People ex rel. Conlon v. Mount

Mr. Justice Magruder delivered the opinion of the court: First—The first question presented for our consideration is, whether the city of Joliet, whose charter is the general act providing for the incorporation of cities and villages, can fix and establish the license fee to be paid by vendors of intoxicating liquors by mere resolution or motion, or whether the power to fix and establish such license fee, when exercised, must be exercised through and by an ordinance duly enacted. In order to determine this question it will be necessary to examine some of the provisions of the charter of the city of Joliet embodied in the general Incorporation act above referred to. By paragraph 4 of section 1 of article 5 of the City and Village act “the city council in cities * * * shall have the following powers: * * * Fourth—To fix the amount, terms and manner of issuing and revoking licenses.” By paragraph 46 of said section 1 the city council in cities is clothed with the power “to license, regulate and prohibit the selling or giving away of any intoxicating malt, vinous, mixed or fermented liquor, the license not to extend beyond the municipal year in which it shall be granted, and to determine the amount to be paid for such license.” The second proviso to paragraph 46 is as follows: “Provided further, that, in granting licenses, such corporate authorities shall comply with whatever general law of the State may be in force relative to the granting of licenses.” (Hurd’s Rev. Stat. 1897, pp. 268, 270). By an act approved June 15, 1883, in relation to dram-shops it is provided in section 1, “that hereafter it shall not be lawful for the corporate authorities of any city, town or 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 city, town or village granting the license, (of) such sum as may be determined by the respective, authorities of such city, town or village, pot less than at the rate of $500.00 per annum.” (Hurd’s Rev. Stat. 1897, p. 699). Under its charter, the city of Joliet, in granting licenses after the passage of the act of 1883, was obliged to comply with the provisions of that act, which related to the granting of licenses. Chapter 33 of the Revised Ordinances of 1891 of the city of Joliet, entitled “Intoxicating Liquors,” provided that the person desiring the license might obtain it by complying with certain requirements, “and paying for such license for the use of the city at a rate that may be from time to time established per annum.” Clearly this ordinance of 1891 does not conform to the city charter, inasmuch as the above quoted provision of the act of 1883 must be regarded as being written into the city charter, and as being a part of it. The act of 1883 requires the license fee to be paid in advance into the treasury of the city; but the ordinance of 1891 simply conditions the issuance of the license upon the payment of such license fee without requiring the payment to be made in advance. The act of 1883 requires that there shall be paid in advance for the license such sum, as may be determined by the respective authorities of the city, “not less than at the rate of $500.00 per annum;” but the ordinance of 1891 does not fix $500.00 as the minimum rate, but only provides for the payment at a rate that may be from time to time established. By the act of 1883 the municipal authorities are obliged to require a license fee of not less than $500.00 per annum; by the ordinance of 1891 the city authorities of Joliet are left free to fix the license fee at any amount whether above or below $500.00 per annum. Section 46 of the charter of the city of Joliet provides, that the license to be granted shall not extend beyond the municipal year in which it shall be granted; but, while it is true that the license to sell intoxicating liquor cannot be granted for a longer period than one year, yet there is nothing in the charter, which requires the amount of the license fee to be fixed every year. The ordinance of 1891 seems from its language to provide, that the rate to be paid for the license is to be from time to time established per annum, that is to say, that the amount of the license fee is to be fixed every year. Section 46 as above quoted can bear no such interpretation. It is clear from what has been said, that the ordinance of 1891, standing by ilself, does not comply with the general law of the State in regard to dram-shop licenses, either in respect to the mode of payment, or the amount to be paid, or the time of fixing such amount. It is laid down in the authorities, that the charter of a city bears the same general relation to the ordinances of a city that the constitution of a State bears to its statutes. (1 Dillon onMun. Corp.—4th ed.—sec. 308, p. 385, and notes; Quinette v. St. Louis, 76 Mo. 402). Hence, a city ordinance, which does not comply with the city charter, is as invalid as a statute which does not conform to the requirements of the State constitution. The charter of every municipal corporation, or the statute by which it is created, is its organic act, and the corporation cannot do any act, not authorized by such charter or by some legislative act applicable thereto. “All acts beyond the scope of the powers granted are void.” (1 Dillon on Mun. Corp.—4th ed.— sec. 89, p. 146). Surely, in not prescribing “the amount to be paid as a license fee the ordinance of 1891 is incomplete. But it is claimed by the appellant, that the incompleteness and omissions of the ordinance of 1891 are made up and supplied by the resolution of June 26, 1899. This resolution or motion, which was adopted by a vote of eight yeas to six noes, is to the effect that “dram-shop licenses beginning July 1,1899, be and the same are hereby fixed at $500.00, payable in advance.” The defects in the ordinance of 1891, as thus indicated, could not be remedied by the passage of the resolution of June, 1899. The general rule is, tíiat the power to license can only be exercised by ordinance, and not by resolution. Such power is a dormant one, and must be called into exercise by the passage of an ordinance duly enacted. The authorities abundantly sustain this position. (13 Am. & Eng. Ency. of Law, p. 534; Bull v. City of Quincy, 9 Ill. App. 127; Bills v. Goshen, 117 Ind. 221; People v. Village of Crotty, 93 Ill. 180; People v. Cregier, 138 id. 401). In the American and English Encyclopedia of Law, (vol. 13, p. 534,) the rule is thus stated: “When a municipal corporation is duly authorized to exact licenses, the power can only be exercised by the passage of an ordinance specifying the details necessary to be pursued.” Paragraph 46 of section 1 of article 5, as above quoted, couples the power of the city council to license the selling of intoxicating liquor with the power to determine the amount to be paid for such license. By that section the power to license, and the power to determine the amount to be paid for the licfense, are also coupled with the requirement, that the license shall not extend beyond the municipal year in which it is granted. It follows that, when the power to license the sale of intoxicating liquor is exercised by the passage of an ordinance, the determination of the amount to be paid for the license must at the same time be embodied in the ordinance. The amount was not embodied in the ordinance of 1891. In People v. Village of Crotty, supra, which was a petition for mandamus against the village for the purpose of compelling it to issue licenses to the relator therein to keep a dram-shop and pool table, reliance was placed upon certain resolutions or motions adopted at meetings of the board of trustees, which fixed the amounts, of such licenses for the municipal year; and, in that case, after quoting paragraph 46 of section 1 of the City and Village act above referred to, we said (p. 188): “It is clear, from the first of the above cited provisions of the statute, that the legislature has given appellee the power to license, regulate and prohibit the sale of intoxicating liquors. But the mere grant of this power by the legislature would not of itself authorize the village authorities to issue a license. This power to license, regulate aud prohibit is a dormant one, and affords no authority to issue licenses until called into life and put in operation by appropriate legislation by the municipal authorities. Without the adoption of a general ordinance on the subject, authorizing the issuing of licenses, and specifying who shall issue them, the length of time they shall run, the amount to be paid by the applicant, the time and manner of payment, etc., the village authorities are powerless to issue license to any one.” In the Village of Crotty case the general ordinance on the subject, which authorizes the issuance of licenses, is not only required to specify who shall issue them, and the length of time they shall run, but also to specify the amount to be paid by the applicant and the time and manner of payment. The ordinance of 1891, now under consideration, fails to meet the requirement thus laid down in the case last referred to. The case of People v. Village of Crotty, supra, was referred to and endorsed in the later case of People v. Cregier, supra, where we said (p. 419): “Subdivision 96 of section 1, article 5, of the general law in relation to the incorporation of cities and villages gives power to the city councils of cities and the president and board of trustees of villages to pass all ordinances, rules and regulations proper or necessary to carry into effect the various powers granted by said section, and it is accordingly held that the power to license, regulate and. prohibit the sale of intoxicating liquors must be exercised by a city or village by means of an ordinance on that subject, passed by the proper municipal authorities. The mere grant of this power does not of itself authorize the corporate authorities to issue licenses. The power is dormant until called into exercise by appropriate municipal legislation.-—(People v. Crotty, 93 Ill. 180).” In the Cregier case it was also said (p. 421): “We would not be understood as holding that a board of trustees may, by resolution merely, license one and refuse to license another having precisely the same qualifications and local surroundings, our view being that an ordinance must, in advance of the issuing of any license, prescribe the terms and conditions upon which licenses shall be granted, so that all in like situation, with like surroundings and having like qualifications, shall have equal opportunity to avail themselves of its privileges.” The power to license, including the power to fix the amount of the license fee, is a power which must be called into exercise by appropriate municipal legislation. A municipality can only legislate through the passage of ordinances, and not by the passage of mere resolutions. It is well settled, that acts of legislation by a municipal corporation, which prescribe a permanent rule of conduct or government, and.which are to have a continuing force and effect, must be established by ordinance. (Chicago and Northern Pacific Railroad Co. v. City of Chicago, 174 Ill. 439; Village of Altamont v. Baltimore and Ohio Southwestern Railway Co. 184 id. 47). • “So, matters upon which the council wishes to legislate must be put in the form of an ordinance, and all acts that are done in its ministerial capacity may be in the form of resolutions.” (17 Am. & Eng. Ency. of Law, p. 236). “Resolutions are special and temporary, applicable only to a single matter of passing moment; ordinances are permanent regulations, applicable to all states of facts thereafter arising within the scope of their provisions.” (Horr & Bemis on Mun. Police Ordinances, sec. 210 a). Whether an act of legislation by a municipal corporation prescribes a permanent rule of conduct or government, and whether or not it is to have -a continuing force and effect, depends upon the nature of the subject matter legislated upon, and not upon the mere option of the city council. The subject of granting licenses to sell intoxicating liquor and fixing the amount of the license fee therefor is a subject which, in its nature, requires legislation of a permanent character and of continuing force and effect. It does not follow, because the license to sell liquor can only extend for one year, that, therefore, the amount to be paid as a license fee must be changed annually or fixed-anew every year. The amount of the fee should be fixed by an act of legislation, and remain, as fixed, for one year or ten years, or longer, until the legislative body passes a new measure changing the amount. One of the most important acts,’ which a common council is called upon to perform, is not merely the granting of licenses to sell intoxicating liquor, but the fixing of the amount to be paid for such licenses. The character of saloons where liquor is sold, and the character of the men who sell liquor in such saloons, will often be determined or affected by the amount of the license fee to be paid. The passage of the act of 1883, making $500.00 per annum the minimum fee for the issuance of such licenses, grew out of the prevailing idea, that the character of the places, where liquor is sold, will be improved by increasing the amount of the license fee. Hence, the matter of fixing the amount of the license fee is a matter which, in no small degree, concerns the public welfare. This being so, it would seem to follow necessarily that an enactment which fixes the amount of a license fee for the sale of intoxicating liquor, should be embodied, not in a resolution which is special and temporary and applies only to a single matter of passing moment, but in an ordinance which is a permanent regulation. An ordinance, which fixes the amount of the fee, is a regulation which applies to every state of facts thereafter arising within the scope of its provisions. Every man, who desires a license to sell liquor, will thereby be informed that there is a fixed amount which hé must pay per annum, embodied in the highest form of municipal legislation, that is to say, an ordinance. It is said, however, in behalf of the' appellant, that section 1 of article 5 of the City and Village act, which defines the powers vested in the city council, nowhere requires the granting of licenses, or the fixing of the amount of license fees, to "be embodied in ordinances rather than in resolutions. The general.rule is, accordingly, invoked that, where a charter commits the decision of a matter to the city council and is silent as to the mode, the decision may be evidenced by resolution, and need not necessarily be by an ordinance. It does not, however, necessarily follow that, because the charter does not in express terms require an act to be done by an ordinance, it must, therefore, be effected by a mere resolution. On the contrary, where the requirement, that, the municipal act should be done by ordinance, is implied by necessary inference, a resolution is not sufficient, but an ordinance is necessary. (Chicago and Northern Pacific Railroad Co. v. City of Chicago, supra; Village of Altamont v. Baltimore and Ohio Southwestern Railway Co. supra; Atchison Board of Education v. DeKay, 148 U. S. 599; 2 Dillon on Mun. Corp.—4th ed.—sec. 769, and notes; Newman v. Emporia, 32 Kan. 456). While the charter of the city of Joliet does not in express terms require the power to license to be embodied in an ordinance duly enacted, yet such requirement is clearly implied by necessary inference from the provisions of the charter. The power to grant licenses to sell intoxicating liquor, and to fix the amount to be paid therefor, is a power which is vested in the city council in cities. Section 1 of article 3 of the City and Village act provides that “the city council shall consist of the mayor and aider-men.” (Hurd’s Rev. Stat. 1897, p. 263). The mayor is thus made by express statutory provision a part of the common council, and has a right to take part in the legislation passed by the common council. Section 18 of article 3 provides that “all ordinances passed by the city council shall, before they take effect, be deposited in the office of the city clerk; and if the mayor approves thereof, he shall sign the same, and such as he shall not approve he shall return to the council, with his objections thereto, in writing, at the next regular meeting of the council, occurring not less than five days after the passage thereof. * * * But in case the mayor shall fail to return any ordinance, with his objections thereto, by the time aforesaid, he shall be deemed to have approved such ordinance, and the same shall take effect accordingly.” Section 19 of article 3 provides that “upon the return of any ordinance by the mayor, the vote by which the same was passed shall be reconsidered by the council; and if, after such re-consideration, two-thirds of all the members elected to the city council shall agree, by yeas and nays, to pass the same, it shall go into effect, notwithstanding the mayor may refuse to approve thereof.” It thus appears, that the mayor has the veto power in reference to legislation passed by the common council, and that, where he exercises that veto power, such legislation cannot be effective, unless it is passed by two-thirds of all the members elected to the common council. The mayor is thus vested by law with the power, and has imposed upon him the duty, of supervising all legislative enactments by the city council. He is clothed with the duty of exercising a veto for the purpose of making this supervisory power effectual. This supervision by the mayor over municipal legislation was evidently intended by the legislature to operate as a check upon hasty and unwise legislation. Mere resolutions do not need to be submitted to the mayor for his approval. (Horr & Bemis on Mun. Police Ordinances, sec. 210; Burlington v. Dennison, 42 N. J. L. 165). The wise and salutary provision of the statute, which clothes the mayor with the veto power, may be defeated by a city council by the simple election on its part to change the form of its legislative acts into resolutions, instead of embodying them in ordinances, if it be true that municipal legislation can be accomplished by mere resolutions. The case at bar furnishes an instance of the danger of allowing important municipal legislation to take the form of a resolution, in that it destroys the supervisory power of the mayor of the city. It is well said by the Appellate Court in their opinion, delivered upon the decision of this case: “While, therefore, it requires eight votes to pass an ordinance of the city and ten votes to pass it over a veto, a majority of a quorum or five members of the council can pass a resolution, and the mayor cannot interfere with it.” It is, therefore, a fair matter of inference, that the legislature intended the power to license, and fix the amount of license fees, to be exercised by the passage of ordinances, because otherwise the supervisory power of the mayor would be interfered with. Dillon in his work on Municipal Corporations, (vol. 1, 4th ed. sec. 273,) says: “Where the power.to legislate for the corporation is vested in ‘the mayor and councilmen, ’ the council by itself cannot legislate, but must act in conjunction with the mayor. In deciding the point the court observes: ‘If a simple resolution (instead of an ordinance) would be sufficient, yet, before it would have any validity, it would necessarily have to be signed by the mayor as a part of the law-making power; the co-ordinate action of both is required.”’ (Saxton v. Beach, 50 Mo. 488; Saxton v. St. Joseph, 60 id. 153; 1 Dillon on Mun. Corp.— 4th ed.—sec. 271). “Where the charter vests the affairs of a city in the hands of the mayor and councilmen, the city council has no power except to act in conjunction with the mayor.” (15 Am. & Eng. Ency. of Law, p. 1032; 1 Dillon on Mun. Corp.—4th ed.—secs. 309, 246). Paragraph 48 of section 1 of article 5, defining the powers of the city council, provides that the city councils in cities shall have the power “to forbid and punish the selling or giving away of any intoxicating” liquor to any minor, etc. Section 2 of the act of March 30, 1874, in relation to dram-shops, provides that “whoever, not having a license to keep a dram-shop, shall, by himself or another, * * * sell any intoxicating liquor in any less quantity than one gallon, or in any quantity to be drank upon the premises, or in or upon any adjacent room, building, yard, premises or place of public resort, shall be fined not less than $20.00 nor moire than $100.00, or imprisoned in the county jail not less than ten nor more than thirty days, or both in the discretion -of the court.” (Hurd’s Rev. Stat. 1897, p. 69'9). Section 436 of chapter 33 of the Revised Ordinances of 1891 of the city of Joliet provides, that no person, except regularly licensed dram-shop keepers, etc., shall sell or give away any intoxicating liquors in any quantity whatsoever; and further provides, that any person, violating any of the provisions of the section, shall on conviction forfeit and pay not less than $25.00 nor more than $100.00 or be imprisoned in the bridewell for a term not exceeding sixty days at hard labor, or both, as the court may order. Section 439 of said Revised Ordinances of 1891 also provides that any licensed person, who shall sell liquor to a minor, and shall be convicted of doing so, shall be fined for the offense. It is idle to suppose, that the legislature intended a power, the necessary exercise of which involves the imposition of penalties and punishment, should be called into operation by the passage of a mere resolution. The power to license the vending of intoxicating liquors is in the nature of a police regulation; and paragraph 66 of section 1 of article 5, as well as the spirit and tenor of all the other paragraphs of that section, indicates that police regulations must be embodied in ordinances. Section 3 of article 5 provides for the publication in a certain way of all ordinances, imposing any finé, penalty, imprisonment or forfeiture; section 4 makes provision for the manner of proving ordinances; sections 5 and 7 provide for the manner, in which actions shall be brought by the city for the recovery of fines and the enforcement of penalties under ordinances; while by section 6 it is provided, that “all moneys collected for licenses shall be paid into the treasury of the corporation at such times and in such manner as may be prescribed by ordinance.” There are no provisions in the sections, thus defining the powers of the city council, which require the same things to be done under resolutions. In People v. Cregier, supra, we said (p. 418): “The tendency of the liquor traffic is so completely shown by all human experience, that from an early day said traffic has been subjected in this State to the surveillance and control of the police power, and we presume such has been the case in most, if not all, civilized communities.” The granting of licenses, and the fixing of the amount of license fees, is an essential part of the surveillance and control, to which the liquor traffic is subjected in this State. If that control is exercised as a part of the police power of a municipality, it is absurd to attribute to the legislature the intention that measures relating to it should be put in the form of mere temporary resolutions. The first proviso to paragraph 46 of section 1 of article 5 provides, that the city council in cities “may grant permits to druggists for the sale of liquors for medicinal, mechanical, sacramental and chemical purposes only, subject to forfeiture, and under such restrictions and regulations as may be provided by ordinance.” It is here required, that the restrictions and regulations, under which druggists are permitted to sell liquors for the purposes mentioned must be provided by ordinance. One of the restrictions and regulations, under which dram-shop keepers are authorized to sell liquor, is that they shall pay a sum as a license fee, not less than at the rate of $500.00 per annum. There is no reason why the restrictions and regulations, under which druggists are placed in relation to this matter, should be embodied in an ordinance, and the restrictions and regulations, under which ordinary dram-shop keepers are placed, should not be embodied in an ordinance, or should take the form of a mere resolution. The very fact, that the restrictions and regulations to be imposed on druggists must be provided for by ordinance, indicates the intention of the legislature to have been, that all restrictions and regulations, under which the sale of liquor was to be permitted, should be provided for by ordinance. Many of the cases, rfeferred to by counsel for appellant, which hold that the amount of the license fee can be fixed by a resolution, are cases arising in States and under laws where resolutions passed by common councils are so far regarded as having the .force of ordinances, that the mayor of the city can exercise his veto power in reference to such resolutions. Where resolutions are so far regarded in the nature of ordinances that they are subject to the veto power, it may well be held that the exercise of the power to license may be embodied in a resolution, as well as in an ordinance. Such a case is the case of First Municipality v. Cutting, 4 La. Ann. 336, but, here, it is conceded that a mere resolution does not have the force of an ordinance so far as to justify the mayor in exercising his veto power in relation to it. Upon this branch of the case we are of the opinion, that the resolution of June 26, 1899, passed by the city council of Joliet, was ineffective to establish the amount of the license fee to be paid by parties applying for license to sell liquor. Second—It is contended by the appellant in this case, that ordinance No. 796, passed on June 27, 1889, and fixing the dram-shop license of the city at $1000.00 per annum, payable in advance, had been repealed, and was not in force on July 1, 1899. It cannot be claimed with any show of reason, that said ordinance was repealed by the resolution of June 26, 1899. An ordinance cannot be amended, repealed or suspended by a resolution; the act which amends, modifies or repeals a law should be of qqual dignity with the act which enacts or establishes the law. A resolution or order is not a law, but merely the form in which the legislative body expresses an opinion. (Chicago and Northern Pacific Railroad Co. v. City of Chicago, supra; Horr & Bemis on Mun. Police Ordinances, sec. 61; Jones v. McAlpine, 64 Ala. 511). But it is claimed that the ordinauce of June 27, 1889, was repealed by chapter 33 of the general revision of the ordinances of the city passed in 1891. The part of chapter 33, which is said to operate as a repeal of the ordinance in question, is that portion of section 437, which contains the words “and paying for such license for the use of said city at a rate that may be from time to time established per annum.” As has already been shown, this portion of the ordinance of 1891 cannot be regarded as otherwise than invalid because of its conflict with the city charter in the respects already named. Being invalid, it could not operate as a repeal of the ordinance of June 27, 1889. Nor does the section in the revision of 1891, which provides that all ordinances of the city theretofore passed “in relation to the subject matter of, or inconsistent with any of the provisions of the following chapters * * * be and the same are hereby severally repealed,” operate as a repeal of the ordinance of 1889. The latter ordinance related to the amount of the dram-shop license, which was thereby fixed at §1000.00 per annum, payable in advance. There was nothing in the chapters referred to of the revision of 1891 relating to the subject of fixing the amount of the dram-shop license. Nor is there any inconsistency between the ordinance of 1889 and the provisions of the chapters referred to in the revision of 1891. Upon this subject we concur with the following statement made by the Appellate Court in their opinion:’ “Ordinance No. 796 relates solely to the amount of the license fee to be paid which it placed at §1000.00. While they are both upon the general subject of liquor licenses, yet the particular subject of each is different from the other. The subject matter of one is the granting of licenses and the conditions imposed upon those desiring to sell intoxicating liquors; the subject of the other is the rate to be paid by such parties for the privilege. The two are not inconsistent with each other, but both can stand; and neither interferes with the operation of the other.” We are of the opinion, that the ordinance of June 27, 1889, fixing the dram-shop license of the city at $1000.00 per annum, payable in advance, was in force in July, 1899, and that, therefore, the mayor was justified in refusing a license based upon the payment of a license fee of only $500.00. For the reasons above stated the judgment of the Appellate Court is affirmed. judgment affirmed.