City of Bloomington v. Wirrick

• Decision Date: 14 January 1943
• Docket Number: No. 26782.,26782.
• Citation: 381 Ill. 347,45 N.E.2d 852
• Parties: CITY OF BLOOMINGTON v. WIRRICK.
• Court: Illinois Supreme Court

381 Ill. 347

45 N.E.2d 852

CITY OF BLOOMINGTON

v.WIRRICK.

No. 26782.

Supreme Court of Illinois.

Nov. 18, 1942.

As Modified on Denial of Rehearing Jan. 14, 1943.

R. E. Wirrick was convicted of violating a parking meter ordinance of the City of Bloomington, and he appeals.

Affirmed.Appeal from Circuit Court, McLean County; William C. Radliff, judge.

Wayne C. Townley and J. Oscar Hall, both of Bloomington, and Braun & Brodie, of Chicago (Ode L. Rankin and Hugh Neill Johnson, both of Chicago, of counsel), for appellant.

Richard M. O'Connell, City Atty., of Bloomington, for appellee.

SMITH, Justice.

This is an appeal from a judgment of the circuit court of McLean county. The case involves the validity of an ordinance of the city of Bloomington, commonly referred to as a parking meter ordinance. Appellant violated the provisions of the ordinance by parking in designated parking places, where meters had been installed, without depositing coins in the meters as provided by the ordinance. He was charged, by a complaint filed with a justice of the peace, with violating the ordinance. He appealed from the judgment of the justice, finding him guilty, to the circuit court of McLean county. That court upon a hearing found appellant guilty and imposed a fine under the penalty section of the ordinance. The trial judge certified that the validity of a municipal ordinance was involved in the case, but did not certify that in his opinion the public interest required that the appeal be taken directly to this court, as provided in section 75(1) of the Civil Practice Act. Ill.Rev.Stat.1941, chap. 110, par. 199.

On the oral argument the question was raised as to the jurisdiction of this court on direct appeal in the absence of a certificate of the trial judge, not only that the validity of a municipal ordinance was involved, but that in the opinion of the trial judge the public interest required an appeal direct to this court. City of Litchfield v. Hart, 372 Ill. 457, 24 N.E.2d 345.

Following the oral argument appellant tendered a proper certificate of the trial judge together with a motion for leave to file the same. The motion was denied. In case where such certificate is required, the filing of the certificate is jurisdictional and it must be filed in this court within the time allowed for filing the record. First National Bank of Woodlawn v. Watkins, 370 Ill. 445, 19 N.E.2d 336;Segal v. Chicago City Railway Co., 339 Ill. 635, 171 N.E. 922.

Upon consideration of this jurisdictional question, we have reached the conclusion that where constitutional questions are properly raised in the trial court, where the validity of a municipal ordinance is involved in such questions, no such certificate of the trial judge is required to give this court jurisdiction on direct appeal. Village of Lake Zurich v. Deschauer, 310 Ill. 209, 141 N.E. 761;People v. Clean Street Co., 225 Ill. 470, 80 N.E. 298, 9 L.R.A.,N.S., 455, 116 Am.St.Rep. 156. The proper construction of the statute is that in all cases in which a construction of the constitution is involved, appeals may be taken directly to this court regardless of the fact that the constitutional questions raised may affect the validity of a municipal ordinance. The statute contemplates that the certificate of the trial judge to the effect that the validity of a municipal ordinance is involved and that in his opinion the public interest requires an appeal directly to this court, shall only be necessary to give this court jurisdiction in cases where the ordinance is attacked on other than constitutional grounds.

The case of City of Litchfield v. Hart, supra, was a direct appeal from the circuit court where the validity of a municipal ordinance was involved. There was no certificate of the trial judge as required by section 75(1) of the Civil Practice Act. The cause was transferred to the Appellate Court. 306 Ill.App. 621, 29 N.E.2d 678. In the course of the opinion, however, it was said that no constitutional questions were presented. The cause was transferred because no certificate of the trial judge was filed. The fact that the ordinance is here attacked on constitutional grounds is, in our opinion, sufficient to give this court jurisdiction on direct appeal without the certificate of the trial judge.

The city of Bloomington claims the right to pass the ordinance in question under subsections 10, 18, 20, 27 and 105 of section 23 of the Revised Cities and Villages Act (Ill.Rev.Stat.1941, chap. 24, par. 23-1, et seq.); also under section 26 of the Uniform Act Regulating Traffic on Highways. Ill.Rev.Stat.1941, chap. 95 1/2, par. 123. We will first direct our attention to the provisions of the Revised Cities and Villages Act relied upon as the source of the power claimed.

Subsection 10 gives to municipalities the power ‘To regulate the use of the streets and other municipal property.’ Ill.Rev.Stat.1941, chap. 24, par. 23-10. Subsection 18 confers power on municipalities to provide for and regulate cross-walks, curbs and gutters. Ill.Rev.Stat.1941, chap. 24, par. 23-18. Subsection 20, in so far as it may be claimed to be material, delegates to municipalities the power ‘To regulate the use of sidewalks, the construction, repair, and use of openings in sidewalks, and all vaults and structures thereunder,’ etc. Ill.Rev.Stat.1941, chap. 24, par. 23-20. Subsection 27 confers on cities and villages the power ‘To regulate traffic and sales upon the streets, side walks, public places, and municipal property.’ Ill.Rev.Stat.1941, chap. 24, par. 23-27. Subsection 105 grants the power ‘To pass and enforce all necessary police ordinances.’ Ill.Rev.Stat.1941, chap. 24, par. 23-105. It is contended by appellant that the legislature has not conferred upon municipalities the power to pass ordinances of the character here involved. He further contends that the General Assembly cannot, under the constitution, delegate such power to municipalities; that the ordinance is in conflict with certain provisions of the Motor Vehicle Law (Ill.Rev.Stat.1941, chap. 95 1/2, pars. 32, 32a), and of the Uniform Act Regulating Traffic on Highways. Ill.Rev.Stat.1941, chap. 95 1/2, par. 127. It is also claimed that the ordinance is in conflict with the fourteenth amendment to the constitution of the United States, as well as various provisions of the constitution of this State.

It has long been the established rule in Illinois that municipalities may only exercise the powers delegated to them by the General Assembly. All legislative power is vested in the General Assembly by the constitution. That body may exercise the power directly or it may create municipalities and delegate to them, for the purposes of local government, such portion of the power as it sees fit to grant. Municipal corporations owe their existence to, and their powers are derived solely from, the General Assembly. They have no inherent power. In order to legislate upon, or with reference to, a particular subject, they must be able to point to the statute which gives them the authority to exercise the power which they claim the right to exercise. Statutes granting powers to municipal corporations are strictly construed. Any fair or reasonable doubt of the existence of the power is resolved against the municipality which claims the right to exercise it. The implied powers which a municipal corporation possesses and can exercise, are only those necessarilyincident to the powers expressly granted. Inasmuch as a city has no power, except by delegation from the General Assembly, in order to enable it to impose any tax or license fee, the power must be expressly granted or be necessarily implied in, or incident to, the powers expressly delegated. People ex rel. Lapice v. Wolper, 350 Ill. 461, 183 N.E. 451;City of Rockford v. Nolan, 316 Ill. 60, 146 N.E. 564;Arms v. City of Chicago, 314 Ill. 316, 145 N.E. 407;Potson v. City of Chicago, 304 Ill. 222, 136 N.E. 594;City of Chicago v. Pettibone & Co., 267 Ill. 573, 108 N.E. 698;City of Chicago v. Mandel Bros., 264 Ill. 206, 106 N.E. 181;People ex rel. Friend 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, 257 Ill. 76, 100 N.E. 159, 43 L.R.A.,N.S., 205; City of Chicago v. M. & M. Hotel Co., 248 Ill. 264, 93 N.E. 753;Wilkie v. City of Chicago, 188 Ill. 444, 58 N.E. 1004,80 Am.St.Rep. 182.

Subsection 1 of section 23 of the Revised Cities and Villages Act provides that the city council in cities shall have and may exercise the powers enumerated in subsections 2 to 107, inclusive, of that section. This express enumeration of the powers conferred upon municipalities, is an exclusion of all other powers not expressly delegated to them, and which are not necessarily implied in those expressly delegated. People v. City of Chicago, supra; Potson v. City of Chicago, supra. It is also the rule that a city may derive its powers to legislate upon a given subject, from one item or from two or more items enumerated in this section. Consumers' Co. v. City of Chicago, 313 Ill. 408, 145 N.E. 114;Goodrich v. Busse, 247 Ill. 366, 93 N.E. 292,139 Am.St.Rep. 335,20 Ann.Cas. 589;Spiegler v. City of Chicago, 216 Ill. 114, 74 N.E. 718;Gundling v. City of Chicago, 176 Ill. 340, 52 N.E. 44,48 L.R.A. 230; Potson v. City of Chicago, supra.

With these general rules in mind, it becomes necessary to determine whether the power to pass the ordinance in question has been delegated to the city of Bloomington. In arriving at a decision of this question, it seems obvious that some of the provisions of the statute relied upon, as conferring the power, may be readily eliminated without any extended discussion. For instance, subsection 18 relates solely to the power to provide for and regulate crosswalks, curbs and gutters. It cannot be contended with any degree of sincerity that by the delegation of power found in this subsection, the municipality has been given the power attempted...