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Wernikoff v. Vanneman


FEBRUARY 18, 1975.




APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.


Jay Wernikoff (hereinafter petitioner) brought an action seeking a writ of mandamus to compel Edgar Vanneman, Jr., the Mayor and Local Liquor Control Commissioner of the City of Evanston (hereinafter defendant), to issue to petitioner a class D liquor license. The trial court granted petitioner's motion for summary judgment and ordered a writ of mandamus directing the issuance of the liquor license to the petitioner. Defendant now prosecutes this appeal from that order.

The following chronology of events provides the factual setting for the issues raised in this appeal.

Prior to

February 19, 1973 — Petitioner, the owner of Jay's Campus Restaurant located in Evanston, Illinois, filed an application for a class D liquor license accompanied by the requisite $1,000 license fee.

Defendant, acting in his capacity as local liquor control commissioner of Evanston, recommended *fn1 that the application be denied.

February 19, 1973 — The Evanston City Council, pursuant to section 4-202(5) of its code, overruled defendant's decision by two-thirds vote of the council. A member of the council then introduced proposed ordinance 15-0-73 which would amend the municipal code so as to add an additional class D license. *fn2

March 5, 1973 — The city council adopted proposed ordinance 15-0-73 thereby increasing the number of class D liquor licenses from two to three.

March 12, 1973 — Defendant having vetoed ordinance 15-0-73 this action was sustained by a vote of the city council. The council further passed a motion to rescind its action of February 19, 1973, whereby it had overruled defendant's decision and authorized the issuance of a liquor license to petitioner.

March 26, 1973 — Proposed ordinance 27-0-73 was introduced for the city council's consideration. Intended to amend section 4-202(5) of the municipal code, it prescribed a different procedure for the city council to follow in overruling the local liquor control commissioner's refusal of a license application. *fn3

April 2, 1973 — The city council adopted proposed ordinance 27-0-73.

April 9, 1973 — The council adopted an ordinance which increased the number of class D licenses in force from two to three and the additional license was subsequently issued to an applicant other than petitioner.

Based on the facts as presented in the pleadings and exhibits and as argued before the bench, the trial court found that, by the action on February 19, 1973, overruling defendant's rejection of petitioner's application, the city council created an additional class D license and imposed a clear legal duty upon the defendant herein to issue said license to petitioner. The court then granted petitioner's motion for summary judgment and ordered a writ of mandamus to issue directing the defendant to issue a class D liquor license to petitioner.

On appeal defendant suggests that (1) the motion for summary judgment was improperly granted and that (2) the writ of mandamus should not have been issued since (a) petitioner failed to demonstrate a clear, legal right to the relief requested and (b) at the time of the trial court's decision, no class D liquor licenses were available.

At the oral argument this court raised the question of whether the issue involving a 1973 liquor license was moot; and, whether section 4-202(5) of the Evanston city code was valid. The parties thereupon submitted supplemental memorandums on these questions.


The question of mootness was raised on the basis that the issue before the court concerned an Evanston liquor license to be issued in 1973. The Evanston city code provides that a liquor license is only for a 1-year period. Therefore, the writ of mandamus would now apply to an expired license. Nothing is in the record as to the 1974 license year. *fn4

The writ of mandamus issued on November 13, 1973, says only "* * * you shall forthwith immediately after receipt of this writ issue a Class D Liquor License * * *." Although it is not clear from the record what date the license would have expired there can be no dispute that regardless of when computed the appropriate 1-year licensing period has now expired.

The issue which created the controversy here was caused by the wording of section 4-202(5) of the Evanston city code in effect on February 19, 1973, and the actions of the city council pursuant to said section. Notwithstanding the fact that the language of section 4-202(5) was amended by the Evanston City Council on April 2, 1973, the trial court based his decision on the code in effect on February 19, 1973. The petition for writ of mandamus was filed in the trial court on May 23, 1973. Thus, in effect, we are asked to interpret the action of the Evanston City Council under a provision in the city code no longer in effect.

• 1 In People ex rel. Cairo Turf Club, Inc. v. Taylor (1954), 2 Ill.2d 160, 116 N.E.2d 880, a case involving a writ of mandamus for an expired state retail liquor license, our supreme court held that when a reviewing court has notice of facts which show only moot questions, it will dismiss the appeal or writ of error unless there is a public interest for authoritative determination for the future guidance of public officials. See also 1 I.L.P. Actions § 19 (1953); 2 I.L.P. Appeal and Error § 586 (1953); La Salle National Bank v. City of Chicago (1954), 3 Ill.2d 375, 121 N.E.2d 486.

• 2 We do not believe the facts in this case now present the need to resolve the question of the validity of section 4-202(5) in effect on February 19, 1973 (but since amended), or for an expired liquor license. Such a question is presently only an abstract question which a reviewing court should abstain from ruling on under these circumstances.

• 3 As previously noted, section 4-202(5) in effect on February 19, 1973, and under which provision the Evanston City Council acted was amended by the city council on April 2, 1973. It is the rule in this state that ordinances of a municipality are presumed to be valid; see S. Bloom Inc. v. Korshak (1972), 52 Ill.2d 56, 284 N.E.2d 257; that the burden of establishing the invalidity of an ordinance rests upon the party challenging it; see Oak Park National Bank v. Village of Broad-view (1963), 27 Ill.2d 151, 188 N.E.2d 679; that municipalities have the continuing authority to pass ordinances limiting the number of liquor licenses to be issued; and that no person has a vested right in a liquor license; see Pence v. Village of Rantoul (4th Dist. 1973), 12 Ill. App.3d 446, 298 N.E.2d 775. *fn5 In any respect, so far as we know, there is nothing that would prevent the petitioner from applying for a current liquor license, if any be available, subject to the provisions of the Evanston city code in effect as of the date of his application.

Inasmuch as the licensing period for which the writ of mandamus was issued has now expired, there is nothing the defendant can now be required to do.

• 4 However, as we do not wish to be understood as affirming the trial court, we, therefore, reverse and remand the cause to the circuit court of Cook County with directions to dismiss the complaint on the ground of mootness. Maywood Park Trotting Association, Inc., v. Illinois Harness Racing Com. (1959), 15 Ill.2d 559, 155 N.E.2d 626; La Salle National Bank v. City of Chicago, supra.

Reversed and remanded with directions.

STAMOS and HAYES, JJ., concur.

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