People ex rel. Fitzgerald v. Harrison

Mr. Chief Justice Dunn delivered the opinion of the court: The circuit court of Cook county awarded a peremptory writ of mandamus against the mayor of Chicago, commanding him to issue a license to keep a dram-shop, and he has appealed. Various arguments are presented in support of the appellant’s assignments of error, but his substantial defense on the merits rests upon the provisions of sections 2 and 3 of an ordinance which is set out in full in the petition. The circuit court granted an appeal to this court on the ground that, the validity of section 3 of the ordinance being involved, the public interest so required. The appellee insists that the provisions of sections 2 and 3 relied upon by the appellant are unconstitutional. Those sections are as follows: “Sec. 2. All lawful licenses issued and in force on the thirty-first day of July, 1906, for the keeping of a saloon or dram-shop within the city of Chicago, shall be renewed or re-issued upon strict and full compliance with the laws and ordinances in force in the city of Chicago at the time of the application for such renewal or re-issue, but no license (other than a renewal or re-issue, as hereinafter provided,) for the keeping of a saloon or dram-shop shall at any time thereafter be granted or issue until the number of licenses in force at the time shall be less than one for every five hundred of the population of the city of Chicago, as ascertained by the then last preceding school census, whereupon such new licenses may be issued from time to time to lawful applicants, according to priority of application, upon full compliance by the applicant with the laws and ordinances in force in the city of Chicago at the time of the application for such license, until the total number of licenses in force shall equal one for every five hundred of the population of the city of Chicago, as ascertained by the then last preceding school census. “Sec. 3. The owner or owners, or his or their legal representatives, of a license to keep a dram-shop or a saloon shall have and be given the right to a renewal or re-issue of such license, at the same or different place of business, upon compliance with the ordinances now in force in the city of Chicago or which may hereafter be passed governing the licensing of dram-shops or of saloons; and such owner or owners, or his or their legal representatives, of a dram-shop or saloon license may assign or convey his right to the renewal or re-issue thereof to another person, who, upon full compliance with the ordinances then in force in the city of Chicago governing the licensing of saloons or dram-shops, shall be entitled to a renewal or reissue of such license in his own name, and each holder of a license, or his legal representatives, in turn may assign or. convey such right of renewal or re-issue of such license upon the same terms and conditions as the original owner thereof could do hereunder. The privilege of renewal or re-issue provided by this ordinance shall apply only so long as the license in each case shall have been kept in force continuously and uninterruptedly in the name of the licensee or his successor in interest. No license to keep a saloon or dram-shop shall be hereafter issued to a firm except in the names of the individual members of the firm, and no such license shall hereafter be issued to a corporation: Provided, however, that any corporation now holding such a license in its name may designate the person or persons who shall be entitled to a renewal or re-issue of such license for the license period beginning on November i, 1906: Provided further, however, that such person or persons shall duly qualify by complying with all the laws and ordinances in force at the time in the city of Chicago.” The answer admits that the relatrix had conducted a saloon at 4359 Carroll avenue from May 1, 1908, to April 30, 1911, and avers that she executed an assignment to G. B. Gunderson of the right to the renewal or re-issue of her license at the expiration of the period for which it was issued, April 30, 1911; that on the 26th of April, 1911, Gunderson executed to Peter Drappa an assignment of the right to the renewal or re-issue of the license,. and in pursuance of such assignment a license was issued to Drappa to keep a dram-shop at 4359 Carroll avenue for the period from May 1, 1911, to October 31, 1911, and on November 1, 1911, such license was renewed or reissued to him for the "period from November 1, 1911, to April 30, 1912, and he is, and has been since May 1, 1911, keeping a dram-shop under such license; that Drappa has assigned to Gunderson the right to the renewal of the license at the expiration of the period for which it was issued, and that Gunderson is now the owner of the right to the renewal or re-issue of such license. The answer further avers that only 7251 saloon licenses can be issued under the ordinances; that all licenses issued for the period ending October 31, 1911, have been renewed or applications for renewals are pending; that no new or additional licenses are authorized by the ordinances until the population of the city of Chicago reaches 3,700,000; that according to the last census the population does not exceed 3,000,000, and no license can issue to appellee unless it be taken from some person by whom .it is now' held. The circuit court sustained a demurrer to the answer, and the defendant electing to stand by his answer, a judgment was rendered awarding the writ. The appellee’s contention that the ordinance is invalid is based upon the limitation of the number of licenses to one for every five hundred of the population, and upon the granting of a right of renewal to the holder of a license or his assignee. The business of selling intoxicating liquor is attended with danger to the community and is a recognized subject for regulation by the police power of the State. There is no inherent right to carry it on and it may be entirely prohibited. The manner and extent of its regulation, if permitted to be carried on at all, are to be determined by the State, so as to limit, as far as possible, the evils arising from it. (Crowley v. Christensen, 137 U. S. 86.) In cities, authority for such regulation or prohibition has been conferred by the legislature upon the city councils, and all sales of intoxicating liquor are unlawful and are prohibited unless made by virtue of a license granted under an ordinance. The power conferred upon the city is co-extensive with that o'f the State, and includes authority to adopt any means to reduce the evils arising from the sale of intoxicating liquor, reasonably adapted to that end, which do not violate constitutional rights. The legislature cannot confer any power which it does not itself possess, and cannot authorize a discrimination between individuals not founded on a reasonable difference, for it could not itself make such discrimination. The power to license, regulate and prohibit can be exercised only through an ordinance of the city, and such ordinance must be a general one, specifying the manner and conditions of the issue of the license, the power conferred by it, and uniform in its operation upon persons within its scope. (People v. Village of Crotty, 93 Ill. 180; People v. Cregier, 138 id. 401; People v. Mount, 186 id. 560.) In People v. Cregier an ordinance prohibited the granting of a license to keep a dram-shop within a certain district in the city, and the court upheld this provision, saying (p. 419) : “If, on the other hand, a discretion is reserved as to the number or location of the dram-shops to be licensed, such discretion may be exercised by the officers charged with the duty of issuing the licenses, and if the ordinance restricts the location of dram-shops to certain portions of the municipal territory, said officers have no power to issue licenses except in obedience to said restrictions.” .The city council having determined that the interests of the municipality will be subserved by limiting the number of saloons within its boundaries, its discretion cannot be controlled by the court, even if the latter should not agree with the conclusion. No one’s constitutional right is impaired, and if the limitation prevents some persons from keeping dram-shops who might do so under an unlimited ordinance, that result is merely an incidental effect, which does not affect the validity of the limitation imposed with a view to the public welfare in the reasonable exercise of the police power of the State. Everybody has an equal right to apply for a license, and when the number authorized by the ordinance has been granted everybody is equally excluded from the business. It was said in People v. Cregier, supra, though the specific question was not involved in that case (p. 421) : “There can be no doubt that said reservation, by the ordinance, of a discretion as to the number of licenses to be granted was valid, as it was clearly a reasonable exercise of the power over the subject given to the village board by the statute, and the same thing appears inferentially from the fact that precisely the same discretion is given by the Dram-shop act to county boards in respect to the territory under their jurisdiction.” The limitation of the number of saloons within a municipality in proportion to the population has been uniformly sustained by the courts. Decie v. Brown, 167 Mass. 290; In re Jugenheimer, 75 Neb. 401; State v. Common Council of the City of Northfield, 94 Minn. 81; Schweirman v. Town of Highland Park, 113 S. W. Rep. (Ky.) 507. The legislature, in conferring upon cities and villages the power to license, regulate and prohibit the sale of intoxicating liquors, prohibited the issue of a license to extend beyond the municipal year in which it may be granted. (Hurd’s Stat. 1911, clause 46, p. 265.) The ordinance in question provides that the licensee or his legal representative shall have the right to a renewal or re-issue of the license upon a compliance with the ordinances of the city, and that such licensee or his legal representative may assign such right to a renewal or re-issue, and the assignee, upon a compliance with the ordinances, shall be entitled to a renewal or re-issue of the license in his own name, and successive assignments are authorized. It is contended that this provision of the ordinance violates the statutory limitation of the license to the municipal year in which it is issued, and in our judgment this contention must be sustained. The effect of the ordinance is to authorize the issue of a license for one year, renewable indefinitely. The rights of the licensee do not terminate with the municipal year but continue indefinitely. A license for one year, renewable annually, does not differ, in substance, from an indefinite or perpetual license, as a lease for one year, renewable annually for ten years, at the option of the lessee, does not differ from a lease for ten years, with an option to the lessee to terminate it at the end of any year. It is true, the licensee of his grantee must comply with the ordinances of the city to obtain a renewal, but so he must to retain the license during the year. The effect of the ordinance is that the license, once issued, entitles the holder or his assignee to a perpetual continuance of the privileges granted, subject to the ordinances of the city. The city has no discretion about the continuance of the license. If the licensee or the assignee complies with the ordinances he has an absolute right to the continuance of the license by virtue of the fact, only, that he holds a license. The intention of the statute is that the right of the licensee shall cease with the municipal year and that the city council shall have no right to grant him any powers beyond that period. Calling the subsequent term a renewal or re-issue does not change the fact that the ordinance attempts to extend the rights conferred by the license beyond the municipal year. The ordinance is valid in so far as it limits the number of licenses that may be issued, but invalid so far as it attempts to give a right of renewal to the licensee or his assignee. Where there are more applicants for license than licenses to be issued, as the record here shows, a reasonable discretion is reserved to the mayor to determine to whom the license shall issue. The judgment is reversed and the cause remanded, with directions to overrule the demurrer to the answer. Reversed and remanded, with directions.