Biffer v. City of Chicago

• Decision Date: 08 June 1917
• Docket Number: No. 11213.,11213.
• Citation: 116 N.E. 182,278 Ill. 562
• Parties: BIFFER et al. v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

278 Ill. 562

116 N.E. 182

BIFFER et al.

v.CITY OF CHICAGO et al.

No. 11213.

Supreme Court of Illinois.

April 19, 1917.

Rehearing Denied June 8, 1917.

Error to Circuit Court, Cook County; Frederick A. Smith, Judge.

Bill by Fred Biffer and others against the City of Chicago and others. There was a decree for complainants, and defendants bring error. Reversed and remanded.

Duncan, J., dissenting.Samuel A. Fttelson, Corp. Counsel, of Chicago (Donald P. Vail, Harry L. Brin, and Chester E. Cleveland, all of Chicago, of counsel), for plaintiffs in error.

Silber, Isaacs, Silber & Woley, of Chicago (Martin J. Isaacs, of Chicago, of counsel), for defendants in error.

CARTER, J.

Defendants in error filed in the circuit court of Cook county, on August 17, 1914, a bill for an injunction to enjoin the city of Chicago and certain of its officials from enforcingan ordinance relative to the sale of revolvers and other deadly weapons unless the dealer have a license and pay an annual fee therefor of $25, and also prohibiting the exhibition for sale in showcases or show windows, or displaying signs or posters suggesting the sale of such deadly weapons, and also requiring that each purchaser of a deadly weapon designated in the ordinance have a permit from the general superintendent of police, paying therefor $1 as a license fee. A demurrer to the bill was overruled, and, plaintiffs in error electing to stand by the demurrer, a decree was entered in favor of defendants in error, holding the ordinance null and void, and thereafter this writ of error was sued out to this court.

Counsel for the defendants in error argue that the city was without authority to pass the ordinance, and that it was therefore invalid, or, if the city did have power to pass an ordinance of this general nature, this particular ordinance, as worded, is unreasonable, and therefore void. The ordinance in question is an amendment to chapter 53 of the Chicago Code of 1911, and its provisions are as follows:

‘Section 1. It shall be unlawful for any person, firm or corporation to engage in the business of selling, or to sell or give away to any person within the city, any pistol, revolver, derringer, bowie knife, dirk or other weapon of like character which can be concealed on the person, without securing a license so to do as hereinafter provided.

‘Sec. 2. Any person, firm or corporation desiring a license authorizing the sale of any of the deadly weapons mentioned in section 1 hereof shall make application in writing to the mayor, setting out in such application the full name and residence of the applicant, if an individual, and if a firm or corporation, the name and residence of each of its members or officers. Such applicant shall also set out the location at which it is intended or desired to conduct such business. Upon receipt of such application it shall be the duty of the mayor to issue a license to the applicant upon his payment to the city collector of an annual license fee of twenty-five dollars ($25).

‘Sec. 3. Every person, firm or corporation who is licensed to deal in deadly weapons described in section 1 hereof shall make out and deliver to the general superintendent of police of the city of Chicago, every day before the hour of twelve o'clock noon, a legible and correct report of every sale or gift made under authority of said license during the preceding twenty-four hours, which report shall contain the date of such sale or gift, the name of the purchaser or donee, with his or her address and age, the number, kind, description and price of such weapon, the number of the purchaser's permit and the purpose given by such person for the purchase of such weapon, which report shall be substantially in the following form: [Here follows form.]

‘Sec. 4. In case the mayor of the city of Chicago shall be satisfied that such applicant has violated any provision of this ordinance, then he may and shall revoke the license of such person, firm or corporation for the selling of such weapons, and the money paid for such license shall be forfeited to the city and no other such license shall be issued to such licensee for a period of three years thereafter.

‘Sec. 4a. It shall be unlawful for any person, firm or corporation to sell, barter or give away to any person within the city of Chicago, any pistol, revolver, derringer, bowie knife, dirk or other weapon of like character which can be concealed on the person, except to licensed dealers and to persons who have secured a permit for the purchase of such articles from the general superintendent of police, as hereinafter required: Provided, this section shall not apply to sales made of such articles which are to be delivered or furnished outside the city of Chicago.

‘Sec. 5. It shall be unlawful for any person to purchase any pistol, revolver, derringer, bowie knife, dirk or other weapon of like character which can be concealed on the person,without first securing from the general superintendent of police a permit so to do. Before any such permit is granted an application in writing shall be made therefor, setting forth in such application the name, address, age, height, weight, complexion, nationality and other elements of identification of the person desiring such permit, and the applicant shall present such evidence of good character as the general superintendent of police in his discretion may require.

‘Sec. 6. It shall be the duty of the general superintendent of police to refuse such permit to (a) all persons having been convicted of any crime; (b) all minors. Otherwise, in case he shall be satisfied that the applicant is a person of good moral character, it shall be the duty of the general superintendent of police of grant such permit upon the payment of a fee of one dollar.

‘Sec. 7. It shall be unlawful for any person, firm or corporation to exhibit for sale in showcases or show windows, on counters or in any public manner, revolvers, daggers, stilettos, brass or iron knuckles or billies, or to display any signs, posters, cartoons or display cards suggesting the sale of any revolvers, daggers, stilettos, brass or iron knuckles or billies.

‘Sec. 8. Any person, firm or corporation violating any of the provisions of this ordinance shall be fined not less than fifty dollars ($50) nor more than two hundred dollars ($200) for each offense, and every purchase, sale or gift of any weapon mentioned in this ordinance shall be deemed a separate offense.

‘Sec. 8a. An ordinance regulating the sale of fire-arms and other dangerous weapons passed by the city council March 4, 1912, appearing on pages 3052 and 3053 of the journal of the proceedings of the city council of that date, as amended May 20, 1912, which amendment appears on page 379 of the journal of the proceedings of the city council of that date, and an ordinance regulating the sale of fire-arms and other dangerous weapons passed by the city council July 1, 1912, appearing on pages 1010 and 1011 of the journal of the proceedings of the city council of that date, as amended September 30, 1912, which amendment appears on page 1842 of the journal of the proceedings of the city council of that date, be and the same are hereby appealed.

‘Sec. 9. This ordinance shall take effect and be in force from and after its passage and due publication.’

‘Section 1. That chapter 53 of the Chicago Code of 1911 be and the same is hereby amended by adding a section to be known as section 1753 1/2, in words and figures as follows, to wit:

‘Sec. 1753 1/2. No person licensed as aforesaid shall hereafter show, display or exhibit any pistol, revolver, derringer, bowie knife, dirk or other weapon of like character which can be concealed on the person, in any show window or in any premises immediately abutting upon any street, public way or sidewalk in the city, in such a way that the same may be seen from such street, public way or sidewalk.’

Counsel for defendants in error insist that the city of Chicago has no power to pass the ordinance in question; that the Legislature has granted no express authority to the city to pass such an ordinance, and, if the power exists at all, it is under the implied police power. Counsel for the city insist that the said city has express power under its former charter to regulate or prohibit the carrying or wearing of concealed weapons. Section 1, subd. 16, of its former charter reads as follows:

‘Sec. 1, subd. 16. To regulate or prohibit the carrying or wearing, by any person, under his clothes or concealed about his person, any pistol or Colt, or slungshot, or cross-knuckles, or knuckles of lead, brass or other metal, or bowie knife, dirk knife or dirk or dagger, or any other dangerous or deadly weapons, and to provide for the confiscation or sale of such weapons.’ 1 Private Laws of 1867, p. 772.

The city of Chicago is at present exercising its powers under the general Cities and Villages Act passed in 1872 (Hurd's Rev. St. 1915-16, c. 24), which thereafter was adopted by the said city. Section 6 of said general Cities and Villages Act provides, among other things, that all laws or parts of laws not inconsistent with the provisions of said act shall continue in force and be applicable to any such city or village the same as if such change of organization had not taken place. Hurd's Stat. 1916, p. 294. Under the holdings of this court we are of the opinion that said section 1, subd. 16, of the original charter of the city of Chicago is still in force in said city, as it is not inconsistent with any provisions of said general Cities and Villages Act, and that therefore the city has been granted express power by the Legislature to regulate or prohibit the carrying or wearing or concealing of dangerous and deadly weapons and the sale of same. City of Springfield v. Postal Telegraph Co., 253 Ill. 346, 97 N. E. 672;City of Cairo v. Bross, 101 Ill. 475;Board of Water Com'rs v. People, 137 Ill. 660, 27 N. E. 698. See, also, People v. Hausen...