the peace in criminal cases and in penal prosecutions: R. S. 1881, Chap. 38, § 389; Edwards v. Vandemack, 13 Ill. 634; Clark v. The People, Breese, 340; Ward v. The People, 13 Ill. 637; President v. McKernan, 54 Wis. 487; Benuan v. The People, 101 Ill. 323; The People v. Peggy Royal, 1 Scam. 557; The People v. Dill, 1 Scam. 257; The People v. Neill, 74 Ill. 68; Zanone v. Mound City, 103 Ill. 555; Harris v. Supervisors, 15 Chicago Legal News, 93.

A town can not delegate its discretion and authority to take an appeal, to the mayor and city clerk alone: East St. Louis v. Wehrung, 50 Ill. 31; Kinmundy v. Mahan, 72 Ill. 464; People v. Crotty, 93 Ill. 188.

Plaintiff having failed to ask leave and give a good and sufficient appeal bond with a surety, the appeal should have been dismissed: Warren v. Wright, 3 Bradwell, 421; B. M. & M. Co. v. Pulling, 89 Ill. 59; Louis v. Shear, 93 Ill. 123.

All penalties and provisions not embraced in the amendment to this ordinance, are excluded and repealed: The People v. Young, 38 Ill. 491; Naylor v. Galesburg, 56 Ill. 287; Culver v. Third Nat. Bank, 64 Ill. 534; Wilson v. O. & M. R. R. Co. 64 Ill. 545; Booth v. Carthage, 67 Ill. 105; Devine v. Com'rs, 84 Ill. 595; Jefferson v. The People, 87 Ill. 505; I. & M. Canal v. Chicago, 14 Ill. 335; Hinge v. The People, 92 Ill. 423.

By the charter the town has power to declare what shall be deemed a nuisance and to abate and remove the same and punish the authors: Goddard v. Jacksonville, 15 Ill. 589; Harbaugh v. Monmouth, 74 Ill. 367.

The judicial department can not assume the powers and functions of the legislative: Galesburg v. Hawkinson, 75 Ill. 159.

The charter does not give the town authority to regulate the business and duties of druggists and physicians: Cairo v. Bross, 101 Ill. 475; Caldwell v. Alton, 33 Ill. 417; Peck v. Lockwood, 5 Day, 221; Hayden v. Noyes, 5 Conn. 391; Bowling v. West, 29 Wis. 315; Clinton v. Phillips, 58 Ill. 103; Sullivan v. Oneida, 61 Ill. 243; Rulinson v. Post, 79 Ill. 567; Trustees v. The People, 87 Ill. 303; Tugman v. Chicago, 78 Ill. 405; Zanone v. Mound City, 103 Ill. 557.

The penal part of a statute may be void and yet the remainder of the section be valid: Ely v. Thompson, 3 Marshall, 73; Meshiemer v. State, 11 Ind. 484; Lynch v. Economy, 27 Ind. 71.

When the penal part of a statute is not absolute but fixes a maximum and minimum penalty, the destruction of one part destroys the whole penal provision: Pekin v. Smelzel, 21 Ill. 469.

HIGBEE, J.

This was a prosecution by the town of Greenfield to recover a penalty for violation of an ordinance of said town prohibiting the sale of intoxicating liquors.

The trial court refused to admit the ordinance in evidence in behalf of appellant for the reason, as alleged, that it was not authorized by the charter of the town.

The charter provides that “in no case shall the fine or forfeiture exceed the sum of fifty dollars for any single offense.” Section one of the ordinance offered in evidence, prohibits the sale of intoxicating liquors within the corporate limits without a license, and provides that whoever shall violate the same shall be deemed guilty of a nuisance and shall be fined not less than twenty nor more than one hundred dollars.

There is no question that the town had the power, under the charter, to prohibit the sale of intoxicating liquors and to punish the act of selling as a nuisance; but the real point of contention is, that the first section of the ordinance offered in evidence is ultra vires and void, for the reason that the charter limits the fine to be imposed for a violation of the ordinances to a sum not exceeding fifty dollars for each offense, while the ordinance fixes the penalty at not less than twenty nor more than one hundred dollars.

It is very clear that so much of the ordinance as authorizes a fine in excess of that named in the charter is void; but does this render the whole ordinance void? In Kettering v. City of Jacksonville, 50 Ill. 39, it was insisted that the ordinance was void because it not only prohibited the sale of liquor by retail, but by wholesale, which, it was claimed, was in excess of the power conferred. The prosecution was for the sale of beer by the glass in a saloon, and the court said, “The facts which are presented by the record not only show a violation of the terms of the ordinance, but a violation of such a character as to be clearly within the constitutional reach of the city prohibition. The ordinance may be too comprehensive in its provisions and cover cases which the city has no power to control, but that is no reason why we should refuse to enforce it in cases over which the power of the city is unquestionable.”

In Harbaugh v. The City of Monmouth, 74 Ill. 367, it was held that an ordinance embracing sales that the council had no power to prohibit, could be enforced to the full extent that the city council had the power to legislate on the subject.

In The City of Keokuk v. Dressell, 47 Iowa, 598, the defendant was convicted of selling without a license and adjudged to pay a fine of twenty-five dollars, and in default of payment to be committed to the city prison at hard labor at the rate of one dollar and fifty cents per day until the fine be paid. The ordinance under which the defendant was convicted provided that upon conviction he might be imprisoned until his fine should be discharged by allowing...