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People v. Graf

MARCH 7, 1968.

PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

JAMES E. GRAF, APPELLEE.



Appeal from the Circuit Court of Cook County, Second Municipal District; the Hon. WALLACE I. KARGMAN, Judge, presiding. Affirmed.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

This is an appeal taken by the People of the State of Illinois from an order dismissing the complaint on the ground that the section under which the defendant was charged does not in any way prescribe a penalty. It is the State's theory that the Illinois Liquor Control Act (commonly called the Dram Shops Act) (Ill. Rev Stats 1965, c 43) is a penal statute, and that in this case section 140 of the Dram Shops Act is an offense as defined in section 2-12 of the Criminal Code (Ill. Rev Stats 1965, c 38, § 2-12). The State contends that where there is a violation of a penal statute and no penalty is prescribed in that statute, that section 1-7(j) of the Criminal Code applies.

On July 14, 1966, the defendant was arrested while driving his car at the corner of Isabella and Ashland, Evanston, Cook County, Illinois, and was charged with having "committed the offense of transporting an open bottle of liquor in a motor vehicle in that he did then and there possess an open bottle of alcoholic liquor in a certain motor vehicle, to-wit: 4/5 quart of Gilbey's Gin, with seal on said bottle broken in violation of Chapter 43, sec 140." A more accurate description of the section with which the defendant was charged is section 19, article VI of the Dram Shops Act (Ill. Rev Stats 1965, c 43, par 140). That section reads as follows:

"No person shall transport, carry, possess or have any alcoholic liquor in or upon or about any motor vehicle except in the original package and with the seal unbroken."

We will refer to the foregoing statute for the purpose of this opinion as section 140 of the Dram Shops Act.

The State contends that even though section 140 of the Dram Shops Act does not prescribe a penalty for a violation of this section, nevertheless, section 1-7(j) of the Criminal Code does provide a penalty because the State contends that the Dram Shops Act is a penal statute and that said section applies where the penalty is not otherwise provided. That section provides the following:

"Penalty Where not Otherwise Provided.

"The court in imposing sentence upon an offender convicted of an offense for which no penalty is otherwise provided may sentence the offender to a term of imprisonment not to exceed one year or a fine not to exceed $1,000, or both."

In support of its contention that the Dram Shops Act is a penal statute the State cites Lichter v. Scher, 11 Ill. App.2d 441, 138 N.E.2d 66; Canadian Ace Brewing Co. v. Swiftsure Beer Service Co., 17 Ill. App.2d 54, 149 N.E.2d 442, and Butler v. Wittland, 18 Ill. App.2d 578, 153 N.E.2d 106. In Butler, supra, the court stated on page 582:

"The Dramshop Act as a part of the law governing the sale of liquor in Illinois is therefore essentially disciplinary and regulatory in its character. Robertson v. White, 11 Ill. App.2d 177. However, because the remedy therein provided is made available without regard to fault or negligence of the dramshop keeper, the Act is also penal in character . . ."

The above are all civil cases and in them the act has been described as having penal import "and penal character" in deciding civil suits for damages. It may be described as a penal statute only insofar as it imposes a civil liability for damages upon the dramshop keeper and the owner of the real estate wherein the dramshop is located without proof of fault. The Dram Shops Act is not a penal statute in the same sense as is a criminal statute. Both the State and defense agree that section 1 of article X of the Dram Shops Act (Ill. Rev Stats 1965, c 43, par 183) applies only to manufacturers, importers, distributors and sellers of liquor. The defendant argues that since no penalty is provided anywhere in the Dram Shops Act for a violation of section 140, and since a violation of section 140 is not made an offense, there is no other penalty provision that can be attached to section 140, including section 1-7(j) of chapter 38, which applies only to offenses.

It is significant to note that section 140 of the Dram Shops Act does not use the words "it shall be unlawful" or words of similar import.

Section 1-3 of the Criminal Code (Ill. Rev Stats 1965, c 38, par 1-3) reads as follows:

"No conduct constitutes an offense unless it is described as an offense in this Code or in another statute of this State. However, this provision does not affect the power of a court to punish for contempt or to employ any sanction authorized by ...


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