| Ill. | Sep 15, 1879
delivered the opinion of the Court:
Section 35 of article 7, of the charter of the city of Sterling, is as follows:
“ The city council, by ordinance, shall have exclusive po^wer to license, prohibit or regulate in any manner they see fit, the selling, bartering or trafficking of any wine, rum, gin, brandy, whisky, malt liquor, strong beer, ale, porter, mixed liquors, or any intoxicating liquors whatsoever, within said city, and within one mile of the city limits north of Rock river.”
The ordinance under which this suit is prosecuted provides that “ every person or corporation who shall, by himself or herself, or by agent, employee or servant, or otherwise, within the limits of said city of Sterling, or within one mile of said limits north of Rock river, sell or barter, in any manner, any rum, gin, brandy, whisky, malt liquors, strong beer, ale, porter, mixed liquors, or any intoxicating liquors whatever, in less quantities than five gallons, shall, upon conviction thereof, be fined not less than $10 nor more than $100.”
The only question for our consideration is the validity of this ordinance.
It is objected against it, lsl, that the exclusive power to prohibit the sale of the liquors therein enumerated, (if the city ever had such power,) has been taken away by the subsequent enactment of the Dram-shop act; 2d, that the ordinance is too broad and comprehensive in its terms and attempts to restrain and prohibit a matter of business or trade to an extent that in nowise affects the police of the city, and 3d, that the ordinance is inconsistent with the general statute of the State and the policy of the State legislature, and therefore void.
We shall consider these objections in the order in which we have stated them.
1. The city of Sterling was incorporated under a special charter passed in 1869. There is nothing in the “Dram-shop act” which assumes to repeal the special charters of cities in force prior to its enactment. Nor are we able to see any necessary repugnancy between that act and the special charters of cities, towns and villages, in force prior to its enactment. The rule is, a subsequent statute which is general, does not abrogate a former statute which is particular. The President and Trustees of the Town of Ottawa v. The County of LaSalle, 12 Ill. 341. So, also, it is held a general statute, without negative words, will not repeal the particular provisions of a former one unless the two acts are irreconcilably inconsistent. Covington v. City of East St. Louis, 78 Ill. 552.
2. The language of the ordinance is not as broad and comprehensive as that of the city charter. The latter expressly authorizes the city council to prohibit, without any restriction whatever, while the latter only prohibits in less quantities than five gallons. A general power to prohibit is obviously sufficient to authorize any partial prohibition deemed advisable.
But, it is said, the spirit and intent of the charter is only to authorize the prohibition of such sales as interfere with the good order and welfare of the city. Suppose we shall concede this, can the courts say, as matter of law, that sales of five gallons and less quantities will not interfere with the good order and welfare of the city? Certainly not. Drunkenness and all its attendant vices and misfortunes may evidently readily result from sales in such quantities as in sales of less maximum quantities. While it is true, under the facts of this case, appellant did not keep a saloon nor sell liquors in quantities less than one gallon nor to be drank on his premises, he did sell liquors in quantities of one gallon and upwards, and there is nothing to show that such liquors were not to be used as a beverage within the corporate limits of the city of Sterling or within one mile of such limits north of Bock river, and if the sales were for a lawful purpose the burden was on appellant to prove that fact. Harbaugh v. City of Monmouth, 74 Ill. 371. Hence it is not material to inquire whether municipalities may be invested with and exercise the power of prohibiting sales where the liquors are not to be used as a beverage within the corporate limits.
This court has, in numerous cases, held that' where power to that end is conferred by the charter, municipalities may prohibit the sale of intoxicating liquors, etc., as a nuisance. Goddard v. Jacksonville, 15 Ill. 588" date_filed="1854-06-15" court="Ill." case_name="Goddard v. President of Jacksonville">15 Ill. 588; Kettering v. City of Jacksonville, 50 id. 39; Pekin v. Smelzel, 21 id. 464; Harbaugh v. City of Monmouth, supra; Schwuchow v. City of Chicago, 68 Ill. 444" date_filed="1873-09-15" court="Ill." case_name="Schwuchow v. City of Chicago">68 Ill. 444; Baldwin v. Murphy, 82 id. 485.
And, even where the power to license dram shops is conferred upon and exercised by the municipality, it has been held competent for the municipality to adopt an ordinance prohibiting sales in less quantities than one barrel, without a license. Byers et al. v. President and Trustees of the Town of Olney, 16 Ill. 35" date_filed="1854-11-15" court="Ill." case_name="Byers v. President of Olney">16 Ill. 35.
The principle underlying all these decisions is, that the General Assembly may invest municipalities with full power to license and regulate or entirely prohibit the sales of liquors, etc., and when such power is conferred, it is wholly discretionary with the municipality to license and regulate or partially or entirely prohibit the traffic. Schwuchow v. City of Chicago, supra.
3. The objection that the ordinance is inconsistent with the general statute of the State and the policy of the State legislature, and therefore void, is answered by Pekin v. Smelzel and Baldwin v. Murphy, supra. In the first of these cases, speaking of this objection, it was said: “ This position, we think, is not tenable. The power to impose the fine is given by the charter, and it is not in terms limited. In the case of Goddard v. Jacksonville, 15 Ill. 589, a fine of $20 was imposed in each of two cases for a violation of an ordinance declaring the sale of liquor a nuisance, and the ordinance was held valid. This court again recognized the validity of the same ordinance in the case of Town of Jacksonville v. Holland et al. 19 Ill. 271" date_filed="1857-12-15" court="Ill." case_name="President of the Town of Jacksonville v. Holland">19 Ill. 271. And following these decisions, in the case of Pendergast v. The City of Peru, 20 Ill. 51" date_filed="1858-04-15" court="Ill." case_name="Pendergast v. City of Peru">20 Ill. 51, a recovery under an ordinance which prohibited the sale of wine, brandy, rum, gin, whisky, beer, ale, porter or other vinous, spirituous, malt or fermented liquors, without a license, and imposing a fine of not less than $25 nor exceeding $100, was sustained. And it is for the reason that the legislature has conferred the power, and when such power is given and has not been taken away or afterward prohibited, it is not inconsistent with the laws of the State.” And this is reindorsed in the last cited case.
These cases are so directly in point that we deem it unnecessary to examine the cases from Ohio and Georgia, referred to by counsel for appellant, which are claimed to hold a contrary doctrine.
Perceiving no cause to disturb the judgment below, it is affirmed.
Judgment affirmed.