Kettering v. City of Jacksonville

50 Ill. 39

• Court: Illinois Supreme Court
• Decided: January 15, 1869
• Status: Published

Opinion

Mr. Justice Lawrence

delivered the opinion of the Court:

This was a prosecution by the City of Jacksonville to recover a penalty for violation of an ordinance of the city, prohibiting the sale of liquor and beer.

The first objection, that the city was not a municipal corporation, because its. charter had never been published in Jacksonville, as required by its terms, is one that cannot be raised in this proceeding, as decided in President & Trustees of Mendota v. Thompson, 20 Ill. 200. The proof of the publication of the ordinance, in regard to which a point is also made, is such as the charter authorizes.

The main objection urged by appellant as a ground for reversing the judgment is, that the ordinance is unconstitutional. But this question, so far as it relates to the retailing of liquor or beer, is not an open question in this court. It was very fully considered in Goddard v. The Town of Jacksonville, 15 Ill. 590, and since that decision, others have been made in which the validity of similar ordinances has been assumed without discussion.

It is said, however, that the ordinance in question prohibits not only the sale of liquor by retail but by wholesale, and therefore cannot be sustained as a police regulation. But this prosecution was for the sale of beer by the glass, in what is called a “ saloon,” and therefore does not involve the question of the power of the city to forbid its sale as an article of commerce, to be carried beyond the limits of the city, or used for mechanical or domestic purposes. Such a case is not before us. The facts which are presented by the record not only show a violation of the terms of the ordinance, but a violation of such a character as to be clearly within the constitutional reach of the city prohibition. The ordinance may be too comprehensive in its provisions, and cover cases which the city has no power to control, but that is no reason why we should refuse to enforce it, in cases over which the power of the city is unquestionable.

It is also insisted, that the court erred in refusing to instruct the jury, that the prosecution must prove the beer sold to be of an intoxicating character. The objection is not well taken. The charter of the city, in express terms, gave the city power to prohibit the sale of beer without defining its quality or character; The ordinance follows the language of the charter, and the proof shows that beer was sold. The city did not see proper to confine the prohibition to beer of an intoxicating quality, and we have n.o right to interpolate such a qualification. The city council may have supposed it important to prevent the establishment of any species of beer shops, in view of the fact that intoxicating drinks are so often sold in places which openly deal only in harmless beverages. The existence of shops for the vending of any species of beer is certainly not important to the well-being of a community, and we are not prepared to say their prohibition is such an abridgment of the rights of the citizen, that the legislature cannot clothe cities with that power. That the legislature did not intend to confine its grant of power to the prohibition of beer of an intoxicating character, is evident from the fact that the charter authorizes the council to prohibit the sale of soda water.

Judgment ajp/rmed.