concurring in part and dissenting in part:
I concur with my colleagues that the trial court was correct in finding the existence of an “actual controversy” within the meaning of section 57.1 of the Illinois Civil Practice Act, but I respectfully dissent from their conclusion that the local option section of the Liquor Control Act repealed by implication section II of the first amendment to the charter of Northwestern University.
As to the first issue, the trial court specifically found that:
“* * * in light of the forfeiture provisions of Section 9 of the Charter of the Northwestern University that the University would be prejudiced by having to proceed at their peril and in their attempt to get a license and if such occurred without having a prior resolution of it * *
# # ° I am finding that they do not have to apply for a license at their peril without having this preliminary matter resolved.”
There is a policy of liberal justiciability underlying section 57.1 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 57.1) which was clearly articulated by the court in Roberts v. Roberts (1st Dist. 1967), 90 Ill. App. 2d 184, 234 N.E.2d 372, wherein it stated:
“* ° * While the complaint on its face does not appear to plead an actual controversy, the Declaratory Judgment Act is to be liberally construed and not restricted by technicalities. Central Ice Cream Co. v. Universal Leaseway System, 20 Ill. App. 2d 145, 155 N.E.2d 324 (1959). We believe that there is an actual controversy in the instant case. There are adverse legal interests. Although no wrong has yet been committed, such is not necessary to obtain declaratory relief. The mere existence of a claim, assertion or challenge to plaintiffs legal interests, in which the ripening seeds of litigation may be seen and which cast doubt, insecurity, and uncertainty upon plaintiffs rights or status, damage plaintiffs pecuniary or material interests and establishes a condition of justiciability. [Citation.]" " ".” (Emphasis added.) 90 Ill. App. 2d 184, 187.
In a very recent decision, Howlett v. Scott (1977), 69 Ill. 2d 135, 370 N.E.2d 1036, our supreme court further explained the meaning of actual controversy in the context of declaratory judgment actions when it stated:
“We have recently discussed the requirement of an actual controversy in Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371. There we said:
‘ “Actual” in this context does not mean that a wrong must have been committed and injury inflicted. Rather, it requires a showing that the underlying facts and issues of the case are not moot or premature, so as to require the court to pass judgment on mere abstract propositions of law, render an advisory opinion, or give legal advice as to future events. [Citations.] The case must, therefore, present a concrete dispute admitting of an immediate and definitive determination of the parties’ rights, the resolution of which will aid in the termination of the controversy or some part thereof. [Citations.]’ (66 Ill. 2d 371, 375.)” (69 Ill. 2d 135, 141-42.)
In addition, the granting of declaratory relief is discretionary with the court. (Antioch Community High School Teachers’ Association v. Board of Education (2d Dist. 1971), 2 Ill. App. 3d 504, 507, 275 N.E.2d 683.) The fact that Northwestern has not yet applied for and been granted a liquor license does not preclude it from seeking declaratory relief. The mere act of applying for such a license requires the University to act at its peril. Hence, there is a sufficient amount of uncertainty presently cast upon the University’s status and legal rights to constitute an actual controversy.
A case factually similar to the instant case and illustrative of Northwestern’s position is Crest Commercial Inc. v. Union-Hall, Inc. (2d Dist. 1968), 104 Ill. App. 2d 110, 243 N.E.2d 652. In that case the court was called upon to decide whether a restrictive covenant extended to a certain parcel of land prior to the execution of a lease. The court found that an actual controversy existed, despite the fact that the lease had not yet been executed. In so holding the court stated:
“ ‘It is not essential to a proceeding for declaratory judgment that there be a violation of a right, a breach of duty, or a wrong committed by one party against the other. The mere existence of a cloud, the denial of a right, the assertion of an unfounded claim, the existence of conflicting claims, or the uncertainty or insecurity occasioned by new events may constitute the operative facts entitling a party to declaratory relief.’ ” 104 Ill. App. 2d 110, 115.
An examination of the other authorities cited by the defendant-appellants also fail to disclose any basis for requiring the plaintiffappellee, Northwestern University, to place its charter in jeopardy in order to obtain a declaration of whether it may lawfully apply for a liquor license.
However, regarding the only substantive issue in this case, I disagree with the majority’s affirmance of the trial court’s finding that a general law, the local option section of the Illinois Liquor Control Act, impliedly repealed a special act, namely, the official charter of Northwestern University.
The local option section of the Illinois Liquor Control Act is general in nature and applies to every city, village and unincorporated town throughout the State of Illinois. This section grants these local governments the power to determine by ordinance or resolution the number, kind and classification of liquor licenses as well as the amount of local license fees. However, the special act involved in this case constitutes the charter granted to Northwestern in 1855 which has consistently been held to be a valid binding contract between the University and the State of Illinois. (See People ex rel. Cook County Collector v. Northwestern University (1972), 51 Ill. 2d 131, 281 N.E.2d 334; In re Northwestern University (1903), 206 Ill. 64, 69 N.E. 75; Northwestern University v. Hanberg (1908), 237 Ill. 185, 86 N.E. 734.) In the past, Northwestern has vigorously opposed any attempt made by outside parties to interfere in any manner with its charter, and in each instance, the validity of the charter provisions have been recognized and carefully protected by the courts. Northwestern v. Hanberg; In re Northwestern University.
The trial court in the instant case was also very concerned by what appeared - to be the first attempt by Northwestern to abrogate the provisions of its own charter, and the court so stated:
«* * ”1 must admit also that I an somewhat disturbed by the persistence of the University in seeking to have this Charter provision set aside.
It is remarkable to me that a university of the magnitude and stature of Northwestern, would seek to have their Charter tampered with or ruled upon in any way which may affect their rights.” * *
I am also somewhat disturbed because of the religious nature of the University, because of its longstanding relation with various denominations, because of its support of various religious organizations, and for many years since its very inception.”
Moreover, I do not find the doctrine of repeal by implication to be applicable to the instant case. As our Supreme Court stated in United States v. Borden Co. (1939), 308 U.S. 188, 198-99, 84 L. Ed. 181, 190-91, 60 S. Ct. 182:
“It is a cardinal principle of construction that repeals by implication are not favored. When there are two acts upon the same subject, the rule is to give effect to both if possible. United States v. Tynen, 11 Wall. 88, 92; Hendersons Tobacco, 11 Wall. 652, 657; General Motors Acceptance Corp. v. United States, 286 U.S. 49, 61, 62. The intention of the legislature to repeal ‘must be clear and manifest.’ Red Rock v. Henry, 106 U.S. 596, 601, 602. It is not sufficient, as was said by Mr. Justice Story in Wood v. United States, 16 Pet 342, 362, 363, ‘to establish that subsequent laws cover some or even all of the cases provided for by [the prior act]; for they may be merely affirmative, or cumulative, or auxiliary.’ There must be ‘a positive repugnancy between the provisions of the new law, and those of the old; and even then the old law is repealed by implication only pro tanto to the extent of the repugnancy.’ See also Posadas v. National City Bank, 296 U.S. 497, 504.”
The court in City of Geneseo v. Illinois Northern Utilities Co. (1941), 378 Ill. 506, 529, 39 N.E.2d 26, 37, further expounded upon this by stating:
“In determining whether one statute is repugnant to another the court should consider its several parts in connection with correlated sections in pari materia. [Citation.] The repeal by implication of one act by a later act is not effected by mere conflicts or inconsistencies between them, but only where the carrying out of the later act prevents the enforcement of any part of the former. To the extent they are in conflict the first act is repealed, but the parts of the first act not affected remain in full force and effect.” (Emphasis added.)
A necessary corollary to this principle is the presumption that a prior special act is intended to remain in force and effect as an exception to a later repugnant general act. Ralston Purina Co. v. Killam (1973), 10 Ill. App. 3d 397, 402-03, 293 N.E.2d 750.
A clear illustration of this principle is found in Rosehill Cemetery v. Lueder (1950), 406 Ill. 458, 94 N.E.2d 342. This case is also cited by the majority for the general rule of implied repeal, and specifically that implied repeal results where some enactment cannot be harmonized with the terms and necessary effect of an earlier act, and the last expression of the law prevails since it cannot be presupposed that the lawmaking power intends to contradict and enforce laws which are contradictions. Rosehill however, is also demonstrative of a situation factually analogous to the instant case where our supreme court refused to apply the doctrine of repeal by implication. In Rosehill, it was contended that even though the cemetery was incorporated under a special legislative act, that the later Cemetery Care Act repealed by implication the provisions of the cemetery’s charter with respect to the control and investment of its perpetual care funds. The court rejected this contention wherein it stated:
“Rosehill Cemetery Company has by its charter been given rights which have been recognized by this court on many occasions. Its charter has been referred to as a contract in [citations]. And it has also been held that its rights were not changed by the adoption of the constitution of 1870. [Citation.]
# O #
The General Assembly must have been cognizant of the powers of appellant and other cemeteries created by special acts of the legislature, and if it was its intention to limit the powers of the Rosehill Cemetery Company, or to repeal in part the provisions of the act of its incorporation, some reference would have been made to same, or other action taken," " ".” 406 Ill. 458, 471.
In addition, our supreme court has held that the doctrine of repeal by implication is a mere canon of construction which “should never be followed to the extent of defeating or overriding the definite intent of the legislature.” (People ex rel. Dickey v. Southern Ry. Co. (1959), 17 Ill. 2d 550, 554, 162 N.E.2d 417, 420.) Certainly, the legislative grant of power to local entities to regulate the sale of liquor does not manifest a clear legislative intent to remove the specific restraint on liquor sales on campus which was imposed upon Northwestern by the special legislation incorporating it as a tax exempt institution. Taking into account the longstanding judicial history of concern which has prevented any encroachment upon Northwestern’s charter, it is neither logical nor conceivable that the General Assembly would repeal this provision in so vague a manner.
The majority further places great reliance upon Dingman v. People (1869), 51 Ill. 277, for the invocation of the doctrine of repeal by, implication to the instant case. However, this case is clearly distinguishable. In Dingman, the court found that a liquor license could be issued within a one-mile buffer zone set up in the University of Chicago’s charter, since a later charter to the City of Chicago gave the City the power to license within its limits. Hence, in that case, a later special act, the City’s charter impliedly repealed a prior special act, a provision of the University of Chicago’s charter. Therefore, if the instant case involved a special legislative grant to the City of Evanston, then Dingman would be authority for finding that the corporate charter of Northwestern University had been repealed on the basis of an irreconcilable inconsistency. Under the instant facts, this decision is inapposite.
There are many ramifications and consequences flowing from the initial repeal of the liquor prohibition and subsequent sale of liquor by Northwestern on campus, involving major considerations such as taxation and liability problems. While I believe it proper for Northwestern to desire a change or modification of its charter in this regard, I feel that matters of such importance should be decided directly and forthrightly by the legislature and not by the courts through utilization of the doctrine of implied statutory repeal.
For the foregoing reasons, I would reverse the decision of the trial court and would find that section II of the first amendment of Northwestern’s charter has not been repealed by implication.