President & Board of Trustees v. Ellsworth

Mr.s Justice Lawrence delivered the opinion of the Court: This was a prosecution instituted hy the president and trustees of the town of Ashton, against the ajipellee, for selling liquor in said town without a license. The suit was brought under the 22d section of an act of the legislature, approved March 5, 1867, amending the charter of the town of Ogle Station, and changing its name to Ashton. The section in question, after forbidding the granting of licenses, except as thereinafter provided, enacts that: “Ho person shall be permitted to bring into said town, or keep about his or their premises, * * * any of the above named drinks, liquors, or intoxicating beverages, for the purpose of trafficking therein.” The same section imposes a fine upon any person violating any of its provisions, to be recovered in an action of debt before a justice of the peace. It is contended, in behalf of the appellee, and was held by the circuit court, that a prosecution could not be maintained upon this provision of the charter, and that it could only be made effective by an ordinance. We held, however, in the case of Strauss v. The Town of Pontiac, 40 Ill. 301, which was not reported when the case at bar was tried, that a precisely similar provision in the charter of that towh was, in itself, a prohibition of the traffic, and did not need to be supplemented by a town ordinance. The phrase in the charter, “ no person shall be permitted,” clearly implies a prohibition. We can entertain no doubt upon this point, when we consider that the same section imposes a fine of twenty-five dollars upon any person violating its provisions and this must be considered as imposed either upon the persons engaging in the unlawful traffic, or upon the officers of the town who fail to prevent it. The counsel of appellee seems to consider the punishment intended for the president and trustees of the town, but we are of opinion the legislature intended the fine to be imposed upon the person vending an article whose sale it was the obvious legislative design to prevent. The judgment must be reversed and the cause remanded. Judgment reversed.