Village of Atwood v. Otter

• Decision Date: 04 February 1921
• Docket Number: No. 13596.,13596.
• Citation: 129 N.E. 573,296 Ill. 70
• Parties: VILLAGE OF ATWOOD v. OTTER et al.
• Court: Illinois Supreme Court

296 Ill. 70

129 N.E. 573

VILLAGE OF ATWOOD

v.OTTER et al.

No. 13596.

Supreme Court of Illinois.

Dec. 21, 1920.

Rehearing Denied Feb. 4, 1921.

Action for penalty for violation of ordinance by the Village of Atwood against Thomas Otter and others. Judgment for plaintiff, and defendants appeal.

Affirmed.Appeal from Piatt County Court; W. A. Doss, Judge.

J. L. Hicks, of Monticello, and Herrick & Herrick, of Farmer City, for appellants.

W. Thomas Coleman, of Tuscola, and Edward C. Craig, Donald B. Craig, and Fred H. Kelly, all of Mattoon, for appellee.

CARTER, J.

This was an action in debt brought by appellee, the village of Atwood, in the county court of Piatt county, in June, 1920, against appellants, to recover a penalty for a violation of an ordinance of the village which provided that no person should within the limits of the village keep, use, permit, or allow any billiard or other tables or implements kept for a similar purpose in any place of public resort. The declaration consisted of ten counts, each of which, as finally amended, charged the appellants, during various days in the year 1919, with keeping, using, permitting, and allowing to be kept and used a pool table in a place of public resort. By direction of the court the jury brought in a verdict for plaintiff and assessed appellee's damages at the sum of $5, and a judgment was entered by the court on this verdict against the four appellants for $5 damages with costs and charges, and that each of said defendants be committed to the calaboose in the village until the same should be fully paid or otherwise discharged by due process of law, and further provided that the imprisonment should in no event exceed six months from the date thereof. From this judgment an appeal was prayed and allowed to this court.

On September 23, 1919, the village of Atwood enacted an ordinance which, omitting the title and enacting and repealing clauses, reads:

‘Section 1. That no person shall within the limits of the village of Atwood, Illinois, keep, use, permit or allow any billiard, bagatelle, pigeonhole or pin alleys and ball alleys, or any other tables or implements kept or used for a similar purpose, in any place of public resort.

‘Sec. 2. Any violation of this ordinance shall subject the offender to a fine of not less than five dollars nor more than one hundred dollars for each and every offense.’

On October 16, 1919, appellants Bart Snyder, Harvey Lewis, and Harry Bishop formed an alleged organization called the Atwood Amusement Club, the certificate of incorporation stating that the management of the club should be vested in a board of directors, and that the three last-named appellants should be selected as directors for the first year of its existence. The evidence shows that thereafter, on October 31, 1919, the club held its first meeting in the Latch building, in Atwood, being the same building where the poolroom was thereafter conducted, and that Lewis was elected president and Bishop secretary; that Otter was appointed manager of the club, and a contract was made with him whereby he rented to the amusement club for the sum of $30 per month, for one year, the first floor of the Latch building for use as a clubroom; that Otter also leased to the club some pocket billiard tables and the necessary balls, cues, racks, and appurtenances, with chairs and other articles of furniture to be used in and about the tables, reserving to himself sufficient space in the front part of the room for the operation, by himself privately, of a cigar and tobacco stand and for the sale of candies and soft drinks. An agreement was further made between the club and Otter to pay him $30 per month for the tables and other appurtenances, and that if any more tables were installed he should be paid $10 per month for each of them. The agreement further provided that as manager Otter was empowered to make the house rules and to employ an assistant manager, and that the club would pay him $200 a month for his services as manager; that he should keep an account with the secretary treasurer of all moneys paid in and paid out, and from the proceeds should retain, monthly, the amount of his salary as manager and rent for the building and tables, etc. Thereafter a constitution and by-laws for the club were adopted, providing, among other things, that ‘all persons of good moral character 18 years of age or over may be admitted to active membership,’ and that ‘a gentleman shall become a member of the club by virtue of the election or indorsement of a majority of the board of directors or the admission to the club by the manager thereof,’ and requiring the payment of an initiation fee of 25 cents and the signing of the constitution and by-laws. Article 13 of the by-laws provided that--

‘All members shall have access and the right at all reasonable times to the pool and billiard tables and other games of the club, and there shall be the following schedule of charges to members' (naming them).

Article 15 provided:

‘To each new member shall be issued a ticket, which shall entitle him to a credit of 25 cents for payment of any game that may be played at the tables or with the property of the club.’

The records of the club introduced in evidence show that it had held, all told, nine meetings; that no one was ever recorded as being present except appellants, and at some meetings only two or three of the four; that at each meeting a check was issued to Otter for the entire amount that had been taken in by the club up to that time, so that Otter received all of the money the club ever took in, except a small license fee paid to the state. The evidence further shows that a poolroom was opened in the building, and that any one who wanted to play pool there could do so by paying an initiation fee of 25 cents and signing the by-laws. The evidence tends strongly to show that only Otter ever passed on the qualifications of the applicants as members of the club, and that he allowed any one to become a member by paying the necessary initiation fee. The evidence also tends to show that on the roster of the club there were listed as members every one who entered the poolroom and paid the fee, with the age of each person, and while the great majority of them were over 18 years of age, the average age of the first 50 being about 34 years, some are shown under that age, as the roster of the club introduced in evidence gives Elba Quick as 17 years old, Jack Lewis 10 years, and Lehman H. Downs 5 years. As shown by the record, a poolroom was operated in the building from the time of the organization of the club until this suit was instituted. When any one entered who wanted to play pool, all he had to do was to sign this roster and pay 25 cents, receiving a card showing payment of that amount, which was good for the first three games. After that, in accordance with the terms of the by-laws, the charge was 10 cents per cue per game. The evidence does not show that any one was ever denied admission to the room who paid the 25 cents required by the by-laws and signed the roster.

At the close of all the evidence appellants moved that the jury be instructed to find a verdict in their favor, which motion was denied. Thereafter each appellant entered a separate motion asking the court to withdraw the evidence from the consideration of the jury and instruct the jury to find such appellant not guilty. Each of these motions was denied. Thereafter appellee made its motion to direct the jury to find appellants guilty and assess plaintiff's damages at not less than $5 nor more than $100 for each and every violation of the ordinance, and that ten violations had been proved by the evidence. The court refused the instruction offered and instructed the jury to find appellants guilty, but that they would only be guilty of one offense under the declaration and that the damages should be not less than $5 nor more than $100; also instructed the jury that the verdict should be what is known as a joint verdict, that is, that the amount of damages fixed by the jury should apply to all of appellants jointly, and that they should not consider the damages against each of the appellants separately.

Counsel for the appellants argue that the ordinance in question was not shown by the record to have been legally enacted. They offered in evidence an ordinance of the village passed and approved August 6, 1906, which provided, among other things, that special meetings of the board of trustees may be called by the president, and that when he calls such special meeting he shall file in the village clerk's office ‘a statement in writing setting forth the object and purpose of such special meeting and directing the village clerk to give notice of the same. Upon the filing of such statement the village clerk shall cause to be served personally upon each member of the board of trustees, or by leaving at his usual place of residence, a notice of such special meeting, setting forth the object and purpose thereof and the time of holding the meeting.’ It is argued by counsel that the record does not show that this special meeting was legally called, because it fails to show that one of the six trustees of the village was notified thereof as required by said ordinance. It seems to be conceded that five of the trustees were properly and duly notified by personal service upon them of a written statement, with a copy of the poolroom ordinance, as required by the terms of the ordinance of August 6, 1906. When this question was first raised in the trial court there was introduced an affidavit of the village clerk which had been filed with the proceedings of the meeting of the village trustees held September 23, 1919, showing personal service of notice upon all of the six trustees. Evidence was offered to show that one of the trustees, U. S. Garrett, had not been personally served. Thereafter evidence was offered by appellee tending to show that...