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Fred Harvey Inc. v. Mooney

decided: November 17, 1975.

FRED HARVEY, INC., PLAINTIFF-APPELLEE,
v.
ELLEN B. MOONEY, CLERK OF THE VILLAGE OF HINSDALE; ROBERT F. DICKEY, PRESIDENT OF THE VILLAGE OF HINSDALE AND EX OFFICIO LOCAL LIQUOR LICENSE COMMISSIONER; AND FRANK POTEMPA, CHIEF OF POLICE OF THE VILLAGE OF HINSDALE, DEFENDANTS-APPELLEES, EDWARD PLUMB, PETITIONER-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 74 C 3167 WILLIAM J. LYNCH, Judge.

Stevens and Sprecher, Circuit Judges, and Grant, Senior District Judge.*fn* Stevens, Circuit Judge, dissenting.

Author: Sprecher

SPRECHER, Circuit Judge.

This appeal in a diversity case raises the question of whether an applicant for intervention as of right can claim an interest relating to the property which is the subject of the action when, under Illinois law, he seeks to represent petitioners in one annexed area who petitioned to change the status of another annexed area from wet to dry under ILL. REV. STATS. ch. 43, § 173.1(b).

I

The plaintiff, Fred Harvey, Inc., operated a restaurant, including private dining rooms for banquets, a cocktail lounge and a gift shop, on the north side of Ogden Avenue west of the Illinois State Toll Highway in DuPage County, called the Spinning Wheel, under a lease which commenced in August 1954 and was to expire by its terms at the end of 1977.

On September 4, 1973, the Spinning Wheel Tract of land became a part of the Village of Hinsdale, Illinois, under an ordinance adopted by the Board of Trustees of the Village, pursuant to the provisions of ILL. REV. STATS. ch. 24, § 7-1-13 and pursuant to a preannexation agreement between the Village of Hinsdale and the owner of the property. This preannexation agreement provided in part as follows:

Hinsdale represents that a liquor license is available for issuance that will permit the sale of alcoholic beverages on the Premises under the same terms as such sales are now conducted in the county. Owner agrees to cause Harvey to apply for the liquor license pursuant to the Liquor Control Ordinance within five (5) days after the adoption by the Village of the Annexation Ordinance, and the Village agrees to suspend enforcement of its Liquor Control Ordinance to the date of granting of the liquor license to Harvey.

On September 10, 1973, the plaintiff obtained from the Local Liquor License Commissioner of Hinsdale and the Village Clerk, a retail liquor license entitling the plaintiff to sell, dispense and serve alcoholic beverages in and upon the Spinning Wheel Tract.

Almost ten months later, on June 18, 1974, the property immediately adjoining the Spinning Wheel Tract on the north, known as the Koplin Tract was annexed to and became a part of the Village of Hinsdale, Illinois pursuant to the provisions of ILL. REV. STATS. ch. 24, § 7-1-13 and an ordinance adopted by the Board of Trustees of the Village.

On October 10, 1974, a petition was filed with the Village Clerk purporting to contain the signatures of 66 2/3 percent of the legal voters of Election District 120, known as York Township, Precinct 120 and seeking to prohibit the sale at retail of alcoholic liquor at the Koplin and Spinning Wheel Tracts and purportedly filed pursuant to ILL. REV. STATS. ch. 43, § 173.1(b).*fn1

Section 173.1(b) requires that petitions contain the signatures of 66 2/3 percent of the legal voters residing in the annexed area. All the voters signing the petition for the change of status of the Koplin and Spinning Wheel Tracts were residents of the Koplin Tract, which was separately annexed by the Village of Hinsdale after the annexation of the Spinning Wheel Tract. There were no registered voters residing in the Spinning Wheel Tract.

On November 4, 1974, plaintiff filed its complaint against the Village Clerk, the Local Liquor License Commissioner and the Chief of Police of the Village of Hinsdale, praying for a declaratory judgment adjudicating the validity of the petition seeking to prohibit the plaintiff from selling alcoholic liquor, and injunctive relief. The defendants filed their answer admitting allegations of which they had knowledge, alleging insufficient knowledge of some allegations and praying that the court adjudicate the validity of the petition.

On November 14, 1974, Edward Plumb, one of the petitioners included among the purported 66 2/3 percent of the voters of the Koplin and Spinning Wheel Tracts, moved for leave to intervene as a party defendant. On November 19, Plumb filed an answer to the complaint.

On November 20, 1974, the district court denied the prospective intervenor's petition for leave to intervene. This is the only order appealed from in this appeal.

On November 22, the district court granted a preliminary injunction based upon findings of fact and conclusions of law. On January 29, 1975, the district court granted the plaintiff's motion for judgment on the pleadings on Count I of the complaint and declared that "the Petition to prohibit the retail sale of liquor on the Spinning Wheel tract is invalid."

The prospective intervenor's notice of appeal was filed on December 18, 1974. Thereafter, in August 1975, the Fred Harvey, Inc. lease was terminated. The owner of the Spinning Wheel Tract, Wilma D. Castle, a resident of Illinois as Trustee under Trust Agreement dated October 30, 1968, succeeded to the plaintiff's possession of the premises and "has a direct interest in the use or disposition of said premises and facilities including the right to own, use or convey premises which are not encumbered with a prohibition on the sale of alcoholic beverages at retail."

The prospective intervenor on appeal has claimed his right to intervene, but we also must resolve the problem of the proper party-plaintiff and, in view of the prospective intervenor's argument that the named defendants did not adequately represent him, we ...


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