Swift v. People ex rel. Powers

Mr. Justice Waterman delivered the opinion of the Court. It is urged, by counsel for the relators, that as the keeping of a saloon is recognized by the law as a legitimate occupation, and the method to be pursued by those desiring to obtain a license to sell liquors is definitely pointed out, when one asking for a license has complied with the law, the authorities have no discretion to refuse because the place where the saloon is to be, is one in which the mayor is of the opinion such a store ought not to be kept. It is urged that the mayor can not, in his discretion, deprive one neighborhood, or any citizen resident therein, of the right to there have or keep a saloon, while as to other territory he grants all licenses applied for; that the rule and regulation of the public authorities in this regard, must be open, public and alike for all districts, and such as any citizen of good character and sufficient means may comply with. In support of this proposition, the following citations are made: East St. Louis v. Wehrung, 50 Ill. 28; Zanone v. Mound City, 11 Ill. App. 334; 103 Ill. 552; Chicago v. Rumpff, 45 Ill. 90; East St. Louis v. Wider, 46 Ill. 351. Most of the foregoing contentions of the relators might be conceded, and yet it not follow that in this cause a writ of mandamus would be issued. It is seldom that an action can be decided by the consideration of but one principle of law; especially is such the case with regard to the awarding of writs of mandamus. Although a prim,a facie right to a writ of mandamus be shown, courts still exercise a discretion as to issuing the writ. Such discretion can not be arbitrary—governed by fancy, caprice or prejudice; it must be a sound discretion, guided by law, legal and regular. The People ex rel. v. Weber, 86 Ill. 283; State v. Anderson County Com’rs, 28 Kans. 67; Alger v. Seaver, 138 Mass. 331; People v. Chapin, 104 N. Y. 96; Proprietors St. Luke’s Church v. Slack, 7 Cush. 226; Merrill on Mandamus, Sec. 62. Tested by these rules, we are to inquire whether we will, by mandamus, compel the mayor to issue a license for a saloon at 3300 Wabash avenue. Courts can not assume to be more ignorant than the average of the community in which they exercise judicial functions. As individuals, and as judges, we know that many things, legitimate, proper and useful, even indispensable, are nevertheless, at certain places, nuisances. Blacksmith shops, tanneries, soap factories, even large public schools, are, in a great city at certain places, regarded as nuisances, tending not only to depreciate the value of immediately surrounding property, but destroying the peace and quiet which men seek for and demand at home. In a great city the useful tendency is to division into districts characterized by marked distinctions as to what is there done. There are in Chicago large neighborhoods in which no one now thinks of erecting a mere dwelling house, and in which the property owners would unanimously resist an attempt to introduce that peace and quiet which reigns in other quarters. In a growing city neighborhoods change, and what at one period would be a nuisance, may in time become almost a necessity. Whether a thing is or is not, at a particular place, a nuisance, is ordinarily a question of fact, and largely a matter of opinion. That in such a residence neighborhood as 3300 Wabash avenue is described in the answer to be, a saloon is commonly regarded as a nuisance, is a fact of which we are not ignorant. We are therefore confronted with the question of whether we will, by writ of mandamus, compel the public authorities to allow the establishment of a nuisance. We are asked to establish the principle that the right to keep saloons in any and all quarters of the city, in each block and beside any home, is absolute. We are not prepared so to do. The discretion which, in this regard, courts exercise, is not arbitrary, controlled by caprice or prejudice; it is based upon the law, is regular and uniform in its operation. In its effect it is, that a court should not, by mandamus, compel the public officials to issue a license for the keeping of a saloon in a residence neighborhood, where a saloon will be a nuisance. The order of the Superior Court is reversed.