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Illinois Liquor Control Com. v. City of Joliet

MARCH 5, 1975.

THE ILLINOIS LIQUOR CONTROL COMMISSION, PLAINTIFF-APPELLANT,

v.

THE CITY OF JOLIET ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Will County; the Hon. MICHAEL A. ORENIC, Judge, presiding.

MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

The Illinois Liquor Control Commission appeals from a judgment of the Will County Circuit Court upholding an ordinance of the City of Joliet, Illinois. The action was instituted to invalidate the Joliet City Ordinance which prohibited the sale to and consumption of alcoholic beverages by persons under the age of 21. Both parties filed motions for summary judgment. The circuit court judgment was entered upholding the ordinance of the City of Joliet as indicated.

Under the statutes of the State of Illinois, the sale to and consumption of alcoholic beverages by persons under 21 years of age had been prohibited. (Ill. Rev. Stat. 1971, ch. 43, pars. 131, 134a and 183.) Effective October 1, 1973, the Illinois legislature amended those sections (by P.A. 78-26) to reduce the age for sale to and consumption of beer and wine to 19 years of age. In the meantime, the City of Joliet, a home-rule municipality, enacted its Ordinance No. 6060, effective October 3, 1973. This ordinance readopted prior provisions of the Joliet City Code which (as had been provided by former State law) prohibits the sale to and consumption by persons under 21 years of age of alcoholic beverages.

As a result of the variance in the State act, which had reduced the so-called "drinking age" for beer and wine to 19, and the Joliet ordinance, which prohibited such sale and consumption by persons under 21 years of age, the present action was instituted.

The plaintiff-commission contended that the drinking age was set by State law and could not be altered by a municipality within its own jurisdiction even though it is a home-rule unit. The trial court found, as a matter of law, that the City ordinance should prevail within the Joliet city limits. As a result of such litigation, the issue before us is very simply whether a home-rule municipality may set a higher minimum drinking age than is established by State statute.

• 1, 2 The plaintiff-commission contends initially that liquor control is a subject exclusively for State law and that the broad grant of home-rule power as found in the 1970 Illinois Constitution, article VII, section 6(a), was not intended to cover the regulation of alcoholic beverages. We do not agree with this contention. The Liquor Control Act (Ill. Rev. Stat. 1973, ch. 43, pars. 94 et seq.) was passed in 1933 and constitutes the general framework for the regulation of the liquor industry in the State of Illinois. The Act, however, grants broad powers to municipalities to set their own standards for closing hours, Sunday sales, licensing, or even to completely prohibit the sale of intoxicating liquor. (See Ill. Rev. Stat. 1973, ch. 43, pars. 110, 129, and 166 et seq.) It is true that some of these powers must be exercised in a manner consistent with law (ch. 43, par. 110), and the cases in this State have held that municipalities may not regulate the liquor industry except as expressly permitted by the State. (Heidenreich v. Ronske, 26 Ill.2d 360, 365, 187 N.E.2d 261 (1962); Sager v. City of Silvis, 402 Ill. 262, 265, 83 N.E.2d 683 (1949).) These expressions in the Illinois Supreme Court are simply a statement of the so-called "Dillon's Rule," so labeled because it found expression in 1 Dillon, Municipal Corporations 448 (5th ed. 1911). The so-called rule is a pronouncement to the effect that a local government has only those powers expressly conferred upon it by the State, together with such powers as may be fairly implied or incidental thereto. This rule, however, is not applicable in the case of home-rule municipalities, and such municipalities may freely govern themselves except as restricted by the State, according to the home-rule provisions of the 1970 Illinois Constitution, article VII, section 6 (Kanellos v. County of Cook, 53 Ill.2d 161, 166, 290 N.E.2d 240 (1972); see also 7 Record of Proceedings, Sixth Illinois Constitutional Convention 1616-17 (Local Government Committee Report) (hereinafter cited as Proceedings)). It is provided in the 1970 Illinois Constitution at article VII, section 6(a), that a home-rule unit "may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; * * *."

• 3 Liquor control is unquestionably a matter involved in the protection of public health, safety, morals and welfare (Daley v. Berzanskis, 47 Ill.2d 395, 398, 269 N.E.2d 716 (1971), cert. denied, 402 U.S. 999). It is apparent that the control of liquor has been a power and function pertaining to government and the affairs of a municipality — a fact which was recognized by the legislature over the years as it continued to give local governments broad power to determine local liquor regulations. It is obvious then that liquor control is within the scope of the home-rule powers granted by article VII, section 6(a), and cannot be limited except as provided in other sections of the home-rule provisions.

The limiting provisions are sections 6(g) to 6(i). The first of the limiting provisions, section 6(g), deals with the legislative preemption of certain areas (by a 3/5 majority) and is not relevant to our consideration of the precise issue referred to. The next provision, section 6(h), is that "[t]he General Assembly may provide specifically by law for the exclusive exercise by the State of any power or function of a home rule unit * * *."

• 4, 5 In determining whether or not the legislature has provided "specifically by law for the exclusive exercise" of power by the State, we note primarily that a home-rule unit acting in a proper sphere of authority is not bound by legislative enactments prior to 1970. (Kanellos v. County of Cook, 53 Ill.2d 161, 290 N.E.2d 240 (1972); People ex rel. Hanrahan v. Beck, 54 Ill.2d 561, 301 N.E.2d 281 (1973).) This is true even in a field where both the State and the home-rule unit may exercise power concurrently (Peters v. City of Springfield, 57 Ill.2d 142, 311 N.E.2d 107 (1974)). The language of section 6(h) indicates that, to exclude the exercise of home-rule powers in a certain field, the legislature must expressly say so in a statute. The supreme court of this State has also confirmed such rule in Rozner v. Korshak, 55 Ill.2d 430, 303 N.E.2d 389 (1973).

• 6 The same general observation was made in an article in the Illinois Bar Journal in which the author concludes from the precedent of Clarke v. Village of Arlington Heights, 57 Ill.2d 50, 309 N.E.2d 576 (1974), and from the section itself that "the concurrent authority concept will not be construed as restriction on home-rule powers unless it is specifically invoked" (Froehlich, Illinois Home Rule in the Courts, 63 Ill. B.J. 320, 328 (Feb. 1975)). Nevertheless, we agree with plaintiff that exclusivity may be expressed in other ways, notably by enactment of a comprehensive regulatory scheme, or by establishment of a State agency for the purpose of a comprehensive regulatory scheme (See 7 Proceedings 1615-44; but see also indications that framers' intent was for the legislature to expressly State exclusivity, at 4 Proceedings 3059, 3331 (delegate Wenum) and 3110-12 (chairman Parkhurst)).

We note that the Illinois Bar Journal author (Froehlich) (63 Ill. B.J. 320, 328) notes that the open meetings law was amended in 1973 (Ill. Rev. Stat. 1973, ch. 102, par. 46) to expressly include a statement of relationship to home rule, and that this was an indication by the legislature that it realizes that it may have to deal with these problems by making express restrictions or permitting home-rule units to establish their own regulatory measures.

• 7 The broad delegations of power to local government found throughout the Act indicate the legislature's desire to permit substantial local control over the liquor industry. As we interpret the language as found in the Liquor Control Act, and on the basis of section 6(i) of article VII of the 1970 Illinois Constitution, we find that there is no specific limitation expressly stating a desire to pre-empt the field. We, therefore, conclude that the State has not pre-empted the area of liquor control so that home-rule units are prohibited from exercising police power in this area.

Since this is so, the field of liquor control is one in which the State and the home-rule unit may exercise power concurrently. The relevant provision becomes section 6(i) which provides:

"(i) Home rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or ...


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