O'Hare v. City of Chicago

Mr. Justice Freeman delivered the opinion of the court. It appears from the evidence that appellant maintained dining rooms on the second floor of the building on the first floor of which he conducted a saloon in which intoxicating liquors were sold. About 8 o’clock in the evening of October 23, 1903, three men and two women entered by a stairway in the rear of appellant’s place of business and proceeded to the dining roomg on the second floor. One of the men accompanied 'by one of the women went into one room and another man and woman entered another room. These rooms were in. size about, ten by ten or twelve feet and were furnished with two or four chairs and a small round table. In one of the -rooms the occupants ordered a drink of whiskey and a bottle of beer which was supplied by a colored waiter and was drank. When the waiter went out he closed the door. The colored waiter was answering and serving orders in both rooms. He went back and forth between the saloon down-stairs and the dining rooms above. In the room occupied by the second couple were two chairs and a small table. There also liquor was served by the colored waiter, but it was only tasted, not drank. The visitors to the place were apparently acting the part of detectives. At the conclusion of the evidence in behalf of the city, appellant’s attorney moved the court to instruct the jury to find a verdict in favor of the defendant. The court denied the motion. Evidence was then introduced in behalf of appellant tending to show that an ordinary restaurant was conducted on the second floor," the entrance to which, front and rear, are separate from the saloon. Appellant himself testified that he had no wine rooms as a part of his saloon nor as an adjunct thereto. There is, however, no material controversy over the facts. One of appellant’s witnesses admits that drinks had been served to him and a party with him composed of both sexes in one of these rooms. The dining rooms, eight in number, on the second floor were conducted by appellant, who conducted also the saloon below, and it' is clear that drinks from the saloon were furnished to patrons of the cafe or restaurant, whether such patrons ordered anything to eat from the restaurant or not. The evidence tends to show that the rooms on the second floor were in part at least maintained as wine rooms or private apartments used for such purpose, which were shut off by doors from the view of the general jmblic, and that appellant permitted intoxicating liquors to he served in such private apartments maintained as a part of the restaurant to persons less than four in number and of different sexes, in violation of the ordinance. It is contended that the ordinance is invalid and that it was error therefore' to permit its introduction over appellant’s objection. This contention is based upon the provisions of section 62, paragraph 96, art. 5, chap. 24 R. S., granting to city councils the power to pass all ordinances, rules and regulations proper or necessary to carry into effect the powers granted to cities or villages, with such fines and penalties as the city council shall deem proper, provided no fine or penalty shall exceed $200 and no punishment shall exceed six: months in jail. It is said that this provision of the statute “leaves it free from doubt that penalties by the way of fine, was the mode intended to compel an observance of ordinances restricting, prohibiting and regulating the sale of intoxicating liquors.” City of Pekin v. Smelzel, 21 Ill., 464—468. The charter provision of which this was said in 1859 was very different from that above referred to. It is. claimed, however, that the ordinance in controversy is void, in that it provides in addition to the penalty by fine to be imposed upon conviction for its violation, that the person or corporation, so convicted shall have his, her or its license revoked and shall not be permitted to again obtain a license to keep a saloon, dram-shop or restaurant, etc., within the city limits for two years after such conviction. The same section of the statute confers (paragraph 4, sec. 62, art. V, chap. 24) upon the city council the power “To fix the amount, terms, and manner of issuing and revoking licenses;” and by paragraph 46 the city council is empowered “to license, regulate and prohibit the selling or giving away of any intoxicating liquors,” etc. It is apparent therefore that- the power to prescribe the manner of revoking licenses is specially conferred upon the city council by the same section relied on by appellant’s attorney, prescribing the nature and amount of the fine or penalty and the term of imprisonment which the city council may impose to carry into effect the powers granted to cities and villages. The provision for revocation of licenses here called in question is strictly within the power given by said paragraph 4. It :may be enforced by officers of the city charged with such duty. Such revocation is “in addition to the penalty” fixed by the ordinance and a consequence of conviction, not a part of the penalty to be assessed by the jury. Ballentine v. State, 48 Ark., 45-49. We are of opinion that the ordinance in question is a valid exercise by the city council of the powers granted. Among cases which support these views are Wiggins v. City of Chicago, 68 Ill., 372-378; Schwuchow v. The City of Chicago, 68 Ill., 444—447; Launder v. City, 111 Ill., 291-295; The People ex rel. Morrison v. Creigier, 138 Ill., 401. Objection is made to the first instruction in that it told the jury if they believed from the evidence that appellant maintained at the time and place referred to as an adjunct to his dram-shop “any wine room or private apartment” shut off from general public view he should be found guilty. While a close analysis may find fault with the words “private apartment” as used in the ordinance and in the instruction, it is apparent from the connection that the words are intended to include private apartments of the nature of wfine rooms, and there is no reason to suppose that the jury were misled thereby. It is apparent from what we have said that we do not deem it error to have refused to instruct the jury to find the defendant not guilty. We have considered the other objections urged, but find no material error in the record. The judgment of the Criminal Court will therefore be affirmed. Affirmed.