Arms v. City of Chicago

• Decision Date: 05 December 1924
• Docket Number: No. 16153.,16153.
• Citation: 145 N.E. 407,314 Ill. 316
• Parties: ARMS et al. v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

314 Ill. 316

145 N.E. 407

ARMS et al.

v.CITY OF CHICAGO et al.

No. 16153.

Supreme Court of Illinois.

Oct. 28, 1924.

Rehearing Denied with Modification Dec. 5, 1924.

Bill of complaint by Harry Arms and others against the City of Chicago and others. Decree for defendants, and plaintiffs appeal.

Reversed and remanded.Appeal from Circuit Court, Cook County; Francis S. Wilson, judge.

Charles P. Schwartz, of Chicago (William E. McNamara, of Chicago, of counsel), for appellants.

Francis X. Busch, Corp. Counsel, of Chicago (Leon Hornstein, of Chicago, of counsel), for appellees.

DE YOUNG, J.

Chapter 36 of the Chicago Code of 1922 is entitled ‘Department of Gas and Electricity.’ Article 1 of that chapter, consisting of sections 1623 to 1630, inclusive, creates the department, and among other things provides for the appointment of a commissioner of gas and electricity and other administrative officers and defines their powers and duties. The second article of the same chapter consists of sections 1631 to 1641, inclusive, and its subject is electrical installation. Section 1631 prohibits the use of electric current for lighting, heating, or power purposes except in compliance with the ordinance. Section 1632 prohibits the installation of wires or other electrical apparatus unless a permit shall have been obtained therefor and the work is done under the supervision of a licensed electrician. By section 1633 provision is made for the appointment of an examining board of five members to ascertain the qualifications of applicants for licenses. Each such applicant is required (1) to be at least 21 years of age; (2) to have a thorough knowledge of electrical construction; (3) to have had not less than 4 years' practical experience in the class of work mentioned in the application; (4) to pass the examination prescribed by the board; (5) to have his application indorsed by two responsible citizens to the effect that he possesses the requisite qualifications; (6) to deposit with the examining board the license fee fixed for the particular class of work; and (7) to file with the city collector an indemnifying bond, with good and sufficient sureties, in the penal sum of $5,000. Licenses are classified and the fees therefor fixed as follows:

+--------------------------------------------------+
                ¦                       ¦Fee first¦Fee each        ¦
                +-----------------------+---------+----------------¦
                ¦Class.                 ¦year.    ¦succeeding year.¦
                +-----------------------+---------+----------------¦
                ¦General electrical     ¦         ¦                ¦
                +-----------------------+---------+----------------¦
                ¦contractor             ¦$200     ¦$50             ¦
                +-----------------------+---------+----------------¦
                ¦Electrical construction¦100      ¦25              ¦
                +-----------------------+---------+----------------¦
                ¦Fixture license        ¦100      ¦25              ¦
                +-----------------------+---------+----------------¦
                ¦Sign license           ¦25       ¦10              ¦
                +-----------------------+---------+----------------¦
                ¦Maintenance license    ¦25       ¦10              ¦
                +--------------------------------------------------+
                

Licenses are renewed only within the respective classifications for which they were originally issued. To transfer to another classification the applicant is required to pass another examination to determine his qualifications to act in the particular class to which he desires to be transferred. The examiningboard is given the power to adopt necessary rules and regulations, and its judgment whether or not an applicant is qualified is made final. Upon complaint the board may summon a licensee to appear before it for examination, and if it should find that he is not qualified to do the work for which he has been licensed, or that he has not complied with the ordinances of the city or the rules and regulations of the department, the board is requiredto certify the facts to the commissioner of gas and electricity, with a recommendation for the suspension or revocation of his license, as the board in its judgment shall deem advisable. The commissioner may suspend for a period not exceeding 30 days, and the mayor may revoke, a license.

Section 1634 empowers the commissioner of gas and electricity, and his assistants, to inspect all electrical installation prior to and after its completion, and they are given for that purpose the right to enter any building and to remove any existing obstructions, such as laths, plastering, or partitions. No person is permitted to interfere with them in the performance of their duties. If the work proves to have been done in a safe and secure manner, after payment of the inspection fee the commissioner is required to issue a certificate of inspection. The use of electric current in the absence of such a certificate is made unlawful, except that the commissioner may issue temporary permits for such use during the construction or alteration of buildings. Section 1635 empowers the commissioner of gas and electricity to inspect and re-inspect all wires and apparatus which conduct electric current for light, heat, or power, and when they are found to be unsafe to life or property, to notify the owner to put them in safe and secure condition within 48 hours. A penalty is provided for failure to comply. The commissioner is authorized to call upon the police department for assistance, and every member of that department is obliged to perform the duties required by the commissioner to make effective the ordinance, rules, and regulations relating to electrical installation. Section 1637 requires the registered electrician to pay, prior to the issuance of any permit to do electrical work, various inspection fees, which are set forth at considerable length. The minimum fee is fixed at $1. By section 1638 no alterations are permitted in any electrical installation without the inspection required for new work. The provisions of sections 1636, 1639, and 1640 are not material to the determination of the question here involved. Section 1641 prescribes penalties for violations of the second article.

Harry Arms and 112 master electricians and electrical contractors filed their bill of complaint in the circuit court of Cook county to enjoin the city of Chicago and certain of its officers from enforcing the above mentioned ordinance. A motion for a preliminary injunction was made and denied and the bill dismissed for want of equity. The chancellor certified that the validity of an ordinance was involved and allowed an appeal to this court.

[1][2][3][4][5][6][7][8][9] The Constitution vests the legislative power of the state in a General Assembly. That body may exercise the power directly or it may create municipalities and delegate to them, for purposes of local government, such portion of the power as it sees fit to grant. Any power so delegated may be taken from the municipalities by the General Assembly at its pleasure. Municipal corporations derive their existence and their powers solely from the General Assembly. They have no inherent power. In order to legislate upon or with reference to a particular subject or occupation, they must be able to point out the statute which gives them the authority to do so. Statutes which grant powers to municipal corporations are strictly construed, and any fair or reasonable doubt of the existence of such powers is resolved against the municipality which claims the right to exercise them. The implied powers which a municipal corporation possesses and can exercise are those necessarily incident to the powers expressly granted. Since a city has no power, except by delegation from the General Assembly, to license any occupation or to require the payment of a tax for the privilege of engaging in it, the power must be expressly granted in the city's charter or necessarily implied in or incident to the power expressly delegated. Wilkie v. City of Chicago, 188 Ill. 444, 58 N. E. 1004,80 Am. St. Rep. 182;City of Chicago v. M. & M. Hotel Co., 248 Ill. 264, 93 N. E. 753;City of Chicago v. Ross, 257 Ill. 76, 100 N. E. 159,43 L. R. A. (N. S.) 205;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. Mandel Bros., 264 Ill. 206, 106 N. E. 181;City of Chicago v. Pettibone & Co., 267 Ill. 573, 108 N. E. 698;Condon v. Village of Forest Park, 278 Ill. 218, 115 N. E. 825, L. R. A. 1917E, 314;Potson v. City of Chicago, 304 Ill. 222, 136 N. E. 594. Section 1 of article 5 of the Cities and Villages Act (Cahill's Stat. 1923, p. 413), provides that the city council in cities shall have the powers specified in its 100 subsections. The express enumeration in that section of the occupations or businesses not nuisances per se over which the city is given control is the exclusion of all other occupations or businesses. People v. City of Chicago, supra; Potson v. City of Chicago, supra. A city may derive its power to legislate upon a given subject or with reference to a particular occupation from one item or from two or more items of the enumeration, but the power must be expressly delegated or necessarilyimplied from the power expressly conferred. Gundling v. City of Chicago, 176 Ill. 340, 52 N. E. 44,48 L. R. A. 230;Spiegler v. City of Chicago, 216 Ill. 114, 74 N. E. 718;Goodrich v. Busse, 247 Ill. 366, 93 N. E. 292,139 Am. St. Rep. 335,20 Ann. Cas. 589; Potson v. City of Chicago, supra; Consumers Co. v. City of Chicago, 313 Ill. 408, 145 N. E. 114.

The city claims that the power to pass the ordinance in question and to license electricians and electrical work in buildings is derived from the following subsections of section 1 of article 5 of the Cities and Villages Act (Smith-Hurd Rev. St. 1923, c. 24, § 65):

‘Fourth. To fix the amount, terms and manner of issuing and revoking licenses.’

‘Sixty-First. To prescribe the thickness, strength, and manner of constructing stone, brick and other buildings and...