text:
    Walgreen Company, Appellee, v. Charles H. Garland, Appellant.
    Gen. No. 42,512.
    Heard in the third division of this court for the first district at the September term, 1942.
    Opinion filed December 9, 1942.
    Frank M. Opeka, of Chicago, for appellant.

      Wolff, Keane & Gomberg and George E. Arthur, all of Chicago, for appellee; Oscar M. Wolff, Thomas E. Keane, George E. Arthur and Julian Tishler, all of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

An appeal was taken, by the defendant in a mandamus proceeding, from a judgment order for the plaintiff, direct to the Supreme Court, and that court upon consideration reached the conclusion that the matter was properly one to be considered by the Appellate Court, and the cause was transferred to this court for the purpose of considering the questions that were involved in this case.

The action is for mandamus and was instituted by Walgreen Co. against Charles H. Garland, as Mayor and Local Liquor Control Commissioner of the City of Des Plaines, Illinois to compel the defendant to issue a Class B bulk sales retail liquor license, as designated in the city ordinance, which would authorize the plaintiff to sell at retail in its premises alcoholic liquors in original packages for consumption off the premises.

Originally the 'action was brought jointly with a complaint for injunction and the pleadings consisted of two counts the first of which was a petition for mandamus and the second count a complaint for injunction. It would appear from the suggestions offered by the parties to this appeal that they are only concerned regarding the first question, in other words, the petition for mandamus.

The petition alleges that the plaintiff is a corporation engaged in the business of vending drugs, other goods, wares and merchandise at 1485 Ellinwood avenue, Des Plaines, Illinois; that it had heretofore engaged in and expected to continue the sale of alcoholic liquor under license; that it is possessed of all of the qualifications for the issuance of a license; that application had been made and the required fee deposited as provided by the city ordinance, which ordinance as plaintiff’s exhibit 1 is set out in full. It is further alleged that the defendant refused to grant a license as requested, his refusal being predicated upon that part of section 5 of the ordinance which reads as follows:

“In the interest of public welfare and good morals and in order to prevent and lessen the possibility of minors purchasing alcoholic liquor, no Class B license shall be issued to any person, firm or corporation who deals in, or sells any other food-stuffs, goods, wares or merchandise (soft drinks for consumption off the "premises where sold excepted).”

The petition further alleges that the action on the part of the defendant was in contravention of the Fourteenth Amendment to the Constitution of the United States of America and section 2 of Article II of the Constitution of the State of Illinois. It is alleged by the plaintiff that it was denied the equal protection of the law; that the ordinance is inconsistent and violates the provisions of the Illinois Liquor Control Law; and that it does not constitute proper exercise of the police power.

The answer to this petition, filed by the defendant, in effect alleges that the plaintiff has no vested rights to a license and that the ordinance does not contravene the Constitution of the United States or that of the State of Illinois and that it is not discriminating, unreasonable, capricious or contrary to State law, and they urge that the State law specifically vested the City of Des Plaines with the power to establish restrictions and regulations on licenses as public good and convenience may require. The answer, in effect, alleges that the plaintiff has no vested rights.

The reply of the plaintiff to the answer denies that the law intended to vest in cities and villages the power to establish rules and regulations as public good may require, but granted only such powers not inconsistent with law, and that such powers are further limited by the proviso of section 1, Article YI, which reads as follows:

“Provided, that in the exercise of any of the powers granted in this section (section 1, Article VI) the issuance of such licenses shall not be prohibited, except for reasons specifically enumerated in sections 2, 8, 8a and 21 of Article VI of this act.”

Plaintiff further denies that it ivas the express intention of the legislature to vest in cities and villages power to regulate to protect the public health, welfare and morals of such communities, but that the intent is to be gathered from the entire act.

The parties signed and filed a stipulation of fact. It was stipulated that the plaintiff had made a proper tender of the license fee and that this tender had been kept continuously good; that the plaintiff at the time of its application and at all times since was possessed of all the qualifications required by the statutes of the State of Illinois and the ordinance of the City of Des Plaines for the issuance of a Class B license, except in so far as the plaintiff may be disqualified by the second paragraph of section 5 of the ordinance of December 13, 1941; that the validity or invalidity of this second paragraph is the only issue in this case and that pending a decision in the mandamus case the plaintiff without the acquiescence of defendant continued to sell liquor in sealed containers for consumption off the premises where sold and that these sales were made under and by virtue of the temporary writ of injunction issued on January 12, 1942 by the superior court of Cook county.

The plaintiff in this action contends that the defendant’s argument is based upon the theory that the prohibition contained in section 5 of its ordinance of Decomber 13, 1941, is merely a reasonable regulation of the liquor business which is "within the police power of the city.

Plaintiff contends and answers that the intent of section 1 of Article IV of the Liquor Control Act is clear and unambiguous, and urges that a municipality which permits the sale of liquor under a licensing ordinance has no power or right to prohibit the issuance of a license for reasons not specified in the Liquor Control Act itself.

Our attention is called to the final clauses of section 1 of Article IV of the statute, which states that the municipality shall have the power

“to establish such further regulations and restrictions upon the issuance of and operation under local licenses not inconsistent with law as the public good and convenience may require; provided, however, that in the exercise of any of the powers granted in this section, the issuance of such licenses shall not be prohibited except for reasons specifically enumerated in sections 2, 8, 8a and 21 of Article VI of this act.”

and in the briefs of both plaintiff and defendant this section 1 of the statute is quoted. The section, commencing as follows:

“Section 1. In every city, village or incorporated town, the city council or president and board of trustees, and in counties in respect of territory outside the limits of any such city, village or incorporated town the county board shall have" the power by general ordinance or resolution”

then states certain powers which may be restated as follows:

(1) To determine the number, kind, and classification of licenses for the sale at retail of alcoholic liquor not inconsistent with this act;

(2) To determine the amount of the local license fees to be paid for the various kinds of licenses;

(3) To determine the manner of the distribution of such fees after their collection;

(4) To prohibit any woman or minor other than a licensee, or the wife of a licensee, from drawing or mixing any alcoholic liquor as an employee of a retail licensee;

(5) To prohibit any minor from, at any time, attending any bar;

(6) To prohibit any minor any time from drawing or mixing any alcoholic liquor in any licensed retail premises ;

(7) To establish such further regulations and restrictions upon the issuance of and operation under local licenses not inconsistent with law as the public good and conscience may require.

These constitute all the powers granted by the Article VI.

The amendment of the law effected in 1941 says that in the exercise of these powers the issuance of licenses shall not be prohibited “except for the reasons specifically enumerated” in certain sections of Article VI of the Liquor Control Act. The plaintiff then contends that section 1, so far as the regulatory provision is concerned means that, “in the exercise of the power to establish such further regulations and restrictions upon the issuance of and operation under local licenses not inconsistent with law as the public good and convenience may require, the issuance of such licenses shall not be prohibited except for reasons specifically enumerated in sections 2, 8, 8a and 21 of Article VI of this act,” and contends that this section can have no other meaning and that the amendment is an express limitation upon the powers conferred by this section, and suggests that the four sections of Article VI are made a measuring stick by which license applications are to be tested by all the municipalities of the State. Nothing in Article VT prohibits the issuance of a retail liquor license to an applicant who is engaged in the sale of foodstuffs or other merchandise. Section 5 of the ordinance of the City of Des Plaines does contain such a prohibition. The ordinance contravenes section 1 of Article VI of the statute and it is contended by the plaintiff that that exercise is beyond the power of the municipality.

In support of the suggestion offered by the plaintiff, our attention is called to the case of Walgreen Co. v. Lenane, 363 Ill. 628. The city of Quincy passed an ordinance which provided that no corporation should receive a license to sell liquor in Quincy unless the corporation had its home office in that city or a majority of its stockholders lived there. The Walgreen Company applied for a license to sell liquor. This license was refused. Foncompliance with the foregoing provision of the ordinance was the sole ground for refusing the license to the Walgreen Company. The Walgreen Company filed a petition for mandamus and the writ was awarded. The Supreme Court sustained the judgment of the trial court. It appears from the suggestion offered by the plaintiff that in affirming the judgment of the trial court the Supreme Court refers to Article' IV of the Liquor Control Act and then says that it is clear from section 2 of Article VI of the act that the legislature intended that corporations which conformed to the statutory requirements shall be licensed. The court calls attention to the language of the statute which provides that no license shall be issued to a corporation if any officers, manager, or director thereof, or any stockholder or stockholders owning in aggregate more than 5 per cent of the stock of the corporation, would not be eligible to receive a license for any reason other than citizenship and residence within the political subdivision; that the Supreme Court on page 630 says, “The ordinance contravenes the statute by attempting to place further restrictions on the licensing of corporations contrary to those expressly stated in the act.” It appears that the Leñame case which was called to our attention was decided in 1936. In 1941 the legislature adopted the amendment to section 1 of Article IY, which expressly prohibits municipalities from adding licensing restrictions which are not specifically enumerated in Article YI of the statute. Thus the plaintiff urges that there is even less basis to sustain the Des Plaines ordinance than existed in 1936 when the Leñame case involving the Quincy ordinance was decided.

The defendant, however, contends that the restriction on the issuance of the instant license is not a prohibition but is a regulation for the good and convenience ; that in keeping with the spirit of the ordinance the defendant by letter (plaintiff’s exhibit 3) advised the plaintiff that a license would issue upon the condition that the liquor department be segregated from the remainder of its store, and calls attention to the case entitled O’Connor v. Rathje, 368 Ill. 83, wherein the court said, at page 86:

“The dram shop law was enacted pursuant to the police power of the State. It ivas pointed out in Barbier v. Connolly, 113 U. S. 27, that neither the Fourteenth Amendment nor any other amendment of the Federal Constitution was designed to interfere with the power to prescribe regulations to promote health, peace, morals, education and good order of the peoplé. Legislation respecting the liquor traffic does not come within the Fourteenth Amendment unless it is apparent that its real object is not to protect the community or to promote the general well-being but under the guise of police regulation to deprive the owner of his liberty, or property without due process of law. ’ ’

The defendant urges that the sale of alcoholic liquor can only be made under legal restriction, citing Ill. Rev. Stat. 1941, ch. 43, par. 10, and People v. Harrison, 256 Ill. 102, in which at page 106, our Supreme Court said:

“. . . The business of selling intoxicating liquor is attended with danger to the community and is a recognized subject for regulation by the police power of the State. There is no inherent right to carry it on, and it may be entirely prohibited. The manner and extent of its regulation, if to be carried on at all, are to be determined by the State, so as to limit, as far as possible the evils arising from it. . . .”

Defendant further argues that no civil right, but only a privilege is denied by refusal to grant a liquor license (citing Ill. Rev. Stat. 1941, ch. 43, par. 119 [Jones Ill. Stats. Ann. 68.026]), and that the right to acquire a license to maintain a dram shop is not a civil right, and therefore not a vested right; that it is only a privilege granted under the statutes of this State and the ordinances of cities and villages. Defendant cites, in support of his theory of the case, People ex rel. Morrison v. Cregier, 138 Ill. 401, in which the court said:

“The tendency of the liquor traffic is so completely shown by all human experience, that from an early day said traffic has been subjected in this State to the surveillance and control of the police power and we presume such has been the case in most if not all civilized communities. The right therefore, to engage in this business and to be protected by the law in its prosecution can no longer be claimed as a common law right, but is a. right which can be exercised only in the manner and upon the terms which the statute prescribes. The refusal to license deprives no man of any personal or property right but merely deprives him of a privilege which it is in the discretion of the municipal authorities to grant or withhold. . . .”

The defendant also relies, as is suggested by the plaintiff, principally upon the case of Great Atlantic & Pacific Tea Co. v. Mayor & Commissioners of City of Danville, 367 Ill. 310, decided by the Supreme Court October 22, 1937, rehearing denied December 9, 1937. In that case the city of Danville adopted an ordinance regulating the sale of alcoholic beverages.' Article 8 of the ordinance provided for Class B licenses to authorize the retail sale of malt beverages in containers for consumption on the premises where sold. The ordinance states: “In the interest of public policy and morals no retail liquor license shall be granted to any firm, corporation, or person whose principal business is the sale at retail of grocery and/or meat products.” It is further suggested that the A. & P. Tea Company applied for a Class B license. This was refused on the sole ground that the principal business of the Tea Company is the retail sale of grocery and meat products. The Tea Company filed a petition for mandamus and the writ was allowed by the trial court. Upon appeal the Supreme Court held that the ordinance denying to grocers and meat dealers the right to sell malt beverages was a reasonable exercise of the power granted to the municipality by section 1 of Article IV of the Liquor Control Act, as the section then read.

The plaintiff urges that there are at least three reasons why t~b.e-Danville case is no longer an authority on the point here involved. In the first place section 1 of Article IV of the Liquor Control Act gives municipalities the right to adopt regulations “not inconsistent with law.” In 1937 the Supreme Court construed the ordinance provision that licenses should not be issued to grocers or meat dealers as not “inconsistent with law.” In 1941 this condition was changed by act of the legislature. When the legislature amended section 1 of Article IV of the Liquor Control Act to provide that municipalities should not prohibit the issuance of licenses for reasons not specified in the act, an ordinance provision prohibiting the issuance of a license to grocers or meat dealers became “inconsistent with law.” This necessarily follows by reason of the wording of the amendment of 1941, and the further fact that the Liquor Control Act contains no prohibition against the" issuance of licenses to grocers and meat dealers. The legal situation in December 1941, when the Des Plaines ordinance was adopted was entirely different from that which existed when the Danville case was decided in 1937.

It is further contended by the plaintiff that the legislature in adopting an amendment acts with reference to, and knowledge of, all conditions in the state as they exist at the date when the law is amended. In 1941 the legislature had knowledge of the Danville ordinance and the Supreme Court ruling thereon. The Danville case held that municipalities might prohibit the issuance of licenses on grounds not included in the Liquor Control Act. The statutory amendment of 1941 provides specifically that municipalities shall not prohibit the issuance of licenses on grounds not included within the Liquor Control Act. The statute passed subsequent to the decision of the Danville case is controlling; and, finally, the Danville case itself answers the argument of defendant in support of the Des Plaines ordinance. On page 314 of the Danville case the court said: “The power to regulate the sale of alcoholic beverages by municipalities is not unlimited. The only power they have in such respect is conferred by the Liquor Control Act of 1934.” When we come to 1941 and the Des Plaines ordinance, the Liquor Control Act has been amended to prohibit municipalities from placing restrictions upon the issuance of licenses, additional to those contained in the act itself.

So, when we come to consider the suggestions that are offered, it is apparent that the legislative act provided for the powers that were granted, and by the terms of the various powers it appears that there is no language in Article VI of the act that grants powers to the various municipalities other than to follow and be guided by the controls that are provided for in this amendment to the act in Article VI.

The defendant, however, claims that, under the Illinois Liquor Control Act, it and other municipalities of the State have broad powers of regulation and broad police powers over the sale of liquor within the boundaries of the municipalities, and claim this power particularly under the next to the last clause of section 1 of Article IV of the act, which reads that each municipality shall have power, “to establish such further regulations and restrictions upon the issuance of and operation under local licenses not inconsistent with law as the public good and convenience may require.”

The plaintiff agrees with the defendant that whatever power of regulation a municipality has exists by virtue of the grants of powers contained in the Liquor Control Act, but says that this grant of regulation does not go so far as to permit the municipalities to refuse to permit the issuance of licenses on grounds not specified in Article VI of the act.

And further it is the contention of the plaintiff that the general right of regulation by municipalities by no means is as broad as the defendant contends, and quote from Great Atlantic & Pacific Tea Co. v. Mayor & Commissioners of City of Danville, 367 Ill. 310, where the court says:

“The power to regulate the sale of alcoholic beverages by municipalities is not unlimited. The only power they have in such respect is conferred by the Liquor Control Act of 1934.”

The defendant agrees with the plaintiff that a municipality has only such powers as are expressly given by the legislature.' The authority to provide regulations and restrictions upon the issuance of local licenses to sell alcoholic liquors, consistent with law and as the public good and convenience may require, is derived from section 1 of Article IV of ch. 43, par. 110 of the Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 68.017], which provides for the powers that are granted to the villages and incorporated ‘towns in the county and provides in effect that in every city and village or incorporated town the city council or president and board of trustees, and in counties in respect of territory outside of the limits of such city, village, or incorporated town, the county board shall have the power by general ordinance or resolution to determine the number, kind and classification of licenses, for sale at retail of alcoholic liquor not inconsistent with this act and the.amount of the local license fees to be paid for the various kinds of licenses to be issued in their political subdivision and the manner of distribution of such fees after their collection; to prohibit any woman or minor, other than a licensee or the wife of a licensee, from drawing, pouring or mixing any alcoholic liquor as any employee of any retail licensee; and to prohibit any minor from at any time attending any bar and from drawing, pouring or mixing any alcoholic liquor in any licensed retail premises; and to establish such further regulations and restrictions upon the issuance of and operation under local licenses not inconsistent with law as the public good and convenience may require; and it then goes on to provide that “in the exercise of any of the powers granted in this section, the issuance of such license shall not be prohibited except for reasons specifically enumerated in Sections 2, 8, 8a and 21 of Article VI of this Act.”

The defendant, however, contends that the provision in this act was enacted by amendment in 1941, and that the words “to establish such further regulations and restrictions upon the issuance of and operation under local licenses not inconsistent with law as the public good and convenience may require” of the act prior to the 1941 amendment were not changed and remained as a part of the act, and contends that, therefore, the addition of the proviso does not affect the powers granted to the cities by the restriction of local licensing but merely provides under what circumstances a license may be strictly prohibited.

However, that does not meet the question that we are considering, and that is whether the defendant had the right to provide by its ordinance a regulation that is not a part of the powers granted to the City of Des Plaines, the ordinance of which is here the subject of consideration.

While it is true that the legislature intended that the city councils of these various organizations shall, in some measure, have a discretion in passing upon problems peculiar to their own community, that, as we said before, is controlled by the powers granted.

The plaintiffs cite the case of City of Fairfield v. Pappas, 362 Ill. 80, 83. Pappas was convicted of selling intoxicating liquor in Fairfield in violation of an ordinance of that city effective May 15,1933. The ordinance prohibited the sale of intoxicating liquor within the city. Pappas appealed from the judgment of conviction. The Supreme Court discussed the ordinance of Fairfield prohibiting the sale of liquor within the city in connection with the Illinois Liquor Control Act of 1934, and points out that Article IX of the act provides that, in municipalities having a population of 200,000 or less, the question of prohibiting the sale of alcoholic liquor may be submitted to vote and that, if a majority of the voters voting upon such proposition are in favor of the prohibition, then such sale shall actually be prohibited. The plaintiff here contends that the only method which the legislature intended to grant to municipalities by which the sale of intoxicating liquor could be prohibited is by the act of the voters of the municipality voting in favor of prohibition. However, in the Pappas case the validity of the ordinance was the only question at issue before the Supreme Court. In holding the ordinance void and reversing the judgment of conviction, the Supreme Court said, at page 83:

“It is elementary that the licensing, regulating and prohibiting the traffic in intoxicating liquor is reposed in the police power of the State. The State may reserve the power within itself or delegate it to such municipalities and political subdivisions as the legislative body of the State may deem proper. The granting of such power to such municipalities and political subdivisions is not absolute and perpetual but is revocable at the legislative will. The State may resume such powers and thereafter re-delegate the same or only a part thereof, to be exercised in accordance with the terms of the legislative grant. (Dingman v. People, 51 Ill. 277).”

After consideration of the various questions that have been called to our attention, and having determined the questions as they appear from our opinion, we believe that the court was fully justified in entering the order directing the clerk of the court to issue the writ of mandamus as prayed for in the petition, directed against Charles H. Garland, as Mayor and Local Liquor Control Commissioner of the City of Des Plaines, Illinois, commanding said Charles H. Garland forthwith to approve the application of the plaintiff for a Class B bulk sales dealer’s license to sell alcoholic liquors at retail in the plaintiff’s store known and described as 1485 Ellinwood, Des Plaines, Illinois, and that the said Charles H. Garland forthwith issue to plaintiff said bulk sales liquor license to sell alcoholic liquors at retail in plaintiff’s store premises known and described as 1485 Ellinwood, Des Plaines, Illinois, for the period commencing January 1, 1942 and ending December 31, 1942. We believe that the court did not err in the entry of the order, and it is therefore affirmed.

Affirmed.

Burke, P. J., and Kilby, J., concur.


source: Caselaw Access Project

author: Mr. Justice Kiley

license: Public Domain

text:
    Euwema Company, Appellant, v. McKay Engineering and Construction Company et al., Appellees.
    Gen. No. 40,739.

      Heard in the third division of this court for the first district at the June term, 1939.
    Opinion filed December 9, 1942.
    G. A. Bosomburg, of Chicago, for appellant.
    Rosen, Francis &. Cleveland, of Chicago, for certain appellee; Ralph Rosen and James B. O’Shaughnessy, both of Chicago, of counsel.
    Ernst Buehler, Rosen, Francis & Cleveland, Louis I. Fisher and Richard R. Madic, all of Chicago, for certain other appellee.
    Joseph E. Serhant, of Chicago, for certain other appellee.
   Rehearing Opinion.

Mr. Justice Kiley

delivered the opinion of the court.

This is an action to recover for damage to plaintiff’s property located at 1309 S. East avenue, Berwyn, Illinois. The property consists of a story and a half brick building which was constructed by plaintiff 11% years prior to the time of the alleged damage. The jury returned a not guilty verdict as to the City of Berwyn; verdicts of guilty against the McKay Engineering & Construction Co., and the Sanitary District of Chicago and assessed plaintiff’s damages at $2,000. The court, notwithstanding the latter verdicts, entered judgment for all defendants, and plaintiff has appealed.

In substance plaintiff’s pleadings charge defendants with negligence in excavation and construction of a Sanitary District sewer in front of plaintiff’s property, as a result of which the property was damaged and for which he seeks to recover; and the City of Berwyn and the Sanitary District with the responsibility to compensate him to the extent of the damage to his property which resulted from the public sewer improvement. The damage consisted principally of cracked foundations, floors, walls and ceilings in plaintiff’s house. The defendants filed answers and made no objection in the trial court to the complaint and its amendments. We believe the complaint reasonably informed each of the nature of the claim against it.

The Company built the sewer under contract with the District which had an easement granted by the City of Berwyn. There is no evidence in the record from which any negligence on the part of the Company can be reasonably inferred. Negligence cannot be imputed to it, from the evidence alone, of vibrations from the operation of its air-compressor; rumbling in the tunnel; a cave-in in the street or cracked sidewalks or structures. The judgment of the trial court, notwithstanding the verdict of the jury, was proper as to the Company. This determines the question of the liability of the District for any negligence of the Company. The City is the licensor and the District its licensee. The general rule of tort referred to in Macer v. O’Brien, 356 Ill. 486, does not apply in this case to the District because of the absence of evidence of any misuse or abuse of its license; nor does the exception to that rule apply here to the City, because there is no evidence of any negligence on the part of its licensee, for which the City could be held liable.

Plaintiff seeks compensation under section 13, Article II of the Constitution of 1870. There is evidence in the record tending to prove that the excavation for, and construction of, the sewer in this case caused the damage. The plaintiff, therefore, was entitled to have .the case, so far as the District and the City were concerned, go to the jury, unless, as a matter of law, on the evidence they could not be liable. The District contends, in effect, that since it did not intend to damage plaintiff’s property by exercise of the right of eminent domain, plaintiff cannot recover under the Constitution; that section 13 does not embrace accidental damages incidental to the exercise of eminent domain; that under Lund v. Salt Lake County, 58 Utah 546, 200 Pac. 510, plaintiff’s property was not damaged for public use; and that under People ex rel. Tyson v. Kelly, 379 Ill. 297, plaintiff is remitted to a law action based on negligence. We believe the first three contentions are successfully answered in Bigney v. City of Chicago, 102 Ill. 64 and Cuneo v. City of Chicago, 379 Ill. 488, under which it appears respectively that the 1870 amendment to section 13 of Article II of the Constitution was intended to give redress in cases where, prior to amendment, as at common law, a property owner could not recover if a statute authorized the improvement causing the damage; and in other cases where formerly no recovery could be had with or without a statute.

Since there is evidence that as a result of the improvement plaintiff suffered special damage, he has a right to recover compensation under the Illinois Constitution without regard to the question of negligence. The work was done under lawful authority and did not constitute a public nuisance, Barnard v. City of Chicago, 270 Ill 27, but in the absence of legislative authority, the improvement would have been a nuisance, for which, prior to 1870, anyone sustaining special damage could recover. Plaintiff’s action, therefore, falls within the protection of section 13 and he is entitled to be compensated for his damage. Cuneo v. City of Chicago, 379 Ill. 488. That finding disposes of the District’s remaining contention.

Who should compensate plaintiff? Because the property is within the City, a mere licensor of the District which made the improvement, the answer is not apparent.- The District has the responsibility to construct sewers; authority to exercise the power of eminent domain to obtain property for that purpose; and the related necessary authority to compensate the property owner for property taken. It would appear that the District which would be required to pay for property taken, should have the burden of compensating plaintiff for damaging its property. The Drainage Act provides means for the District to obtain revenue out of which it may meet necessary obligations of this kind. We hold the City, licensor, not liable in this case, although in so holding we do not approve the instruction which the court gave on behalf of the City which limited its liability to damage arising out of its own negligence.

We believe the issues of fact were properly submitted to the jury which determined the causal connection between the sewer improvement and plaintiff’s damage. As a matter of law, we hold the plaintiff had a right, therefore, to compensation from the District. The trial court erroneously entered judgment in favor of the District notwithstanding the verdict against it.

For the reasons given, the judgments in favor of McKay Engineering & Construction Co., a corporation, and the City of Berwyn, are affirmed and the judgment for the Sanitary District is reversed and the cause is remanded with directions to the trial court to enter judgment for the plaintiff against the Sanitary District in the amount of $2,000.

Affirmed in part and reversed and remanded in part with directions.

Burke, P. J., and Hebel, J., concur.


text:
    Mary Bernard, Administratrix of Estate of John Habowski, Appellant, v. Metropolitan Life Insurance Company, Appellee.
    Gen. No. 41,892.

      Heard in the third division of this court for the first district at the October term, 1941.
    Opinion filed December 9, 1942.
    Hubbard, Baker & Rice, of Chicago, for appellant.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellee; Nathaniel Rubinkam and John C. Melaniphy, both of Chicago, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an action on an industrial insurance policy, with verdict and judgment for the defendant.

The jury, found in a special interrogatory that the insured, John Habowsld, was horn in the year 1857. This interrogatory presented the vital factual issue in the case. In the application for the policy, made in December 1931, the insured’s age was given as about 50 years. The defendant contended the age was misstated. The policy provided that if insured’s age had been misstated only such benefits accrued thereunder as the premiums paid would have purchased at the correct age.

Plaintiff proved the insured signed the application and that he died; and introduced the policy and copies of her letters of administration. Proof of death under the policy was admitted by the pleadings.

Plaintiff is the stepdaughter of the insured. Her mother Catherine married him in Philadelphia in 1896 and died in 1924, at the age of 59. Plaintiff, at the time of the marriage was 15 years of age, and as simple computation shows her mother was then 28 years of age. A former co-employee gave his opinion that the insured was 75 or 76 years old in 1936, and several witnesses for plaintiff gave opinions that decedent was of an age between 50 and 60 years, based on decedent’s occupation as janitor and his painting, hauling ashes, etc., up to a short time before his death. However, the opinion evidence was not convincing. The essential proof of misstatement of age was an application made by insured under the name Jan Chabowski in 1897, for benefits under the Polish National Alliance Mortuary Fund in which decedent gave his age as 40 and year of birth, 1857. The application was witnessed by two lodge members. That policy issued and after his death plaintiff applied for and was paid as beneficiary- thereunder. The burden of proving its affirmative defense of misstatement of age was placed on the defendant and since there was competent evidence of misstatement, the question was, therefore, for the jury and we cannot set aside its verdict, unless against the manifest weight of the evidence.

Plaintiff contends that the introduction of the prior application was error because it was not competent as an admission against plaintiff in this suit by her as beneficiary, and was in the Polish language, and while interpreted at the trial, it was not translated and its admission was, therefore, in violation of schedule 18 of the Constitution of the State of Illinois. Plaintiff’s counsel objected to defendant’s witness, a Polish linguist, interpreting the prior application and the court invited counsel to produce a witness if he wished a translation of the entire document. Such a witness was not produced. On this question we need only say that questions relevant to this case were, in that prior application, both asked and answered in writing in Polish and English and both sets signed by the applicant Jan Habowski. Questions and answers referring to decedent’s birth and age were in English and plain to the jury. There is no merit to this point.

By the testimony of an actuary, it was explained to the jury that if the decedent was born in 1857, he was 75 when he applied for the policy, and would not have had to pay any premiums for benefits because the policy provided paid-up insurance after the age of 74.

If the statements in the prior application are competent evidence they weigh heavily in defendant’s favor since if the insured was 50 at the time of his application for the instant policy in 1931, as plaintiff, contends, he was 15 at the time of his marriage, the same age as that of his stepdaughter, the plaintiff, and 13 years younger than his wife. Plaintiff contends that such statements, unless made contemporaneously with and as a part of the instant transaction are mere hearsay and not admissible against nor binding upon the plaintiff now; that she has a vested interest in an insurance contract; and that the contract is between her and the defendant and that she is not in privity with insured. The general rule on this point is, that where the defense in an action on a contract of life insurance is based on alleged falsity of statements in the application, admissions or declarations of the insured, whether made before or after the policy was issued, are not admissible against a beneficiary, other than the estate of the insured, unless they were part of the res gestae or made at a time not too remote from the making of the contract of insurance and were of such a nature as to be of real probative force in determining the truth or falsity of such statements. 29 Am. Jur. p. 1106. This rule rests on the theory that no privity exists between an insured person and his beneficiary. Personal representatives of a decedent are excluded from the general rule stated. 86 A. L. R. 148. Plaintiff relies on Yore v. Booth, 110 Cal. 238, where the plaintiff, designated as beneficiary, was held to have a vested interest because the insured had no power to change beneficiary and, consequently, no prior admission of the insured could be admitted to diminish her interest. The basis of that decision was clarified in McEwen v. New York Life Ins. Co., 23 Cal. App. 694, where it was decided plaintiff had no vested interest because the insured reserved the right of revocation of beneficiary and the admissions were ruled competent. Illinois cases make the same distinction as the California cases referred to and hold that such admissions are competent where the insured retains the right to change beneficiary, and incompetent where the beneficiary’s interest is absolute. Brown v. Mystic Workers of the World, 151 Ill. App. 517; Libre v. Brotherhood of American Yeomen, 168 Ill. App. 328. The Yore case, does not apply here because plaintiff is insured’s personal representative, so as to come within the exception to the general rule, and she not only had no vested interest, but, any interest in the policy, depended upon the selective power of the defendant under the “facility.of payment” clause. Under that clause the defendant had power to select the beneficiary from designated relations.

It is our opinion that the trial court properly admitted the prior application in the case at bar and that the statement of birth and age therein was ■ highly credible evidence. A sick person may recover, and a prior remote statement of health pass from his mind, but a person’s birthday does not change and while growing age may make somewhat hazy the exact date, this fact serves only to confirm the accuracy of the date of birth and age given at a much earlier time. Libre v. Brotherhood of American Yeomen, 168 Ill. App. 328.

Interrogatory 2, answered in the affirmative by the jury, is as follows:

“Do you find from the evidence that the Insured, Jan Habowski, was born in 1857?
Answer Yes........Yes
........No.
“If your answer is ‘no ’ then on what date do you find that the said Jan Habowski was born?

Plaintiff insists the interrogatory was not submitted to him así required by section 65, Civil Practice Act; was not single and direct and that its second part, assumed as true, an alleged evidentiary fact. The record shows the interrogatory was considered, discussed and objected to before argument and we believe section 65 was substantially complied with. We consider the interrogatory direct and plain, presented the essential issue of fact and made no erroneous assumption.

From a consideration of all the circumstances, we are of the opinion that the case was properly and fairly tried in all respects without error and that the, verdict of the jury is sustained by the evidence and the judgment is hereby affirmed.

Judgment affirmed.

Burke, P. J., and Hebel, J., concur.


author: Mr. Justice Kilet

text:
    Clarence V. Forsberg, Appellee, v. Around Town Club, Inc. and Marie Freeman, Executrix of Estate of Edward Freeman, Also Known as Robert Edward Freeman, Deceased, Appellants.
    Gen. No. 41,900.

      Heard in the -third division of this court for the first district at the October term, 1941.
    Opinion filed December 9, 1942.
    Ekern & Meyers, of Chicago, for appellants; Donald L. Thompson and Vernon A. Forsberg, both of Chicago, of counsel.
    John B. Bernard, of Cicero, and John C. Setecka, of Chicago, for appellee.
   Mr. Justice Kilet

delivered the opinion of the court.

This is a Dram Shop action in which plaintiff had a verdict and judgment for $1500. The defendants appealed from the order of the trial court overruling motions for judgment notwithstanding the verdict and for a new trial, and from the judgment.

The complaint is in two counts and charges substantially that Marie Freeman, as executrix, leased the premises at 2131 South Cicero Avenue, Cicero, Illinois to the defendant corporation, knowing that liquor was to be sold therein; that the Corporation’s bartender sold or gave liquor to three patrons who were intoxicated thereby, in consequence of which the inebriants, without provocation, maliciously assaulted plaintiff who was a guest in the tavern exercising due care; and that the gift or sale to the three patrons was made wilfully, wantonly, maliciously and wrongfully against the peace of the State, for which exemplary damages should be given.

Defendant corporation denied plaintiff was in the exercise of due care and claimed that if he was injured, it was because of his own conduct. Marie Freeman admitted the lease, her knowledge of the sale of liquor and put the rest in issue.

The defendants introduced no evidence but rested their ease at the close of plaintiff’s evidence, following the court’s denial of their motions for a directed verdict. Their motions, after verdict, were also denied.

The defendants here contend that plaintiff provoked the assault, which caused his injury, and was in complicity in contributing to the intoxication of his assailants by purchasing drinks for them. Marie Freeman contends that she was not a proper defendant.

The principal issue on the appeal is whether, as a matter of law, on all the evidence in the case, plaintiff is precluded from recovery.

Plaintiff, a mechanic at the Burlington Railroad, entered the tavern shortly after 7 o’clock on Tuesday morning, December 21,1937, for “a, few drinks before going to work. ’ ’ During the previous day he had not worked, but had drunk small glasses of beer off and on, and the night before had been drinking and stayed with friends in Berwyn. He had a drink of whiskey at the tavern and then perceived three men coming to the bar from the rear of the tavern, intoxicated, and who appeared to have' been in the tavern for some time. At the bar these men were quarreling and boisterous, and plaintiff was twice knocked off his bar stool. He moved farther away on a stool and after his second drink, purchased one for the three men who had, by that time, had three or four drinks of liquor. Thereafter plaintiff was slapped and jostled by these men from one to another in another room off the bar, and these assaults ceased when he suggested getting something to eat. He and the three men left the tavern, at about twenty minutes to eight, and went to the Normandy Restaurant about 3 or 4 doors south of the tavern, crossing the grade level Rapid Transit Company’s tracks on the way, where there were people on the street, on the platform, and going into the station but not close to plaintiff. Plaintiff and the others went into the restaurant, were seated at a booth, plaintiff next to the wall on one side of the table with Carnavicci, one of the men whom he knew previously as a bartender at another tavern, the other two men across the table. After ordering, Carnavicci went to the front of the restaurant, made a telephone call in a public booth located directly at the entrance door at the south side of the front of the store. Plaintiff then arose, went to the manager at the cashier’s stand at the north side of the front of the store, purchased a slug and waited until Carnavicci had finished his call. Plaintiff then entered the telephone booth, removed the receiver, and his three companions came to the booth, pounded on the door, dragged him from the booth and set upon him, beating him so badly that he suffered a fractured nose and required six stitches above his left eye. The manager who meanwhile had gone into the kitchen, returned to find plaintiff on the floor and the men assaulting him. He called to them to stop and they left when he telephoned the police. The police came, found plaintiff so dazed they could not say whether he was drunk or sober and took him to a doctor for treatment. Plaintiff later went to a hospital, remained there four days, suffered a later infection, returned to the hospital for four days and, in all, lost 24 days work.

Defendant contends that by purchasing one of the four drinks his assailants had in his presence, plaintiff contributed materially to their intoxication. In this appeal we must take the evidence most favorable to plaintiff, and it is that these men were intoxicated when he first perceived them. There are discrepancies in the evidence introduced, as we have said, on plaintiff’s behalf only. Plaintiff denies he- was intoxicated or that he provoked the assault and says he was forcibly taken to and into the restaurant. The restaurant manager, plaintiff’s witness, says plaintiff was drunk and followed his three companions into the restaurant, being about six feet behind them. Plaintiff testified that he was going to work, but the evidence shows that though his work commenced at 8 o’clock, at twenty minutes to eight he suggested something to eat and went with his companions to the restaurant.

Plaintiff claims that the restaurant manager testified differently on cross-examination than on direct, but we have considered his entire testimony in arriving at our conclusion that the record shows plaintiff was intoxicated. The history of his previous day and night drinking and his “few drinks before work,” plus, the testimony of his own witness, clearly shows the fact. It is plaintiff’s contention that the question of his intoxication was a fact for the jury. This contention might have merit if that were the only factor involved in the consideration of the question of law whether plaintiff was assaulted as a result of his own conduct. There is a further factor of provocation. Plaintiff insists he did nothing to provoke the assault and suggests that he purchased the drink for his assailants in pursuance of an appeasement policy. If the drink contributed to their intoxication, we do not see that plaintiff would be any better off whether appeasement or any other motive was his policy. We believe the rule is uniform that where an injured person contributes in whole or in part to the intoxication of his assailant, he cannot recover. Hays v. Waite, 36 Ill. App. 397; Bowman v. O’Brien, 303 Ill App. 630.

In the case before us plaintiff purchased drinks for men, whom he perceived to be intoxicated, after observing their boisterousness and after they had twice knocked him from his seat. .He did move away from danger and, perhaps, by buying the drink may have sought to remove himself from danger, and we are not prepared to say he was obliged to leave the tavern in order to avoid trouble with drunken boisterous men. The assaults complained of, however, are not those which occurred before plaintiff purchased the drink, nor those which followed in the room off the bar, but the basis of plaintiff’s action is the injury suffered after all of this occurred and after he had accompanied the men to the restaurant. He says he was forced to go, though the evidence clearly indicates that he was, at his worst, a willing prisoner who neither complained to people within reach of his voice on the street or platform, nor to the several strangers in the tavern, nor to the manager of the restaurant, wherein he made no protest or outcry. There was no restraint which prevented his. leaving the restaurant when he left his companions, bought a slug, and waited for Carnavicci to finish telephoning. He appears to have been satisfied to remain in whatever predicament he now complains he was forced into and in which he suffered his injuries. We believe that by his conduct, plaintiff brought the injuries upon himself and is not such an innocent suitor as the Dram Shop Act contemplates (James v. Wicker, 309 Ill. App. 397), and as a matter of law should not recover. The trial court erred in denying defendants’ motion for a directed verdict at the close of plaintiff’s case.

The remaining points raised by defendants need not be considered. For the reasons given the judgment is reversed.

Judgment reversed.

Burke, P. J., and Hebel, J., concur.


text:
    Jack Lazarus, Trading as Crescent Bronze Powder Company, Appellee, v. Allied Finishing Specialties Company et al. Appeal of Arnold Schwartz, Appellant.
    Gen. No. 41,910.
    Heard in the third division of this court for the first district at the October term, 1941.
    Opinion filed December 9, 1942.
    Milton H. and Edward W. Weiss, both of Chicago, for appellant.

      Chapman, Silverberg & Anixter, of Chicago, for appellee.
   Mr. Justice Kiley

delivered the opinion of the court.

The defendant Schwartz appeals from part of the decree dismissing the complaint for want of equity, and from the order denying his motion to modify the decree.

Plaintiff sued for an injunction and for damages arising out of an alleged conspiracy on the part of the defendants to injure his business. The master found that there was a conspiracy; that plaintiff was damaged; that Schwartz had testified falsely and had admitted doing so; and recommended issuance of the injunction restraining defendant from using the name ‘‘Crescent Bronze Paint Works,” or any similar name containing the words, ‘‘Crescent Bronze” and that nominal damages be assessed against Schwartz. The decree recited substantially the same findings, but found the plaintiff had sustained no damage, the injunction not warranted, and ordered the master’s report confirmed in part and overruled in part; ordered the complaint dismissed for want of equity, and the costs divided equally against plaintiff and Schwartz. Schwartz thereafter moved to modify the decree by expunging the findings of fact. The order was denied.

The issues here are whether Schwartz can appeal from a decree in his favor, whether findings in a decree are appealable, whether findings in this decree should be expunged and whether costs were properly assessed.

While an appeal does not lie from findings of fact, any more than from a verdict, defendant is entitled to appeal from that portion of the decree, fixing the costs, which he considers adverse. Under the circumstances in this case, where the proceedings were somewhat extended, probably by reason of the equal efforts of the

plaintiff and Schwartz, we cannot say that the trial court abused its discretion in assessing the costs and, therefore, we believe the assessment made by the trial court was proper. Since Schwartz had the right to appeal from part of the decree, and the record of the entire case therefore being properly before us, we have a right to consider whatever other matters were duly raised and ruled upon by the trial court. We are, therefore, entitled to consider whether the trial court ruled properly on Schwartz’ motion to modify.

Plaintiff sought injunctive relief and damages on the basis of an alleged conspiracy. The relief sought required proof of two elements, — the conspiracy and plaintiff’s damage. The element of damages was not proved, there was proof alone of nonactionable conspiracy. The findings of fact in this case amounted to no more than an unnecessary exposition of Schwartz’ moral aberrations, they serve no legal purpose and should not stand. It has been held by this court that findings of fact have no proper place in a decree dismissing a bill for want of equity. Hibbard v. Mallers, 184 Ill. App. 474.

The decree will be modified by striking out the findings of fact and, as modified, it is hereby affirmed.

Decree affirmed as modified.

Burke, P. J., and Hebel, J., concur.


author: Justice Friend.

text:
    Christ Selimos, Appellee, v. Joe O’Brien, Defendant. Railway Express Agency, Inc., Appellant.
    Gen. No. 42,232.
    Heard in the second division, first district, this court at the April term, 1942;
    opinion filed November 17, 1942;
    supplemental opinion filed and rehearing denied December 30, 1942.
    John A. Dill, for appellant; Emil Seerup, of counsel;
    Peter S. Sarelas, for appellee.
   Opinion by

Justice Friend.

“Not to be published in full.’’


author: Justice Bristow.

text:
    William J. Popp, Appellee, v. Terminal Railroad Association of St. Louis, Appellant.
    Heard in this court at October term, 1942;
    opinion filed November 25, 1942.
    Kramer, Campbell, Costello & Wiechert and Norman J. Gundlaeh, for- appellant; Carleton S. Hadley, Walter N. Davis and Arnot L. Sheppard, of counsel;
    Mark D. Eagleton, Roberts P. Elam and MeGlynn & McGlynn, for appellee.
   Opinion by

Justice Bristow.

"Not to be published in full.”


author: Presiding Justice Burke.

text:
    Hyman Tucker, Administrator of Estate of Samuel I. Tucker, Deceased, Appellee, v. Louis Tucker, Appellant.
    Gen. No. 42,286.
    Heard in third division, first district, this court at June term, 1942;
    opinion filed December 9, 1942.
    Samuel Blair, for appellant;
    Philip A. Shapiro, for appellee.
   Opinion by

Presiding Justice Burke.

‘ ‘Not to be published in fuU.”


author: Justice Hebel.

text:
    Ethel M. Maclaskey, Appellee, v. William Kurz, Defendant, and Newell Mecartney, Respondent. Appeal of William Kurz and Newell Mecartney, Appellants.
    Gen. No. 42,190.

      Heard in third division, first district, this court at April term, 1942;
    opinion filed December 9, 1942.
    Newell Meeartney, for appellants;
    Harold 0. Mulks, for appellee.
   Opinion by

Justice Hebel.

“Not to be published in full.”


author: Justice Kiley.

text:
    T. C. Fredrich, Appellant, v. Charles J. Wolf and Edmund J. Thiele, Executor of Estate of Margaret Thiele, Deceased, Appellees.
    Gen. No. 41,150.
    Heard in third division, first district, this court at February term, 1940;
    opinion filed December 9, 1942.
    Harry A. Biossat, for appellant;
    Healy & Reid and Frederick's. Boos, for appellee Edmund J. Thiele.
   Opinion by

Justice Kiley.

“Not to be published in full.”


text:
    People of the State of Illinois ex rel. John S. Rusch, Appellee, v. Edward Winter et al., Appellants.
    Gen. No. 41,694.
    Heard in third division, first district, this court at April term, 1941;
    opinion filed December 9, 1942.
    Sidney Korshak, Edward King and Simon Herr, for appellants;
    Thomas J. Courtney, State’s Attorney, for appellee; John F. Cashen, Jr., Special Attorney, of counsel.
   Opinion by

Justice Kiley.

“Not to be published, in full.”


text:
    R. M. Kanik, Appellee, v. Johnson Brothers Heating Company, Appellant.
    Gen. No. 42,035.
    Heard in third division, first district, this court at October term, 1941;
    opinion filed December 9, 1942.
    Fred B. Houghton, for appellant;
    William S. Klein-man, for appellee.
   Opinion by

Justice Kiley.

“Not to be published in full.”