People ex rel. Bartlett v. Busse

Mr. Justice Carter delivered the opinion of the court: This was a petition for a writ of mandamus filed on December 21, 1906, in the superior court of Cook county, at the relation of William A. Bartlett, A. Lincoln Shute and Robert J. Bennett, against Edward F. Dunne, then mayor of Chicago, and Michael Kenna, proprietor of two licensed dram-shops in the city of Chicago. Kenna demurred to the petition and Dunne answered. The petitioner demurred to the answer. The court by the same order sustained the demurrer to the petition and overruled the demurrer to the answer. Petitioner stood by its petition and by its demurrer to the answer. Thereupon final judgment was entered against it. That judgment has been affirmed by the Appellate Court for the First District and a further appeal is prosecuted to this court. While the case was pending in the Appellate Court the term of Dunne as mayor expired, and his successor, Fred A. Busse, was substituted as an appellee. The petition, so far as material, avers that Kenna is the owner of two licensed dram-shops in Chicago; that he is operating them by virtue of licenses issued for a period beginning November 1, 1906, and ending April 30, 1907; that in the conduct of said saloons Kenna has openly, habitually and continually violated section 259 of the Criminal Code, (Hurd’s Stat. 1908,) which provides, “whoever keeps open any tippling house or place where liquor is sold or given away upon the first day of the week, commonly called Sunday, shall be fined not exceeding $200;” that the mayor had knowledge of these habitual violations of the section in question by Kenna as they occurred, and that he has made no attempt in any way to enforce or compel the observance of this statute, and that he will hereafter continue to permit Kenna to disregard that statute and will permit Kenna habitually to keep his dram-shops open on Sundays and will fail and refuse to take any steps or measures to compel Kenna to observe that statute; that the ordinances of the city of Chicago provide that if the mayor shall be satisfied, at any time, that liquor is sold, served or given away in a dram-shop contrary to the laws of the State or the ordinances of the city he may revoke the license of the keeper. The prayer of the petition is that the mayor be commanded to use, without delay, so far as may be necessary, every means, power and authority conferred upon him by the laws of the State or the ordinances of the city to enforce against Kenna the statute above quoted, by closing, or compelling Kenna to close, his saloons and keep the same closed on each and every Sunday after the writ of mandamus issues, and in case of Kenna’s refusal to obey the law, to secure his prosecution therefor, and to punish such violation of the law by a revocation of Kenna’s licenses. The answer filed by former Mayor Dunne, as set out in appellees’ brief, avers that said section 259 of the State law is not in force in the city of Chicago. If this averment were true, it would, of necessity, dispose of this case. But it is not true. That section is the law in Chicago precisely as it is the law in all other parts of the State. The mayor of a city is charged with the execution of all laws and ordinances in force therein. (Hurd’s Stat. 1908, chap. 24, sec. 23, P.311.) It is to be observed that the petition does not seek to have the mayor commanded to do any specific act or any series of specific acts; that the relators have no property rights that will be affected by the event of the suit, and have no interest in the enforcement against Kenna of the statute in question except the interest which they possess in common with other members of the public. The case of People v. Dunne, 219 Ill. 346, was a motion made in this court for leave to file here an original petition for mandamus at the relation of the same persons who are the relators in the present proceeding. In that case the purpose was to have the mayor of the city of Chicago commanded by this court to enforce the statute in question against all persons in the city of Chicago engaged in the business of selling liquor, it being there alleged that all the dram-shops in the city, about seven thousand in number, were and would be habitually kept open on the Sabbath day in violation of law, and that the mayor refused to enforce the law. The prayer of the petition which accompanied the motion in that case was not different from the prayer of the petition in the case at bar, except that in the earlier case it was sought to have the mayor commanded to enforce the statute in question against all the dram-shop keepers in the city of Chicago, while in the case now before us it is sought to have him enforce this law against Kenna alone, who is the keeper of two dram-shops. In People v. Dunne, supra, leave to file the petition was denied for three reasons: First, because mandamus will not be awarded except where the duty is specific in its nature and of such character that the court can prescribe a definite act or series of acts which will constitute a performance of that duty, so that the respondent may know precisely what he is to do and the court may know whether the precise act or acts have been performed, the duty which it was there sought to have the mayor perform not being of that character; second, because the petitioner improperly sought to have the court control and regulate a general course of official conduct' and enforce the performance of official duties, generally, with reference to violations of the law which it was alleged would occur in the future; third, because to grant the prayer of the petition would be for the court to wrongfully assume the management of the municipal affairs of the city and to assume governmental functions, which are lodged in the executive department. The opinion in that case was announced orally from the bench, and while no authorities were then specifically referred to, the propositions of law there announced are fundamental and abundantly supported by precedent. Merrill on Mandamus, secs. 31, 69; People v. Bissell, 19 Ill. 229; Secretary v. McGarrahan, 19 Wall. 298; People v. Leonard, 74 N. Y. 443; State v. Francis, 95 Mo. 44; State v. Brewer, 39 Wash. 65; Alger v. Seaver, 138 Mass. 331; Boyne v. Ryan, 100 Cal. 265; Mitchell v. Boardman, 79 Me. 469; People v. Whipple, 41 Mich. 548; Cody v. Ihnken, 129 id. 466; Sweet v. Smith, 117 N. W. Rep. (Mich.) 59; Ex parte Young, 209 U. S. 123. Appellant contends, however, that People v. Dunne, supra, differs essentially from this case in two particulars: First, it is said that the petition in that case, being addressed to this court, brought the petitioner within the rule that this court would exercise its discretion in every instance where a motion for leave to file a petition for mandamus was made .in this court, as to whether it would entertain the petition, and that in doing so it would not consider itself bound by any strict rule. While counsel do not state accurately the rule in reference to the circumstances under which we will entertain an original petition for mandamus, yet it clearly appears that the distinction claimed does not exist, for the reason that our decision in the earlier case was not placed on the ground that the petitioner had stated a cause of which we would, in the exercise of our discretion, refuse to take jurisdiction as an original proceeding. The second particular in which it is said the cases differ is found in the fact that by the petition which accompanied the motion in People v. Dunne, supra, it was sought to have the mayor commanded to enforce the statute in question as to all dram-shops within the city of Chicago, while in the present case the duty which the mayor is to perform is to enforce the statute against Kenna and his two saloons. This is not a material difference. No authority is cited which recognizes such a distinction. Every objection to commanding the mayor to enforce this law with reference to seven thousand saloons, suggested in People v. Dunne, supra, applies in lesser degree to commanding him to enforce it with reference to one owner and two saloons. If counsel for appellant be correct, by the institution of seven thousand suits instead of one the courts could be required to exercise precisely the supervision over the mayor that we held in the Dunne case they could not be required to exercise. Counsel for appellant confuse the functions of the executive and judicial departments of government. If their contention was to prevail, the mandate of the court would be substituted for the statute which denounces misfeasance and malfeasance in office. It is impossible within an opinion of any reasonable length to discuss the numerous cases cited and quoted from by counsel for appellant in the 168 pages of brief and argument presented. It seems proper, however, to refer briefly to the cases of Brokaw v. Highway Comrs. 130 Ill. 482, and People v. Harris, 203 id. 272, upon which they place great reliance. In the first of these cases the commissioners were required by mandamus to remove an obstruction in a public highway in accordance with a statute which made it their duty so to do. In the second, the mayor and aldermen of the city of Champaign were required by mandamus to remove an obstruction in or an encroachment upon a street. In the Brokaw case it was held that the commissioners were, as to the removal, without discretion, and that it was their duty, under the law, to remove the obstruction. The obstruction then existed in the'highway. The mandate of the court was in reference to an existing condition. A specific act was directed. It was not necessary to supervise, generally, the official "conduct of the officers in reference to violations of the law which it was alleged would take place in the future. It is not here sought to have the mayor commanded to do a specific thing in reference to a violation of the law which has already taken place, but the purpose is to have him commanded to enforce the statute above set out, which he might do in any one or all of several ways, against Kenna in reference to his two dram-shops so far as future violations of that statute are concerned. The case is thus readily distinguished from the case at bar. The Champaign case is not different from the Brokaw case, so far as the matters here material are concerned. Upon the motion of appellees the superior court struck out certain averments contained in the petition as originally filed. Exceptions to this action of the court do not seem to have been properly preserved, but, regardless of that question, the averments stricken were, under our view of the law as above expressed, immaterial. The judgment of the Appellate Court will be. affirmed. Judgment affirmed.