Brief for the Appellee.

Commonwealth v. Stodder, 2 Cush. 562; City of Burlington v. Insurance Co. 31 Iowa 103; Home Insurance Co. v. Augusta, 50 Ga. 537; St. Paul v. Traeger, 25 Minn. 251; Commonwealth v. Markham, 7 Bush, 486; State v. Hoboken, 33 N. J. L. 281; Ex parte Frank, 52 Cal. 606.

Mr. F. A. HOFFMAN, Jr., and Mr. F. S. WINSTON, for the appellee:

The power to prohibit the selling of any intoxicating liquors is broad enough to authorize the prohibition of such sales in quantities greater than one gallon at a time. But assuming that no power exists to prohibit such traffic, it by no means follows that it may not be licensed. The right to license any given occupation, of itself carries the right to determine the amount to be paid for such license. Howland v. Chicago, 108 Ill. 500; Braun v. Chicago, 110 id. 186; Lyman v. Chicago, id. 000; Distilling Co. v. Chicago, 112 id. 19.

The claim that the city can not license or prohibit the sales of liquor in greater quantities than one gallon, because the Dram-shop act refers only to retail sales, and therefore the ordinance is too broad, is answered by Gunnarssohn v. Sterling, 92 Ill. 569.

It is also contended that the license demanded is so large as to amount to a tax. In answer to this objection, reference is made to the following cases: People v. Thurber, 13 Ill. 554; Firemen's Association v. Lounsbury, 21 id. 511; Insurance Co, v. Peoria, 29 id. 180; East St. Louis v. Wehrung, 46 id. 392; Ducat v. Chicago, 48 id. 172; Packing Co. v. Chicago, 88 id. 221; Walker v. Springfield, 94 id. 364; Lovingston v. Trustees, 99 id. 564; East St. Louis v. Trustees, 102 id. 489; Ferry Co. v. East St. Louis, id. 560; Cole v. Hall, 103 id. 30; Howland v. Chicago, 108 id. 500; Braun v. Chicago, 110 id. 186; Distilling Co. v. Chicago, 112 id. 19.

Opinion of the Court.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court: This appeal brings before us for review a judgment of the Criminal Court of Cook county, convicting appellant of selling spirituous and vinous liquors within the city of Chicago, in quantities of one gallon or more at a time, without having obtained a license from the city authorizing such sales. There is no question of fact presented, it being conceded that appellant made the alleged sales without the requisite license, and the only question of law to be passed upon is the validity of the following ordinances, namely:

"An ordinance concerning the licensing of wholesale liquor dealers:

"Sec. 1. No person, firm or corporation shall sell or offer for sale any spirituous or vinous liquors in quantities of one gallon or more at a time, within the city of Chicago, without first having obtained a license therefor from the city of Chicago, under a penalty of not less than $50 nor more than $200 dollars for each offence. But no distiller who has taken out a license as such, and who sells only distilled spirits of his own production at the place of manufacture, shall be required to pay the license herein prescribed, on account of such sales.

"Sec. 2. All such licenses shall be issued in accordance with the general ordinances of the city concerning licenses, and for every such license there shall be charged at the rate of $250 per annum."

Other ordinances of the city were in force at the time these were adopted, providing for the licensing of dram-shops upon the payment of $500, and the licensing of brewers and distillers upon the payment of a like sum.

Appellant contends that the ordinances recited are void, for two reasons,-first, because the city has no power, under its charter, to impose a license fee upon wholesale dealers in intoxicating liquors; second, because the license provided for

Opinion of the Court.

is simply imposed for revenue purposes, and not for purposes of regulation. The questions thus presented will be considered in the order stated.

First-The city of Chicago is incorporated under the general law for the incorporation of cities, villages and towns. (Rev. Stat. 1874, chap. 24, p. 209.) Article 5 of that chapter confers numerous powers upon the city council in cities, and the president and board of trustees in villages, among which is that contained in clause 46, in section 1, which is in these words: "To license, regulate and prohibit the selling or giving away of any intoxicating, malt, vinous, mixed or fermented liquors, the license not to extend beyond the municipal year in which it shall be granted, and to determine the amount to be paid for such license: Provided, that the city council in cities, or president and board of trustees in villages, may grant permits to druggists for the sale of liquors for medicinal, mechanical, sacramental and chemical purposes, only, subject to forfeiture, and under such restrictions and regulations as may be provided by ordinance: Provided, further, that in granting licenses, such corporate authorities shall comply with whatever general law of the State may be in force relative to the granting of licenses." Looking at this language alone, it would seem to be as broad and comprehensive as could have been employed to convey the idea of an unlimited and unrestricted power to license, regulate and prohibit, except as affected by the provisos,-for the use of only general language, plainly, to every apprehension, negatives the idea of restriction or limitation. This is, in effect, conceded by counsel for appellant in their very ingeniuous and able argument; but they contend that the clause should be read as in pari materia with the original "Dram-shop act," (Rev. Stat. 1874, chap. 43, p. 438,) and the amendatory Dram-shop act, approved June 15, 1883, (Pub. Laws of 1883, p. 92,) and in the light of the past legislation of the State upon the question, generally, and the decisions thereon of this court; and that, being so read,

Opinion of the Court.

it will be evident that the power to license, regulate and prohibit is intended only to apply to sales in a less quantity than one gallon.

The act in relation to "Cities and Villages" was approved April 10, 1872, and that in relation to dram-shops was approved March 30, 1874, but both acts were incorporated, as they now read, in the revision of 1874; and so it is to be assumed that the language of each act was then in the mind of the General Assembly, and, therefore, that any substantial diversity in the language of the two acts, in respect to the licensing, regulating and prohibiting sales of liquors, etc., is not merely accidental, but is intentional, and because different ideas, in that respect, are intended to be conveyed in the different acts. Section 1 of the Dram-shop act, instead of using general language, as is used in the 46th clause of section 1, article 5, of the act in relation to cities and villages, enacts, "that a dram-shop is a place where spirituous or vinous or malt liquors are retailed by a less quantity than one gallon." Section 3 empowers the county board to grant licenses to keep dram-shops, but contains this proviso: "Such board shall not have power to issue any license to keep any dramshop in any incorporated city, town or village, or within two miles of the same, in which the corporate authorities have authority to license, regulate, restrain or prohibit, "-not "dram-shops," as certainly would have been said if that only had been intended, but the "sale of liquor," and this language is repeated in section 2 of the amendatory Dram-shop act. Our constitution confers power upon the General Assembly to "tax * liquor dealers," (sec. 1, art. 9,) and in Timm v. Harrison, 109 Ill. 601, we held that the term "liquor dealers," as thus used, was generic, and that it was competent, under it, for the General Assembly to classify the different kinds of liquor dealers, and impose differential taxes upon such classes; and so, upon like principle, here, the words, "to license, regulate and prohibit the selling or giving away

Opinion of the Court.

of any intoxicating, malt, vinous, mixed or fermented liquors," would seem to be generic, and authorize the classification of sales and gifts, by quantity or purpose, or both; and the imposing of differential charges for licensing, as classified, subject to the qualification expressed in the Dram-shop act and the amendatory Dram-shop act. The power to license and regulate sales of liquors,-the genus, of course includes the power to license and regulate "dram-shops, "-one of the species; and hence the question is, not whether cities have power, by virtue of the clause under consideration, to license and regulate "dram-shops, "—that is beyond question,—but whether they have the further power to exact a license for selling liquors in a larger quantity than one gallon, classifying such license, as contradistinguished from a "dram-shop license, as a "license of wholesale liquor dealers;" and in this view, the proviso in the clause of the city and village charter under consideration, that "in granting licenses, such corporate authorities shall comply with whatever general law of the State may be in force relative to the granting of licenses," and the provision in section 1 of the amendatory Dram-shop act of June 15, 1883, that "it shall not be lawful for the corporate authorities of any city, town or village grant a license for the keeping of a dram-shop, except upon the payment, in advance, into the treasury of the city, town or village granting such license, such sum as may be determined by the respective authorities of such city, town or vil lage, not less than at the rate of $500 per annum," etc., have no tendency to prove that the authority of the city or village is exhausted when the quantity of one gallon is reached. This proviso, in other words, does not affect the question of the extent of the particular power to which it relates. It simply affects the manner and condition of its exercise, and was manifestly designed only to produce uniformity as to the mode of granting licenses, and the terms upon which they shall be granted, to the extent that the general law assumes to estab

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