APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION VERNICE QUARLES, d/b/a 87th Street Cut Rate Liquor &
507 N.E.2d 103, 154 Ill. App. 3d 325, 107 Ill. Dec. 439 1987.IL.378
Appeal from the Circuit Court of Cook County; the Hon. Francis Barth, Judge, presiding.
JUSTICE MURRAY delivered the opinion of the court. SULLIVAN, P.J., and LORENZ, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY
This is an expedited appeal by plaintiffs, Vernice Quarles d/b/a 87th Street Cut Rate Liquor & Grocery (Quarles) and The Southland Corporation (Southland) from a decision of a trial court holding that petitions for a local referendum complied with the requirements of the Illinois Liquor Control Act of 1934 (Ill. Rev. Stat. 1985, ch. 43, par. 93.9 et seq.).
Walter S. Kozubowski, city clerk of the city of Chicago, has filed a cross-appeal contending he is not a proper party to the proceedings. The undisputed facts are as follows:
Quarles and Southland hold licenses for the selling of alcoholic liquor at retail from their respective premises located in the 50th precinct of the 8th ward in Chicago, Illinois.
On August 5, 1986, the defendant city clerk certified to the defendant board of election commission of the city of Chicago (board) that petitions purporting to be signed by at least 25% of the legal voters of the 50th precinct of the 8th ward of the city had been filed with his office on August 4, 1986. The petitions requested the following proposition be placed on the ballot:
"Shall the sale of alcoholic liquor be prohibited in this 50th precinct of the 8th ward of the City of Chicago?"
On September 29, 1986, more than 30 days before the election scheduled for November 4, 1986, plaintiffs filed their "verified complaint to contest validity of petitions for a local option election." The complaint sought to enjoin the defendant board from submitting the liquor proposition to the precinct voters of the 50th precinct of the 8th ward. The then alderman *fn1 of the ward, Marian Humes, and three voters in the precinct, Doretha Strong, Eddie Jones and Ollie Smothers, intervened in the litigation.
On October 25, 1986, the trial court found the petitions complied with the requirements of the Illinois Liquor Control Act (Ill. Rev. Stat. 1985, ch. 43, pars. 167, 169). Based on this finding, the court dismissed the action. Prior to this action, the trial court denied a motion of the city clerk to be dismissed as a defendant. The plaintiffs appealed the decision on October 28, 1986, and the city clerk cross-appealed.
The election was held on November 4, 1986. The proposition carried by a vote of 231 ayes and 44 nays. On appeal Quarles and Southland contend that the petitions were deficient in the following respects:
(1) The petitions failed to include the statutory required information that the proposition was to be submitted to the precinct voters at the next election.
(2) The petitions failed to include the correct name of the licensees.
(3) The petitions had an erroneous description of the precinct boundaries.
(4) The petitions fail to include the words "at retail" or "of the city of Chicago" in the proposition to be submitted to the voters.
The board and city clerk do not argue the substantive and procedural merits of the case, but only question which agency has the duty to defend an action attacking the legal sufficiency of petitions for a local option referendum -- the board, city clerk, or both.
The intervening voters, Strong, Jones, and Smothers, argue the sufficiency of plaintiffs' complaint, the adequacy of the referendum petitions and that the board, rather than city clerk, is the proper party to defend the action.
Alderman Humes argues the issue of the mootness of the case by reason of the election and the issue of the adequacy of the petitions. There is some merit to the alderman's contention as to mootness because of the result of the election and the failure of the plaintiff to seek any stay order until after the election. Only after the election did Quarles and Southland seek and obtain a stay from this court to stop the force and effect of the November 4, 1986, election and to permit them to remain in operation during their appeal.
The Illinois Liquor Control Act requires a petition to contest the validity of petition for a liquor sale referendum to be filed 30 days prior to the date of the election. (Ill. Rev. Stat. 1985, ch. 43, par. 169.) The purpose of this procedural requirement is to effectuate what has not occurred in this case, i.e., the determination of the validity of petitions before the trouble and expense of election and the prevention of a challenger from gambling on the election's outcome. Liquor Hut, Inc. v. Marcin (1980), 84 Ill. App. 3d 718, 719, 406 N.E.2d 139.
Plaintiffs' reliance on the recent case of Walgreen Co. v. Illinois Liquor Control Commission (1986), 111 Ill. 2d 120, 488 N.E.2d 980, as indicating a lack of mootness is misplaced. In that case, Walgreen filed a motion to stay the effect of the trial court's order certifying the local option question for placement on the ballot. That was not done by plaintiffs in this ...