Bailey v. People

• Decision Date: 18 April 1901
• Citation: 190 Ill. 28,60 N.E. 98
• Parties: BAILEY v. PEOPLE.
• Court: Illinois Supreme Court

190 Ill. 28

60 N.E. 98

BAILEY

v.PEOPLE.

Supreme Court of Illinois.

April 18, 1901.

Error to criminal court, Cook county; Jesse Holdom, Judge.

J. A. Bailey was convicted of permitting more than six persons to sleep in a room of a lodging house at the same time, and he brings error. Reversed.

T. J. Scofield and Charles J. Scofield, for plaintiff in error.

H. J. Hamlin, Atty. Gen. (C. S. Deneen, A. C. Barnes, and E. J. Smejkal, of counsel), for the People.

BOGGS, C. J.

The act of the general assembly entitled ‘An act to create and establish a board of health in the state of Illinois,’ approved May 28, 1877, in force July 1, 1877 (Hurd's Rev. St. 1899, p. 1604), was amended by the addition of four sections thereto by an enactment approved April 21, 1899, entitled ‘An act to amend an act entitled ‘An act to create and establish a board of health in the state of Illinois'’ (Id. p. 1606). Section 15 of the amendatory act provides the state board of health shall have supervision of ‘all lodging houses in cities of 100,000 inhabitants or more.’ Section 16 of the amendatory act is as follows: ‘It shall be unlawful for more than six persons to occupy the same room for sleeping purposes at the same time in any such lodging house, and no room in such lodging house shall be occupied for sleeping purposes which does not contain four hundred cubic feet or more of space for each person sleeping therein at the same time.’ A complaint was filed before a justice of the peace alleging that the plaintiff in error was the landlord of a ‘lodging house’ at No. 39 Custom House place, in the city of Chicago, and that on the 26th day of November, 1899, he willfully and knowingly permitted more than six persons to occupy the same room for sleeping purposes at the same time in said lodging house, in violation of the provisions of said section 16, hereinbefore set out. The plaintiff in error was arrested on a complaint filed with a justice of the peace, tried, and convicted of the offense purported to be set forth in the complaint, and a fine of $25 assessed against him. He prosecuted an appeal to the criminal court of Cook county, where, upon a hearing, he was again adjudged guilty, and condemned to pay a fine in the sum of $100 and the costs in the cause. He prosecutes this writ of error to reverse such judgment of said criminal court.

The evidence established, without dispute, that the plaintiff in error kept a lodging house at No. 39 Custom House place, in Chicago, and on November 26, 1899, permitted 19 persons to sleep in one room of the said lodging house, the dimensions of said room being 70 feet in length, 62 feet in width, and 13 feet [190 Ill. 33]and 3 inches in height; that there were 64 beds in the room, of which 19 were occupied on the occasion in question. The only defense presented in the lower court was that said section 16 was in contravention of the rights guarantied to the plaintiff in error by the constitution of the state, and therefore void. Propositions of law to that effect were presented to the trial court, but were refused. The action of the court in passing upon the propositions of law is the sole error assigned in this court.

The guaranty of section 2 of article 2 of the constitution of 1870 is that no person shall be deprived of liberty or property without due process of law. The term ‘property’ includes every interest any one may have in any and every thing that is the subject of ownership by man, together with the right to freely possess, use, enjoy, and dispose of the same. Frorer v. People, 141 Ill. 171, 31 N. E. 395,16 L. R. A. 492;Braceville Coal Co. v. People, 147 Ill. 66, 35 N. E. 62,22 L. R. A. 340;Ritchie v. People, 155 Ill. 98, 40 N. E. 454,29 L. R. A. 79;Gillespie v. People, 188 Ill. 176, 58 N. E. 1007; 19 Am. & Eng. Enc. Law, 284, 285; Booth v. People, 186 Ill. 43, 57 N. E. 798. The privilege of contracting to receive gains and profits for the right to use property granted to another is both a liberty and property right. Frorer v. People, supra. The right to make a reasonable contract with reference to the use of a thing is an attribute of property and a property right. Booth v. People, supra. The right to entertain lodgers in a lodging house, and to fix, by contract with them, the price to be paid for such accommodation, to the number who shall occupy the same room at the same time for sleeping purposes, is a liberty and also a property right. Any restriction upon or abridgment of this right deprives the citizen of both liberty and property. The attorney general insists that section 16 of the enactment in question, though it infringes the property right of the plaintiff in error, may be upheld as a proper exercise of the police power. In Booth v. People, 186 Ill. 43, 57 N. E. 798, we said (page 48, 186 Ill., and page 799, 57 N. E): ‘The state inherently possesses, and the general assembly may lawfully exercise, such power of restraint upon private rights as may be found to be necessary and appropriate to promote the health, comfort, safety, and welfare of society. This power is known as the police power of the state. In the exercise of this power the general assembly may, by valid enactments,-i.e. ‘due process of law,’-prohibit all things hurtful to the comfort, safety, and welfare of society, even though the prohibition invade the right of liberty or property of an individual.' ‘Due process of law’ means a general public law, legally enacted, binding upon all members of the community under all circumstances, and not partial or private laws affecting only the rights of private individuals or classes of individuals. An enactment which deprives one class of persons of the right to acquire and enjoy property, or to contract with relation thereto, in the same manner as others under like conditions and circumstances are permitted to acquire and enjoy property or contract with relation to it, is not comprehended within the true meaning of the words ‘due process of law,’ and is prohibited by the provisions of section 22 of article 4 of the constitution of 1870. The penalties of the section under consideration are leveled against one class,-the keepers of lodging houses. The keeper of a lodging house is not, in a legal sense, an inn keeper, a hotel keeper, or a boarding house keeper. Car Co. v. Smith, 73 Ill. 360; 16 Am. & Eng. Enc. Law (2d Ed.) p. 510. Hotel, inn, and boarding house keepers are given a lien upon the baggage of their guests by paragraph 42 of chapter 82 (Starr & C. Ann. St. 1896, p. 2581), and keepers of inns or hotels and keepers of boarding houses are by the common law answerable under a different rule of liability for the loss of the effects of their guests (16 Am. & Eng. Enc. Law [2d Ed.] 530-532). Our statute in respect of the liability for the safe custody of the property of guests applies only to landlords and keepers of public inns and hotels, and the keepers of the various places of public entertainment may so conduct their business as that they may bear the relation of an inn or hotel keeper to some of their guests, and that of a boarding house keeper or lodging house keeper to others; but, nevertheless, lodging house keepers constitute a class distinguishable from the keepers of other...