City of Carrollton v. Bazette

• Citation: 159 Ill. 284,42 N.E. 837
• Parties: CITY OF CARROLLTON v. BAZETTE.
• Decision Date: 17 January 1896
• Court: Supreme Court of Illinois

159 Ill. 284

42 N.E. 837

CITY OF CARROLLTON

v.BAZETTE.

Supreme Court of Illinois.

Jan. 17, 1896.

Appeal from circuit court, Greene county; George W. Herdman, Judge.

Appeal by the city of Carrollton from a judgment of the circuit court reversing a judgment of a justice of the peace imposing a fine on E. Bazette for violation of a city ordinance. Reversed.

W. C. Scanland and Thomas Henshaw, for appellant.

Henry T. Rainey, for appellee.

CARTER, J.

This is an appeal from a judgment of the circuit court of Greene county rendered against appellant for costs, and in bar of its action on a cause brought to that court by appeal from the judgment of a justice of the peace imposing a fine of three dollars and costs on appellee for the violation of an ordinance of the city of Carrollton. The ordinance provided that any person or corporation making sales of goods, wares, merchandise, or other things, except farm or dairy produce, etc., upon the streets or sidewalks of the city, or who should engage in the business of hawker or peddler, or who should temporarily reside in, and vend at auction any goods, wares, merchandise, or other things anywhere in, the city, or engage in the business of itinerant merchant, without having first obtained a license therefor in accordance with the provisions of the ordinance, should be fined not less than $100. The ordinance authorized the mayor to revoke any license, in his discretion, on tendering back the unearned license money. Section 3 established the following schedule of license fees: ‘Itinerant merchants at retail or auction, $10.00 per day. Foot peddlers and soliciting agents, $2.00 per day. * * * All other cases not specifically provided for, $2.00 per day.’ Appellee applied for and obtained a license to sell books, notions, watches, etc., for the period of three weeks, for which he paid a license fee of $30. The license provided that it was subject to revocation by the mayor. Soon after commencing business, appellee began to sell many different kinds of goods and wares not embraced within the classes mentioned in the license, both at auction and in due course of trade, at retail. His license was revoked by the mayor, and the license fee tendered back to him, but he refused to accept it. He was notified by the mayor that, for the business he was then engaged in, he would be required to take out a license as itinerant merchant, and pay therefor $10 per day. Appellee refused to procure such license or pay the amount demanded, but continued to sell as before. Complaint was made under the ordinance, charging him with temporarily residing in said city, and vending at auction goods, wares, and merchandise, and for engaging in the business of itinerant merchant in said city, without a license. A fine of three dollars and costs was assessed by the justice of the peace. When the ordinance was offered in evidence on the trial in the circuit court, it was objected to by appellee on the ground that both the ordinance and the statute authorizing it, approved June 16, 1887, providing that cities, etc., ‘shall have power to license, tax, regulate, suppress or prohibit itinerant merchants and transient vendors of merchandise’ (Rev. St., Meyer's Ed. 1895, p. 232) were ‘unconstitutional and void; that they are unreasonable, in restraint of trade, tend to create monopolies, objectionable as class legislation, and discriminate between resident and nonresident auctioneers and merchants, and, as applied to the facts in this case, are an attempted interference, by state regulation, with interestate commerce.’ The objection was sustained by the court, as to the first charge in the complaint, and later in the trial, at the close of the evidence, the court sustained the motion of the defendant to exclude the ordinance altogether from the jury, and to instruct them to find for the jury, and to instruct them to find for the defendant. The jury returned their verdict as instructed, and, after overruling appellant's motion for a new trial, judgment was rendered against the city for costs.

It was insisted by the defendant that the evidence showed that he was not a resident of this state, and that he was engaged in the purchase of bankrupt stocks of goods in other states, and shipping them into this state for sale, and that, as applied to the facts of this case, the ordinance was an attempted regulation of interstate commerce, and void for that reason also. The evidence showed that the defendant purchased such stocks of goods wherever he could obtain them to the best advantage, and sold them out at retail,-sometimes at auction, and sometimes in due course of trade; that for this purpose he opened stores or places of business in different cities and villages, shipping from one to another, usually continuing in business only a few weeks at a time in any one place. Both the ordinance and the license itself provided for the revocation of the license by the mayor, and we are of the opinion, under the evidence, there was no abuse of this power by the mayor.

But assuming that the license granted to sell books, notions, and watches was properly revoked, because the sales of appellant embraced a large class of merchandise not designated in the license, the question arises whether that part of the ordinance which provides that no person shall temporarily reside in said city, and vend at auction any goods, wares, or merchandise, or engage in the business of itinerant merchant in said city, without first having obtained a license therefor, and fixing the license fee at $10 per day, was within the power of the city council to pass. Waiving the question that the ordinance, as set out, seems to confine the license fee of $10 to those coming within the second class mentioned above,-that is, to itinerant merchants,-we are of the opinion that the city council had no power to make any discrimination between residents and nonresidents of the city, or between those temporarily residing in the city and those permanently residing there, in requiring licenses, or in the fees to be paid for such licenses. This part of the ordinance confines its operation to those who temporarily reside in the city, and would seem to have no reference to the temporary character or to the permanency of the business. Under the provision in question, any one permanently residing in the city could engage in the business mentioned, either temporarily or permanently, without a license, while a temporary resident would, in either case, be subject to a fine. The city council had no power to make such a discrimination, and that part of the ordinance was properly held to be invalid. 2 Beach, Pub. Corp. 1235; Village of Braceville v. Doherty, 30 Ill. App. 645. But, as the provision relating to itinerant merchants had no necessary connection with or dependence upon the first-mentioned provision, it may be separately enforced, unless found to be also invalid upon other grounds held sufficient in the court below to invalidate it. The power of the legislature to authorize cities and villages in this state to license and regulate various kinds of business and occupations carried on within their limits, and to require the payment of license fees, has so often been the subject of review, and so often sustained, by this court, that no extended discussion of the general subject will here be attempted. It has been held that such power is inherent in all governments; that, except so far as limited or restrained by the constitution of the state or of the United States, the legislature has such power, as being the repository of all the power of the people not taken from it. And by repeated decisions of this court it has been held that a mere license fee imposed by the municipal authorities under authority of an act of the legislature is not a tax. Chicago Packing & Provision Co. v. City of Chicago, 88 Ill. 221;Wiggins Ferry Co. v. City of East St. Louis, 102 Ill. 560, and cases there cited. And since the adoption of the constitution of 1870, containing the provision in section 1 of article 9 that ‘the general assembly shall have power to tax peddlers, auctioneers, brokers, bankers, merchants, commission merchants,’ etc., ‘in such manner as it shall from time to time direct, by general law uniform as to the class upon which it operates,’ and sections 9 and 10 of the same article, requiring uniformity in taxation as to persons and property, the same view has been maintained, and that these provisions of the constitution have not changed the power of the legislature to authorize municipalities to require and collect such license fees. Wiggins Ferry Co. v. City of East St. Louis, 102 Ill. 560. In the case cited it was said by Mr. Justice Walker, in delivering the opinion of the court, that: ‘The latter words in the first section, requiring the tax to be by general law, and uniform as to the general class upon which it operates, have no operation upon this case, because this, as shown by the cases cited, is not a tax, but a license. The constitution has not prohibited the general assembly from imposing, or authorizing the imposition of, the duty to procure a license to pursue any calling, nor has it limited the power or limited its exercise. In this respect the power of the legislature is the same as it has ever been since the organization of the state government, and no one, we presume, will question the legislative power to require persons engaged in various avocations to procure a license for the purpose, and thus regulate the exercise of an avocation.’ While, in numerous other cases in which it was urged that the license fees exacted were taxes, within the provisions of the constitution above referred to, the question whether the ordinances conformed to those provisions was discussed, yet the doctrine announced by this court in previous cases has not been departed from. Howland v. City of Chicago, 108 Ill. 496;Timm v. Harrison, 109 Ill. 593;Braun v. City...