Barnard & Miller v. City of Chicago

• Citation: 316 Ill. 519,147 N.E. 384
• Decision Date: 24 April 1925
• Docket Number: No. 15679.,15679.
• Court: Illinois Supreme Court
• Parties: BARNARD & MILLER et al. v. CITY OF CHICAGO.

316 Ill. 519

147 N.E. 384

BARNARD & MILLER et al.

v.CITY OF CHICAGO.

No. 15679.

Supreme Court of Illinois.

April 24, 1925.

Suit by Barnard & Miller and others against the City of Chicago. Decree for complainants, and defendant appeals.

Affirmed.

Appeal from Circuit Court, Cook County; G. Fred Rush, Judge.

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

Colin C. H. Fyffe and David R. Clarke, both of Chicago, for appellees.

DUNCAN, C. J.

Barnard & Miller, Tallman, Robbins & Co., and Charles F. L'Hommedieu & sons Company, appellees, filed in the circuit court of Cook county a bill in chancery against the city of Chicago, appellant, praying for an injunction restraining appellant from enforcing the provisions of an ordinance of the city requiring a license to operate and conduct factories and workshops within the city and regulating their operation, alleging that the ordinance is invalid. Appellant demurred to the bill of complaint. The court overruled the demurrer. Appellant electing to stand by its demurrer, the court entered a decree permanently enjoining it from enforcing the provisions of the ordinance. The circuit court certified that the validity of an ordinance is involved and that the public interests require that the appeal be direct to this court.

The ordinance in question defines ‘factory’ and ‘workshop’ to mean any ‘building, room, inclosure, premises, place, or establishment in the city of Chicago, where any merchandise, goods, wares, commodities, or products are manufactured, made, finished, printed engraved, worked on, altered, repaired, polished, cleaned, renovated, or assorted, in whole or in part, for sale or for wages or compensation.’ The definition is therein limited to apply only to places that are not specifically defined and required to be licensed under other ordinances of the city. It is also provided:

‘That when more than one such building, room, enclosure, premise, place or establishment is to be managed, conducted, operated or carried on in the city of Chicago by one person, firm or corporation, all of the same shall be deemed one factory or workshop and shall be subject to the payment of one license fee.’

The license fees are graded according to the number of employees in such factories or workshops, and range from $2 for one employee to $1,000 for over 8,000 employees, The regulatory features of the ordinance require frequent examinations of the premises occupied by the factories or workshops, to determine whether all health, safety, and sanitary laws have been complied with, and to compel them to be kept in a clean, sanitary condition, free from vermin and matters of an infectious or contagious nature, to prohibit the employment of persons with communicable diseases, provide for the removal and disposition of decomposed, fetid, or putrescent matter and refuse, waste, and sweepings, the maintenance of proper washing and toilet facilities, adequate ventilation, dry floors, and proper drainage, to prevent seepage and leakage to the floors below. The ordinance further provides for the revocation of licenses by the commissioner of health and for a penalty for violation of it. The ordinance also contains a number of sections repealing ordinances regulating factories, etc., theretofore passed.

It is alleged in the bill that the appellees are corporations organized under the laws of Illinois; that Barnard & Miller are engaged in the business of printing, lithographing, and pamphlet binding, and employ about 50 men; that Tallman, Robbins & Co. are engaged in the business of manufacturing and selling loose-leaf filing devices, and employ about 75 men; and that Charles F. L'Hommedieu & Sons Company is engaged in the business of manufacturing and selling platers' and polishers' supplies, and employs about 40 employees, all located in Chicago. It is further alleged that there are about 5,000 other individuals, firms, and corporations engaged in business in Chicago that would be brought within the terms of the ordinance; that appellees and those similarly situated were in business in Chicago before the passage of the ordinance, and that the city is attempting to enforce the provisions of the ordinance, and has commenced suit against appellees and others similarly situated. The bill sets forth the ordinance in extenso, and alleges that it is null and void upon several alleged grounds, but the only grounds urged in support of the decree of the court are that the General Assembly has not granted the city of Chicago the power to enact the ordinance, that it is not a valid police regulation, that it is in contravention of the state statutes on the same subject, and that it is indefinite, uncertain, and unreasonable.

[1][2][3][4][5] Cities are creatures of the Legislature and derive their existence and powers therefrom. They have no inherent powers, and derive all of their powers from the Legislature. Statutes granting powers to municipal corporations are strictly construed, and any fair and reasonable doubt as to the existence of the powers must be resolved against the municipality. Aberdeen-Franklin Coal Co. v. City of Chicago, 315 Ill. 99, 145 N. E. 613;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. This court has many times held that power to license or tax 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, 144 N. E. 802;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, supra; City of Chicago v. M. & M. Hotel Co., 248 Ill. 264, 93 N. E. 753. If the business sought to be regulated does not tend to injure the public health or public morals, or to interfere with the general welfare, it is not a subject for the exercise of the police power. Lowenthal v. City of Chicago, 313 Ill. 190, 144 N. E. 829. Section 1 of article 5 of the Cities and Villages Act (Smith-Hurd Rev. St. 1923, c. 24, § 65), with its 100 clauses, is the source of the legislative power of the city council. Its powers are therein enumeratedto the exclusion of all other subjects. City of Chicago v. Murphy, supra; City of Cairo v. Bross, 101 Ill. 475.

[6] Appellant contends that the power to enact the ordinance in question may be derived from clause 82 of section 1 of article 5 of the Cities and Villages Act. That clause, as amended in 1919 (Laws 1919, p. 285), was held void in People v. Kaul, 302 Ill. 317, 134 N. E. 740, and that decision was reaffirmed by this court in the cases of Moy v. City of Chicago, 309 Ill. 242, 140 N. E. 845, and Arms v. City of Chicago, 314 Ill. 316, 145 N. E. 407.

[7] It is further contended that, if those decisions stand, their only effect is to declare invalid clause 82 as amended, and that, as the amendment is void, or renders the act void, the old law will be revived. Conceding this to be true for the purposes of this case only, clause 82, prior to its amendment in 1919, did not confer the right or power on the city to enact this ordinance. That clause, previous to the amendment, simply authorized cities and villages to direct the location and regulate the use and construction of breweries, distilleries, livery, boarding or sales stables, blacksmith shops, foundries, machine shops, garages, laundries, and bathing beaches within their limits. The...