« ForrigeFortsett »
one of the public schools of the city, the li
or is made of the sufficiency of the bonds licensing officer or body shall grant the litendered by petitioner, or of his good charac cense; but the decisions are to the effect that, ter; and that his application was refused nevertheless, a discretion exists in such offisolely because the place where he proposed cer or body, and that they will not be comto keep his dramshop is immediately next pelled to issue a license when in their disto the grounds of the Lyman Trumbull school, cretion, reasonably and fairly exercised, the
license has been refused. Leigton v. Maury, mayor being of opinion that he has a right 76 Va. 865; People v. Board of Excise, 91 to refuse a license when, in his judgment, Hun, 94, 36 N. Y. Supp. 678; Sherlock V. the place in which it is proposed to keep a Stuart, 96 Mich. 193, 55 N. W. 845, 21 L. R. dramshop is one where a dramshop will be A. 580; Attorney General v. Justices, 27 N. C. a detriment and an injury to the neighbor- | 315; Muller v. Commissioners, 89 N. C. 171; hood and offensive to the best interests of Hillsboro v. Smith, 110 N. C. 417, 14 S. E. society. It is further admitted that the 972; Perry v. Salt Lake City, 7 Utah, 143, 25 south school building has not been used regu Pac. 739, 998, 11 L. R. A. 446; Eslinge v. East, larly in the past two years; that it has not 100 Ind. 434. This question was before the Apbeen used but two or three times, though it is pellate Court for the First District in the case ready for use; that some of the rooms in the of Swift v. People, 63 Ill. App. 453, and that north school building are not used, as there court, in a well-considered opinion, held that are not enough scholars to require the use the mayor of the city of Chicago could not be of the whole building; that the property is compelled by mandamus to issue a license to held for school purposes and intended for keep a dramshop in a neighborhood occupied use as a school, and that the location of the almost exclusively by residents, and where a proposed saloon with reference to the school saloon would be a nuisance. and the surroundings is truthfully set out in
The trial court in this case held proposithe following plat.” The plat referred to is tions of law to the effect that the mayor had immaterial in the decision of the case.
the right to exercise a discretion in granting
or refusing the license, among others the folWilliam D. Barge (James Hamilton Lewis,
lowing: "It is within the mayor's right to Corp. Counsel, of counsel), for appellants.
refuse to grant a license to keep a dramshop
at a place where it will be so close to a WILKIN, J. (after stating the facts). The school as to be a detriment and injury to the only question presented by this record for our neighborhood or offensive to the best inter. decision is whether, under the ordinance set
ests of society." Notwithstanding this holdforth in the foregoing statement of facts, the
ing, which we think a correct announcement mayor of the city of Chicago is authorized of the law, the writ was granted. The judg. to exercise a discretion in the granting of a ment could only be reconciled with the holdlicense to keep a dramshop, or whether, on
ings as to the law of the case, upon the the presentation of an application for such
theory that the discretionary power vested in a license showing that the requirements of
the mayor had been abused. But that posithe ordinance have been complied with, he tion is untenable. By the stipulation it is is compelled to grant the license. It must agreed that the relator sought a license to be conceded that the business of keeping a keep his saloon immediately next to the saloon or dramshop is one which no citizen grounds of the Lyman Trumble school, one has a natural or inherent right to pursue, but of the public schools of the city. The mayor is the subject of legislative restriction, regu was of the opinion that he had a right to lation, and control. Schwuchow V. City of refuse a license when in his judgment the Chicago, 68 Ill. 444. Of course, where an place in which it is proposed to keep a ordinance authorizes the issuing of a license dramshop will be a detriment and injury to to keep a dramshop upon certain terms and the neighborhood and offensive to the best conditions, the authorities authorized to grant interests of society. It is true that it is stipthe license cannot arbitrarily refuse the same, ulated that the school building has not been nor discriminate between persons, places, and used regularly in the past two years, though regulations pertaining to the business, with it is ready for use, and that some of the out reasonable grounds therefor. Zanone v. rooms in the north school building are not Mound City, 103 Ill. 552. We are, however, used, as there are not enough scholars to of the opinion that there is vested in such require the use of the whole building. Both authorities, unless expressly restricted by the school buildings are on the same grounds, language of the ordinance, a discretionary and it is agreed that the purpose is to estabpower, which may be reasonably exercised in lish a saloon in the immediate vicinity of the granting or refusing to issue a license. these school buildings and the playgrounds. The question does not seem to have been di We apprehend that no one will seriously rectly passed upon by this court, but the au contend that a saloon adjacent to or in the thorities from other states fully sustain this immediate neighborhood of public schools will reasonable construction. In many of these not tend, in a greater or less degree, to decases the language of the law or ordinance moralize and disturb school children. We are authorizing the granting of the license is clearly of the opinion that upon the facts in that, upon the doing of certain things, the i this case there was no such abuse of discre
tion on the part of the mayor as would thoroughly mixed with the cement in a projustify the courts in compelling him to grant portion of 15 gallons of cement to one cubic the license applied for.
yard of stone. This binder course was to The judgment of the Appellate Court will be spread, and while in a hot and plastic be reversed, and the cause will be remanded condition rolled until it had a uniform thickto the superior court with directions to dis ness of 142 inch, and on it was to be laid miss the petition.
the wearing surface or pavement proper, comJudgment reversed.
posed of asphaltic cement 17 parts, sand 73 parts and puverized carbonate of lime 10
parts. The sand and asphaltic cement were (222 Ill. 144)
to be heated separately to a temperature of CHICAGO UNION TRACTION CO. V. CITY 300 degrees Fahrenheit. The pulverized carOF CHICAGO.
bonate of lime was to be mixed with the sand (Supreme Court of Illinois. June 14, 1906.)
and these ingredients, then mixed with the
asphaltic cement at the above temperature, MUNICIPAL CORPORATIONS-PUBLIC IMPROVEMENTS ORDINANCE-SPECIFICATION OF MA
in an apparatus which should effect a perTERIALS.
fect mixture. All asphaltum used in makHurd's Rev. St. 1897, p. 356, § 8, provides ing the asphaltic cement for both the binder that an ordinance for a local improvement shall prescribe the nature, character, and de
course and wearing surface was to be obscription of such improvement, etc. Held, that tained from Pitch lake, in the Island of an ordinance calling for “asphaltum cement” Trinidad, or was to be asphaltum of equal was not insufficient for not showing definitely
quality. The entire surface of the roadway how the cement was to be made or the ingredients required, where it appeared that such
after completion was to be compressed by cement had a well-known meaning in the pave handrollers, after which natural hydraulic ment business, that the ordinance required a cement in the proportion of one barrel to workmanlike piece of work, and that the preparation of such cement varies with the character
each 1,000 square yards of surface was to of the asphalt used, the conditions of the be spread over it, and the whole thoroughly climate in which it is to be used, and with the compressed by rolling with a steam roller character of the traffic upon the street on which it is placed.
of 10 tons weight, the rolling to continue for
five hours for each 1,000 square yards of Appeal from Cook County Court; W. L. surface. Pond, Judge.
The objection to the ordinances is that they Applications by the city of Chicago for
do not specify the nature, character, location, the confirmation of special assessments to and description of the proposed improvement, which objections were filed by the Chicago particularly with reference to the binder Union Traction Company. From a judgment course and wearing surface of the pavement, in favor of the applicant, the objector ap in that they provide that asphaltum cement peals. Affirmed.
shall be used, and there is nothing in the orWilliston Fish (John A. Rose, of counsel),
dinance to show definitely how such cement for appellant. Charles H. Mitchell and is to be made or the ingredients of which it Frank Johnston, Jr. (James Hamilton Lewis,
is to be composed. Corp. Counsel, and Robert Redfield, of coun Section 8 of the local improvement act of sel), for appellee.
1897 (Hurd's Rev. St. 1897, p. 356) provides
that the ordinance for the improvement shall WILKIN, J. The city council of the city prescribe the nature, character, locality, and of Chicago passed three ordinances for the
description of such improvement, etc. It construction of asphalt pavements—on Clif
is insisted that the ordinances in question do ton avenue from Fullerton, avenue to Center
not comply with the requirements of that street, on West Fourteenth street from South
section. This section has been before us Halsted to South Wood street, and on Og
on many occasions, and we have uniformly den avenue from South Albany avenue to
held that a substantial compliance with its South Fortieth avenue. Upon application
terms is all that is necessary. Thus, in the for confirmation of the assessment rolls ob
case of Peters v. City of Chicago, 192 Ill. jections were filed by appellant, which were 437, 61 N. E. 438, we said: “We have many overruled by the court and judgments en
times decided that while an ordinance for a tered. To reverse these judgments appeals
local improvement must conform to the stathave been prosecuted to this court. As the
ute as to a description of the improvement, a questions involved in each case are iden substantial compliance with the statutory tical, the cases have been consolidated and provisions is all that is necessary. It is not will be considered together.
essential that the details and all the particuEach ordinance provided that the street lars of the work should be stated. The obshould be first graded. Upon the roadbed ject of the statute is to enable the parties thus prepared was to be spread a layer of to intelligently estimate the cost of the work, Portland cement concrete six inches thick. and also to afford parties interested the Upon this foundation was to be laid a binder opportunity of judging whether the improvecourse, composed of broken limestone of a ment is made according to the requirements size known as small concrete, and asphal of the ordinance.” In the case of Sawyer tic cement. The stone was to be heated and v. City of Chicago, 183 Ill. 57, 55 N. E. 615,
we said: "After the bricks are laid the “residuum,” is a paraffine flux obtained in spaces between them are to be filled with coal Pennsylvania, Ohio, and in other places; that tar residuum paving cement, delivered on under the terms of the ordinance in question the work of a temperature of 300 degrees you can get a definite result with the asphaltFahrenheit, and it is claimed that this may ic cement specified—that is, you have to get mean that the material shall be brought to certain definite results; that it is necessary the place at the specified temperature, but to vary the proportion of flux to a small may be put on the pavement after it is extent, depending upon the changes in heat, cooled. The only sensible meaning is that the character of the asphalt itself and the the material shall be put on the pavement at place in which it is to be used; that it would the specified temperature.” See, also, Smy be impossible to fix the definite and exact the v. City of Chicago, 197 Ill. 311, 64 N. percentage of the amount of the flux; that E. 361; Duane v. City of Chicago, 198 Ill. if the proportions were not made so as to 471, 64 N. E. 1033; Gage v. City of Chicago, soften the asphalt to the proper condition 201 Ill. 93, 66 N. E. 374; Walker v. City of then improper and bad results would follow, Chicago, 202 Ill. 531, 67 N. E. 369; Chicago but if done in a workmanlike manner, under Union Traction Co. V. City of Chicago, 215 the terms of the ordinance, it would not Ill. 410, 74 N. E. 449.
make any difference what kind of flux was Upon the hearing, evidence was offered for used to bring the desired result. the purpose of ascertaining whether the de H. D. Hill, also a witness on behalf of scription in the ordinance substantially des the objector, testified that he had been a civil ignated the character of the improvement. engineer for 30 years, and had been since Samuel G. Artinstall, a witness on behalf of 1901 the engineer of the board of local imthe objector, testified that he had formerly provements of the city of Chicago; that been the city engineer of the city of Chicago the most of his knowledge of asphaltic cement for several years, and had experience in the had been obtained from reading scientific construction of asphalt pavements, but had works, as he had had no actual experience in no practical experience with asphalt cement, its handling; that there is a difference but knew what it was; that it was a mixture between asphaltic cement used in the binder of asphalt with other ingredients and sub course and in the wearing surface; that the stances; that asphalt, in its natural condi asphaltic cement is made from asphalt mixed tion, is brittle under ordinary temperature with fluxing oil, and that the use of Trinidad and requires some solvent to make it ad asphalt to 100 pounds of asphalt would be hesive and pliable; that the solvents used added about 20 pounds of residuum of petroleare of various kinds, including residuum oil, um oil as a flux, and this would produce gas tar, and liquid asphaltum or bitumen; an asphaltic cement which would be proper that the character of the cement produced de for the wearing surface, and that the differpends upon the kind of asphalt, the quality ence between the wearing surface and the and quantity of the solvent and the climate binder course is so slight that it would be in which it is to be used; that the residuum is hard to vary the proportions. Other evidence obtained from oil, and is the part left after tends to show that the proportions of the the kerosene, gasoline and other oil products mixture are not only varied by the character have been abstracted; that from 20 to 30 of the asphalt used, but also by the conditions pounds of residuum is generally used to each of the climate in which it is to be used as 100 pounds of refined asphalt; that the quan well as by the character of the traffic upon tity depends upon the hardness of the as the street on which it is placed. This testiphalt, which varies in this respect in different mony is uncontradicted. localities, but the variance is not very great Where it is proven, on the hearing of objecfrom the same locality but is quite great tions, that the descriptive terms used in the from different localities; that it would be ordinance for a public improvement have a impracticable to exactly specify the propor well-known and established meaning, any tions of ingredients required to make as apparent. defect or omission in the descripphalt cement, but if the asphalt comes from tion will be removed. Kuester V. City of Pitch lake, in the Island of Trinidad, they Chicago, 187 Ill. 21, 58 N. E. 307; Beckett might be specified within a narrow limit. v. City of Chicago, 218 Ill. 97, 75 N. E. 747 ;
Henry Kassom, a witness called on behalf Holden v. City of Chicago, 212 Ill. 289, 72 of the petitioner, testified that he was the N. E. 435. From the foregoing evidence it vice president of the Barber Asphalt Paving appears that the term "asphaltic cement” has Company, had been in its employ for 20 a well-known meaning among those familiar years, and had constructed 75 miles of with the construction of asphalt pavements. asphalt pavement in the city of Chicago; While the specific proportion of each ingredithat the term "asphaltic cement" has a ent necessary to its production does not apdefinite and certain meaning; that it is made pear in express terms, yet, taking into conby taking refined asp'alt and adding a cer sideration the language used in the rest of tain proportion of flux to it; that the purpose the ordinances, and the results sought to be of the flux is to bring the refined asphalt to obtained, there can be no doubt as to the a certain degree of softness or ductility and meaning intended. It was the purpose of the to make it adhesive; that the flux, termed city to put down a good and substantial
pavement which would be of service to the , by leave of court, in the circuit court or said public for many years. Asphalt from Pitch county, upon the relation of William T. Reed, lake, or its equivalent in quality, was to be William J. Carr, Matthew J. Leonard, and used. This asphalt had well-known proper Nick Tennes, against Peter Weber, Anton ties. It was also to be the basis of the Deutsch, and Joseph Lehman, to require the asphaltic cement. The purpose of the as respondents to show by what warrant and phaltic cement in the binder course was to authority they held and executed the offices firmly fasten together the cement foundation of trustees of the village of West Chicago. and the wearing surface. The wearing sur To the information the respondents filed a face was to be durable and lasting. All of
plea, in which they averred that at the anthe work was to be done in a workmanlike nual election held in said village on April 21, manner. If improper proportions or mater
1903, they were duly elected village trustees ials were used in the asphaltic cement these of said village for the term of two years and results would not be accomplished and the con until their successors were elected and qualitractor would not be complying with the terms
fied. That they duly qualified as such trusof the ordinance. Taking into consideration
tees and accepted such offices and entered all of the facts and circumstances appearing
upon the performance of the duties of said in the case, we are of the opinion that the
offices, and were in law and in fact trustees terms used in the ordinances specifically
of said village on the 21st day of April, 1905, designated the kind and character of cement
the day upon which was held the regular an. to be used within the requirements of the
nual municipal election of said village. That statute, and that the rights of the property
at said election there was, pursuant to law, owners were fully proected.
submitted to a vote of the electors of said No reversible error appearing, the judg.
village the question as to whether the village ments of the county court will be affirmed.
of West Chicago should become organized as Judgments affirmed.
a city under the general act relative to cities
and villages, passed April 10, 1872 (Laws 1871 (222 Ill. 180.)
-T2, p. 218). That at said election said propoPEOPLE ex rel. REED V. WEBER et al.
sition of becoming organized as a city was (Supreme Court of Illinois. June 14, 1906.)
submitted to the electors upon the ballots
cast at such election, together with the 1. MUNICIPAL CORPORATIONS-ORGANIZATION -ELECTION-STATUTES-CONSTRUCTION.
names of the various candidates to be voted Hurd's Rev. St. 1903, p. 282, § 1, de for; the proposition appearing on said ballots clares that any existing city may become incor
as follows: "For city organization under porated under the act whenever one-eighth of its legal voters voting at the last preceding
general law," or "Against city organization municipal election shall petition for the sub under general law.” That thereafter, at a mission of the question to the electors of the meeting of the board of trustees of said vilcity, when it shall be the duty of the mayor
lage, on April 28, 1905, the ballots cast at and council to submit such question at the “next ensuing municipal election of such city, or at a said election were duly canvassed by the special election to be designated by them.” Sec
board of trustees, and it was found that at tion 3 declares that, if a majority of the votes
said election 163 votes were cast for city cast "at such election" shall be for city organization under general law, such city shall organization and 96 votes were cast against from thenceforth be deemed organized under said proposition, and it was thereupon orsuch act. Held that, where such proposition
dered that the result of said election be can. was submitted at the general municipal election and did not receive a majority of all the votes
vassed and entered upon the records of the cast at such election, as distinguished from all village, and that the same was done, and the the votes cast on such proposition, the proposi
village clerk was directed to file, and did tion was lost.
file in the office of the recorder of deeds of 2. SAME-STATUTES-REPEAL. Hurd's Rev. St. 1903, p. 282, providing for
said Du Page county, a certified copy of the the general incorporation of cities, was special record in the matter of such organization, in its nature, and therefore was not repealed
and showing the canvass of the vote and the by the Australian ballot law of 1891.
result thereof, and that they were then exAppeal from Circuit Court, Du Page ercising the rights and performing the duties, County; L. C. Ruth, Judge.
as trustees of said village, required by secInformation in the nature of quo warranto tion 3 of article 1 of chapter 24 of the Reby the people, on relation of William T.
vised Statutes of the state of Illinois of 1881, Reed, against Peter Weber and others.
and that they expected to continue so to do From a judgment in favor of respondents,
until city officers should be elected for the relator appeals. Reversed and remanded
city of West Chicago. The state's attorney with directions.
filed a replication to said plea, alleging the Calhoun, Lyford & Sheean (Charles D. proposition for city organization under genClark, of counsel), for appellant. Knight & eral law was not carried at said election, for Brown (George C. King, of counsel), for ap
the reason that the 163 votes cast in favor of pellees.
the proposition were not a majority of all the
votes cast at such election; that it appeared HAND, J. This was an information filed from the pollbooks of the election, and the by the state's attorney of Du Page county, canvass thereof, that 459 ballots were cast by
the voters of the village at such election, shall be for city organization under general and that only 103 of said votes were for city law, such city shall thenceforth be deemed to organization under general law. It was also be organized under this act; and the city averred that the proposition for city organ officers then in office shall, thereupon, exization under general law had not carried, ercise the powers conferred upon like officers for the reason that said proposition was sub- | in this act, until their successors shall be mitted to the voters upon the same ballots elected and qualified.” with the list of candidates for the offices It will be observed that said section 3 provoted for at said election, and not upon sep vides, "if a majority of the votes cast at arate ballots, as required by law. The re such election shall be for city organization spondents filed a demurrer to said replica- | under general law, such city shall thencetion, which was sustained by the court, and, forth be deemed to be organized," and the the state's attorney having elected to stand question here involved is in reality narrowed by his replication, a judgment was rendered to the meaning of the words "such election," in favor of the respondents, and an appeal as found in that clause of section 3 of the has been prosecuted to this court.
statute. To determine the meaning of these The proposition for city organization under words, reference must be had to section 1 of general law was submitted to the voters of the act, which provides that the mayor and the village of West Chicago at the general | city council may designate the election at municipal election held in said village on which the proposition for city organization April 21, 1905, at which general election there under general law may be submitted. The were cast 459 votes for village officers. language of the section is: The question may There were, however, cast at said election, be submitted “at the next ensuing municipal upon the proposition for city organization election of said city or at a special election," under general law, only 259 votes; 163 votes the determination of which is left to the being for organization under general law, mayor and city council. It would seem clear and 96 votes being against said proposition. that the words "such election," used in secThe question, therefore, here presented for tion 3, refer to the election at which the maydecision is, in order to carry the proposition or or city council shall determine to submit
be eral election, is it necessary that the proposi a special election. If it be determined by tion receive a majority of all the votes cast them to submit the proposition for city orat such election, or is it sufficient if the prop ganization under general law at a special osition for city organization under general election, then the proposition would be law receive a majority of all the votes cast carried if the proposition received a majority upon that proposition? A determination of of the votes cast upon the proposition, as a that question involves the construction of majority of the votes cast upon the proposisections 1 and 3 of' article 1 of the general act tion would be a majority of the votes cast at for the incorporation of cities and villages. such election. On the other hand, if the (Hurd's Rev. St. 1903, p. 282), which sections proposition be submitted at the next municiread as follows:
pal election," a majority of the votes cast “Section 1. That any city now existing in upon the proposition for city organization this state may become incorporated under | under general law might not, as was the case this act in the manner following: Whenever here, be a majority of all the votes cast at one-eighth of the legal voters of such city the election and be sufficient to adopt the voting at the last preceding municipal elec proposition, as the votes cast for the proposition shall petition the mayor and council tion would not be a majority of the votes thereof to submit the question as to whether cast at such election. Our conclusion theresuch city shall become incorporated under
fore is that the proposition for city organithis act to a vote of the electors in such city, zation, under general law submitted to the it shall be the duty of such mayor and council voters of the village of West Chicago on to submit such question to a vote of the September 21, 1905, did not carry, as there electors of said city at the next ensuing were 459 votes cast at that election, and the municipal election of said city or at a special proposition received only 163 votes, which election to be designated by them, and to give was less than a majority of the votes cast the notice required by law."
at such election. "Sec. 3. The ballots to be used at such
It is urged by appellees that, when the election shall be in the following form: 'For act of 1872 was passed, section 1 provided city organization under general law'; or, that the proposition for city organization 'Against city organization under general under general law should be submitted law.' The judges of such election shall make at a special election, and it is said the words
, duty it shall be to canvass such returns referred to a special election, and at that and cause the result of such canvass to be time a majority of the votes cast upon the entered on the records of such city. If a proposition for city organization under genmajority of the votes cast at such election eral law would have been sufficient to