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(317 Ill. 197)

STATE v. ZIMMERMAN. (Supreme Court of Illinois.

(148 N.E.)

(No. 16529.) April 24, 1925. Rehearing Denied June 9, 1925.)

I. Intoxicating liquors 258-Proceeding to restrain maintenance of liquor nuisance is not criminal.

Proceeding to restrain maintenance of liquor nuisance under Prohibition Act, is not criminal proceeding, so as to be governed by Const. art. 6, § 33, requiring that it be carried on in name and by authority of people of the state and concluded against their peace and dignity. 2. Jury

~13(21)-Punishment for contempt without jury trial held not violative of Constitution.

Punishment for contempt for violation of injunction against maintaining liquor nuisance, under Prohibition Act, § 25, without trial by jury, held not violative of Const. Ill. art. 2, §§ 5 and 9, and Const. U. S. Amends. 5 and 6, guaranteeing right to trial by jury.

3. Intoxicating liquors 279-Contempt order held not void for failure to fix beginning and termination of imprisonment.

In contempt proceedings for violation of injunction against maintaining liquor nuisance, order adjudging defendant guilty and fixing imprisonment for 90 days held valid as against contention that it failed to fix beginning and termination of imprisonment.

8. Statutes77 (4)—Prohibition Act not special legislation in violation of Constitution. Prohibition Act held not special legislation, violative of constitutional rights, as it applies to whole class who maintain nuisances of character defined.

9. Intoxicating liquors 274-Bill to enjoin liquor nuisance, sufficient.

Bill to enjoin liquor nuisance, under Prohibition Act, as defined in section 21 as place where intoxicating liquor, defined in section 2, is manufactured, sold, kept, or bartered, particularly describing property on which nuisance existed, stating its public and common character, and maintenance by accused, held sufficient. 10. Intoxicating liquors 279 Petition, charging contempt in violation of injunction to restrain liquor nuisance, sufficient.

Petition, charging contempt for violation of injunction against liquor nuisance, which stated issuance of preliminary injunction, service of writ on accused, and his acts in violation of injunction, held sufficient.

11. Intoxicating liquors 279 — Jurisdiction over accused in contempt proceedings, obtained without issue of warrant for arrest.

In contempt proceedings for violation of injunction against liquor nuisance, where temporary injunction writ was personally served on accused, hearing as to making it permanent was postponed on his motion, and citation issues upon petition in contempt proceeding was per

4. Intoxicating liquors 6-General Assem-sonally served, the hearing in which was postbly has power to declare violation of liquor law nuisance and at same time provide for indictment of offender.

General Assembly has power to declare that any place maintained for violation of liquor law shall be common nuisance and abated, and at same time provide for indictment and trial of offender.

5. Constitutional law 305-Jurisdiction to abate liquor nuisance consistent with due process of law.

Equity jurisdiction to abate places maintained in violation of liquor laws, as nuisances, is consistent with due process of law.

6. Contempt 61 (3) — Punishment for contempt may be sustained irrespective of whether imposed pursuant to legislative act or by court's inherent power.

Punishment for contempt may be sustained without inquiring whether imposed pursuant to legislative act or by virtue of court's inherent power.

poned on his motion, and where he finally appeared in person, producing witness and testifying in his own behalf, court had jurisdiction of his person without issuance of warrant for arrest.

Error to Circuit Court, Lake County; Claire C. Edwards, Judge.

Martin Zimmerman was adjudged guilty of contempt, and he brings error. Affirmed.

James G. Welch, of Waukegan (E. V. Orvis, of Waukegan, of counsel), for plaintiff

in error.

Oscar E. Carlstrom, Atty. Gen., Ashbel V. Smith, State's Atty., of Waukegan, Virgil L. Blanding, of Springfield, and George C. Dixon, of Dixon (Sidney H. Block, of Waukegan, of counsel), for the State.

DE YOUNG, J. A bill for an injunction under the Prohibition Act (Laws of 1921, p. 7. Intoxicating liquors 279-Statutory limi- 681) was filed in the circuit court of Lake tation of power to punish for violation of in-county on May 7, 1924, in the name of the junction restraining liquor nuisance, not considered.

Limitation in Prohibition Act, § 25, on

court's inherent power to punish, for contempt, violation of injunction, granted pursuant to act, would not be considered in absence of showing that court in its determination was restrained by those limitations.

people of the state of Illinois, by Ashbel V. Smith, state's attorney of that county, against Martin Zimmerman and Henry Her

man.

The bill alleges that a certain parcel of improved real estate situated in the village of Antioch, Lake county, particularly described, is used and maintained by Zim

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merman as a place where intoxicating liq- are: (1) That the proceedings under the uor, as defined by section 2 of the Prohibi- Prohibition Act in which he was adjudged tion Act, is manufactured, sold, kept, or guilty of contempt of court constitute a bartered in violation of the provisions of the criminal prosecution; (2) that as a criminal act; that the premises and all intoxicating prosecution the proceedings are governed by liquor kept and maintained therein are a section 33 of article 6 of the Constitution, "public nuisance" as defined and declared by and from their inception should have been section 21 of the same act; that Zimmerman carried on in the name and by the authority is the owner and proprietor of the business of the people of the state of Illinois and conconducted on the premises; that Herman cluded against their peace and dignity; (3) has the title of record thereto; and that that section 25 of the Prohibition Act, which unless restrained Zimmerman will continue provides that the court may summarily try to keep, maintain, and use the premises as a and punish the defendant for the violation of place where intoxicating liquor is manufac- any injunction granted pursuant to the protured, sold, kept, and bartered in violation visions of the act, violates the fifth and of, and as a common and public nuisance as ninth sections of the second article of the defined in, section 21 of the act. The prayer state Constitution and the Fifth and Sixth was for process directed to the sheriff com- Amendments to the federal Constitution, manding him summarily to abate the nui- which guarantee the right of trial by jury; sance, for a temporary injunction pendente (4) that the General Assembly has no power lite, and for a permanent injunction upon to regulate the procedure or to prescribe the the final hearing. The bill was verified by punishment for the violation of an injuncthe state's attorney and supported by the tion granted pursuant to the provisions of affidavit of C. A. Brune. Upon the filing of the Prohibition Act; (5) that the act is spethe bill a temporary injunction was granted, cial legislation violative of the constitutional and the writ was served on defendants on rights of the plaintiff in error; (6) that the the same day. Notice was immediately giv- original bill of complaint and the petition to en the defendants by the state's attorney adjudge him guilty of contempt failed to that he would on May 19, 1924, ask to have charge an offense; (7) that the court had no a preliminary hearing on the question wheth-jurisdiction of his person because no warer the temporary injunction should be dis- rant was issued for his arrest; and (S) that solved or continue in effect until the final the order adjudging him in contempt of hearing of the cause. The preliminary hear-court is void because it fails to fix the being was, upon motions made by the defend- ginning and termination of his imprisonants, postponed until the first day of the succeeding October term; but the successive orders provided that the temporary injunction should remain in effect during such postponements. On September 3, 1924, a petition in the name of the people of the state of Illinois, by the state's attorney, was filed in the cause. This petition charged that since the issuance of the temporary injunction, and while the same was in effect, beer containing more than one-half of 1 per cent. of alcohol by volume had been found in the premises on draught; that it was sold to customers; that Zimmerman was in charge of the premises; and that he knew that the intoxicating liquor was being sold. The prayer of the petition was for a citation against Zimmerman commanding him to show cause why he should not be held in contempt of court for violating the injunction. Such a rule was entered and the citation was issued and served upon Zimmerman on September 4, 1924. He filed no answer to the petition. On the hearing upon the petition the testimony of witnesses was offered. The court found that Zimmerman had violated the temporary injunction and adjudged him guilty of contempt and fixed his punishment | risdiction. at imprisonment in the county jail of Lake county for 90 days. He seeks a review by this writ of error.

ment.

[1-3] The first, second, third, and eighth contentions were determined adversely to plaintiff in error in State v. Froelich, 316 Ill. 77, 146 N. E. 733. It is therefore unnecessary to consider them here.

[4-7] The General Assembly has the power to declare that any place kept and maintained for the illegal manufacture and sale of intoxicating liquors shall be deemed a common nuisance and be abated as such and at the same time to provide for the indictment and trial of the offender. One is a proceeding against the property used for unlawful purposes, while the other seeks to punish the guilty party. Equity jurisdiction to abatę such nuisances is consistent with due process of law. Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed. 205; Stead v. Fortner, 255 Ill. 468, 99 N. E. 680. In certain states this jurisdiction is expressly conferred on courts of equity, but a statute is not necessary to enable them to exercise a jurisdiction which is of ancient origin and exists apart from any statute. Enactments of that character are no more than legislative declarations of an existing ju

Stead v. Fortner, supra. This court has imposed or sustained punishment for contempt without inquiring whether the authority was exercised pursuant to a legisThe contentions of the plaintiff in error lative act or by virtue of the court's inherent

(148 N.E.)

The order of the circuit court will be affirmed. Order affirmed.

(317 II. 264)

power. People v. Wilson, 64 Ill. 195, 16 Am. | person, and there was no occasion for the isRep. 528; People v. Panchire, 311 Ill. 622, suance of a warrant for his arrest. 143 N. E. 476. Although section 25 of the Prohibition Act (Smith's Stat. 1923, p. 839) prescribes the limitations within which punishment for the violation of any injunction granted pursuant to the act shall be imposed, yet the effect of these limitations upon the court's inherent power to protect itself will not be considered unless the record shows that the court, in fixing the punishment, was governed by them. Nothing in this record shows that the court in its determination was restrained by these limitations. The punishment imposed upon plaintiff in.

error was neither unusual nor severe. It was justified under any view of the law. Consideration of his fourth contention is therefore unnecessary.

[8] Plaintiff in error next insists that the Prohibition Act is special or class legislation violative of his constitutional rights. The act applies to all persons in this state who maintain nuisances of the character defined. It does not discriminate between persons in the same situation. A law which has a ration

al basis, and which operates equally and uniformly upon all who are similarly situated, is valid and does not constitute an arbitrary or undue classification. Christy v. Elliott, 216 Ill. 31, 74 N. E. 1035, 1 L. R. A. (N. S.) 215, 108 Am. St. Rep. 196, 3 Ann. Cas. 487; Claffy v. Chicago Dock Co., 249 Ill. 210, 94 N. E. 551; People v. Schenck, 257 Ill. 384, 100 N. E. 994, 44 L. R. A. (N. S.) 46 Ann.

Cas. 1914A, 1129.

[9, 10] In the bill of complaint the property upon which the nuisance existed was particularly described, the public and common character of the nuisance was specifically stated, and its maintenance by the plaintiff in error was positively charged. Likewise the issuance of the preliminary injunction and service of the writ upon the plaintiff in error and his acts in violation of the injunction were directly stated in the petition by which the contempt proceedings were instituted. Both were sufficient, and the sixth contention of the plaintiff in error is without

merit.

[11] Personal service of the temporary injunction writ was had upon the plaintiff in error. Upon his motions the hearing on the question whether the preliminary injunction should remain in effect or be dissolved was

RIPPINGER et al. v. NIEDERST.
(No. 16609.)

(Supreme Court of Illinois. April 24, 1925.
Rehearing Denied June 10, 1925.)

Dedication 20 (3)-Alley held public alley, when used by public for 15 years.

Though sufficiency of dedication of a public alley was questioned, where it had been indiscriminately used by public for more than 15 years as a public highway, it constituted a public alley.

2. Livery stable and garage keepers 41/20 Ordinance held to require consent of majority of owners on both streets into which alley opened for erection of garage; "street."

Under ordinance providing that property abutting on public alley will be considered as and requiring consent of a majority of propfronting on street to which such alley leads, erty owners according to frontage on both sides of "street" before building permit for a garage will issue, it is necessary, where alley opens into two streets, to procure consent of owners on both streets; "street" including more than one street, in view of Smith-Hurd Rev. St. 1923, c. 131, § 1, cl. 3.

of

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Street.] 3. Statutes 143 Unconstitutionality amendatory act held to leave former law in force; ordinance valid whether passed before or after invalid amendment.

The unconstitutionality of Laws 1919, p. 285, amending Cities and Villages Act, art. 5, § 1, cl. 82, leaves in force that clause as enacted in 1911 (Laws 1911, p. 179), authorizing cities to regulate the construction of garages, and ordinance requiring consents of property owners to erection in block where two-thirds of buildings are used as residences is constitutional, whether passed before or after 1919. 4. Statutes 168-Unconstitutional statute does not repeal former law by implication.

An unconstitutional statute does not repeal a former law or part of law by implication. 5. Injunction 113-Bill for injunction, to prevent erection of public garage in residential district, held not barred by laches.

postponed from May 31, 1924, to the first day of the ensuing October term. The citation issued upon the petition to adjudge the plaintiff in error in contempt of court was Bill for injunction, to prevent erection of also served upon him personally. The hear- public garage in residential district, held not ing on that petition was postponed upon his barred by laches, where, on filing of complaint motion. Finally, at the hearing the plaintiff struction, work ceased, and, on failure of newith building commissioner against its conin error appeared in person, produced a wit-gotiations and resumption of operations, ownness, and also testified in his own behalf. ers again protested and work was stopped Obviously the court had jurisdiction of his pending an opinion as to validity of frontage

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consents, and, on holding that they were sufficient, property owners immediately filed bill for injunction.

6. Injunction 114(2)-Complainants not denied recovery because all of parties not entitled to recover.

Property owners, in suit for injunction to restrain erection of a public garage, would not be denied a recovery because city building commissioner, who joined as complainant to uphold validity of ordinance requiring consents of property owners, might be estopped to deny validity of permit, where he appeared only in his official capacity representing city, and was without actual interest in controversy.

7. Estoppel 62 (5)-City not estopped by act of agent beyond his authority. City is not estopped by an act of its agent beyond authority conferred on him.

issued to the appellee by the commissioner of buildings of the city of Chicago, and that such permit is void because it is not in compliance with the ordinance governing the matter, in that the frontage consent required by the ordinance was not secured. Appellee answered, denying the allegations of the bill, and averring that the complainants have been guilty of laches. A hearing was had on the issues presented, and at the close thereof the appellee sought and procured leave to amend his answer. By his amended answer he alleged that the city ordinance, requiring frontage consents for the construction of a public garage, was unconstitutional and void. Upon filing this answer the building commissioner of the city of Chicago, who had been made a party defendant by the complainants and had filed an answer disclaiming an interest in the contro

Appeal from Superior Court, Cook Coun- versy, sought and procured leave to withty; Oscar Hebel, Judge.

draw his answer and to be made a party complainant, on the ground that the amendment to the defendant's answer, which challenged the validity of the ordinance, devel

Bill for injunction by Catherine Rippinger and others against George L. Niederst. From decree of dismissal, complainants appeal. Reversed and remanded, with direc-oped an interest in the commissioner, reptions.

Francis X. Busch, Corporation Counsel, William L. Sullivan, and Bennison F. Bartel, all of Chicago (Tolman, Sexton & Chandler, of Chicago, of counsel), for appellants.

Abram L. Myers, of Chicago (Lloyd C. Whitman, of Chicago, of counsel), for appellee.

STONE, J. The appellants, other than the building commissioner of the city of Chicago, filed a bill against the appellee praying for an injunction restraining the erection of a public garage in approximately the middle of a block in the city of Chicago bounded by Ellis avenue on the east, FortySecond place on the south, Drexel boulevard on the west, and by the right of way of an elevated railroad (formerly Forty-First street) on the north. The tract of land upon which the appellee sought to build the garage in question lies on the west side of the public alleyway which passes in a general north and south direction through approximately the center of this block. This tract is bounded on the north, west, and south by a 20-foot alleyway, which opens into the north and south alley of the block. The bill avers that the block has been zoned as a residence district, and that more than two-thirds of the property on both sides of the streets surrounding it is occupied exclusively for residence purposes; that the construction of the garage by the appellee would depreciate the fair cash market value of the property and cause damages not susceptible of exact computation, thus preventing adequate remedy at law, and would cause a multiplicity of suits. The bill avers that a permit had been

resenting the city of Chicago, which was contrary to the interest of the appellee, and that it was to the interest of the city that the ordinance be sustained. The chancellor

found all issues of fact and law in the bill

and the original answer in favor of the appellants, but found the frontage consent ordinance unconstitutional and void, dismissed the bill for want of equity, certified that the validity of a municipal ordinance is involved, and granted an appeal to this court.

The appellants urge here that the building ordinance referred to is valid. The appellee has assigned cross-errors, contending that the court erred in finding other issues of fact and law in favor of appellants, but states in his brief that the principal question in the case is as to the validity of the ordinance. While his counsel argue the questions of fact involved, we are convinced, on a review of the record, that the findings of fact are sustained by the record, and therefore, upon consideration of the case, we will state the facts as found by the chancellor and as in our opinion the record shows them to be.

[1] The ordinance in question appears in the Municipal Code of the city of Chicago as revised in 1922, and section 242 thereof defines a public garage. Section 246 provides:

"No person, firm or corporation shall locate, build, construct or maintain any public garage

purposes

*

* in the city on any lot in any block in which two-thirds of the buildings on both sides of the street are used exclusively for residence * without the written consent of a majority of the property owners according to frontage on both sides of the street; provided, that all lots which abut only on a public alley or court shall be considered as front

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(148 N.E.)

ing on the street to which such alley or court, cording to frontage on Forty-Second place leads. Such written consents shall be obtained only, and made no attempt to secure the and filed with the commissioner of buildings consent of property owners on Ellis avenue, before a permit is issued for the construction for the reason that, as there and here conof any such building, or before a license is issued for the operation of any public garage in tended, the only street to which the alley adany existing building; provided, that in deter-jacent to this property leads is Forty-Second mining whether two-thirds of the buildings on place, and that, since the ordinance refers both sides of such street are used exclusively only to "the street" and not to the streets to for residence purposes, any building fronting which the alley leads, the frontage consent on another street and located upon a corner requirement of the ordinance was complied lot shall not be considered; and, provided, fur- with by securing frontage consents on Fortyther, that the word 'block,' as used in this section, shall not be held to mean a square, but Second place. The appellants, on the other shall be held to embrace only that part of the hand, contend that it is necessary to have street in question which lies between the two the consent of a majority of the property nearest intersecting streets." owners according to frontage on Ellis avenue as well as on Forty-Second place. It seems absurd to say that an alley which, in fact, opens into two streets does not lead into such streets. An alley that is not a blind alley necessarily leads to more than one place, and the alley in this case leads to Ellis avenue as well as to Forty-Second place. To hold that the word "street," as used in the ordinance, requires frontage consents on one street only is to render the operation of the ordinance uncertain and impracticable, as it contains no language specifying which street is to furnish the necessary frontage consent. It is settled in this state, both by statute and the decisions of this court, that words importing the singular may be extended and applied to several persons or things, and words importing the plural number may include the singular. Smith's Stat. c. 131, § 1, cl. 3; Arnold & Murdock Co. v. Industrial Board, 277 Ill. 295, 115 N. E. 137. It was necessary under this ordinance to procure the consent of the owners of a majority of the frontage on both Ellis avenue and FortySecond place where they bound the block in question. Therefore, if this ordinance be valid, the frontage consent was not sufficient, and the permit issued thereon was void. This brings us to the principal question involved in the case.

The bill avers, and the record shows, that Forty-First street, which formerly bounded this block on the north, is now occupied by a railroad, which by an ordinance of the city of Chicago of March 16, 1903, was required to, and did, elevate its tracks along the north boundary of this block, thereby occupying the street and cutting off traffic from the alley in this block across Forty-First street. Prior to that time, for a number of years the street had been used by the railroad company, but traffic in this alley north and south crossed Forty-First street. In the elevation of the road a solid embankment, with concrete retaining walls, was erected. Paragraph 10 of the ordinance of March 16, 1903, required that the railroad dedicate as a public alley the south 12 feet of its right of way between Ellis avenue and the alley running north and south through this block, so that one coming from the south in the alley could, by turning east across this 12-foot strip, reach Ellis avenue. The sufficiency of the dedication of this 12-foot strip is questioned. The evidence amply shows, however, that it has been indiscriminately used by the public for more than 15 years as a public highway, and its character as a public alley can no longer be a matter of doubt. It leads to Ellis avenue from the point where the railroad embankment crosses the north and south alley and must be held to be a continuation of that alley. To say, as urged, that it is not a continuation of the original public alley, but is a distinct and separate alley, leading from the original alley to Ellis avenue, is a refinement of discrimination which we are unable to follow.

[3, 4] The appellee contends that the ordinance is void for the reason that clause 82 of section 1 of article 5 of the Cities and Villages Act, as amended in 1919, under authority of which this ordinance was passed, has been declared invalid by this court. The appellants contend that the unconstitutionality of clause 82 in effect revived that clause [2] As we have seen, section 246 of the as it existed prior to the amendment of 1919, Municipal Code as revised in 1922 provides and that the attempt to amend it at that time that, in cases where a public garage is sought was void and of no effect and did not in any to be built on property abutting only on a way change the clause as it existed prior to public alley or court, such property "shall the amendment. It is further urged that, be considered as fronting on the street to while the provision of the ordinance requirwhich such alley or court leads." That sec- ing frontage consent appears in the revision tion requires that consent of a majority of of the City Code of 1922, after the amendthe property owners, according to frontage ment of clause 82, such provision was also on both sides of the street, must be secured in all prior ordinances subsequent to 1911, before such permit will issue. The record and was therefore first enacted under clause shows that the appellee procured the con- S2 of said section as in force prior to the sent of a majority of the property owners ac- | amendment of 1919, and is for either of these

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