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Pinkerton v. Marcin

OPINION FILED SEPTEMBER 29, 1978.

PERCY PINKERTON, PLAINTIFF-APPELLANT,

v.

JOHN C. MARCIN, CITY CLERK OF THE CITY OF CHICAGO, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR DUNNE, Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Mr. JUSTICE WILSON delivered the opinion of the court:

Plaintiff, a liquor licensee and owner of a cocktail lounge located in the fifth precinct, ninth ward in the City of Chicago, filed a complaint for declaratory judgment on June 4, 1976, *fn1 against defendants Marcin and Board of Election Commissioners, seeking to have a local option election held on April 1, 1975, declared void on the basis that the proposition submitted to the voters was not authorized by statute. (Ill. Rev. Stat. 1973, ch. 43, par. 167.) *fn2 The following proposition was submitted to and approved by the voters in the fifth precinct, ninth ward:

"Shall the sale at retail of alcoholic liquor containing more than 4% of alcohol by weight except in the original package and not for consumption on the premises be prohibited in the 5th precinct of the 9th ward of the city of Chicago?"

Plaintiff alleged that because the election took place in a city with a population of 200,000 or more, the only proposition authorized by statute was "Shall the sale at retail of alcoholic liquor be prohibited in ____?" (Ill. Rev. Stat. 1973, ch. 43, par. 167.) Plaintiff further requested injunctive relief. Although it does not appear in the record, a temporary restraining order was entered on July 7, 1976. Defendants filed a motion to strike and dismiss plaintiff's complaint and a motion to dissolve the temporary restraining order. Defendants' motions were granted and the trial judge further ordered that plaintiff's cause of action be dismissed and that the proposition was valid. Plaintiff appeals from the trial court's order, contending that he should be afforded a remedy by way of declaratory judgment and that the proposition as written was not authorized by the relevant statute. We affirm.

OPINION

We will not address plaintiff's contention with respect to the alleged invalidity of the proposition submitted prior to the election because there is a threshold issue on which we must resolve this matter. The question before us is whether, under the facts presented here, plaintiff even has standing to contest this election. We hold he does not.

Section 4 of article IX of the Liquor Control Act (Ill. Rev. Stat. 1973, ch. 43, par. 169) provides in relevant part:

"Any five legal voters of any political subdivision, district or precinct in which a proposed election is about to be held * * * within any time up to 30 days immediately prior to the date of such proposed election * * * may contest the validity of the petitions for such election by filing a verified petition in the Circuit Court * * *." (Emphasis added.)

• 1 Section 4, being a specific provision of the statute, takes precedence over more general provisions of the statute, such as section 17 of article IX (Ill. Rev. Stat. 1973, ch. 43, par. 182) which provides that any five legal voters may contest the validity of an election within 10 days after the canvass of the returns of such election. Robertson v. Marcin (1977), 50 Ill. App.3d 390, 365 N.E.2d 709; Schierhorn v. Marcin (1973), 10 Ill. App.3d 551, 294 N.E.2d 771; Havlik v. Marcin (1971), 132 Ill. App.2d 532, 270 N.E.2d 189.

In Robertson v. Marcin (1977), 50 Ill. App.3d 390, 365 N.E.2d 709, a challenge to the identical election in issue was launched by five residents, nine days after the returns and our court held that their complaint was properly dismissed for lack of timeliness under section 4 of article IX of the Liquor Control Act. (Ill. Rev. Stat. 1973, ch. 43, par. 169.) A fortiori, had plaintiff brought this action as a legal voter of the fifth precinct, ninth ward, along with four others, his cause would have been absolutely barred because his suit was brought well over one year after the election.

However, plaintiff's status here differs from that of the plaintiffs' in Robertson. In the case at bar plaintiff brings his action as a licensee, and not as a legal voter. Voters, as residents of the neighborhood would no doubt encounter less difficulty in enlisting the aid of other people to contest the validity of the election than would plaintiff, presumably a stranger to the area. Furthermore, plaintiff stands to suffer economic loss as the approved proposition would directly affect his cocktail lounge operation.

Plaintiff concedes that he is without remedy under the Liquor Control Act but maintains that he is entitled to contest the election by way of declaratory judgment. We hold that he is without remedy now since none existed for him under the law at the time of the election.

• 2 It has been well established in Illinois that the right to contest an election is a statutory one. (Smith v. Stewart (1973), 14 Ill. App.3d 1039, 304 N.E.2d 3, cert. denied (1974), 419 U.S. 873, 42 L.Ed.2d 112, 95 S.Ct. 134; Savage v. Frost (1973), 14 Ill. App.3d 1036, 304 N.E.2d 1; McCaslin v. Moore (1966), 67 Ill. App.2d 355, 214 N.E.2d 18.) Similarly, plaintiff's right to contest the validity of the proposition upon which this election is based was limited to that afforded him under section 4 of the Liquor Control Act. (See Robertson v. Marcin (1977), 50 Ill. App.3d 390, 365 N.E.2d 709.) "Illinois courts> have consistently held that the purpose of section 4 is to clear up any problem with the proposition petition before the trouble and expense of the election and prevent a ...


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