Appeal from the Circuit Court of Cook County, County
Department, Chancery Division; the Hon. CORNELIUS J. HARRINGTON,
Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
This is an appeal from a final order of injunction restraining the defendant, The Village of Alsip, and officers thereof, from interfering with the plaintiff's sale of its product known as "Jet" Near Beer, and with the subsequent sale of said product to the ultimate consumer regardless of the age of said purchaser. The trial court in its final order decreed that the Village of Alsip was not authorized by statute, nor otherwise, to adopt the ordinance in question.
The defendant Village contends that the Village had authority to adopt the ordinance in question and that the complaint did not state a cause of action.
This case was decided on the complaint and motion to dismiss.
The defendant, the Village of Alsip, filed a motion to dismiss the complaint filed by the plaintiff seeking an injunction against the enforcement of a village ordinance. The pertinent portion of the ordinance is as follows:
"Section One. That it shall be unlawful for any person or persons to sell any beverage containing any amount of alcoholic content, and more popularly known as `near beer' to any person under twenty-one years of age."
The complaint alleged that the plaintiff was engaged in making and selling a nonalcoholic malt beverage known as "Jet" Near Beer, and that the ordinance was illegal. The pertinent parts of the complaint are the following:
Paragraph 1 of the complaint alleged that the plaintiff is engaged in making and selling malt beverages in the city of Chicago.
Paragraphs 2 to 8 alleged facts establishing that "Jet" Near Beer is not subject to the provisions of the Illinois Liquor Control Act, (Ill Rev Stats 1963, c 43, par 94), and that it contains less than one-half of one percent of alcohol by volume. The complaint further alleged that "Jet" Near Beer was made in the same manner as regular beer but that the alcohol was thereafter removed so that it contained less than one-half of one percent of alcohol by volume.
Paragraphs 10 and 11 alleged that the adoption of the ordinance was not authorized and was illegal.
The complaint further alleged that the plaintiff has been placed in a position where it has been threatened with irreparable damage by the illegal actions of the defendant in interfering with the sale of its product in the Village of Alsip. The complaint also alleged that the plaintiff's product is nonalcoholic, relying upon the Liquor Control Act of Illinois, which excludes near beer from its application, and upon certain letters received by the plaintiff from the Illinois Liquor Control Commission, the Alcohol and Tobacco Tax Division, Internal Revenue Service, U.S. Treasury Department and sections 5051-5052 of the United States Internal Revenue Code which does not require the payment of a federal beer tax on any product that contains less than one-half of one percent alcohol by volume.
The sole question before us for determination is whether or not the Village of Alsip has the power to pass an ordinance prohibiting the sale of a beverage containing less than one-half of one percent of alcohol by volume.
The defendants contend that the Village of Alsip had authority to adopt the ordinance in question under its statutory police powers and under the authority given to villages by section 11-5-3 of the Cities and Villages Act (Ill Rev Stats 1963, c 24, § 11-5-3), which provides as follows:
"The corporate authorities of each municipality may prevent intoxication, fighting, quarreling, dog fights, cock fights ...