Bismarck Hotel Co. v. Petriko

• Decision Date: 29 March 1961
• Docket Number: No. 36080,36080
• Citation: 173 N.E.2d 509,21 Ill.2d 481
• Parties: , 42 Lab.Cas. P 50,204 BISMARCK HOTEL CO., et al., Appellees, v. Florence PETRIKO et al. (Benjamin S. Adamowski, State's Attorney, Appellant.)
• Court: Illinois Supreme Court

Page 509

173 N.E.2d 509

21 Ill.2d 481, 42 Lab.Cas. P 50,204

BISMARCK HOTEL CO., et al., Appellees, v. Florence PETRIKO et al. (Benjamin S. Adamowski, State's Attorney, Appellant.)

No. 36080.

Supreme Court of Illinois.

March 29, 1961.

Benjamin S. Adamowski, State's Atty., Chicago (Francis X. Riley and James R. Thompson, Asst. State's Attys., Chicago, of counsel), for appellant.

MacLeish, Spray, Price & Underwood, Cranston Spray, Robert S. Cushman and Edward S. Silber, Chicago (Winston, Strawn, Smith & Patterson, Sonnenschein, Lautmann, Levinson, Rieser, Carlin & Nath, Friedman, Zoline & Rosenfield, William Henning Rubin, Lawrence Lenit, and Altheimer, Gray, Naiburg & Lawton, Chicago, of counsel), for appellees Bismarck Hotel Co. et al.

David F. Silverzweig and Myer H. Gladstone, Chicago, for appellee Rialto Service Co.

DAILY, Justice.

This is a direct appeal from a judgment of the circuit court of Cook County finding a tipping statute embodied in our Criminal Code to be unconstitutional and void in that it violates the due process clauses of both State and Federal constitutions. See: Ill.Rev.Stat.1959, chap. 38, pars. 551, 552, 553.

The tipping statute, which was enacted in 1915, provides in section 1: 'That it shall be unlawful for the owner, proprietor, lessee, superintendent, manager or agent of any hotel, restaurant, eating house, barber shop, theatre, store building, office building, factory, railroad, street railroad, fair ground, baseball or football ground, hall used for public meetings or entertainments, or any other building, office, or space which is a place of public accommodation or public resort, to rent, lease, or permit to be used any part, space or portion thereof, for any trade, calling or occupation, or for the exercise of any privilege, by any person, company, partnership or corporation, for the purpose of accepting, demanding or receiving, directly or indirectly, from the customers, patrons or people who frequent such places of public accommodation or public resort, gratuities or donations, commonly called tips, in addition to the regular, ordinary and published rate of charge for work performed, materials furnished or services rendered, provided, that nothing in this section contained shall be construed to prohibit any employee or servant from accepting or receiving gratuities or donations, commonly called tips, if such gratuities or donations, commonly called tips, are not accounted for, paid over, or delivered, directly or indirectly, in whole or in part, to any person, company, partnership or corporation, but are retained by such employee or servant, as and for his absolute and individual property.' (Par. 551, emphasis supplied.) Thereafter, section 2 provides that any lease, contract, agreement or understanding in violation of section 1 shall be void (par. 552,) while section 3 makes a violation a misdemeanor subject to a fine up to $10,000 and sentence to the county jail for not less than three months nor more than one year. (Par. 533.)

On or about May, 23, 1959, twelve of the plaintiffs, all leading hotels in the city of Chicago, received a letter from the State's Attorney of Cook County which enclosed a copy of the statute and advised the recipients that they were operating their checkroom facilities in violation of the statute. In addition, the letter served notice that any contracts or agreements in circumvention of the statute were void, advised that similar letters were to be sent to other business establishments, and gave the plaintiffs until the first week in July to correct their practices.

Under the threat of this communication, plus the fact that they were threatened with damage suits by concessionaires if concession agreements were cancelled, the plaintiffs, joined by a thirteenth hotel, initiated this action for a declaratory judgment either that the statute is inapplicable to their checkrooms and certain other facilities, or that, if applicable, the statute violates certain provisions of the State and Federal constitutions. The concessionaries involved, who were named parties defendant along with the State's Attorney, joined in the plaintiffs' prayers for relief. Plaintiffs then moved for summary judgment, which was granted, and the State's Attorney has prosecuted this appeal. It is his contention that the statute is a reasonable and proper exercise of the police power, while the plaintiffs still insist that it is inapplicable to their operations or, alternatively, that the statute is unconstitutional in many respects.

The facts of the case, which are undisputed, show that two of the plaintiff hotels operate their own concessions and that...