Washingtonian Home of Chicago v. City of Chicago

• Decision Date: 11 October 1895
• Citation: 157 Ill. 414,41 N.E. 893
• Parties: WASHINGTONIAN HOME OF CHICAGO v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

157 Ill. 414

41 N.E. 893

WASHINGTONIAN HOME OF CHICAGO

v.CITY OF CHICAGO.¹

Supreme Court of Illinois.

Oct. 11, 1895.

Appeal from circuit court, Cook county; E. W. Burke, Judge.

Petition for mendamus by the Washingtonian Home of Chicago against the city of Chicago. A demurrer to the petition was sustained, and the petitioner appeals. Affirmed.

M. B. & F. S. Loomis, for appellant.

S. Zeisler, for appellee.

CRAIG, J.

This was a petition for mandamus brought by the Washingtonian Home of Chicago against the city of Chicago to compel the city to pay to the petitioner $25,000,-10 per cent. of moneys received for licenses granted by the city for the right or privilege to sell spirituous liquors from January 1, 1893, to June 29, 1894. To the petition the city of Chicago interposed a general demurrer, which the court sustained, and the petition was dismissed. To reverse the judgment of the circuit court, petitioner appealed.

The petitioner is a corporation organized under an act of the legislature approved February 16, 1867. The act under which the petitioner was incorporated was set out in the petition, sections 1 and 2 of which are as follows:

‘Section 1. Be it enacted by the people of the state of Illinois, represented in the general assembly, that the Washingtonian Home Association of Chicago is hereby created and declared to be a body corporate and politic, under the name of ‘Washingtonian Home of Chicago,’ with power to sue and be sued, plead and be impleaded, contract and be contracted with; to take, by gift, grant, devise or otherwise, property, real, personal and mixed, and the same to hold, use, lease, convey, mortgage and otherwise dispose of, for the purposes hereinafter mentioned; to adopt and use a corporate seal, and alter the same at pleasure; also to erect and maintain such buildings and other fixtures and conveniences as may be deemed requisite or necessary for the purposes of this corporation.

‘Sec. 2. The object of this incorporation shall be the founding and maintenance of an institution for the care, cure and reclamation of inebriates.’

Section 3 authorized the corporation to adopt such by-laws for the management of the institution as it thought proper.

Sections 4 and 5 of the act are as follows:

‘Sec. 4. Fifteen of the directors of said Home, to be selected by lot, shall hold their office until the third Monday of January, A. D. 1869, and the remaining fifteen until the third Monday of January, A. D. 1871; and on the second Monday of January, A. D. 1869, and biennially thereafter, said corporation shall select successors in place of those whose term of office shall expire the Monday thereafter, who shall, respectively, hold their offices for two years, and until their successors shall have been elected; and in case of removal, death or resignation of any one or more of said directors or their successors before the expiration of their term of office, their place may be filled by said remaining directors; and such person or persons shall hold their office until the next biennial election. Seven of said directors shall constitute a quorum for the transaction of business.

‘Sec. 5. Any person sentenced by the authorities of the city of Chicago to the Bridewell or House of Correction for intemperance, drunk enness or for any misdemeanor caused thereby, may, with the consent of the proper officers of said ‘Home,’ be received and retained as an inmate of said Home in lieu of the Bridewell or House of Correction, until the expiration of such sentence; and when any such person has been committed to the city Bridewell or House of Correction for any such misdemeanor caused by intoxication or for drunkenness, either justice of the police court may, with the consent aforesaid, cause him to be transferred to said Home for the unexpired term of sentence.'

Section 7 provides:

‘Sec. 7. It shall be the duty of the treasurer of the county of Cook and the treasurer of the city of Chicago, or of the officers of either into whose hands the same may come or be paid, to pay over to said corporation in quarterly installments, for the support and maintenance of said institution, ten per cent. of all moneys received for all licenses granted by authority of said county or city for the right or privilege to vend or sell spirituous, vinous or fermented liquors within the said county of Cook and city of Chicago.’

Section 7 was amended by an act in force July 1, 1883, providing that in no case shall the sum so paid for or during any one year exceed $20,000.

It is alleged in the petition that, immediately after the act went into effect, petitioner perfected its organization, and at once proceeded to carry out the objects of its incorporation, and has continued its organization and continued to carry out the objects of its organization; that, since its organization up to the present time, petitioner has cared for and treated in its said institution not less than 18,000 inebriates, large numbers of whom have, by reason of such care and treatment, been cured and reclaimed from their unfortunate habits of drunkenness and inebriety. And petitioner avers that, of the above number of inebriates so cared for and treated by petitioner as aforesaid, a large number, to wit, about 3,865 thereof, were persons sentenced by the authorities of said city of Chicago to the Bridewell or House of Correction of said city, for intemperance, drunkenness, or for misdemeanors caused thereby, who, with the consent of the proper authorities of said Home, were received and maintained as inmates of the home in lieu of the Bridewell until the expiration of such sentence. It is also alleged in the petition: ‘That from the time of petitioner's organization until July 1, 1883, the treasurer of city of Chicago paid in quarterly installments to it, for its support and maintenance, 10 per cent. of all moneys received for licenses to sell spirituous liquors within the city. That after the said amendatory act went into force, to wit, after July 1, A. D. 1883, the treasurer of said city of Chicago continued to pay over to your petitioner, in the manner hereinbefore stated, in quarterly installments, for the support and maintenance of its aforesaid institution, ten per cent. of all moneys received by him as such treasurer as aforesaid for all licenses granted by authority of said city of Chicago, not exceeding $20,000 in any one year, up to and including the quarterly installment due on the 1st day of January 1893. That since January 1, 1893, the city treasurer has refused to make any payments.’

It is claimed on behalf of the city of Chicago that section 7 of the act of 1867, which requires the city to pay to the Home 10 per cent. of all moneys received for licenses to sell spirituous liquors, and the amendatory act of 1883, whereby the amount was limited to $20,000 per annum, are unconstitutional and void; that the section and amendment violate that clause of the constitution of 1870 which reads as follows: ‘No county, city, town, township or other municipality shall ever become subscriber to the capital stock of any railroad or private corporation, make donation to, or loan its credit in aid of such corporation: Provided however, that the adoption of his article shall not be construed as affecting the right of any such municipality to make such subscriptions where the same had been authorized, under existing laws, by a vote of the people of such municipalities prior to such adoption.’ Article 14. It will be observed that this provision of the constitution prohibits cities and other municipal corporations from making donations or loaning their credit in aid of any private corporation; and the first question to be considered is whether the Washingtonian Home is a private corporation, within the meaning of the constitution. As has been seen, the second section of the act creating the Home declares the object of the corporation to be the founding and maintenance of an institution for the care, cure, and reclamation of inebriates. The charter contains nothing prohibiting the corporation from making such charges for the care or cure of patients as it may think best; but, on the other hand, section 3 confers the power to adopt such by-laws as it may think proper for the management of its business. The charter does not specify who the incorporators shall be, but the first section of the charter declares the Washingtonian Home Association of Chicago to be a body corporate and politic. Who constituted the association or what was the qualification of members when it was created a corporation is not disclosed by this record. Section 4 provides for the selection of 30 directors by lot, 15 to hold office until the third Monday of January, 1869, and the remainder until the third Monday of January, 1871; but the act is silent as to who shall elect the first board of directors. The act nowhere prescribes how any person can become a member of the corporation, nor is there any provision in regard to the salary of officers or directors. So far as appears, the persons who composed the Washingtonian Home Association of Chicago when this act was framed were clothed with corporate power, under which they might transact the business mentioned in the act for their own private benefit. At all events, no state control over the institution is provided for, nor has Chicago or Cook county any voice in its control or management. The corporation has the right to acquire and hold property, both real and personal; but the state has no voice in the management or control of the property thus acquired, or in the mode or manner in which the institution shall be managed or conducted. The act makes no provision for any report to be made by the institution to the state or any of its officials. Indeed, no provision whatever is made for an inspection or visitation of the institution by the state or any of its officers, but the entire supervision and control seems, under the charter, to...