Aberdeen-Franklin Coal Co. v. City of Chicago

• Decision Date: 16 December 1924
• Docket Number: No. 16397.,16397.
• Citation: 315 Ill. 99,145 N.E. 613
• Parties: ABERDEEN-FRANKLIN COAL CO. et al. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

315 Ill. 99

145 N.E. 613

ABERDEEN-FRANKLIN COAL CO. et al.

v.CITY OF CHICAGO.

No. 16397.

Supreme Court of Illinois.

Dec. 16, 1924.

Suit by the Aberdeen-Franklin Coal Company and others against the City of Chicago. Decree for complainants, and defendant appeals.

Affirmed.Appeal from Circuit Court, Cook County; Francis S. Wilson, judge.

Francis X. Busch, Corp. Counsel, of Chicago (Leon Hornstein and Ruth C. Nelson, both of Chicago, of counsel), for appellant.

McCormick, Kirkland, Patterson & Fleming, of Chicago (Joseph B. Fleming, Louis G. Caldwell, and Ehlers English, all of Chicago, of counsel), for appellees.

HEARD, J.

The Aberdeen-Franklin Coal Company, a corporation engaged in the business of conducting a coal yard in the city of Chicago for the sale of coal at retail, and 175 other corporations, firms, and individuals engaged in a like business, filed on behalf of themselves and on behalf of all others similarly situated, in the circuit court of Cook county, a bill in chancery against the city of Chicago, praying for an injunction restraining the city from enforcing the provisions of an ordinance of the city requiring coal dealers to be licensed. The injunction was asked on the ground of invalidity of the ordinance. The city of Chicago demurred to the bill of complaint, and, the demurrer having been overruled by the court, the city elected to stand by its demurrer, and a decree was entered permanently enjoining the city from enforcing the provisions of the ordinance. An appeal was prayed from this decree by appellant, and, the circuit court having certified that the validity of an ordinance and constitutionality of a statute were involved in the cause, the appeal was allowed and perfected to this court.

[1][2] It is claimed by appellees that the city of Chicago did not have power to pass the ordinance in question. A city is a municipal corporation of statutory creation, having only such limited powers of legislative enactment as are conferred upon it by the law of its creation. Statutes granting powers to minicipal corporations are strictly construed, and any fair and reasonable doubt as to the existence of the powers must be resolved against the municipality. City of Earlville v. Radley, 237 Ill. 242, 86 N. E. 624;City of Chicago v. Ross, 257 Ill. 76, 100 N. E. 159,43 L. R. A. (N. S.) 205. It is suggested by appellant that the city was empowered to pass the ordinance by clauses 54, 66, 75, 78, and 100 of section 1, article 5, of the Cities and Villages Act of this state (Smith-Hurd Rev. St. 1923, c. 24, § 65). Upon an inspection of those clauses it is apparent that neither of them has even a remote bearing on the power of a city to pass the ordinance in question.

It is contended by appellant that the city was authorized to pass the ordinance by virtue of clause 93 of the same section, which is:

‘To regulate and prohibit the keeping of any lumber or coal yard, and the placing or piling or selling any lumber, timber, wood, coal, or other combustible material within the fire limits of the city or village: Provided, that this clause shall not be construed to require the removal of any lumber or coal yard from any location which it lawfully occupies at the time of the passage of any ordinance hereunder.’

It is contended by appellees that clause 93 is unconstitutional by reason of the proviso. It will be observed that the proviso is similar in its terms to the one by reason of which clause 82 of the section was held unconstitutional in People v. Kaul, 302 Ill. 317, 134 N. E. 740. Counsel for appellant argue that, when a section of the statute is amended, the section must be re-enacted in full, and that such portion of it as is not changed must be construed as a continuation of the statute as it existed before, and the enactment of the amended section is not to be construed as a repeal, and does not operate as a repeal, of the section as it stood before amendment, and that, admitting that the proviso to clause 93 is invalid, when an invalid proviso is attached to a valid enactment by way of amendment, the portion that is not invalid is continued in force. While this proposition of law is correct in the abstract it can have no application here.

[3] Clause 93 originally read as follows:

‘To regulate and prohibit the keeping of any lumber or coal yards, and the placing or piling or selling any lumber, timber, wood, coal, or other combustible material, within the fire limits of the city.’

In 1919 the Legislature amended section 1 and changed clause 93 to read as follows:

‘To regulate and prohibit the keeping of any lumber or coal yard, and the placing or piling or selling any lumber, timber, wood, coal, or other combustible material within the limits of the city or village: ‘Provided, that this clause shall not be construed to require the removal of any lumber or coal yard from any location which it lawfully occupies at the time of the passage of any ordinance hereunder.’ Laws 1919, p. 286.

The changes consisted in taking out the word ‘fire,’ thereby...