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12/22/87 Check Inn Lounge, Inc., Et v. Walter S. Kozubowski

December 22, 1987

CHECK INN LOUNGE, INC., ET AL., PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES

v.

WALTER S. KOZUBOWSKI, CITY CLERK OF THE CITY OF CHICAGO, ET AL., DEFENDANTS-APPELLEES (ANN CARROLL, INTERVENOR-APPELLEE AND CROSS-APPELLANT)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

518 N.E.2d 442, 164 Ill. App. 3d 1023, 115 Ill. Dec. 917 1987.IL.1903

Appeal from the Circuit Court of Cook County; the Hon. Francis Barth, Judge, presiding.

APPELLATE Judges:

JUSTICE HARTMAN delivered the opinion of the court. SCARIANO, P.J., and STAMOS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN

Plaintiffs, Check Inn Lounge, Inc., and Chesterton Super Food and Liquors, Inc. (licensees), appeal from orders: (1) dismissing a paragraph of their amended complaint and finding that the proper official for the filing of petitions and revocations under the Liquor Control Act of 1934 (Ill. Rev. Stat. 1985, ch. 43, par. 166 et seq.) (Act) is the clerk of the City of Chicago (clerk); and (2) entering judgment in favor of intervenor Ann Carroll (intervenor), ordering that a local option referendum appear on the ballot at the 34th precinct, 46th ward, in the City of Chicago at the election held November 4, 1986. Intervenor cross-appeals from an order denying her motion to dismiss count III of licensees' amended complaint and directing that the printed precinct register of voters dated October 1984 for the 34th precinct, 46th ward, be used to determine "legal voters" as defined in the Act. Ill. Rev. Stat. 1985, ch. 43, par. 166.

We are asked to review whether the circuit court erred: (1) in dismissing paragraph 9, count I, of licensees' amended complaint; (2) in denying intervenor's motion to dismiss count III of licensees' amended complaint; and (3) in entering judgment against licensees.

On August 5, 1986, certain persons (petitioners) opposed to the sale of liquor in the 34th precinct, 46th ward (34th precinct), in the City of Chicago filed a petition with defendant Walter Kozubowski, city clerk of the City of Chicago (clerk), pursuant to article IX of the Act. (Ill. Rev. Stat. 1985, ch. 43, par. 166 et seq.) The Act permits individual communities to hold binding referenda to determine whether to permit sales of liquor at retail in the community. (Ill. Rev. Stat. 1985, ch. 43, par. 167.) In cities of more than 200,000 inhabitants, the referenda, or local option propositions, are held at the precinct level. To place a local option proposition on a ballot, a petition signed by at least 25% of the precinct's "legal voters" (Ill. Rev. Stat. 1985, ch. 43, par. 167) must be filed with the appropriate city "clerk," as defined in the statute. (See Ill. Rev. Stat. 1985, ch. 43, par. 166.) A signatory may, in writing, within 20 days, revoke his or her signature submitted to the clerk with whom the option petition has been filed. Ill. Rev. Stat. 1985, ch. 43, par. 169.

In the case sub judice, the local option petition requested that a proposition be submitted to the voters of the 34th precinct at the election of November 4, 1986, which would prohibit the sale at retail of alcoholic liquor in the 34th precinct. The signatures of 252 alleged legal voters of the 34th precinct were attached to the petition. The clerk certified receipt of the petition and filed it with defendant board of election commissioners of the City of Chicago (board), on August 6, 1986. Licensees, whose businesses are located in the 34th precinct, on August 26, 1986, filed a petition to revoke 56 signatures listed among the local option signatories with the clerk and challenged the sufficiency of the local option proposition.

Licensees also filed a two-count, verified complaint on September 11, 1986, seeking to enjoin the board and the clerk from submitting the referendum to the voters on November 4, 1986. Count I alleged that petitioners failed to meet the 25% minimum statutory requirement of legal voters' signatures, or 122 signatures, because 145 were invalid, by reason of revocation or other statutory violations, leaving 107 signatures, which did not satisfy the requirements of the Act. Count II alleged that the proposed referendum violated the Illinois Election Code (Election Code) Ill. Rev. Stat. 1985, ch. 46, par. 1-1 et seq.), which limits to three the number of public questions which may be submitted to voters within the same political subdivision in one election (Ill. Rev. Stat. 1985, ch. 46, par. 28-1), since three other questions already had been submitted to the board to be voted on by the electors of Chicago, including the 34th precinct.

The clerk moved to dismiss the complaint on September 23, 1986 (Ill. Rev. Stat. 1985, ch. 110, pars. 2-615, 2-619), maintaining that he was not a proper defendant to the action because his certification of the petitions and submission of them to the board are purely ministerial and that it is not his duty to determine the validity of the petitions or questions submitted to the electorate. The board opposed the clerk's motion to be dismissed, citing the extensive involvement of the clerk in the proceedings under section 9-4 of the Act. (Ill. Rev. Stat. 1985, ch. 43, par. 169.) The clerk's motion was denied on October 6, 1986.

Meanwhile, on October 2, 1986, licensees filed an amended complaint, realleging counts I and II of the initial complaint and adding a third count. Count III also challenged the number and validity of signatures in the local option proposition submitted to the clerk, calculating their figures from the definition of "legal voter" contained in section 9-1 of the Act: "a person whose name appears on the poll list of the last general election of county or state officers." (Ill. Rev. Stat. 1985, ch. 43, par. 166.) The number of "legal voters" in the 34th precinct at the last general election, licensees contended, was 616, of which 154 valid signatures were needed to satisfy the Act. Licensees concluded that only 60 of the 252 petition signatures were valid. As in their initial complaint, licensees sought to enjoin the board and the clerk from submitting the proposition to the 34th precinct voters and requested that the petition be declared invalid.

On October 3, 1986, the intervention petition was filed (Ill. Rev. Stat. 1985, ch. 110, par. 2-408(a)), asserting that intervenor was a legal voter of the 34th precinct and the Act permits any legal voter in a precinct where an election will be held to appear and defend or oppose the validity of a local option petition. (Ill. Rev. Stat. 1985, ch. 43, par. 169.) Her petition to intervene was allowed.

Intervenor moved to strike and dismiss counts I through III of licensees' amended complaint. (Ill. Rev. Stat. 1985, ch. 110, par. 2-615.) As to count I, intervenor asserted: licensees' written revocations were untimely filed with the clerk on August 26, 1986, more than 20 days after the petition was filed; portions of count I alleging statutory violations in the collection of signatures were not sufficiently specific to satisfy the requirement of particularity; and there were enough valid signatures on the local option proposition to constitute 25% of the 34th precinct's legal voter population. As to count II, intervenor argued that the 34th precinct and the City of Chicago are distinct political subdivisions; therefore, placing the local option referendum on the ballot would not violate the Election Code. She contended that count III should be stricken because licensees improperly relied on the definition of "legal voter" set forth in the Act, instead of the definition contained in the Election Code. Compare Ill. Rev. Stat. 1985, ch. 43, par. 166 with Ill. Rev. Stat. 1985, ch. 46, par. 3-1.2.

The circuit court denied intervenor's motion to dismiss count III on October 9, 1986, and ruled that the October 1984 printed precinct register of the 34th precinct was the proper means to identify "legal voters" in the precinct. In another order, entered October 10, the court dismissed certain portions of count I of licensees' amended complaint. On October 17, the circuit court dismissed paragraph 9, count I, of licensees' amended complaint and found that "clerk" in section 9-1 of the Act (Ill. Rev. Stat. 1985, ch. 43, par. 166) meant the city clerk of Chicago. Judgment was entered for intervenor on ...


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