Harrison v. People ex rel. Boetter (195 Ill. 466, 1902)

Mr. Justice Hand

delivered the opinion of the court:

This is a petition filed by John Boetter in the superior court of Cook county for a writ of mandamus against Carter H. Harrison, mayor of the city of Chicago, to require him to issue to the relator a license to keep a dram-shop at Nos. 887-897 East Fifty-first street, in the city of Chicago, for the year ending April 80, 1901. The premises are known as the “Germania Garden,” and are situated upon an unsubdivided block of land bounded on the south by Fifty-first street, on the east by Grand boulevard, on the north by Fiftieth street and on the west by Calumet avenue. The garden fronts south, has its main entrance upon Fifty-first street, is bounded on the west by an alley running north and south through the center of the block, and on the east by a fence about twenty-six feet west of the west line of Grand boulevard, and extends north of Fifty-first street about thr.ee hundred feet, and is located in that part of the city of Chicago which was formerly the village of Hyde Park, but outside of the prohibition district thereof. An answer and replication having been filed and a jury waived, a trial was had before the court, and a judgment was rendered against the respondent, awarding the writ as prayed, from which judgment an appeal was perfected to the Appellate Court for the First District, where the judgment was affirmed, and a further appeal has been taken to this court.

The assignment of error chiefly relied upon in the Appellate Court and renewed herein is, that the court below refused to hold as law certain propositions submitted on behalf of the appellant.

It is urged that the- mayor has no power or authority to issue a license to keep a dram-shop within the territory formerly within the village of Hyde Park until such license has been granted by the city council. The village of Hyde Park was annexed to and became a part of the city of Chicago upon June 29,1889. Immediately upon the annexation of the village of Hyde Park the territory therein embraced became a part of the city of Chicago, and the power and authority before that time vested in the president and board of trustees of said village were thereafter vested in the mayor and city council of the city of Chicago, and the city council having adopted a general ordinance prescribing a general rule by which licenses to keep dram-shops might be obtained, and having authorized the mayor to issue the same upon compliance with said general ordinance and those remaining in force in annexed territory, it exhausted its power over the subject, as it had power to act upon the subject by-general ordinance alone, and not by resolution. If, therefore, the relator has complied with the ordinances of the city and those remaining in force in such annexed territory, he is entitled to a license to keep a dram-shop, and it was the duty of the mayor to issue the same to him. The main question, therefore, which arises upon this record for decision is, has the relator shown a full compliance with said ordinances and fully brought himself within the provisions thereof by bis application.

Section 1 of an ordinance passed by the village of Hyde Park, and now in force in that territory, is as follows: “Any person who shall desire to obtain a license to keep a saloon or dram-shop, shall, in addition to the requirements now provided by ordinance, present his application, in writing, to the village comptroller for such license, in which shall be stated the name of the person or firm to whom the license is to be issued and the place where such saloon or dram-shop is to be kept, which application shall be signed by a majority of the property owners according to the frontage on both sides of the street in the block upon which such dram-shop is to be kept, and shall also be signed by a majority of the bona fide householders and persons or firms living or doing business on each side of the street in the block upon which such dram-shop shall have its main entrance.”

Before a license to keep a dram-shop could lawfully be issued to the relator, said section requires that his application therefor be signed by two classes of persons: First, by a majority of all the property owners according to the frontage on both sides of the street in the block upon which such dram-shop is to be kept; and secondly, by a majority of the bona fide householders and persons or firms living or doing business on each side of the street in the block upon which said dram-shop shall have its main entrance. The second provision, it is conceded, has been fully complied with, and need not be here considered. The first, however, has not been complied with, unless the signing by a majority of the property owners according to frontage upon both sides of Fifty-first street is all the signatures to the application that the ordinance requires, as the application is not signed by any of the property owners upon either side of the street, on either Grand boulevard, Fiftieth street or Calumet avenue.

The holdings of the trial and Appellate Courts were to the effect that the application, to entitle the relator to a license, need not be signed by property owners other than those owning property on both sides of Fifty-first street, and that the application being signed by a majority of the property owners according to frontage upon each side of Fifty-first street from Calumet avenue to Grand boulevard was all that the ordinance required, and a full compliance with the terms thereof to entitle the relator to a license. We do not agree with such holdings, but are of the opinion that to entitle relator'to a license to keep a dram-shop he should have had his application signed by a majority of the property owners upon both sides of Grand boulevard, Fiftieth street and Calumet avenue adjoining said block, in addition to those on Fifty-first street, and that from lack of such signers to the application the mayor properly declined to issue a license to the relator. The word “block,” as used in the ordinance, is synonymous with the word “square,” and means the territory bounded by four streets. The word “block” is defined by the Century Dictionary and Webster as “a square or portion of a city enclosed by streets, whether occupied by buildings or not.” In Ottawa v. Barney, 10 Kan. 270, Mr. Justice Brewer, in referring to the above definition, said: “We are well satisfied with the definition, and taking it as our guide in this decision, it follows, as a matter of course, that the word ‘square’ used by the complainant is synonymous with the word ‘block.’” In Olson v. Topeka, 42 Kan. 712, the question arose again, and in that case the court, affirming its former decision, sai