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City of N. Chicago v. Pixley

MAY 13, 1975.

THE CITY OF NORTH CHICAGO, PLAINTIFF-APPELLEE,

v.

ARCHIE PIXLEY ET AL., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Lake County; the Hon. THOMAS R. DORAN, Judge, presiding.

MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:

The trial court entered a preliminary injunction prohibiting the defendant Wildfire and its employees from providing live entertainment in the form of topless and/or bottomless nude dancing in conjunction with the sale of alcoholic beverages in violation of an ordinance of the City of North Chicago, and subsequently refused to dissolve that injunction. The constitutionality of an identically worded ordinance was upheld by this court in Cheetah Enterprises, Inc. v. County of Lake (1974), 22 Ill. App.3d 306, 317 N.E.2d 129, leave to appeal denied, and the defendants do not challenge the ordinance here.

On appeal, the defendants contend (1) that the complaint and the motion for a preliminary injunction are both insufficient in that they fail to allege facts constituting irreparable injury; (2) that the defendants should not have been enjoined because their acts were merely violations of a municipal ordinance; (3) that the injunction order is invalid because it fails to specify the reasons for its issuance; and (4) that the preliminary injunction should not have been issued because it grants the ultimate relief sought. We conclude that, insofar as this case is concerned, these contentions are without merit and affirm.

Wildfire, Inc., is a corporation engaged in the business of selling alcoholic liquor and furnishing live entertainment in the City of North Chicago, which, in September of 1974, enacted an ordinance which, inter alia, prohibits nude dancing in connection with the sale of such beverages.

In January of 1975, the City filed a complaint, sworn to by its mayor, setting out the foregoing and alleging also that the defendant Pixley manages the business and that Dardanes is manager or president; that, in December, 1974, with full knowledge of said ordinance, the defendants began to provide topless and/or bottomless nude dancing as entertainment for customers in connection with the sale of alcoholic liquor, in violation of said ordinance; that seven arrests of the defendants or their employees for such violations were made between December, 1974, and January 9, 1975; that the defendants have informed the City that they intend to continue to serve liquor and to provide nude entertainment for their customers; that said continued violation is detrimental to the health, safety, welfare and morals of the people of North Chicago and a threat to them; that courts of equity have the power to enjoin such acts; and that the City has no adequate remedy at law. The complaint sought a temporary restraining order and a permanent injunction forbidding the defendants from providing topless and/or bottomless nude dancing in connection with the sale of alcoholic liquors.

The said complaint and summons were served on all three defendants that same day, together with a notice motion that the City would on the following day, January 10, 1975, appear before the motion judge and move for a temporary injunction, and a copy of said motion. On January 10, 1975, all three defendants appeared by Julius Lucius Eckels and Carolyn Jaffe, and a preliminary injunction was issued

"restraining the defendants, their attorneys, agents and assigns, from providing live entertainment in the form of topless and/or bottomless dancers on the premises operated by WILDFIRE, INC., in the City of North Chicago, in conjunction with the gift or sale of alcoholic beverages until final disposition of the case."

On January 17, 1975, the defendants moved to vacate said injunction on the grounds (1) that there was no allegation of irreparable harm to the plaintiff and (2) that bond ought not to have been waived. A motion was also filed to dismiss the complaint "for the reason that it does not state a proper cause of action and it seeks a remedy not permissible under the law," coupled with an answer to the complaint. Said answer admitted most of the preliminary allegations including the enactment of the ordinance, but asserted that it was unconstitutional and denied the rest of the allegations.

On January 20, 1975, attorneys Ori & Tepper appeared for the defendants and were given leave to withdraw the motion to dismiss and answer theretofore filed and to replead in 3 days. The case was set for January 24, 1975, before Judge Doran.

On January 22, 1975, the defendants filed a long (7 full pages), rambling motion to dissolve which was really a brief, replete with arguments and citations, and an answer to the complaint, not perceivably different from that originally filed.

On January 24, 1975, the cause came on to be heard on the defendant's motion to dissolve the temporary injunction entered on January 10, 1975, and to stay said injunction, both of which motions were argued and denied. The appeal now before us is from the preliminary injunction of January 10, 1975, and the order of January 24, 1975, refusing to dissolve it.

This brings us to the defendant's first contention (their Points I and II) that the complaint and the motion for the preliminary injunction are both insufficient in that they do not allege facts constituting irreparable injury.

• 1 While it is quite true that where a private person seeks an injunction he must allege facts constituting irreparable injury (Knuppel v. Adams (1973), 12 Ill. App.3d 708, 298 N.E.2d 767), this is not and never had been the law where a public law enforcement officer, on behalf of a State, or county or city, seeks to enjoin a public nuisance. Almost all of the cases cited by the defendant involved individual plaintiffs and in those that did not the issuance of the injunction was upheld.

A rather similar factual situation was before the court in City of Aurora v. Warner Bros. Pictures Distributing Corp. (1958), 16 Ill. App.2d 273, 147 N.E.2d 694. There the defendant was showing a movie entitled "Baby Doll" in violation of a city ordinance banning indecent or lewd pictures, and the City sought and obtained a temporary injunction against its further showing. In affirming the issuance of the temporary injunction, the court, at pages 281-284, said:

"Defendants also contend that the amended complaint shows on its face that the court lacked jurisdiction of the subject matter because * * * the general powers of equity do not include the power to enjoin acts which are merely criminal or immoral, and unconnected with any threatened invasion of property rights. In Stead v. Fortner, 255 Ill. 468, cited by defendants, the court sustained an injunction issued at the suit of the Attorney General and the State's Attorney, enjoining the use of a building for the sale of liquor in Shelbyville, then anti-saloon territory. The court held that a court of equity has jurisdiction to abate a public nuisance even though the offenders are amenable to the criminal law and no property rights are involved. At page 477 the court said: `This court has never regarded a criminal prosecution, which can only dispose of an existing nuisance and cannot prevent a renewal of the nuisance, for which a new prosecution must be brought, as a complete and adequate remedy for a wrong inflicted upon the public. The public authorities have a right to institute the suit where the public welfare demands it and damages to the public are not susceptible of computation. The maintenance of the public health, morals, safety and welfare is on a plane above mere pecuniary damage although not susceptible of measurement in money, and to say that a court of equity may not enjoin a public nuisance because property rights are not involved, would be to say that a state is unable to enforce the law or protect its citizens from public wrongs * * *.'

City of Sterling v. Speroni, 336 Ill. App. 556, involved an injunction enjoining the operation of a bookie joint in the basement of the Galt Hotel in Sterling. On appeal it was contended that equity will not interfere with matters which are simply criminal or immoral unless the operation of such a place interferes with property rights. This court sustained the injunction and said: `The only effective means of abating a nuisance of the character of the one shown by the evidence found in this record and to silence this bookie joint is by the strong and far reaching use of the equitable powers of the trial court.'

In our opinion courts of equity in Illinois have power to enjoin criminal or immoral acts even though the offenders are amenable to prosecution and no property rights are involved, in order to protect citizens from ...


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