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this act, so that the same be not inconsistent land had the exclusive power to license, reguherewith nor with the laws or constitution of late, and prohibit the selling of spirituous, the United States or of this state; to impose vinous, and malt liquors of any kind within fines, forfeitures and penalties for the breach of any ordinance of the incorporation, and to the corporate limits, and also had the power provide for the recovery and appropriation of to regulate the police of the town. The any such fine or forfeiture and the enforcement question to be determined is: Did it have of any such penalty; to regulate the police of the town." any power or authority, by reason of its charter, to prevent the receiving, keeping, or using of intoxicating liquors under any and all circumstances? In People v. Village of Oak Park, 268 Ill. 256, at page 261, 109 N. E. 11, at page 13, this court said:

The appellant contends that the town of Cortland was without power to adopt the ordinance in question, and that the ordinance is in violation of the Constitution of the United States and of the state of Illinois. The power of a municipal corporation to pass an ordinance must be found expressed in its charter, or must be necessary to carry out the powers granted. By section 10 quoted above, the board of trustees of the appellee are given the exclusive power to regulate, prevent, or license the sale of spirituous, vinous, or malt liquors of any kind within the corporate limits, to declare what shall be a nuisance and prevent and remove the same, and to make all such ordinances as shall be necessary to carry into effect and execution the powers specified, so that the same be not inconsistent with its charter or with the laws or Constitution of the United States or of this state. Under the stipulation of facts on which appellant was convicted, it is conceded that he did not sell, barter, exchange, or give away any intoxicating liquor at said club. The only portion of the ordinance, therefore, of which the appellant was found guilty, is embraced within the following por




"If a doubt exists concerning the grant of power, the doubt is, by the authorities, to be resolved against the municipality (Merrill v. Town of Monticello, 138 U. S. 673 [11 Sup. Ct. 441, 34 L. Ed. 1069]; City of Chicago v. Ross, 257 Ill. 76 [100 N. E. 159, 43 L. R. A. (N. S.) 205]; City of Chicago v. M. & M. Hotel Co., 248 Ill. 264 [93 N. E. 753]), and the enumeration of the powers operates to exclude such as are not enumerated (People v. City of Chicago, 261 Ill. 16 [103 N. E. 609, 49 L. R. A. (N. S.) 438, Ann Cas. 1915A, 292]; City of Cairo v. Bross, 101 Ill. 475)."

The enumeration in the statute of the powers which may be exercised by a municipal corporation excludes such powers as are not enumerated. People v. Village of Oak Park, supra. Tested by the rule laid down in that case and supported by ample authority, there is nothing in the charter of the appellee to authorize the enactment of those portions of section 2 of the ordinance above set forth which apply to the facts of this case according to the stipulation and under which appellant is convicted. It is very clear that the express words of the charter, "to regulate, prohibit or license the selling" of intoxicating liquor, do not include the power to make it an offense to receive, keep, or use liquor at a club or other place for individual, personal use as a beverage, only, where there is no element of selling or even giving away or disposing of the same, nor anything in the conduct or actions of those who received, kept, and used the liquor that gave

"Whoever shall within the corporate limits, directly or indirectly, keep or maintain by himself or by associating or combining with others, or shall in any manner aid, assist or abet in keeping or maintaining, any clubroom or other place in which any intoxicating liquor, * in any quantity whatsoever, is received or kept for the purpose of use as a beverage, and whoever shall use * * intoxicating liquor * * so received or kept, shall upon conviction thereof be fined," etc. Appellant, then, was convicted for assist- others any ground for complaint, except the Appellant, then, was convicted for assist- mere fact of receiving, keeping, or using it. ing or aiding in keeping a clubroom, at Nor can it be fairly said that the power to which place he, like other members of the club, make it an offense to maintain a club where received his own liquor for his own individu- liquor is received, kept, or used as a beveral use as a beverage and kept such liquor age by the individual owner thereof for his there for such purpose only, and used such personal use, only, is necessarily or fairly liquor so kept for his own individual use as implied or incident to the power expressly a beverage. Appellant was an officer of the granted to regulate, prohibit, or license the club, but what office he held or what officers selling of liquor. In City of Decatur v. the organization had, or their several duties, Schlick, 269 Ill. 181, 109 N. E. 737, this court if any, is not shown, nor is the admission in held an ordinance valid which was substanthe stipulation of facts that he was an offi- tially in the same language as the Local Opcer material, as it is the theory of counsel tion Act, except that it also contained the for appellee that his actions, as a mere mem- provision that intoxicating liquor should not ber of the club, in keeping and using intoxi- be distributed or divided among the members cating liquor there, were in violation of the of any club or association by any means provisions of the ordinance. And so they whatever, when such distribution or division were. In brief, the appellant was convicted shall be an illegal sale or gift of such liquor. for assisting in keeping a place in which The ordinance in question contains no such intoxicating liquor was received and kept qualification, and the decision of this court. for the purpose of use and for using such in the last-mentioned case was based on the liquor. fact that the receiving and distribution of

of the club, so called, was, in effect and in fact, a shift or device to evade the provisions of the ordinance against the selling or giving away of intoxicating liquor.

common purpose and may be an entirely lawful organization, and there are many such. "Clubrooms" are the rooms or quarters used by a club, and the word has no other meaning. If it is still the law that a man may lawfully bring liquor into or receive liquor in territory where its sale is prohibited by statute or ordinance, and may lawfully own liquor and consume or use such liquor as long as he does so in such a manner that the rights of others are not interfered with, what difference does it make whether he receives or keeps or drinks or uses such liquor at his house, or at his barn, or at his club? He would have the same right in a house that he leased as in a house that he owned. Accordingly, if he rented a room at a club and lived there, he would have the right to keep liquor there and use it there; and, if he rented a locker at the club instead of a room, would he not have the same right?

In Sullivan v. City of Oneida, supra, on page 248 of 61 Ill., it is said:

We have heretofore held that a club, or assembly of individuals or association as a club, cannot be used as a means to accomplish a violation of the provisions of the Dramshop Law (Hurd's Rev. St. 1915-16, c. 43), or the Local Option Law (Hurd's Rev. St. 1915-16, c. 43, §§ 25-43), or city or village ordinances of similar import. People v. Law and Order Club, 203 Ill. 127, 67 N. E. 855, 62 L. R. A. 884; People v. Gardt, 258 Ill. 468, 101 N. E. 687; City of Decatur v. Schlick, supra. But the distinction in regard to those cases is that sales were there actually made, and the court held the facts in those cases showed actual sales of intoxicating liquor contrary to the law, notwithstanding the agency of the so-called club. The ordinance in question by its terms applies not only to a clubroom, but to any other place in which any intoxicating liquor, in "Spirituous liquors, ale and beer, are properany quantity whatsoever, is received or kept ty-as much so as money or lands. They are for the purpose of use, and also applies by chattels are articles of consumption and of commerce. The ordinance recognizes them as its terms to whoever shall use any such liq- property and directs their sale on execution, and uor so received or kept. Under the section permits druggists to keep them. Their abuse in question, it is an offense for any one may be restrained, and punishment inflicted upwithin the corporate limits of the town of They may, as well as other chattels, come under on those who sell them to the injury of others. Cortland to keep any place in which any in- the designation of nuisance, and, to a certain toxicating liquor, in any quantity whatso-extent, lose their quality as property, but they ever, is received or kept for the purpose of using it as a beverage or to use any intoxicating liquor so received or kept. There is no law in this state which prohibits a person from receiving, keeping, or using intoxicating liquor for private consumption, when such receiving, keeping, or using is done in such a manner as does not interfere with the rights of others, and there is no intoxication or disturbance, as was stipulated in this case, and city or village councils have no power or authority to enact ordinances prohibiting such keeping, receiving, or using. Sullivan v. City of Oneida, 61 Ill. 242.

While the selling or giving away of intoxicating liquor may be regulated or altogether prohibited by municipalities and by appellee under its charter, intoxicating liquor is not contraband and is recognized as property. Under the strict terms of this ordinance, if it is constitutional and valid, a person could be penalized for keeping liquor for use or for using liquor in his private home. As far as an unlawful sale or giving away of liquor is concerned, it is the fact of selling or giving away that makes the act unlawful and a violation of the law, no matter how, where, or when such unlawful selling or giving away takes place in any locality in which the Local Option Law is in force or where a valid ordinance has been enacted forbidding the sale or gift of intoxicating liquor. It is just as unlawful to make such sale in a private home as it would be in a club or a store or on the street. A "club" is an assemblage of individuals for a

cannot, per se, lose their quality as property."

In People v. Young, 237 Ill. 196, 86 N. E. 589, in construing the effect of the Local Option Law, it was held that the law, being penal in character, must be strictly construed; that its purpose was to prevent the sale, barter, and exchange of intoxicating liquor in dry territory, and not to prevent one who has become the owner of intoxicating liquor in wet territory from taking it into dry territory. On page 203 of 237 Ill., on page 591 of 86 N. E., it is said:

"The act does not in any of its provisions attempt to prohibit a sale and delivery of liquor in wet territory nor is there any attempt to prevent one who has become the owner of intoxicating liquor in wet territory from bringing that liquor into dry territory. Such transactions as the two last mentioned have none of change of intoxicating liquor in dry territory. the unlawful elements of a sale, barter, or exIt is true that the transaction in this case enabled the purchaser to have the beer delivered to him in dry territory by a common carrier pursuant to a sale and shipment made by the brewer in wet territory, and enabled him to own the beer and to have it in his immediate possession in dry territory; but these things the statute has not forbidden. We think there is no evidence of any attempt to evade any of the provisions of the act by the use of a shift or device of any kind."

[2] As to the right of appellee to enact the ordinance in question under its police powers, conceding that the provision of its charter "to regulate the police of the town" gives it all the power counsel claim for it in this case, it could not, under the guise of the police power, assume to regulate and control the acts and conduct of a citizen by

which the public or others are in no way affected in any of their rights and interests. Black, in his work on Intoxicating Liquors (section 38, p. 50), says:

"But it is justly held that a provision in such a law that no person, without a state license, shall 'keep in his possession, for another, spirituous liquors," is unconstitutional and void. The keeping of liquors in his possession by a person, whether for himself or for another, unless he does so for the illegal sale of it or for some other improper purpose, can by no possibility injure or affect the health, morals, or safety of the public, and therefore the statute prohibiting such keeping in possession is not a legitimate exertion of the police power. It is an abridgment of the privileges and immunities of the citizen without any legal justification, and therefore void."

In Haskell v. Howard, 269 Ill. 550, 109 N. E. 992, L. R. A. 1916B, 893, in which a section of a village ordinance prohibiting signs or advertisements of intoxicating liquor was held invalid, it was said, on page 553 of 269 Ill., on page 993 of 109 N. E. [L. R. A. 1916B, 893] of the opinion:

"The exercise of the police power is limited to enactments tending to promote the public health, safety, morals, or general welfare. It is for the Legislature to determine when an exigency exists for the exercise of the police power, but what is the subject of such exercise is a judicial question. Under the guise of police regulation, the personal rights or liberties of citizens cannot be arbitrarily invaded. Ruhstrat v. People, 185 Ill. 133 [57 N. E. 41, 49 L. R. A. 181, 76 Am. St. Rep. 30]; Bailey v. People, 190' Ill. 28 [60 N. E. 98, 54 L. R. A. 838, 83 Am. St. Rep. 116]; Haller Sign Works v. Training School, 249 Ill. 436 [94 N. E: 920, 34 L. R. A. (N. S.) 998]. In People v. City of Chicago, 261 Ill. 16 [103 N. E. 609, 49 L. R. A. (N. S.) 438, Ann. Čas. 1915A, 292], it was held that if a city was clothed with the whole police power of the state it would not have authority to deprive a citizen of valuable property rights under the guise of prohibiting or regulating something that had no tendency to injure the public health, safety, morals, or general welfare. In Haller Sign Works v. Training School, supra, it was held the police power does not justify interference with private rights for purposes unconnected with the safety, health, morals, or general welfare of the public."

To the same effect is City of Zion v. Behrens, 262 Ill. 510, 104 N. E. 836, in which it was held that an ordinance prohibiting the smoking of tobacco in certain specified places, including public streets and parks, without reference to any particular circumstanc、 es or conditions, is invalid in so far as it applies to such streets and parks, as being an unreasonable restraint upon the personal liberty of the citizen. As stated in that case on page 511 of 262 Ill., on page 837 of 104

N. E.:

"Many cases decided by this court_sustaining various ordinances and statutes under the police power are cited and relied upon. None of the cases heretofore decided by this court go to the extent of sustaining the power of a city to pass an ordinance forbidding an act under all circumstances which can only be offensive or harmful to others under certain conditions."

It has been generally held that the police power does not extend to the deprivation of a citizen of the right to have intoxicating liq

monwealth v. Campbell, 133 Ky. 50, 117 S. W. 383, 24 L. R. A. (N. S.) 172, 19 Ann. Cas. 159; Ex parte Brown, 38 Tex. Cr. R. 295, 42 S. W. 554, 70 Am. St. Rep. 743; Lincoln v. Smith, 27 Vt. 328; Titsworth v. State, 2 Okl. Cr. 268, 101 Pac. 288; Partridge v. State, 88 Ark. 267, 114 S. W. 215, 20 L. R. A. (N. S.) 321, 129 Am. St. Rep. 100; State v. White, 71 Kan. 356, 80 Pac. 589, 6 Ann. Cas. 132; State v. Gilman, 33 W. Va. 146, 10 S. E. 283, 6 L. R. A. 847; Preston v. Drew, 33 Me. 559, 54 Am. Dec. 639; State v. Williams, 146 N. C. 618, 61 S. E. 61, 17 L. R. A. (N. S.) 299, 14 Ann. Cas. 562; Eidge v. City of Bessemer, 164 Ala. 599, 51 South. 246, 26 L. R. A. (N. S.) 394; Henderson v. Hayward, 109 Ga. 393, 34 S. E. 590, 47 L. R. A. 366, 37 Am. St. Rep. 384. The only decision to the contrary to which we have been referred is that of State v. Phillips (Miss.) 67 South. 651, L. R. A. 1915D, 530, in which it was held that a state does not unconstitutionally deprive one of equal protection of the laws by forbidding the keeping of intoxicating liquor in any locker or other place in any social club or carrying it to such club, although a property right in such liquor is recognized by the law. The opinion in that case is based largely on the dissenting opinion in Eidge V. City of Bessemer, supra, and hence is contrary to the holding in that case, and also contrary, we think, to the great weight of authority. The court assumed that the ultimate purpose of the Mississippi law was to prohibit the use of liquor as a beverage, which is not the purpose of the Local Option Law of this state nor within the powers granted to municipalities, which are limited in their power solely to regulating and suppressing the sale, and not the use, of liquor.

There can be no doubt that, if it were possible by law to prevent any intoxicating liquor from being introduced into a town or kept there under any circumstances, it would be most effective as a prohibition measure, as there would be no drinking if there were nothing to drink. The power of the appellee, however, extended only to licensing, regulating, and prohibiting the sale of intoxicating liquor by adopting such ordinances as would be reasonably necessary to accomplish that purpose, and not to the depriving of residents or persons within the municipality of their property. The ordinance in question made it unlawful to keep or use what the law recognized as property, and under circumstances in which the public and others were in no way affected or interested. It amounted to depriving appellant and others similarly situated of their property, and to the extent to which it affected appellant, under the stipulation of facts in this case, was ultra vires and invalid.

[3] What has been said about the second section of the ordinance applies to the third section. The power delegated to cities to determine what are nuisances does not include

which is not a nuisance per se or recognized as a nuisance by common law or statute. City of Chicago v. Weber, 246 Ill. 304, 92 N. E. 859, 34 L. R. A. (N. S.) 306, 20 Ann. Cas. 359; City of Carthage v. Munsell, 203 Ill. 474, 67 N. E. 831. Whether any of the places mentioned in the third section would be nuisances in fact would, of course, depend on the manner in which they were conducted. If it were a case of a member of a family at his own or any private home, or the member of a private club where the public are not allowed, using liquors, that would not make the place where such liquors are used a nuisance. It is not within the power of the city or of the state, nor is it the policy of the latter, to regulate the private life or conduct of a citizen in the use of his property in matters in which he, alone, is affected and others are not necessarily affected. Haskell v. Howard, supra, and cases cited. As said in City of Carthage v. Munsell, supra, on page 478 of 203 Ill., on page 832 of 67 N. E.: "Nor do we think, under the agreed state of facts, that the delivery of such liquors transported from another state to purchasers in the city of Carthage, in this state, can be held to be a nuisance. In the case of Laugel v. City of Bushnell, 197 Ill. 20, on page 26, 63 N. E. 1086, on page 1088, [58 L. R. A. 266], we had before us the question of nuisances as applied to the sale of intoxicating liquors and we said: 'Nuisances may thus be classified: First, those which in their nature are nuisances per se or are so denounced by the common law or by statute; second, those which in their nature are not nuisances but may become so by reason of their locality, surroundings, or the manner in which they may be conducted, managed, etc.; third, those which in their nature may be nuisances, but as to which there may be honest differences of opinion in impartial minds. The power granted by the statute to the governing bodies of municipal corporations to declare what shall be nuisances and to abate the same, etc., authorizes such bodies to conclusively denounce those things falling within the first and third of these classes to be nuisances; but as to those things falling within the second class the power possessed is only to declare such of them to be nuisances as are in fact so.' As we view this case, under the stipulations in this record the

transaction properly falls within the second class of nuisances as above classified, and could which it might be conducted, managed, etc. The only become a nuisance from the manner in right of the citizen to purchase goods for his own consumption from dealers in other states, and the right to have those goods carried and delivered to him, are to be classed among the highest rights of the citizen, and can only be curtailed when, in the manner of conducting the business, they may endanger the health, life or intoxicating liquor inherently dangerous. It can property of other citizens. There is nothing in only be said to be dangerous to those who use it. It is not like explosives or dangerous drugs, that may carry with them a menace to the pering in the stipulation to disclose that the busisons and property of others, and there is nothness as conducted was other than the ordinary course in relation to the carrying and delivering might be, and ordinarily are, carried by such of other articles of trade and commerce that companies. In other words, there is nothing to show that in the method of delivery or in the manner of conducting the business there was anything that could be said to be offensive to the public morals or good order, or could in any way tend to disturb anybody in his tranquility of mind, health, or body, safety, or right of property. In the absence of such showing, it cannot be successfully contended that such business or transaction may be declared to be a nuisance."

Section 3 in effect declares any place a nuisance where two persons keep liquor to be divided between them. If any place is maintained within said town where persons assemble for the purpose of drinking liquor, and in so doing conduct themselves in a disorderly manner or in such a way as to interfere with the peace, comfort, and rights of others-or, in other words, if such place is, in fact, allowed to become a nuisance-it can be abated as such; but under the stipulation in this case there was nothing of that kind.

The sections of the ordinance in question, in the particulars that have been shown, were invalid and void, and for that reason the judgment of the lower court will be reversed.

Judgment reversed.

(274 III. 55)

county court of said county, and said lands

PEOPLE ex rel. CHANCE v. BURKE, Sheriff. and lots were offered for sale for the purpose

(No. 10674.)

(Supreme Court of Illinois. June 22, 1916.) 1. MANDAMUS 163-GROUNDS-MANDAMUS INEFFECTUAL OR NOT BENEFICIAL.

Where a petition for mandamus was filed July 28th against a sheriff to compel him to readvertise and sell lands advertised for tax sale on July 26th, an amended petition filed October 23d, alleging that the sale on July 26th was not conducted as required by Revenue Act (Hurd's Rev. St. 1915-16, c. 120) § 201, specifying the duties of sheriff in conducting such sales, only two pieces of land being sold in two days, but not showing the sale was not concluded, was demurrable, since the sale may have been concluded before the demurrer was heard to the amended petition.

[Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 341-343; Dec. Dig. 163.] 2. MANDAMUS 16(1) - GROUNDS-MANDAMUS INEFFECTUAL OR NOT BENEFICIAL. Mandamus will be refused when it appears it cannot have a beneficial effect, or when the right insisted on has become abstract because of change of circumstances since commencement

of suit.

[Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 48; Dec. Dig. 16(1).]

Error to Circuit Court, Alexander County; Wm. N. Butler, Judge.

Mandamus by the People, on the relation of M. W. Chance, against Edward A. Burke, Sheriff. Judgment for respondent, and relator brings error. Affirmed.

Jonas & Haley, of Centralia (Fulton, Garey & Deutschman, of Chicago, of counsel), for plaintiff in error. Alexander Wilson, State's Atty., of Cairo (Walter Warder and Walter B. Warder, both of Cairo, of counsel), for defendant in error.

CRAIG, C. J. The relator, M. W. Chance, on July 28, 1915, filed his petition in the circuit court of Alexander county to the October term, 1915, of said court, for a writ of mandamus to compel the respondent, as sheriff and ex officio collector of taxes of said county, to readvertise and sell lands in said county which had been advertised for sale at the tax sale begun on July 26, 1915. A summons was issued and served on the respondent August 4, 1915. A demurrer was filed to the petition, and an amended petition was filed. A general demurrer was filed to the amended petition, which was sustained. This writ of error has been sued out to reverse the decision of the circuit court.

It was averred in the petition that the respondent, as sheriff of Alexander county and ex officio collector, advertised a list of the lands and lots upon which taxes were unpaid and which had been returned as delinquent. It was also averred that an application for judgment was made pursuant to the notice and advertisement, and judgment was entered against such delinquent lands and lots upon which taxes had not been paid, at the July term, 1915, of the

of satisfying the amount of unpaid and deIt was further linquent taxes due thereon. averred that the relator was present on the date set for said sale, July 26, 1915, being the time advertised, but no property was sold by the respondent on that day, but the sale was continued until the next day, at which time the respondent offered two of the pieces advertised, but not in the order in which they had been listed, and then adjourned said sale until the following day. The petisaid sale until the following day. tion charges that it was the duty of respondent, as such officer, at the time and place specified in the notice of the sale, to attend and proceed to offer for sale, separately and in consecutive order, every tract of land or lot mentioned in said advertisement on which taxes had not been paid at such time, and to sell on said date and at the place advertised all such tracts or lots of land as could properly and legally be of land as could properly and legally be

sold between the hours of 9 o'clock in the forenoon and 4 o'clock in the afternoon of such date, and to continue the sale from day to day, and to sell each day as many tracts and lots and property as could legally be done until all such property in the delinquent list could be sold or offered for sale. The prayer of the petition is for a writ of mandamus directed to the respondent commanding him to fix upon a day certain and forthwith, or as soon as practicable, to make and publish a proper advertisement giving notice of the sale of delinquent land and lots and property within the county of Alexander which were legally subject to sale for delinquent taxes, and, when the said notice shall have been published for a period of time to be fixed by the court, that the said county collector, upon the day so advertised for the sale aforesaid, shall proceed to legally sell, separately and in consecutive order, each of said tracts of land so advertised and all of the same that can properly and legally be done between the hours of 9 o'clock in the forenoon and 4 o'clock in the afternoon of such day, and that such sale be conducted in like manner from day to day until all the tracts described in such delinquent list shall be sold or offered for sale, and that such further order may be made in the premises as justice may require.

[1, 2] A mere statement of the substance of the petition of relator shows that the prayer of the petition could not have been granted. Under section 201 of the Revenue Act, the collector was required, on the day specified in the notice for the sale of real estate for taxes, to proceed to offer for sale the several tracts of land and lots in the list on which the taxes had not been paid, and to continue such sale from day to day until all the tracts or lots should be sold or offered for sale. The petition shows respondent started the sale and that the same was in progress when

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