Legal & Legislative Notes by Robert A. Stuart General Counsel

ROBERT STUART

IS A PARK DISTRICT REQUIRED TO SECURE A LOCAL OR STATE LICENSE IN ORDER TO SELL AND DISPENSE ALCOHOLIC BEVERAGES UNDER THE PROVISIONS OF ARTICLE IV, SECTION 11 OF THE LIQUOR CONTROL ACT?

Questions have been raised by a number of park districts in Illinois as to whether or not a park district is required to secure a license from the local or state Liquor Control Commission in order to sell and dispense alcoholic beverages subject to the restrictions provided for in that Section of The Liquor Control Act pertaining to buildings operated in conjunction with golf courses.

In connection with this question, the following opinions have been rendered by your General Counsel:

"You have requested my opinion as to whether or not a Park District is required to secure a license or to pay a fee to the City in order to sell beer (or other alcoholic beverages) within an area properly designated by the Park District and subject to all the restrictions as they pertain to the serving of food, and as provided in The Liquor Control Act (Ill. Rev. Stats. 1971, Ch. 43, Sec. 94 et seq).

In my opinion a Park District organized and existing under the laws and statutes of the State of Illinois is not required to secure a liquor license from the City in order to sell beer (or other alcoholic beverages) within a properly designated park area and subject to all of the restrictions imposed by Article IV, Section 11 of The Liquor Control Act.

The licensing, regulation and prohibition of the traffic in intoxicating liquor is reposed in the police power of the State and not of the political subdivisions or municipalities thereof. Maywood-Proviso State Bank v. Oakbrook Terrace, 67 Ill. App. 2d 280, 286 (1966); Heidenreich v. Ronske, 26 Ill. 2d 360, 365, 187 N. E. 2d 261 (1962); Henson v. City of Chicago, 415 Ill. 564, 569, 114 N. E. 2d 778 (1953); Sager v. City of Silvas, 402 Ill. 262, 265, 83 N. E. 2d 683 (1943). The State may reserve the power within itself or delegate it to such municipalities and political subdivisions as the legislative body of the State may deem proper. Walgreen Co. v. Garland, 316 Ill. App. 635, 649 (1942). A municipality or political subdivision has only that power delegated to it and no other. The Liquor Control Act (Ill. Rev. Stats. 1971 c. 43, sec. 94 et seq.) contains the delegation of this power to municipalities and prescribes the limits beyond which a municipality may not act. Heindenreich v. Ronske, supra; Henson v. City of Chicago, supra. Any act or ordinance of a municipality beyond the legislative authorization of The Liquor Control Act is without legal force or validity. Maywood-Proviso State Bank of Oakbrook Terrace, supra.

The Liquor Control Act brings within its scope all persons who "shall manufacture, bottle, blend, sell, barter, transport, deliver, furnish or possess any alcoholic liquor for beverage purposes, except as specifically provided" in the Act (Ill. Rev. Stat. 1971 c. 43, sec. 96) and establishes a local licensing procedure in every city, so that the city council is given the power by general ordiance or resolution to determine the number, kind and classification of licenses, for sale of alcoholic liquor "not inconsistent with this (the Liquor Control) Act."

Chapter 43, Sec. 110 (Ill. Rev. Stats., 1971) provides as follows:

"In every city, village or incorporated town, the city council president and board of trustees, . . . shall have the power by general ordinance or resolution to determine the number, kind and classification of licenses, for sale of alcoholic liquor not inconsistent with this Act . . ." Article IV, Section 11 of The Liquor Control Act provides in part that:

". . . alcoholic liquors may be sold at retail in buildings of golf courses owned by municipalities or park districts, under the 'Park District Code' in connection with the operation of an established food serving facility during times when food is dispensed for consumption upon the premises, and such sales may be only (1) with food served to the customers, and (2) at a dining table and not across a bar." (Ill. Rev. Stat. 1971 c. 43, sec. 130)

Clearly any Park District attempting to sell alcoholic liquor at a golf course is subject to the above provision. The question therefore becomes: Is the above language of Section 11 an independent delegation of limited police power by the legislature to Park Districts?

The General Assembly has given Park Districts broad police powers under Article VIII, Section 8-1 (d) of the Park District Code to carry out the purposes for which they are established. Since Park Districts exercise broad powers over their own affairs without interference from municipalities and political subdivisions of the State, a logical delegation of power concerning alcoholic beverages in Park Districts would be to Park Districts rather than to city councils, thus preventing frustration of valid governmental objectives on the part of Park Districts by other governmental units, i.e. city councils. This logic appears to underlie Article IV, Section 11 of The Liquor Control Act.

Analysis of the language of the provision shows Section 11 to be a specific delegation of power. The wording "under the 'Park District Code'" is the key element. The words used in a statute should be given their plain and ordinary, (Ambassador East, Inc. v. City of Chicago, 399 Ill. 359, 364 (1948); Lincoln Nat'l Life Ins. Co. v. McCarthy, 10, Ill. 2d 489, 494, 140 N. E. 2d 627 (1957) or commonly accepted or popular, meaning unless such construction will defeat the manifest intention of the General Assembly. Courts will apply to words appearing in legislative enactments the common dictionary meaning or commonly accepted use of the words unless the words are otherwise defined by the General Assembly. Bowes v. City of Chicago, 3 Ill. 2d 175, 200-201 (1954). The Liquor Control Act does not define the term "under." Webster's Dictionary defines "under" as: subject to the bidding or authority of. Webster's Third International Dictionary, "under," 10a p. 2487; see also Bates v. Riverside Independent School Dist., 25 F. 192, 194. Although no Illinois cases interpret and define the term "under," various courts of other States have defined the preposition as: subject to; (Mason v. City of Albertville, 158 So. 2d 924, 927, 276 Ala. 68) in accordance with; (Ibid.) in subordination to; (In re Noble's Estate, 80 P. 2d 243, 245, 183 Okl. 148) by or through the authority of. (Bassett v. Mills, 34 S. W. 93, 94, 89 Tex. 162) Use of the court's definition and that of Webster's Dictionary causes the phrase "under the 'Park District Code'" to be construed as: "by authority of the Park District Code."

The doctrine of incorporation by reference creates the same effect as though the statute or provisions adopted

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had been incorporated bodily into the adopting statute. (People v. Lewis, 5. Ill. 2d 117, 122 (1955)) It is as if the General Assembly had copied verbatim the incorporated provisions into the incorporating statute. Since the Liquor Control Act deals solely with the delegation of the police power over traffic in intoxicating liquor and since the delegation of police power in the Park District Code is to the Park District itself, it is evident that the specific provision and phrase "under the 'Park District Code'" should be further construed to mean "by authority of the exercising agent of the police power delegated in the provisions of the Park District Code, i.e. the governing bodies of the Park District's themselves."

Challenge might be made to the incorporation by reference of the entire Park District Code on the basis that this creates a vague, indefinite and uncertain provision denying due process to the readers thereof. People ex rel. Schoon v. Carpentier, 118 N. E. 2d 315, 2 Ill. 2d 468 (1954); S. Bloom, Inc. v. Korshak, 52 Ill. 2d 56 (1972). However, this objection fails. Men of ordinary intelligence do not have to guess at the meaning of the statutory language and intent of the Park District Code and Liquor Control Act. The language, intent and meaning are clear and there is no difference of opinion which would cause lack of uniform application; thus, no denial of due process. Ibid. p. 475.

The determination of a specific delegation power to the Park Districts seemingly conflicts with the broad local control given the City Councils. However, the Illinois Supreme Court has recently stated:

"[C]ourts should, if reasonably possible to do so without violence to the spirit and language of an act, so interpret the statute, or the provision being construed, as to give it efficient operation and effect as a whole. An interpretation should, if possible, be avoided, under which the statute or provision being construed is defeated, or as otherwise expressed, nullified, destroyed, emasculated, repealed, explained away, or rendered insignificant, meaningless, inoperative, or nugatory." (Pliakos v. Liquor Control Com., 11 Illinois. 2d 456, 460 as quoted in S. Bloom, Inc. v. Korshak, supra p. 64.

Nowhere within the body of the Liquor Control Act is there a mandatory licensing requirement on all parties subject to the Act; thus room for exceptions to licensing exists. To impose a liquor license upon Park Districts complying with the strict requisites of Section 11 would render that statutory language inoperative. Where there are two statutory provisions, one of which is general and designed to apply to cases generally, and the other is particular and relates only to one subject, the particular provision must prevail and must be treated as an exception to the general provision. Bowes v. City of Chicago, supra p. 205; Board of Education v. City of West Chicago, 55 Ill. App. 2d 401 (1965). Therefore, in accordance with the doctrine that there cannot be at the same time within the same territory two distinct municipal corporations, exercising the same powers, jurisdiction, and privileges for the same purpose, (People ex rel. Greening v. Bartholl, 58 N. E. 2d 172, 388 Ill. 455 (1945) ; Village of Bensenville v. DuPage County, 30 Ill. App. 2d 324 (1961)) and in accordance with the foregoing statutory analysis, Article IV, Section 11 of The Liquor Control Act establishes an exception to the local control delegated to City Councils and delegates the necessary police power to Park Districts. City Councils attempting to act in this matter are acting inconsistent with Article IV, Section 1 of The Liquor Control Act which grants them their powers and are acting ultra vires.

From the foregoing, therefore, it must be concluded that park districts organized under The Park District Code are clearly delegated a limited police power under the provisions of Article IV, Section 11 of The Liquor Control Act. Without question, this delegation is an exception to the broad powers granted to City Councils and is entirely consistent with the terms of the Act."

"On January 15th I forwarded to you my opinion to the effect that a park district organized and existing under the laws and statutes of the State of Illinois is not required to secure a liquor license from the city in order to sell beer (or other alcoholic beverages) within a properly designated park area and subject to those restrictions imposed by Article IV, Section 11 of The Liquor Control Act. You have advised me that the further question has now been raised as to whether or not a park district must secure a license from the Illinois Liquor Control Commission.

I have again reviewed the provisions of The Liquor Control Act (Ill. Rev. Stats. 1971, Ch. 43, Sec. 94 et seq.) together with the Rules and Regulations adopted by the Illinois Liquor Control Commission pursuant to the provisions of Section 108(2) relative to the jurisdiction of the Commission and its licensing authority. Nothing contained in the Act or in the Rules and Regulations alters my opinion in any way, and it is my further opinion that the Illinois Liquor Control Commission is neither authorized, nor does it have jurisdiction, to issue a liquor license to park districts (or to municipalities) which are selling and dispensing alcoholic liquors under the provisions of Article IV, Section 11 of The Liquor Control Act. Section 11 provides in part that:

". . . alcoholic liquors may be sold at retail in buildings of golf courses owned by municipalities or park districts, under the 'Park District Code' in connection with the operation of an established food serving facility during times when food is dispensed for consumption upon the premises, and such sales may be made only (1) with food served to the customers, and (2) at a dining table and not across a bar." (Ill. Rev. Stat. 1971 c. 43, sec. 130)

Article II (Ill. Rev. Stats., Ch. 43, Sec. 96.1) of The Liquor Control Act sets forth the scope of the statute. That Article provides as follows:

"No person shall manufacture, bottle, blend, sell, barter, transport, deliver, furnish or possess any alcoholic liquor for beverage purposes, except as specifically provided in this Act, . . ."

As indicated above, Article IV, Section 11 specifically provides for and authorizes the sale of alcoholic liquors by municipalities and park districts in buildings of golf courses owned by municipalities or park districts in connection with the operation of an established food serving facility, and subject to the further limitations set forth in that section.

Article III (Ill. Rev. Stats. Ch. 43, Sec. 97.1) provides for the creation of an Illinois Liquor Control Commission consisting of three members appointed by the Governor with the advice and consent of the Senate. Chapter 43, Section 108 outlines the powers and duties of the Commission, none of which said powers and duties include the licensing of any municipality or park district selling alcoholic liquors under the provisions of Art. IV, Section 11. Article III, Section 13 of the Liquor Control Act provides as follows:

"Nothing contained in this Act shall, however, be construed to permit the State Commission to issue any license, other than manufacturer's, foreign importer's, importing distributor's and distributor's and non-beverage user's license for any premises in any prohibited territory, or to issue any license other than manufacturer's, foreign importer's, importing distributor's, distributor's, railroad's, airplane's or boat's license, or non-beverage user's license, unless the person applying for such license shall have obtained a local license for the same premises . . ."

Clearly, therefore, Article III, Section 13 in fact prohibits the Illinois Liquor Control Commission from issuing a liquor license to a park district unless a license has been obtained from the local commission. In view of the fact that no license from the local commission is required the necessity of securing a State license is precluded.

A further review of the requisites for application for a State license as set forth in Article VII (Ill. Rev. Stats. Ch. 43, Sec. 145) clearly establishes that it was never con-

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templated or intended by the General Assembly that a municipality or park district acting under the provisions of Article IV, Section 11 should be required to make an application to the State for license inasmuch as no question contained in the said application, nor requisite set forth in the Act, is applicable to such a subdivision of the state.

It must therefore be further concluded, in addition to the conclusions set forth in my opinion of January 15, 1974, that park districts organized under The Park District Code are clearly delegated a limited police power under the provisions of Article IV, Section 11 of the Liquor Control Act. Without question, this delegation is an exception to the powers reserved to the State under the provisions of the Liquor Control Act and is likewise entirely consistent with its provisions."

The foregoing opinions should not be interpreted to preclude the jurisdiction of the Illinois Liquor Control Commission with respect to the enforcement of The Liquor Control Act or its authority to investigate violations of the provisions of the Act.

REGIONAL TRANSPORTATION AUTHORITY ACT GRANTS EMINENT DOMAIN RIGHTS TO RTA

In the closing hours of the Third Special Session of the 78th General Assembly in 1973, a Regional Transportation Authority Act (S.B. 27) was passed, approved by the Governor on December 12, 1973 and became effective on that date as Public Act 78 (Ill. Rev. Stats., Ch. 111-2/3, Sees. 701.01-705.05). Senate Bill 27 is a 57 page document which provides for the establishment of a regional transportation authority for the Northeastern Illinois area to provide for public transportation services, facilities and funding. Some concern has been voiced by various member districts of the Illinois Association of Park Districts with respect to the eminent domain provisions which will permit the Authority to take and acquire possession by eminent domain of public properties owned by any local governmental unit or subdivision of the state including cities, counties, townships and special districts including school districts, sanitary districts, park districts, forest preserve districts and conservation districts.

It must be borne in mind that this act applies only to the area described as Cook, DuPage, Kane, Lake, McHenry and Will counties and is subject to a special referendum election prior to its having any effect whatsoever. Article I, Section 1.05 provides as follows:

"A special referendum election shall be held at which there shall be submitted to the electors in the metropolitan region the proposition to approve creation of the Authority, which proposition shall be in substantially the following form:

Shall a Regional Transportation Authority be created for Cook, DuPage, Kane, Lake, McHenry and Will Counties, Illinois?

The special referendum election shall be conducted by the County Clerks and Boards of Election Commissioners in the metropolitan region pursuant to the provisions of 'The Election Code' . . . The special referendum election shall be held at the same time and with the same judges, polling places and precincts as for the regular primary elections to be held on March 19, 1974 in the metropolitan region . . ."

If approved by the voters of the area, Article III, Section 3.01 provides for the creation of a Board of Directors which shall be the governing body of the Authority and shall consist of nine directors, four of which will be appointed by the Mayor of the City of Chicago with the advice and consent of the City Council, two be appointed by the members of the Cook County Board elected from that part of the county lying outside of Chicago, two appointed by the Chairmen of the county boards of the counties in the metropolitan region outside of Cook County with the concurrence of not less than a majority of the chairmen from those counties and from nominees by the chairmen, and a chairman to be appointed by the other eight directors with the concurrence of three-fourths of the said eight members. It further provides that the chairman shall be a person of proven skill and experience in public transportation or management.

Article II, Section 2.10 provides that "the Authority shall take all feasible and prudent steps to minimize environmental disruption and pollution arising from its activities . . ." Article II, Section 2.12 provides "the Authority shall cooperate with the various public agencies charged with the responsibility for long-range or comprehensive planning for the metropolitan region. The Authority shall, prior to the adoption of any five-year Program, as provided in Paragraph (b) of Section 2.01 of this Act, submit its proposals to such agencies for review and comment . . ." The questionable provisions relating to eminent domain and granting to the Authority the right to take and acquire possession by eminent domain of any property or interest in property whether or not the property is public property or is devoted to public use reads as follows:

"Section 2.13. Eminent Domain.

(a) The Authority may take and acquire possession by eminent domain of any property or interest in property which the Authority is authorized to acquire under this Act. The power of eminent domain may be exercised by ordinance of the Authority, and shall extend to all types of interests in property, both real and personal (including without limitation easements for access purposes to and rights of concurrent usuage of existing or planned public transportation facilities), whether or not the property is public property or is devoted to public use and whether or not the property is owned or held by a public transportation agency, except as specifically limited by this Act.

(b) The Authority shall exercise the power of eminent domain granted in this Section in the manner provided in 'An Act to provide for the exercise of the right of eminent domain', approved April 10, 1872, as now or hereafter amended, except that the Authority may not exercise the authority provided in Sections 2.1 through 2.10 of that Act providing for immediate possession in such proceedings, and except that those provisions of Section 2 of that Act requiring prior approval of the Illinois Commerce Commission in certain instances shall apply to eminent domain proceedings by the Authority only as to any taking or damaging by the Authority of any real property of a railroad not used for public transportation or of any real property of other public utilities.

(c) The Authority may exercise the right of eminent domain to acquire public property only upon the concurrence of 2/3 of the then Directors. The- right of eminent domain may be exercised over property used for public park purposes, for State Forest purposes or for forest preserve purposes only upon a written finding adopted by concurrence of 2/3 of the then Directors, after public hearing and a written study done for the Authority, that such taking is necessary to accomplish the purposes of this Act, that no feasible alternatives to such taking exist, and that the advantages to the public from such taking exceed the disadvantages to the public of doing so. No property designated as a nature preserve pursuant to 'An Act in relation to the acquisition, control, maintenance, improvement and protection of State parks and nature preserves', approved June 27, 1925, as now or hereafter amended, may be acquired in eminent domain by the Authority."

A close analysis of these eminent domain sections reveals that while the Authority is granted eminent domain rights to take any public property by nothing more than a 2/3 vote of the nine Directors park districts and forest preserve districts have the further safeguards against such taking as those which are established under the Federal Transportation Act. It should be borne in mind that no federal funds can be used in any such project for transportation or highway purposes unless those protective guidelines relative to public park property and open space

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are complied with. It should also be noted that in connection with any contemplated taking of park lands or properties, a public hearing must be held in addition to the feasibility study which must be prepared and any park district or forest preserve district is granted the full opportunity of a hearing on its objections prior to any eminent domain proceedings being instituted by the Authority. In this case, no "quicktake" privilege is granted to the Authority.

Two amendments to the Regional Transportation Authority Act have been introduced in the House of Representatives (H.B. 2122 and H.B. 2123) which amendments contain certain additional safeguards to any proposed taking of park properties under the provisions of the Act.

The Regional Transportation Authority Act for the first time grants authority to one governmental body to condemn under eminent domain proceedings the property owned by another local governmental body and devoted to a different public use. While parks and forest preserves are presently granted special protective measures which eliminate the possibility of a hastily proposed plan, it would appear in the best interests of the people of the State of Illinois to exclude from the application of the eminent domain authority of the RTA, property used as public parks and forest preserves in the same manner as nature preserves have been excluded under the Act in Section 2.13 (c).

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