Village of Kincaid v. Vecchi
| Decision Date | 20 December 1928 |
| Docket Number | No. 19168.,19168. |
| Citation | 332 Ill. 586,164 N.E. 199 |
| Parties | VILLAGE OF KINCAID v. VECCHI. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Louis Vecchi was arrested on a warrant issued by the Police Magistrate of the Village of Kincaid, charging him with a violation of an ordinance, but a jury trial resulted in his favor, and, on appeal to the circuit court, judgment was entered for him, and the Village appeals.
Affirmed.
Appeal from Circuit Court, Christian County; F. R. Dove, judge.
Edward E. Adams, of Taylorville, for appellant.
Harry B. Hershey and W. S. Greer, both of Taylorville, for appellee.
Appellee, Louis Vecchi, was arrested on a warrant issued by the police magistrate of the village of Kincaid, charging him with a violation of an ordinance of the village by selling soft drinks without first having obtained a license so to do. A jury trial resulted in favor of appellee, and he was ordered discharged. The village appealed to the circuit court of Christian county, where a trial before the court without a jury resulted in a finding in favor of appellee, and judgment was entered accordingly, from which judgment the village has appealed to this court, the trial judge certifying that the validity of an ordinance was involved and that public interest required that the appeal be prosecuted directly to this court.
The cause was heard on a stipulation, by which it was agreed that appellee, at the time of the filing of the complaint against him, was one of the proprietors and managers of a bottling works manufacturing soda water and a drink called ‘pop,’ and, without obtaining a license so to do, sold pop and soda water at retail within the village. It was also agreed that the board of trustees of the village regularly passed the ordinance in question; that it was regularly approved by the president of the board of trustees, published as required by law and has never been repealed, and, if valid, was in force at the time of the action against the defendant.
Section 1 of the ordinance is as follows: ‘That any person desiring to engage in the business or occupation of a dealer or vendor of soft drinks shall obtain a license therefor in the manner hereinafter provided, and any person who shall, by himself, agent, clerk, servant or employee, sell or exchange, give away or otherwise dispose of any soft drinks in the village of Kincaid without first having obtained a license therefor under the provisions of this ordinance, shall be subject to a fine of not less than $25 nor more than $200 for each offense.’ Section 2 reads: ‘The words ‘soft drinks' as used in this ordinance shall be held to signify any substance or concoction in liquid form, not in fact intoxicating, having a recognized and customary use as a beverage.’ Section 3 relates to the manner of applying for and issuing of a license, and provides, among other things, that ‘any license granted under the provisions of this ordinance shall authorize the licensee thereof to carry on said business only in the room or building specified in the application therefor.’ Section 4 provides for a license fee of $75 per annum, payable quarterly in advance. Section 5 provides the form of the license. Section 6 provides rules and regulations for the conduct of the business, etc.
It is to be noted that the penalty provided by section 1 is not for the engaging in the business of selling soft drinks, but is a penalty for the selling, exchanging, giving away, or otherwise disposing of any substance or concoction in liquid form, not in fact intoxicating, having a recognized and customary use as a beverage. The language is broad enough to cover the giving away of a drink of tea, coffee, ice cream, soda, lemonade, ginger ale, and many other similar harmlessdrinks. It is also to be noted that, by the provision of the ordinance which limits the carrying on of the business ‘to the room or building specified in the application,’ all open-air stands, which are common at public gatherings, for the sale of lemonade and other drinks at picnics and open-air church festivals, are prohibited.
The only question involved in this case is the validity of the ordinance. Appellant contends that the ordinance is valid, while appellee contends that the village has no power to require a license for the sale of soft drinks, and, even if such power existed, the ordinance is an unreasonable exercise of such power.
The passage of the ordinance was an exercise of legislative function. All legislative power is vested in the General Assembly, subject to the restrictions contained in the State Constitution and the Constitution of the United States. Every subject within within the scope of civil government which is not within some constitutional inhibition may be acted upon by it. People v. City of Chicago, 321 Ill. 466, 152 N. E. 141. A city or village is a municipal corporation of statutory creation, having only such limited powers of legislative enactment as are conferred upon it by the law of its creation. Statutes granting powers to municipal corporations...
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People ex rel. Du Page County v. Smith, 36299
...While it is true a municipal corporation has only such powers as are conferred upon it by the General Assembly (Village of Kincaid v. Vecchi, 332 Ill. 586, 164 N.E. 199), it is at the same time a commonplace principle of statutory construction that the legislative grant of power carries wit......
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City of Chicago v. Chicago Beverage Co.
...to a particular subject or occupation it must be able to point out the statute which gives it the power to do so. Village of Kincaid v. Vecchi, 332 Ill. 586, 164 N.E. 199. It has also been held that the express enumeration in article 5 of the Cities and Villages Act of the occupations or bu......