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04/20/89 Al Curtis Ross, D/B/A Ross v. Walter S. Kozubowski

April 20, 1989

AL CURTIS ROSS, D/B/A ROSS LIQUORS, PLAINTIFF-APPELLANT

v.

WALTER S. KOZUBOWSKI, CITY CLERK OF THE CITY OF CHICAGO, ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

538 N.E.2d 623, 182 Ill. App. 3d 687, 131 Ill. Dec. 248 1989.IL.563

Appeal from the Circuit Court of Cook County; the Hon. Eugene L. Wachowski, Judge, presiding.

APPELLATE Judges:

JUSTICE McMORROW delivered the opinion of the court. LINN and JOHNSON, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW

Plaintiff, Al Curtis Ross, d/b/a Ross Liquors, appeals from the orders of the trial court dismissing his "petition to void [a] local referendum" and denying his motion for leave to file an amended petition. We affirm.

Plaintiff is the owner and proprietor of Ross Liquors, a retail liquor business located in the 36th precinct of the 5th ward in Chicago. It is undisputed that in December 1986 and January 1987, defendants Geraldine Harris, Albert Welles, Ethel Welles and Charles Taylor circulated copies of a petition within the 36th precinct requesting to have placed on the ballot of the April 7, 1987, election the following local liquor option proposition:

"Shall the sale at retail of alcoholic liquor be prohibited in this 36th Precinct of the 5th Ward of the City of Chicago?"

On January 7, 1987, defendant, Walter S. Kozubowski (the city clerk) certified to the defendant board of election commissioners (the board) that a petition consisting of 19 sheets purporting to be signed by at least 25% of the legal voters of the 36th precinct had been filed with his office on that date requesting that the above-quoted proposition be submitted to the voters of the 36th precinct in the April 7 election. Notice of the election was given by publication. According to the statement of official results, the proposition was passed by a 59% majority of the voters who voted in the election.

On May 7, 1987, plaintiff filed his four-count petition to void the referendum (the complaint). In counts I and II, respectively, plaintiff alleged that the liquor option petition contained an incorrect spelling of his name and misrepresented to the voters that there were two liquor licensees in the precinct when, in fact, he was the only such licensee. Count III alleged fraud and electioneering in favor of the proposition by defendant Geraldine Harris, who worked as an election Judge in the 36th precinct polling place on the day of the election. In count IV, plaintiff alleged that due process required that he receive actual notice of the election and that section 9-5 of the Liquor Control Act of 1934 (the Act) (Ill. Rev. Stat. 1985, ch. 43, par. 170), providing for notice by publication only, is unconstitutional. In each count of the complaint, plaintiff requested that the liquor option election be declared null and void. He also sought a temporary restraining order and a temporary and permanent injunction enjoining enforcement of the election results.

Following a hearing on May 18, 1987, the trial court granted defendants' motion to dismiss. The court found (1) that counts I and II were not filed within the time prescribed by the Act (Ill. Rev. Stat. 1985, ch. 43, par. 169); (2) that, irrespective of the court's findings with respect to the timeliness of counts I and II, the liquor licensee information contained in the petition was in substantial compliance with the law; (3) that, as a matter of law, the allegations of count III were too general to state a cause of action to set aside the election results; (4) that plaintiff lacked standing to contest the liquor option election; and (5) that plaintiff was not entitled to actual notice of the election. The trial court granted plaintiff leave to file a motion to amend the complaint to incorporate section 23-24 of the Election Code (Ill. Rev. Stat. 1985, ch. 46, par. 23-24), but denied him leave to add electors of the 36th precinct as additional petitioners and dismissed the City of Chicago and the city clerk as defendants.

Following a hearing on June 3, 1987, the trial court denied plaintiff's motion for reconsideration. The court entered an order upholding the order of May 18 and denied plaintiff's motion to amend his complaint on the ground that it lacked jurisdiction to permit the filing of an amendment after the expiration of the statutory time period. This appeal followed.

Opinion

We first note that although the issue was raised in his notice of appeal, plaintiff makes no argument in his brief as to the propriety of the dismissal of counts I and II of his complaint. As noted above, the trial court dismissed those counts on the dual grounds that the petition for submission of the liquor option proposition was in substantial compliance with the law and that, in any event, those counts ...


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