City of Chicago v. Enright

27 Ill. App. 559, 1888 Ill. App. LEXIS 595

• Court: Appellate Court of Illinois
• Decided: December 18, 1888
• Status: Published

Opinion

Moran, J.

The first count of the declaration proceeds upon the assumption that appellees, having sold spirituous liquors in quantities of one gallon or more without having obtained the license required by the ordinance, became indebted to the city for the amount of the license fee. The consideration for a license is sought to be recovered while it appears from the allegations of said count that no license had in fact been taken out.

The count was clearly bad, and the demurrer to it was properly sustained.

“A person carrying on a business for which a license is required, can not be compelled to take out a license. If he neglect or refuse to do so, he may be subject to a criminal prosecution, or he may be held to have agreed to pay a specific penalty instead of the amount of the license tax; but he certainly owes nothing for a license until he has taken out a license.” Santa Cruz v. Santa Cruz R. R. Co., 56 Cal. 143.

The action of the court in overruling the demurrer to appellees’ plea presents a different question. The second count is for a penalty for violating the ordinance in the manner stated in the count. The plea is of the statute of limitations found in the Criminal Code, Sec. 375, which is as follows:

“All prosecutions, by indictment or otherwise, for misdemeanors or for any fine or forfeiture under a penal statute, shall be commenced within one year and six months from the time of committing the offense or incurring the fine or forfeiture, except as otherwise provided by law.”

The proceeding set out in said second count is not a prosecution by indictment or otherwise. The well understood legal signification of the word prosecution is a criminal proceeding, and as such it must in this State be in the name of the people. The limitation in the section above quoted applies to such criminal prosecutions by indictment or otherwise (as by information, when authorized) for any fine or forfeiture under a penal statute. It can have no application to a proceeding to collect a penalty which is not in any sense a criminal prosecution. The ordinance does not inflict a fine for its violation, but in terms imposes a penalty. Where penalties are imposed and no direction is given as to the mode of procedure for their recovery, an action of debt is a proper remedy. Webster v. The People, 14 Ill. 365; Vaughn v. Thompson, 15 Ill. 39; Town of Jacksonville v. Block, 36 Ill. 507.

An action of debt for a penalty for the violation of a municipal ordinance is purely a civil action. Town of Lewiston v. Proctor, 27 Ill. 414; Town of Havana v. Biggs, 58 Ill. 483; Webster v. The People, supra; Town of Partridge v. Snyder, 78 Ill. 519.

The second count is, then, an action of debt for a statutory penalty, and not a prosecution for a fine or forfeiture under a penal statute. It is, therefore, not governed by the limitation of eighteen months, fixed by Sec. 375 of the Criminal Code, but by See. 14 of the general statute of limitations, which allows two years after the right accrues within which to bring the action.

It follows that the court erred in overruling the demurrer to appellees’ plea to the second count of the declaration. All the questions of law in this record arise on the pleadings.

There is in the record an agreed statement of facts, upon which appellant is entitled to a judgment against appellees, but the amount of such judgment this court has no jurisdiction to fix on this record. That question must be left to the determination of the trial court.

The judgment is reversed and the case remanded to the Circuit Court.

Reversed and remanded.