City of Chicago v. Murphy

Decision Date10 October 1924
Docket NumberNo. 16022.,16022.
Citation313 Ill. 98,144 N.E. 802
PartiesCITY OF CHICAGO v. MURPHY.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Patrick Murphy was found guilt of violating a licensing ordinance, and he appeals.

Affirmed.

Appeal from Municipal Court of Chicago; Joel Fitch, Judge.

Thomas D. Nash and Michael J. Ahern, both of Chicago, for appellant.

Francis F. Busch, Corporation Counsel, Albert H. Veeder, Samuel E. Pincus, and Eliot H. Evans, all of Chicago (Francis J. Vurpillat, of Chicago, of counsel), for appellee.

STONE, J.

The question involved in this case is the validity of an ordinance of the city of Chicago known as an ordinance relating to retail beverage dealers. The first section defines retail heverage dealers to include any person, firm, or corporation selling, offering for sale, or keeping with the intention of selling at retail, either in bottles or other containers, for consumption on the premises, ‘any malted, cereal or vinous nonintoxicating beverages as defined by law, or any soft drinks, carbonated beverages, fruit juices, water, malk, buttermilk, chocolate, tea, bouillion or other beverages.’ The second section of the ordinance provides that it shall be necessary to first obtain a license for each room, stand, place or inclosure, or suite of rooms or inclosures, before engaging in the business of retail beverage dealer. The third section fixes the fees and divides retail beverage dealers into two classes. Class A includes those handling any and all of the beverages named, including ‘malted, cereal or vinous non-intoxicating beverages as defined by law.’ The annual fee for this class of dealers is fixed at $100. Class B includes beverage dealers dealing in the beverages mentioned in the first section of the ordinance, but not including ‘malted, cereal or vinous nonintoxicating beverages as defined by law.’ The fee for this class of dealers is fixed at $5 per year, with certain specified increase therein for increase of seating capacity. This section also provides that in case an ice cream parlor or coffee house or ordinary is conducted in the same establishment mentioned in either class A or B, the owner thereof is required to take out but one license, which shall be that which requires the payment of the highest license fee under any one of the three license ordinances. The fourth section specifies the method of application for a license. It requires that the dealer answer certain questions concerning the length of time of residence in the city, place of previous employment, whether he is married or single, whether he has ever been convicted of a felony or misdemeanor or ever summoned into court under criminal proceeding, which application shall be sworn to. After the filing thereof the same is to be referred to the superintendent of police for investigation. The fifth section provides that any individual licensee or corporation who shall permit the violation of the city ordinances within the licensed establishment shall for the first offense have his license suspended for a period of 30 days; for a second offense a suspension of 60 days; and upon a third violation the license shall be revoked. The sixth section provides a find for violating the provisions of the ordinance.

It is evident from the language of the ordinance that it is a regulatory rather than a merely revenue measure. The appellant was summoned to appear under charge of a violation of the ordinance, and filed his answer admitting that he is a dealer in all of the different beverages which are detailed in the first section of the ordinance, but setting up that the ordinance is invalid. The appellee moved to strike the answer, which motion was allowed by the court. As appellant elected to stand by his answer, he was found guilty, and a fine of $100 was assessed against him. The cause comes here on a certificate of the trial judge that the validity of an ordinance is involved.

The question in the case is whether power rests in the city council to pass this ordinance. Section 1 of article 5 of the Cities and Villages Act (Smith's Stat. 1923, p. 222 [313 Ill. 101]et seq.) defines the powers of a city council. That section contains 100 paragraphs. The fourth paragraph gives to city councils the power ‘to fix the amount, terms and manner of issuing and revoking licenses.’ The forty-sixth paragraph, so far as involved here, is as follows:

‘To license, regulate and prohibit the selling or giving away of any intoxicating, malt, vinous, mixed or fermented liquor, 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.’

Appellant contends that this section applies only to intoxicating beverages while the ordinance applies to nonintoxicating beverages, and that the section of the statute, therefore, does not authorize the ordinance.

[1][2][3] Cities may exercise only such powers as are expressly delegated to them by the Legislature. The Legislature is vested with all powers not taken from it by the state or federal Constitution. Many of its powers may be delegated by it to the cities created by its act. Cities are creatures of the Legislature and derive their existence therefrom. They have no inherent powers. All powers of cities are derived from acts of the Legislature. The fact that the Legislature has the power to enact a law does not confer that power upon city councils, but the same must be by legislative act conferred. It has been many times held that power in a city to license or tax an occupation must be expressly granted to it by the Legislature or be a necessary incident to a power expressly granted. Potson v. City of Chicago, 304 Ill. 222, 136 N. E. 594;Condon v. Village of Forest Park, 278 Ill. 218, 115 N. E. 825, L. R. A. 1917E, 314;City of Chicago v. Mandel Bros., 264 Ill. 206, 106 N. E. 181;People v. City of Chicago, 261 Ill. 16, 103 N. E. 609,49 L. R. A. (N. S.) 438, Ann. Cas. 1915A, 292;City of Chicago v. Ross. 257 Ill. 76, 100 N. E. 159,43 L. R. A. (N. S.) 205;City of Chicago v. M. & M. Hotel Co., 248 Ill. 264, 93 N. E. 753. Section 1 of article 5 of the Cities and Villages Act, in the 100 paragraphs referred to, is the source of legislative power of the city council. Its powers are there enumerated to the exclusion of all other subjects. City of Cairo v. Bross, 101 Ill. 475.

[4][5]Appellant relies on Potson v. City of Chicago, supra, as authority for the contention that the city cannot require a license of retail beverage dealers. That case is in no wise conclusive of the question whether there is embraced within the powers enumerated in section 1 of article 5 of the Cities and Villages Act the power to license and regulate retail beverage dealers. In the Potson Case we were considering an ordinance attempting to license restaurants. It was urged on behalf of the city that the right to license restaurants was to be found in the forty-first paragraph of said section, authorizing the licensing of keepers of ordinaries. It was there held that an ordinary is not a restaurant, and that the right to license ordinaries did not confer the right to license restaurants. The question here is whether or not the forty-sixth paragraph of said section, conferring on city councils power to ‘license, regulate and prohibit the selling or giving away of any intoxicating, malt, vinous, mixed or fermented liquor,’ empowers it to license, regulate, or prohibit the sale of ‘malted, cereal or vinous nonintoxicating beverages as defined by law.’

Counsel for appellee contend that the power to pass the ordinance is derived as a necessary incident to the power given the city to protect the morals, health, and safety of the public. The record in this case does not show that the morals, health, and safety of the public are involved. It is, however, argued that this...

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    ...but are created by the Legislature, and derive their existence and all powers from the grants made by that body. City of Chicago v. Murphy, 313 Ill. 98, 144 N. E. 802; Barnard & Miller v. City of Chicago, 316 Ill. 519, 147 N. E. 384, 38 A. L. R. 1533; Crerar Clinch Coal Co. v. Chicago, 341 ......
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    ...The law is well settled that cities may exercise only such power as is conferred upon them by the State Legislature. City of Chicago v. Murphy, 313 Ill. 93, 144 N.E. 802;Consumers' Co. v. City of Chicago, 313 Ill. 408, 145 N.E. 114;Huesing v. City of Rock Island, 128 Ill. 465, 21 N.E. 558,1......
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    • June 7, 1928
    ...an occupation must be expressly granted to cities by the Legislature or be a necessary incident to a power expressly granted. City of Chicago v. Murphy, 313 Ill. 98 ;Potson v. City of Chicago, 304 Ill. 222 ;Condon v. Village of Forest Park, 278 Ill. 218 [115 N. E. 825, L. R. A. 1917E, 314];......
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