Pendergast v. City of Peru

Walker, J. The first question presented by this record for our consideration, is, whether the court erred in admitting the copy of the city by-laws. The copy was certified by the city clerk, and verified by its corporate seal, which is literally a compliance with the charter. Private laws, 1851, p. 120, sec. 44. The evidence even went further, and showed that they had been published as required by the charter. And there is not the slightest ground for this objection. It was next urged that the evidence did not sustain the finding of the court. This we think is untenable. When the officer served defendant with process, he stated that the city charged too much for licenses, and he could not afford to pay the price. It appeared that he had sold liquor before the commencement of the suit, and on the trial before the police court, he plead guilty to the charge of violating the city ordinance, for which he was then prosecuted. This evidence, when taken together, clearly establishes the fact, that he had no license, that he had sold liquor and plead guilty to the violation of the ordinance, one of the provisions of which prohibited its sale without a license. The prohibition is contained in the second section of the city ordinances, and provides, “ That it shall not be lawful for any person or persons to sell, barter or exchange, any wine, brandy, rum, gin, whisky, beer, ale, porter, or other vinous, spiritous, malt or fermented liquors, or any mixture, part of which is spirituous or fermented liquors, without being duly licensed to keep a grocery, for selling of wines, etc., and upon a violation of this section, the person or persons so offending, shall forfeit and pay for each offense a sum not less than twenty-five dollars, nor more than one hundred dollars, and costs of suit.” The ordinance, it is urged, contained other prohibitions and penalties, and that his admission of a breach might have related to those. This is not the inference from the evidence, as it showed that he had sold liquor, and there is nothing tending to show, in the slightest degree, that he had violated some other provision of the city ordinance. And his statement that the city charged too high for a license, when unexplained, was inferentially an admission that he had no license; and this rendered it unnecessary for the prosecution to prove that fact, even if such proof would have otherwise been required. The only remaining question is, whether the court erred in its finding and rendering judgment in damages, when the proceeding was in debt, for the recovery of a penalty. There is no doubt but a finding and recovery in the latter form is more conformable to the ancient practice, but it was strictly technical, and not calculated, in the slightest degree, to promote justice. In furtherance of justice, mere technical rules should not be permitted to prevail, unless the rule is so firmly established that the courts are not at liberty to disregard them, as settled law. This court, in an action that originated before a justice of the peace, on a record for the recovery of the amount of the judgment found by the record, and in which the Circuit Court, on an appeal, rendered a judgment in damages, held that the judgment was regular. Horton v. Critchfield, 18 Ill. R. 135. That case is decisive of this question. On the whole record in this case, we are unable to perceive any error that should reverse the judgment of the court below, and the same should therefore be affirmed. Judgment affirmed.