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or is made of the sufficiency of the bonds tendered by petitioner, or of his good character; and that his application was refused solely because the place where he proposed to keep his dramshop is immediately next to the grounds of the Lyman Trumbull school, one of the public schools of the city, the mayor being of opinion that he has a right to refuse a license when, in his judgment, the place in which it is proposed to keep a dramshop is one where a dramshop will be a detriment and an injury to the neighborhood and offensive to the best interests of society. It is further admitted that the south school building has not been used regularly in the past two years; that it has not been used but two or three times, though it is ready for use; that some of the rooms in the north school building are not used, as there are not enough scholars to require the use of the whole building; that the property is held for school purposes and intended for use as a school, and that the location of the proposed saloon with reference to the school and the surroundings is truthfully set out in the following plat." The plat referred to is immaterial in the decision of the case.

William D. Barge (James Hamilton Lewis, Corp. Counsel, of counsel), for appellants.

WILKIN, J. (after stating the facts). The only question presented by this record for our decision is whether, under the ordinance set forth in the foregoing statement of facts, the mayor of the city of Chicago is authorized to exercise a discretion in the granting of a license to keep a dramshop, or whether, on the presentation of an application for such a license showing that the requirements of the ordinance have been complied with, he is compelled to grant the license. It must be conceded that the business of keeping a saloon or dramshop is one which no citizen has a natural or inherent right to pursue, but is the subject of legislative restriction, regulation, and control. Schwuchow v. City of Chicago, 68 Ill. 444. Of course, where an ordinance authorizes the issuing of a license to keep a dramshop upon certain terms and conditions, the authorities authorized to grant the license cannot arbitrarily refuse the same, nor discriminate between persons, places, and regulations pertaining to the business, without reasonable grounds therefor. Zanone v. Mound City, 103 Ill. 552. We are, however, of the opinion that there is vested in such authorities, unless expressly restricted by the language of the ordinance, a discretionary power, which may be reasonably exercised in the granting or refusing to issue a license. The question does not seem to have been directly passed upon by this court, but the authorities from other states fully sustain this reasonable construction. In many of these cases the language of the law or ordinance authorizing the granting of the license is that, upon the doing of certain things, the

licensing officer or body shall grant the license; but the decisions are to the effect that, nevertheless, a discretion exists in such officer or body, and that they will not be compelled to issue a license when in their discretion, reasonably and fairly exercised, the license has been refused. Leigton v. Maury, 76 Va. 865; People v. Board of Excise, 91 Hun, 94, 36 N. Y. Supp. 678; Sherlock v. Stuart, 96 Mich. 193, 55 N. W. 845, 21 L. R. A. 580; Attorney General v. Justices, 27 N. C. 315; Muller v. Commissioners, 89 N. C. 171; Hillsboro v. Smith, 110 N. C. 417, 14 S. E. 972; Perry v. Salt Lake City, 7 Utah, 143, 25 Pac. 739, 998, 11 L. R. A. 446; Eslinge v. East, 100 Ind. 434. This question was before the Appellate Court for the First District in the case of Swift v. People, 63 Ill. App. 453, and that court, in a well-considered opinion, held that the mayor of the city of Chicago could not be compelled by mandamus to issue a license to keep a dramshop in a neighborhood occupied almost exclusively by residents, and where a saloon would be a nuisance.

The trial court in this case held propositions of law to the effect that the mayor had the right to exercise a discretion in granting or refusing the license, among others the following: "It is within the mayor's right to refuse to grant a license to keep a dramshop at a place where it will be so close to a school as to be a detriment and injury to the neighborhood or offensive to the best inter. ests of society." Notwithstanding this holding, which we think a correct announcement of the law, the writ was granted. The judgment could only be reconciled with the holdings as to the law of the case, upon the theory that the discretionary power vested in the mayor had been abused. But that position is untenable. By the stipulation it is agreed that the relator sought a license to keep his saloon immediately next to the grounds of the Lyman Trumble school, one of the public schools of the city. The mayor was of the opinion that he had a right to refuse a license when in his judgment the place in which it is proposed to keep a dramshop will be a detriment and injury to the neighborhood and offensive to the best interests of society. It is true that it is stipulated that the school building has not been used regularly in the past two years, though it is ready for use, and that some of the rooms in the north school building are not used, as there are not enough scholars to require the use of the whole building. Both school buildings are on the same grounds, and it is agreed that the purpose is to establish a saloon in the immediate vicinity of these school buildings and the playgrounds. We apprehend that no one will seriously contend that a saloon adjacent to or in the immediate neighborhood of public schools will not tend, in a greater or less degree, to demoralize and disturb school children. We are clearly of the opinion that upon the facts in this case there was no such abuse of discre

tion on the part of the mayor as would justify the courts in compelling him to grant the license applied for.

The judgment of the Appellate Court will be reversed, and the cause will be remanded to the superior court with directions to dismiss the petition.

Judgment reversed.

(222 III. 144)

CHICAGO UNION TRACTION CO. v. CITY OF CHICAGO.

(Supreme Court of Illinois. June 14, 1906.) MUNICIPAL CORPORATIONS-PUBLIC IMPROVEMENTS ORDINANCE-SPECIFICATION OF MATERIALS.

Hurd's Rev. St. 1897, p. 356, § 8, provides that an ordinance for a local improvement shall prescribe the nature, character, and description of such improvement, etc. Held, that an ordinance calling for "asphaltum cement" was not insufficient for not showing definitely how the cement was to be made or the ingredients required, where it appeared that such cement had a well-known meaning in the pavement business, that the ordinance required a workmanlike piece of work, and that the preparation of such cement varies with the character of the asphalt used, the conditions of the climate in which it is to be used, and with the character of the traffic upon the street on which it is placed.

Appeal from Cook County Court; W. L. Pond, Judge.

Applications by the city of Chicago for the confirmation of special assessments to which objections were filed by the Chicago Union Traction Company. From a judgment in favor of the applicant, the objector appeals. Affirmed.

Williston Fish (John A. Rose, of counsel), for appellant. Charles H. Mitchell and Frank Johnston, Jr. (James Hamilton Lewis, Corp. Counsel, and Robert Redfield, of counsel), for appellee.

WILKIN, J. The city council of the city of Chicago passed three ordinances for the construction of asphalt pavements-on Clifton avenue from Fullerton, avenue to Center street, on West Fourteenth street from South Halsted to South Wood street, and on Ogden avenue from South Albany avenue to South Fortieth avenue. Upon application for confirmation of the assessment rolls objections were filed by appellant, which were overruled by the court and judgments entered. To reverse these judgments appeals have been prosecuted to this court. As the questions involved in each case are identical, the cases have been consolidated and will be considered together.

Each ordinance provided that the street should be first graded. Upon the roadbed thus prepared was to be spread a layer of Portland cement concrete six inches thick. Upon this foundation was to be laid a binder course, composed of broken limestone of a size known as small concrete, and asphaltic cement. The stone was to be heated and

thoroughly mixed with the cement in a proportion of 15 gallons of cement to one cubic yard of stone. This binder course was to be spread, and while in a hot and plastic condition rolled until it had a uniform thickness of 11⁄2 inch, and on it was to be laid the wearing surface or pavement proper, composed of asphaltic cement 17 parts, sand 73 parts and puverized carbonate of lime 10 parts. The sand and asphaltic cement were to be heated separately to a temperature of 300 degrees Fahrenheit. The pulverized carbonate of lime was to be mixed with the sand and these ingredients, then mixed with the asphaltic cement at the above temperature, in an apparatus which should effect a perfect mixture. All asphaltum used in making the asphaltic cement for both the binder course and wearing surface was to be obtained from Pitch lake, in the Island of Trinidad, or was to be asphaltum of equal quality. The entire surface of the roadway after completion was to be compressed by handrollers, after which natural hydraulic cement in the proportion of one barrel to each 1,000 square yards of surface was to be spread over it, and the whole thoroughly compressed by rolling with a steam roller of 10 tons weight, the rolling to continue for five hours for each 1,000 square yards of surface.

The objection to the ordinances is that they do not specify the nature, character, location, and description of the proposed improvement, particularly with reference to the binder course and wearing surface of the pavement, in that they provide that asphaltum cement shall be used, and there is nothing in the ordinance to show definitely how such cement is to be made or the ingredients of which it is to be composed.

Section 8 of the local improvement act of 1897 (Hurd's Rev. St. 1897, p. 356) provides that the ordinance for the improvement shall prescribe the nature, character, locality, and description of such improvement, etc. It is insisted that the ordinances in question do not comply with the requirements of that section. This section has been before us on many occasions, and we have uniformly held that a substantial compliance with its terms is all that is necessary. Thus, in the case of Peters v. City of Chicago, 192 Ill. 437, 61 N. E. 438, we said: "We have many times decided that while an ordinance for a local improvement must conform to the statute as to a description of the improvement, a substantial compliance with the statutory provisions is all that is necessary. It is not essential that the details and all the particulars of the work should be stated. The object of the statute is to enable the parties to intelligently estimate the cost of the work, and also to afford parties interested the opportunity of judging whether the improvement is made according to the requirements of the ordinance." In the case of Sawyer v. City of Chicago, 183 Ill. 57, 55 N. E. 645,

we said: "After the bricks are laid the spaces between them are to be filled with coal tar residuum paving cement, delivered on the work of a temperature of 300 degrees Fahrenheit, and it is claimed that this may mean that the material shall be brought to the place at the specified temperature, but may be put on the pavement after it is cooled. The only sensible meaning is that the material shall be put on the pavement at the specified temperature." See, also, Smythe v. City of Chicago, 197 III. 311, 64 N. E. 361; Duane v. City of Chicago, 198 Ill. 471, 64 N. E. 1033; Gage v. City of Chicago, 201 Ill. 93, 66 N. E. 374; Walker v. City of Chicago, 202 Ill. 531, 67 N. E. 369; Chicago Union Traction Co. v. City of Chicago, 215 Ill. 410, 74 N. E. 449.

Upon the hearing, evidence was offered for the purpose of ascertaining whether the description in the ordinance substantially designated the character of the improvement. Samuel G. Artinstall, a witness on behalf of the objector, testified that he had formerly been the city engineer of the city of Chicago for several years, and had experience in the construction of asphalt pavements, but had no practical experience with asphalt cement, but knew what it was; that it was a mixture of asphalt with other ingredients and substances; that asphalt, in its natural condition, is brittle under ordinary temperature and requires some solvent to make it adhesive and pliable; that the solvents used are of various kinds, including residuum oil, gas tar, and liquid asphaltum or bitumen; that the character of the cement produced depends upon the kind of asphalt, the quality and quantity of the solvent and the climate in which it is to be used; that the residuum is obtained from oil, and is the part left after the kerosene, gasoline and other oil products have been abstracted; that from 20 to 30 pounds of residuum is generally used to each 100 pounds of refined asphalt; that the quantity depends upon the hardness of the asphalt, which varies in this respect in different localities, but the variance is not very great from the same locality but is quite great from different localities; that it would be impracticable to exactly specify the proportions of ingredients required to make asphalt cement, but if the asphalt comes from Pitch lake, in the Island of Trinidad, they might be specified within a narrow limit.

Henry Kassom, a witness called on behalf of the petitioner, testified that he was the vice president of the Barber Asphalt Paving Company, had been in its employ for 20 years, and had constructed 75 miles of asphalt pavement in the city of Chicago; that the term "asphaltic cement" has a definite and certain meaning; that it is made by taking refined asphalt and adding a certain proportion of flux to it; that the purpose of the flux is to bring the refined asphalt to a certain degree of softness or ductility and to make it adhesive; that the flux, termed

"residuum," is a paraffine flux obtained in Pennsylvania, Ohio, and in other places; that under the terms of the ordinance in question you can get a definite result with the asphaltic cement specified-that is, you have to get certain definite results; that it is necessary to vary the proportion of flux to a small extent, depending upon the changes in heat, the character of the asphalt itself and the place in which it is to be used; that it would be impossible to fix the definite and exact percentage of the amount of the flux; that if the proportions were not made so as to soften the asphalt to the proper condition then improper and bad results would follow, but if done in a workmanlike manner, under the terms of the ordinance, it would not make any difference what kind of flux was used to bring the desired result.

H. D. Hill, also a witness on behalf of the objector, testified that he had been a civil engineer for 30 years, and had been since 1901 the engineer of the board of local improvements of the city of Chicago; that the most of his knowledge of asphaltic cement had been obtained from reading scientific works, as he had had no actual experience in its handling; that there is a difference between asphaltic cement used in the binder course and in the wearing surface; that the asphaltic cement is made from asphalt mixed with fluxing oil, and that the use of Trinidad asphalt to 100 pounds of asphalt would be added about 20 pounds of residuum of petroleum oil as a flux, and this would produce an asphaltic cement which would be proper for the wearing surface, and that the difference between the wearing surface and the binder course is so slight that it would be hard to vary the proportions. Other evidence tends to show that the proportions of the mixture are not only varied by the character of the asphalt used, but also by the conditions of the climate in which it is to be used as well as by the character of the traffic upon the street on which it is placed. This testimony is uncontradicted.

Where it is proven, on the hearing of objections, that the descriptive terms used in the ordinance for a public improvement have a well-known and established meaning, any apparent defect or omission in the description will be removed. Kuester v. City of Chicago, 187 Ill. 21, 58 N. E. 307; Beckett v. City of Chicago, 218 Ill. 97, 75 N. E. 747; Holden v. City of Chicago, 212 Ill. 289, 72 N. E. 435. From the foregoing evidence it appears that the term "asphaltic cement" has a well-known meaning among those familiar with the construction of asphalt pavements. While the specific proportion of each ingredient necessary to its production does not appear in express terms, yet, taking into consideration the language used in the rest of the ordinances, and the results sought to be obtained, there can be no doubt as to the meaning intended. It was the purpose of the city to put down a good and substantial

pavement which would be of service to the public for many years. Asphalt from Pitch lake, or its equivalent in quality, was to be used. This asphalt had well-known properties. It was also to be the basis of the asphaltic cement. The purpose of the asphaltic cement in the binder course was to firmly fasten together the cement foundation and the wearing surface. The wearing surface was to be durable and lasting. All of the work was to be done in a workmanlike manner. If improper proportions or materials were used in the asphaltic cement these results would not be accomplished and the contractor would not be complying with the terms of the ordinance. Taking into consideration all of the facts and circumstances appearing in the case, we are of the opinion that the terms used in the ordinances specifically designated the kind and character of cement to be used within the requirements of the statute, and that the rights of the property owners were fully proected.

No reversible error appearing, the judgments of the county court will be affirmed. Judgments affirmed.

(222 Ill. 180.)

PEOPLE ex rel. REED v. WEBER et al. (Supreme Court of Illinois. June 14, 1906.) 1. MUNICIPAL CORPORATIONS-ORGANIZATION

-ELECTION-STATUTES-CONSTRUCTION.

Hurd's Rev. St. 1903, p. 282, § 1, declares that any existing city may become incorporated under the act whenever one-eighth of its legal voters voting at the last preceding municipal election shall petition for the submission of the question to the electors of the city, when it shall be the duty of the mayor and council to submit such question at the "next ensuing municipal election of such city, or at a special election to be designated by them." Section 3 declares that, if a majority of the votes cast "at such election" shall be for city organization under general law, such city shall from thenceforth be deemed organized under such act. Held that, where such proposition was submitted at the general municipal election and did not receive a majority of all the votes cast at such election, as distinguished from all the votes cast on such proposition, the proposition was lost.

2. SAME-STATUTES-REPEAL.

Hurd's Rev. St. 1903, p. 282, providing for the general incorporation of cities, was special in its nature, and therefore was not repealed by the Australian ballot law of 1891.

by leave of court, in the circuit court or said county, upon the relation of William T. Reed, William J. Carr, Matthew J. Leonard, and Nick Tennes, against Peter Weber, Anton Deutsch, and Joseph Lehman, to require the respondents to show by what warrant and authority they held and executed the offices of trustees of the village of West Chicago. To the information the respondents filed a plea, in which they averred that at the annual election held in said village on April 21, 1903, they were duly elected village trustees of said village for the term of two years and until their successors were elected and qualified. That they duly qualified as such trustees and accepted such offices and entered upon the performance of the duties of said offices, and were in law and in fact trustees of said village on the 21st day of April, 1905, the day upon which was held the regular annual municipal election of said village. That at said election there was, pursuant to law, submitted to a vote of the electors of said village the question as to whether the village of West Chicago should become organized as a city under the general act relative to cities and villages, passed April 10, 1872 (Laws 1871 -72, p. 218). That at said election said proposition of becoming organized as a city was submitted to the electors upon the ballots cast at such election, together with the names of the various candidates to be voted for; the proposition appearing on said ballots as follows: "For city organization under general law," or "Against city organization under general law." That thereafter, at a meeting of the board of trustees of said village, on April 28, 1905, the ballots cast at said election were duly canvassed by the board of trustees, and it was found that at said election 163 votes were cast for city organization and 96 votes were cast against said proposition, and it was thereupon ordered that the result of said election be canvassed and entered upon the records of the village, and that the same was done, and the village clerk was directed to file, and did file in the office of the recorder of deeds of said Du Page county, a certified copy of the record in the matter of such organization, and showing the canvass of the vote and the result thereof, and that they were then ex

Appeal from Circuit Court, Du Page ercising the rights and performing the duties, County; L. C. Ruth, Judge.

Information in the nature of quo warranto by the people, on relation of William T. Reed, against Peter Weber and others. From a judgment in favor of respondents, relator appeals. Reversed and remanded with directions.

Calhoun, Lyford & Sheean (Charles D. Clark, of counsel), for appellant. Knight & Brown (George C. King, of counsel), for appellees.

HAND, J. This was an information filed by the state's attorney of Du Page county,

as trustees of said village, required by section 3 of article 1 of chapter 24 of the Revised Statutes of the state of Illinois of 1881, and that they expected to continue so to do until city officers should be elected for the city of West Chicago. The state's attorney filed a replication to said plea, alleging the proposition for city organization under general law was not carried at said election, for the reason that the 163 votes cast in favor of the proposition were not a majority of all the votes cast at such election; that it appeared from the pollbooks of the election, and the canvass thereof, that 459 ballots were cast by

ity

the voters of the village at such election, and that only 163 of said votes were for city organization under general law. It was also averred that the proposition for city organization under general law had not carried, for the reason that said proposition was submitted to the voters upon the same ballots with the list of candidates for the offices voted for at said election, and not upon separate ballots, as required by law. The respondents filed a demurrer to said replication, which was sustained by the court, and, the state's attorney having elected to stand by his replication, a judgment was rendered in favor of the respondents, and an appeal has been prosecuted to this court.

shall be for city organization under general law, such city shall thenceforth be deemed to be organized under this act; and the city officers then in office shall, thereupon, exercise the powers conferred upon like officers in this act, until their successors shall be elected and qualified."

It will be observed that said section 3 provides, "if a majority of the votes cast at such election shall be for city organization under general law, such city shall thenceforth be deemed to be organized," and the question here involved is in reality narrowed to the meaning of the words "such election," as found in that clause of section 3 of the statute. To determine the meaning of these words, reference must be had to section 1 of the act, which provides that the mayor and city council may designate the election at which the proposition for city organization under general law may be submitted. The language of the section is: The question may be submitted "at the next ensuing municipal election of said city or at a special election," the determination of which is left to the mayor and city council. It would seem clear that the words "such election," used in section 3, refer to the election at which the mayor or city council shall determine to submit the proposition for city organization under general law, whether it be at a general or at a special election. If it be determined by them to submit the proposition for city or

The proposition for city organization under general law was submitted to the voters of the village of West Chicago at the general municipal election held in said village on April 21, 1905, at which general election there were cast 459 votes for village officers. There were, however, cast at said election, upon the proposition for city organization under general law, only 259 votes; 163 votes being for organization under general law, and 96 votes being against said proposition. The question, therefore, here presented for decision is, in order to carry the proposition for city organization under general law, when the proposition is submitted at a general election, is it necessary that the proposition receive a majority of all the votes cast at such election, or is it sufficient if the prop-ganization under general law at a special osition for city organization under general law receive a majority of all the votes cast upon that proposition? A determination of that question involves the construction of sections 1 and 3 of article 1 of the general act for the incorporation of cities and villages. (Hurd's Rev. St. 1903, p. 282), which sections read as follows:

"Section 1. That any city now existing in this state may become incorporated under this act in the manner following: Whenever one-eighth of the legal voters of such city voting at the last preceding municipal election shall petition the mayor and council thereof to submit the question as to whether such city shall become incorporated under this act to a vote of the electors in such city, it shall be the duty of such mayor and council to submit such question to a vote of the electors of said city at the next ensuing municipal election of said city or at a special election to be designated by them, and to give the notice required by law."

"Sec. 3. The ballots to be used at such election shall be in the following form: 'For city organization under general law'; or, 'Against city organization under general law.' The judges of such election shall make returns thereof to the city council, whose duty it shall be to canvass such returns and cause the result of such canvass to be entered on the records of such city. If a majority of the votes cast at such election

election, then the proposition would be carried if the proposition received a majority of the votes cast upon the proposition, as a majority of the votes cast upon the proposition would be a majority of the votes cast at such election. On the other hand, if the proposition be submitted at the next municipal election," a majority of the votes cast upon the proposition for city organization under general law might not, as was the case here, be a majority of all the votes cast at the election and be sufficient to adopt the proposition, as the votes cast for the proposition would not be a majority of the votes cast at such election. Our conclusion therefore is that the proposition for city organization, under general law submitted to the voters of the village of West Chicago on September 21, 1905, did not carry, as there were 459 votes cast at that election, and the proposition received only 163 votes, which was less than a majority of the votes cast at such election.

It is urged by appellees that, when the act of 1872 was passed, section 1 provided that the proposition for city organization under general law should be submitted at a special election, and it is said the words "such election," found in said section 3, then referred to a special election, and at that time a majority of the votes cast upon the proposition for city organization under general law would have been sufficient to

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