delivered the opinion of the Court:
The objection that execution was awarded against the village for costs, has been obviated by an amendment to the record in the trial court, a transcript of which, on leave given for that purpose, was filed in the Appellate Court, which shows that part of the original judgment that awarded execution for costs was stricken out. There is now no error in the record in that respect.
Although this action is to recover penalties for the violation of a village ordinance, it is, in form, a civil action. It is apprehended the finding of facts by the Appellate Court in such a case is conclusive upon this court. It is for that reason the-point made, the verdict is against the evidence, will not be considered in this court. Whether defendant was guilty or not, as charged, under the ordinance in evidence, was purely a question of fact, and concerning which the testimony was conflicting. The judgment of the Appellate Court, in respect to that question of fact, will be regarded as conclusive.
No objection seems to have been taken to the admission in evidence of what is called a “permit,” issued to defendant under the second section of the ordinance “concerning licensing the sales of liquors. ” Having been issued by the village authorities, the village will hardly be permitted to insist it was not a sufficient warrant for the action of defendant under it. If the State were prosecuting defendant for illegal sales of intoxicating liquors, a very different question would be presented. A municipal corporation will not be allowed to license an act to be done, and then collect a penalty for the doing of it as for an illegal act. Volenti non Jit injuria. The case of Martel v. City of East St. Louis, 94 Ill. 67, is an authority in point. Whether defendant kept such a record as the ordinancé requires should be done, was made a question in the trial court. It is seen the jury, by their verdict, must have acquitted defendant of all bad faith, and as that finding has been concurred in by the only tribunal authorized by law to reinvestigate such matters, it will be understood, for the purposes of this decision, his sales were made in good faith, and not as a mere device to avoid the provisions of the ordinance that forbid the sales of intoxicating liquors.
Objections are taken to instructions numbered two, three and seven, of the series given for defendant. The second instruction is not open to the criticism made upon it. So far as it assumes to state the law applicable to the facts of the - o case, it is done with sufficient accuracy. Whether the “bitters” sold by defendant contained intoxicating liquors was fairly submitted by the third instruction as a question of fact, —at least it contained nothing calculated to mislead the jury on the real issues involved. The seventh instruction is more open to criticism than any of the series; but when it is considered in the light of the evidence, whether it was entirely accurate or not, it is by no means' clear it was hurtful to plaintiff, and especially in view of the fact the jury were instructed fully, at the instance of plaintiff, that the “permit” in evidence in no event would be any justification for any sales of liquors made by defendant after its revocation and notice to him.
No error of law appearing in the record of sufficient importance to arrant a reversal of the judgment of the Appellate Court, it must be affirmed.
Judgment affirmed.