Harrison v. People ex rel. O'Hare

Mr. Presiding Justice Smith delivered the opinion of the court. Although the issues on the pleadings are not made up in' accordance with the common law or the statute, the parties have treated the issues as properly made up, and we will so consider the pleadings. By the rulings of the Circuit 'Court on the demurrer and on the propositions of law submitted to the court by appellant, and in modifying and holding certain propositions of law submitted on behalf of the relator, the fundamental question is presented to this court whether the trial court erred or not in substituting its judgment for that of appellant and awarding the writ. In High’s Extraordinary Legal Remedies (3d ed.), sec. 24, it is said: “Stated in general terms, the principle is that mandamus will lie to compel the performance of duties purely ministerial in their nature, and so clear and specific that no element of discretion is left in their performance, but that as to all acts or duties necessarily calling for the exercise of judgment and discretion on the part of the officer or body at whose hands their performance is required, mandamus will not lie.” Regarding the application of the rule the author says in the same section: “It applies with special force to cases where the aid of mandamus is sought against inferior courts or judges, public officers, municipal authorities and corporate officers generally, and in all these cases it is the determining principle in guiding courts to a correct decision. And whenever such officers or bodies are vested with discretionary power as to the performance of any duty required at their hands, or when in reaching a given result of official action they are necessarily obliged to use some degree of judgment and discretion, while mandamus will lie to set them in motion and to compel action upon the matters in controversy, it will in no manner interfere with, the exercise of such discretion or control or dictate the judgment or decision which shall be reached.” This principle is sustained in People v. McCormick et al., 106 Ill., 184; Kelly v. City of Chicago et al., 62 Ill., 279; People v. Dental Examiners, 110 Ill., 180. The power to license and regulate the selling of intoxicating liquors and entirely to prohibit the same if it sees fit is conferred expressly by clause 46 of article 5 of the Act for the Incorporation of Cities and Villages, chapter 24 Hurd’s Revised Statutes. The city council may authorize the mayor to issue and revoke licenses. When the mayor issues or revokes a license the city council acts and exercises its power through the mayor. Gundling v. City, 176 Ill., 340; Swarth v. People, 109 Ill., 621. The power conferred upon the city council “to license, regulate and prohibit the selling or giving away of any intoxicating malt, vinous, mixed or fermented liquor,” carries with it or includes the power to annex any condition which it may see fit, and it may impose the condition that a license granted shall be subject to revocation for violation by the licensee of any city ordinance. Schwuchow v. City of Chicago, 68 Ill., 444. “If the city grants a license, it may impose such conditions and burdens as it may see fit. This latitude of power grows out of the fact that it is discretionary to prohibit the business or license it on such terms as the city may choose.” Launder v. City of Chicago, 111 Ill., 291. The license issued to the petitioner O’Hare contained the provision set up in respondent’s answer. Sections 1167, 1170 and 1180 of the Revised Code of Chicago, set forth in respondent’s answer, provide that if any person licensed shall violate any of the provisions of the ordinances of the city relating to intoxicating liquors, the mayor in his discretion may revoke the- license of such person. In Schwuchow v. City of Chicago, supra, it was said: “The city had exercised its power to grant licenses on the terms imposed by the ordinances. Appellant saw proper to apply for and obtain a license on these terms. The license contained a condition that if he violated any of the ordinances or regulations or restrictions imposed in the license it might be revoked, even at the discretion of the mayor. “He received the license on the condition that it might be revoked if he should sell liquor on Sunday and he thereby assented to the terms and conditions. The charter authorized the imposition of the condition and he violated it, and the license was properly revoked.” See also Wiggins v. City of Chicago, 68 Ill., 372. The record shows that petitioner O’Hare was convicted of a violation of the wine room ordinance which expressly provides that in addition to the penalty provided therein the license should be revoked and that such a person shall not be permitted to again obtain a license for two years after the date of the conviction. When the license of petitioner was revoked the judgment of conviction was in full force and effect, except that by the appeal the execution of the judgment was suspended. Moore v. Williams, 132 Ill., 591; People v. Rickert, 159 Ill., 496. Our conclusions therefore are (1) that the mayor in revoking the license to petitioner was exercising the discretion lodged in him by the ordinances, or in other words the city council through the mayor exercised its discretion and that under the rule above referred to mandamus will not lie to compel the mayor to annul his act or the act of the city council; (2) that under the conditions of the license and the provisions of the ordinances the mayor could and did revoke the license of O’Hare in the exercise of his discretion in view of the judgment óf the Criminal Court against O’Hare. In our opinion the judgment of the trial court was erroneous for the further reason that the petitioner does not show a clear right to the relief prayed for. This must be shown to entitle the petitioner to a writ of mandamus. The People v. McConnell, 146 Ill., 532; County of St. Clair v. People, 85 Ill., 396; The People v. Blocki, 203 Ill., 363. For the reasons stated the judgment of the Superior Court is reversed. Reversed.