City of Chicago v. O'Hare

Mr. Justice Freeman delivered the opinion of the court. There is in this case a preliminary motion to dismiss the appeal because, it is said, appellants did not file an appeal bond in accordance in that respect with the provision of the statute relating to “Appeals from Interlocutory Orders.” (R. S. Chap. 22, Sec. 52.) It is there provided that “the party taking such appeal shall give bond to be approved by the clerk of the court below, to secure costs in the Appellate Court.” Appellee’s contention is that this statute is “to be strictly and literally construed,” and that the only effective method in which appellants could take an appeal under that statute “is the filing of an appeal bond with the clerk of the court below.” We cannot concur in this view, in a case where appellants are the city, a municipal corporation, its mayor and chief of police, the two latter public officers “defending in their official capacities,” each and all of whom are allowed by section 72 of the Practice Act (R. S.) “in all cases of appeal or writ of error by them from any inferior court to any higher court to prosecute the same without giving bond.” We are of opinion that by said section 72 “any writ of error or appeal” then 'or thereafter provided for maybe granted, so long as the section continues in force, “without requiring any bond to be given as required by law, as in other cases.” It is true as said in Harding v. Harding Incandescent Co., 98 Ill. App., 141-142, cited by appellee’s counsel that “the right of appeal is a matter of statutory creation, not a common law right. Hence conformity to the statute is essential and a lack of it jurisdictional.” The procedure in the present case is in precise, conformity to the section of the Practice Act referred to, and the provision relating to appeals from interlocutory orders is we think one of those “other cases” referred to in section 72 of the Practice Act in the phrase above quoted therefrom. There is nothing repugnant nor inconsistent in either of the acts with the other and neither is to be deemed repealed by implication. People v. Harrison, 185 Ill., 307—313. While the act allowing appeals from interlocutory orders is later than the section of the Practice Act referred to, the later act does not repeal the former either in words or effect. It contains no provision to the effect that all laws and parts off laws in conflict with it are thereby repealed, and so far as the Practice Act is or may seem to be in conflict, it must be regarded as an exception in the matter of giving bond on appeal in favor of the municipal corporations and other parties therein named. Under the annexation proceedings by which Hyde Park became a part of the city of Chicago the ordinances of the village of Hyde Park here in controversy were continued in force and operative in the territory in question. People v. Cregier, 138 Ill., 401. It is urged in behalf of appellee that the protest or objection against the renewal of appellee’s license was insufScient in that it contained only the signatures of one-quarter of the property owners on 51st street between Prairie and Indiana avenues and not the signatures of one-quarter of the property owners on all the streets bounding the block in which appellee’s dram-shop on 51st street is located. . Hence it is said that the protest did not comply with the terms of the ordinance relating to such ohjection. In Harrison v. The People, 195 Ill., 466-469, the ordinance now in controversy set forth in the preceding statement was construed, and it was held that the first of its provisions requiring an application for a license under said ordinance to “he signed by a majority of the property owners according to frontage on both sides of the street in the block in which such dram-shop is to be kept,” required the signatures of a majority of such property owners on both sides of the four streets bounding said block in which the dram-shop is to be kept; whereas the second provision requiring that such application “shall also be signed by a majority of the bona fide householders and persons or firms living in or doing business on each side of the street in the block upon which such dram-shop shall have its main entrance” was conceded to have been satisfied by the bona fide signatures of the persons named, living in or doing business upon each side of that one of the four streets bounding the block, upon which the dram-shop shall have its main entrance. This last mentioned provision is substantially repeated in the proviso of the ordinance, the meaning of which proviso is now questioned. Therein it is “provided” that the applicant for a renewal of a license shall not be required to present a new application in order to obtain such renewal, unless when, as in the present instance, objection to the renewal is filed within the time specified, which shall be signed by “one-quarter of the property owners or bona fide householders, persons and firms doing business upon both sides of the street in the block upon which the said dram-shop has its main entrance.” The requirement as to signers to such objection was we think satisfied when the objection was, as the bill seems to concede, signed by a quarter of the property owners or bona fide householders, persons and firms doing business upon both sides of 51st Street between Prairie and Indiana avenues, upon which street the complainant’s dram-shop has its main entrance. In Patterson v. Johnson, 214 Ill., 481-492, it is said that the word “block” may mean a “square” or it may mean “the part of a street which lies between two cross streets,” and the latter is the meaning which must be given to it in the proviso in controversy and which appears to have been given to the similar language employed in the prior part of the ordinance in the case of Harrison v. The People, supra. (See bottom of page 469, also Idem 97th Ill. App., 421—429, where the facts as to the signatures in that case are stated.) We deem it unnecessary to consider at length the other points presented in the briefs of counsel, since we are of opinion that the bill in equity cannot be maintained and that upon the face of the bill the injunction prayed for and issued by the Superior Court is unwarranted and erroneous. It is evident from what has been said that in our opinion the objection or protest which according to the bill was filed with the proper authorities against the renewal of complainant’s license, was valid under the provision of the ordinance applicable. It became necessary therefore that complainant present a new application in order to obtain a renewal of license, to be accompanied by signatures as required by the construction given to the phraseology of the ordinance by the Supreme Court in People v. Harrison, supra. Hntil this was done the complainant was not entitled to any license after the expiration of the time in which his former license had been operative. It appears upon the face of his bill that without a license to keep a dram-shop, he is seeking by bill in equity to compel the proper authorities of the city to permit him to conduct a dram-shop in violation of laws and ordinances the validity and force of which are not questioned. The prayer of the bill is that “defendants may be enjoined and restrained from in any way interfering with the conduct of complainant’s business” in keeping said dram-shop. Appellants by their answer deny that a court of equity has jurisdiction in the case and allege that complainant has an adequate remedy at law for the alleged injurious action charged against appellants and of which he complains. It is true complainant states he has filed his bond and paid a license fee for one of the annual periods, but it is undisputed that the license fee so paid was accepted by the collector of the city by inadvertence and mistake of which complainant was immediately notified and that he was informed the payment so made is held subject to his order. Such acceptance by mistake was in fact and law no acceptance and gave complainant no right to receive a license. It is conceded in appellee’s brief that he had a remedy at law, but insisted that such remedy was not adequate. Having no license and having shown no right to one, complainant cannot complain of injury whether irreparable or not for which the law and complainant’s own conduct are responsible. There is nothing in the bill tending to show any illegal, unlawful or improper acts of the defendants in the premises. Under such circumstances, as said in Pom. Eq. Jur., vol. 3, p. 376, “an injunction will not be granted in general to restrain persons from acting as public officers.” Appellee’s counsel base their argument in support of the injunction upon an assumption that the city and its officers, defendants herein, are threatening to commit trespass upon complainant’s private and property rights. The bill presents no such ease. The refusal of a license does not deprive anyone of a personal or property right. People v. Cregier, supra. The injunction restrains appellants from enforcing the law and nothing more. A court of equity has no such jurisdiction. Fletcher v. Tuttle, 151 Ill., 41—53, et seq.; High on Inj., section 1242, vol. 2; Prather v. The People, 85 Ill., 36, cited by appellee’s counsel is not in point. The facts here are very different. In no proper sense has appellee complied with the ordinances applicable, either in paying the license fee or otherwise. If he had brought himself within the provisions of the ordinance so that the right to a license was not doubtful and appellants had still refused him a license the remedy by mandamus was open to him. People v. Crotty, 93 Ill., 180-186; Zanone v. Mound City, 103 Ill., 552—558; Swift v. Klein, 163 Ill., 269—276. The injunction has the effect of permitting appellee to continue to conduct his dram-shop without a license and in violation of law. It is clearly erroneous, and the injunction order will accordingly be reversed. Reversed.