People v. Helmel

Mr. Justice Willis delivered the opinion of the court. The granting or refusing leave to file an information in the nature of a quo warranto rests in the sound legal discretion of the court acting upon the application therefor. In the case at har the court refused to allow the information to be filed upon a consideration of the allegations of the affidavits. The material facts were not disputed, and the main question presented by the affidavits for the determination of the trial court, was whether the ordinance of June 2, 1902, was repealed by the ordinance of March 23, 1908. The question was purely one of law, and it is manifest, could receive as careful consideration on this application as could be given it in case leave to file the information had been granted. It is also fair to assume that upon the same facts, the decision would have been the same on the final hearing of the quo ivarranto as upon the petition for leave to file the information. It is for us to determine whether under the law and the circumstances of the case, the court below decided this point correctly. Counsel for appellant argue that it should not be assumed that the ordinance of 1908 was ever adopted. It is true that the record of the proceedings of the city council attached to Helmel’s affidavit does not show a legal adoption of the ordinance, but relator’s affidavit alleges that the ordinance of 1908 was adopted and approved and went into force and still is in force, and appellant cannot be heard to deny the. statements contained in his own affidavit. Section 1, chapter XX of the ordinances of 1892, provided that the mayor was authorized to grant licenses for the sale of intoxicating liquors to persons of full age and good character who should apply to him in writing, upon such person giving a bond in the sum of $3,000 with at least two good and sufficient sureties to be approved by the mayor, who should be freeholders in Bock Island county; that the municipal year beginning on the third Tuesday in April should be divided into two periods: from the third Tuesday of April to the third Tuesday in October to be known as the first period, and from the third Tuesday in October to the third Tuesday in April to be known as the second period; that the applicant should pay the city clerk a fee of $1 and for the term of one year should pay $500; for the first period $250, and for the second period $250. This ordinance was amended June 2, 1902, by adding that the application be accompanied by a petition signed by the owners of at least 50% of the property on both sides of the street, and within 150 feet of the center of the front of the building; that every application, where it was made necessary that a petition should accompany the application, should be filed in the office of the city clerk; that no license should be granted for opening or conducting a saloon in any block where there “is now” no building used for saloon purposes or license granted for the same. September 16, 1907, an ordinance was passed and approved September 17, 1907, amending section 1, chapter XX of the ordinances of 1892. March 23, 1908, an ordinance was passed which was approved March 30, 1908, entitled, “An ordinance amending section one (1) of chapter XX of the Revised Ordinances of the city of Moline for the year A. D. 1892,” which provided that said section “be amended so as to read as follows: ’ ’ By it the mayor was authorized to grant a license for keeping a saloon within the city of Moline to any person who should apply to him in writing and furnish satisfactory evidence of good character and give a bond of $3,000 with at least two good and sufficient securities to be approved by the mayor, who should be freeholders in Rock Island county; that such applicant should advance to the city clerk a fee of $1,000 and a fee of $1; that the license year be divided into two periods; the first period from the third Tuesday of April to the third Tuesday of October, and the second period from the third Tuesday in October to the third Tuesday in April; that for a year the applicant should pay $1,000, for the first period $500, and for the second period $500, all in advance; that upon compliance with these requirements a license signed by the mayor should be issued under the corporate seal; that the ordinance should go into effect upon its approval and that all ordinances in conflict therewith were repealed, and particularly an ordinance passed September 16, 1907, and approved September 17, 1907, amending section 1, chapter XX of the Revised Ordinances of 1892. Thus it is not necessary to consider the ordinance of 1907. By the ordinance of 1908 the matter of licensing saloons was left entirely to the mayor and all parts of the city were opened to a saloon license, while the ordinance of 1902 required a petition of property owners to accompany the application and positively forbade the issuance of a license in some parts of the city. Thus the two ordinances were inconsistent, and the rule is familiar that where two statutes are so repugnant that they cannot be reconciled and both given effect, the later statute will operate as a repeal of the earlier statute. Board of Water Commissioners v. People, 137 Ill. 660; David v. Commercial Mutual Accident Co., 243 Ill. 43. The rules for the construction of statutes and municipal ordinances are the same. In re Yick Wo., 68 Cal. 294. It is also true that when an act is passed .providing that a prior statute shall be amended “so as to read as follows” it is elementary that the statute as amended is a substitute for the original, and repeals those parts of the former law which are left out of the substitute. Shadewald v. Phillips, 75 N. W. Reporter 717. In Ashland Water Co. v. Ashland County, 87 Wis. 209, it was said: “It is, no doubt, a well settled rule in the construction of statutes that, where a statute provides that a certain former statute ‘is hereby amended so as to read as follows, ’ any provision of such former statute which is not found in the new statute is repealed. State v. Ingersoll, 17 Wis. 651; Goodno v. Oshkosh, 31 Wis. 127; Sydnor v. Palmer, 32 Wis. 406; State ex rel. Tervy v. Keaough, 68 Wis. 135-144; 21 Am. & Eng. Ency of Law, 1001. The object of construction is to conform the statute or the ordinance to the intention of the body enacting it. It is assumed that the enacting body intended to omit from the law those provisions of the old statute or ordinance which are not preserved and re-enacted in the new.” In Palmer v. City of Danville, 166 Ill. 42, the court said: “The amendatory act declared that the statute should be amended to read as therein provided, and this operated to repeal the original section.” People v. Young, 38 Ill. 490; Kepley v. People, 123 id. 367; Louisville & Nashville Railroad Co. v. City of East St. Louis, 134 id. 656. We conclude that the ordinance of 1908 repealed the ordinance of 1892, and repealed the ordinance of 1902 by implication. There is no force in the contention of counsel for appellant that none but freeholders can be licensees. Section 5 of the Dram-shop Act from which municipalities derive their authority to license dram-shops, provides that no person shall be licensed to keep a dram-shop unless he shall first give a bond in the penal sum of $3,000 with at least two good and sufficient securities, freeholders of the county in which the license is granted, to be approved by the officer who may be authorized to issue it, but it does not require the licensee to be a freeholder. In People v. Matthews, 53 Ill. App. 305, relied on by counsel, the term “freeholders of the county” is discussed only as applying to sureties and the case does not support the contention of counsel. We regard the allegation in relator’s affidavit that the other respondents besides Helmel, were interested in the business, as immaterial. The license was issued to Helmel and that he may have had business relations with others would not invalidate the license. Although the suggestion is not made by counsel, the fact that the information related to a saloon at 624 Fifth avenue and the application for a license and the affidavits to a saloon at 624 Fourth avenue, was, of itself, a sufficient ground for refusing leave to file the' information. The judgment of the Circuit Court is affirmed. Affirmed.