29 Ill. App. 99 | Ill. App. Ct. | 1888
This is an appeal from a judgment of the Circuit Court of Scott county, Illinois, in which the people recovered judgment of ouster and a fine- of §100 and costs against the appellant, upon an information in the nature of a quo warranto, charging the appellant with usurping and unlawfully exercising the franchise, privilege and license to keep a dram-shop within the incorporated limits of the village of Bluffs, in the county of Scott and State of Illinois.
The cause was heard and determined by the court below, and judgment rendered upon the following stipulated and agreed state of facts, viz.: 66 That no plea or answer need be
filed to counts two and three of the information (a demurrer having been sustained to the first count), and
“L It is admitted that the village of Bluffs was and is incorporated under the general law, as charged in counts two and three of the information.
“2. That the ¡resident and trustees of said village did issue a license to the defendant, Edward Handy, as charged in said counts.
“ 3. That before said license was issued the sai_d Handy executed his bond to the people of the State of Illinois, in the penal sum of §3,000, with four good and sufficient sureties, freeholders of said Scott county, dated June 20, 1887, which was filed with the village clerk and approved by said village of Bluffs, and was conditioned as provided by Sec. 5 of the dram-shop act.
“4. That the record of said village of Bluffs, showing the action of said president and board of trustees of said village, of date May 16, 1887, is as follows: A motion made and carried that the petition and bond of Edward Handy for dram-shop license be received and accepted, and clerk to issue license, money to be paid in advance, no note and security be taken; so instructed by the board of trustees and president; his security and bondsmen being the following named persons: John Torrance, John Tieman, John E. Bagby and Herman Vanneer.
“ 5. That the license so issued by said village of Bluffs, and the indorsements thereon, are in the words and figures following, to wit:
“Bluffs, June 20, 1887.
“ Granted to Edward Handy, dram-shop license for ten months, from June 20, 1887, till April 20, 1888, and said license payable three months in advance. Eeceived of Edward Handy the sum of one hundred and twenty-five dollars ($125) for the first quarter, commencing June 20, 1887, and ending September 20, 1887; second quarter due September 20,1887; third quarter due December 20, 1887, being four months till April 20, A. D. 1888.
“ H. A. Bruno,
Village Olerlc.
“ Corporate seal of the Village of Bluffs.
“August the 6th, 1887.
“Eeceived of Edward Handy one hundred and twenty-five dollars ($125) for second quarter, commencing September 20, 1887, and ending December 20, 1887.
“ 6. That the sum of $125 was paid by defendant for said license on the day it was issued, and accepted by said village, and three months thereafter, without any further order or action of said board of village trustees, the defendant paid $125 to the village clerk, who receipted him therefor and paid the same over to the village treasurer; but afterward the village board, to wit, on the 22d day of September, 1887, caused the same to be tendered back to the defendant, who refused to receive it and has not yet received it. That no order revoking said license has been made by said village board-That said defendant has kept a dram-shop within the corporate limits of said village, and therein has sold all kinds of intoxicating liquors at retail in less quantities than one gallon, from the date of said license doxvn to and including the day on which this proceeding xvas begun, and claimed the right so to do under the license aforesaid and none other, and now claims said license is a valid license to keep a dram-shop as aforesaid. That the bond so made by said Handy has not been surrendered or tendered back to him.
“ 7. That the village had, before May 16, 1887, exercised the powers conferred on it by law, and passed an ordinance allowing dram-shops in said village, which was then, and continued to be, and is now in force. The sum to be paid for license therefor, in advance, to be §500, at the rate of §500 per annum.
66 8. That the defendant reserves the right, as he did on demurrer, to question the right to pursue this remedy against him, claiming that quo warranto does not lie.”
The errors assigned upon the record are:
1. The court below erred in granting leave to amend the information.
2. The court erred in imposing a fine on' defendant.
3. The court erred in rendering the judgment of ouster.
The first error is not well assigned. Sec. 9 of Chap. 7, R, S.; Hinze v. The People, 92 Ill. 414.
The fine of one dollar which was imposed upon the defendant by the trial court has been in this court remitted, which disposes of the second assignment of error.
The real question in the case is the proper construction of See. 1 of the act approved June 15, 1883, Sess. Laxvs, page 92, the language of which, so far as necessary to notice, is as follows : “ That hereafter it shall not be laxvful for * * * any village in this State to grant a license for the keeping of a dram-shop, except upon the payment, in advance, into the treasury of the village * * such suin as may be determined by the authorities of such * * * village, not less than at the rate of five hundred dollars per year.” Session Laws 1883, p. 92.
This language, xve think, can admit of but one construction, and that is, the proper authorities can not issue a valid license to keep a dram-shop unless the amount to be paid therefor be paid in advance for the entire period covered by the license, not less than at the rate of five hundred dollars per year.
The minimum rate per annum is fixed, and whether the license issue for a year or any shorter period, the amount required to be paid for such term as is covered by the license must all be paid in advance. If it may be in installments of three months, with equal propriety it could be divided into weekly or even daily payments, and thereby entirely defeat the object of the law, which was to require the license money to be paid in advance for and during the life of the license.
It is also urged that an information in the nature of a quo warranto will not lie in a case like the present. This objection is not well taken. See Swarth v. The People, 109 Ill. 621.
The judgment of the Circuit Court will be affirmed.
Judgment affirmed.
