City of Pekin v. Smelzel

Walker, J. It is objected that by the charter, the city had no power to prohibit the sale of beer. The amendatory act of the charter of the city, adopted 19th June, 1852, Session Laws, 41, provides, “That the city of Pekin shall have power and authority to enact and pass ordinances, not inconsistent with the laws of this State, to suppress and restrain the sale of intoxicating liquors, tippling houses and dram shops.” The charter of the city, as it was originally adopted, conferred the power to tax, restrain, prohibit and suppress tippling houses, and dram shops, by ordinance. The only limitation upon this power is found in the amendatory act, which requires that such ordinance shall not be .inconsistent with the laws of the State. That some kinds of beer .is intoxicating, is conceded, and was not controverted on the argu,ment, and being such, the city, by the express authority given by ,the charter, may pass all needful and proper ordinances to prohibit or restrain its sale within the corporate limits. The power ,to suppress, regulate and restrain, necessarily embraces the .authority to adopt the usual means, employed for such purpose. ' The merely adopting an ordinance which declares that liquor shall ,not be sold, without imposing any penalty for its non-observance, 'would not tend in the slightest degree to accomplish the end . sought. The imposition of a fine for the breach of such ordinances, is the means usually .authorized by the legislature, and .none are more proper, and such was doubtless intended to be ■ employed, when this power was conferred by the legislature. The latter clause of the 3rd section of the amendatory act of the ■ city charter is this, “ and all fines, forfeitures and penalties, that may be assessed and collected from any person or persons, within .the city of Pekin, for the violation of any ordinances of the . city of Pekin, passed or that may be hereafter passed, for the suppression of dram shops, or tippling houses, in the said city of .Pekin, shall accrue to and be paid into the treasury of the said • city of Pekin.” This provision leaves it free from doubt that penalties by way of fine, was the mode intended to compel an ■ observance of ordinances, restraining, prohibiting and regulat,ing the sale of intoxicating liquors, dram shops and tippling ¡houses, and that the city by ordinance might impose them. It is urged that, as the sale of beer is not prohibited, or 'declared to be an offense by the general laws of the State, that any ordinance of the city, prohibiting its sale, is repugnant to or inconsistent with the general laws of the State, and is therefore unauthorized and void. If this be true, the city would have no power to adopt any ordinance prohibiting any act but those forbidden by the general laws, nor would they have the power to adopt any other language than that employed by the legislature, in defining an offense. The limitation upon the power to adopt ordinances on this subject, is that the city “ shall have power and authority to enact and pass ordinances, not inconsistent with the laws of this State,” and this language confers the power to adopt all proper and usual means for the purpose, not prohibited by the general laws. Any ordinance adopted for the purpose, which provided means that were prohibited by the constitution and laws, would be void. The very object of granting this power to the city, was to enable it more effectually to regulate its police affairs, than could be done under the general laws; and it was intended to confer powers upon the city, to suppress disorders, that were not prohibited by general enactments. The sale of beer, is neither expressly licensed or prohibited by the legislature, and if it is a nuisance in populous cities or tends to produce disorderly conduct amongst those who frequent such places, the cities clearly have the power granted them to restrain and repress the evil, and in doing so, they do not, by imposing a fine for its sale, violate the laws of the State. It was again urged that the city had no power to impose a fine of more than ten dollars for a breach of ordinance regulating the sale of intoxicating liquor, that being the penalty imposed for a violation of the general laws prohibiting the sale of spirituous liquor in a less quantity than a gallon. 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. R. 589, a fine of twenty dollars 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 recognize the validity of the same ordinance in the case of The Town of Jacksonville v. Holland et al., 19 Ill. R. 271. And following these decisions in the case of Pendegrast v. The City of Peru, 20 Ill. R. 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 twenty-five dollars nor exceeding one hundred dollars, 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. If after the grant of such power, the city was prohibited from its exercise, or authority was conferred by act of the legislature to perform such an act, then the ordinance would be inconsistent with or repugnant to the general law. The amount of such penalties is limited by the State constitution, article 13, section 10, from exceeding one hundred dollars, in all cases when the proceeding is not by indictment. The court below erred in not admitting the city ordinance, and the judgment- of that court must be reversed and the cause remanded. Judgment reversed. Breese, J. I do not concur in holding that beer is an intoxicating liquor in the sense employed by the legislature.