City of Chicago v. M.&M. Hotel Co.

• Decision Date: 09 February 1911
• Citation: 93 N.E. 753,248 Ill. 264
• Court: Illinois Supreme Court
• Parties: CITY OF CHICAGO v. M. & M. HOTEL CO.

248 Ill. 264

93 N.E. 753

CITY OF CHICAGO

v.M. & M. HOTEL CO.

Supreme Court of Illinois.

Dec. 21, 1910.

Rehearing Denied Feb. 9, 1911.

Error to Municipal Court of Chicago; John C. Scovel, Judge.

Action by the City of Chicago against the M. & M. Hotel Company. Judgment for plaintiff, and defendant brings error. Reversed.Kraus, Alschuler & Holden (Thomas J. Lawless, of counsel), for plaintiff in error.

George H. White (Henry M. Seligman, of counsel), for defendant in error.

VICKERS, C. J.

The city of Chicago brought an action against the M. & M. Hotel Company, a corporation, in the municipal court of Chicago, to recover a penalty for carrying on and engaging in the business of conducting a hotel, known as the Lexington Hotel at Twenty-Second street and Michigan avenue, without having first obtained a license so to do, contrary to an ordinance passed by the city council January 7, 1907. The hotel company admitted, upon a hearing, that before the beginning of the suit it had been engaged in conducting such hotel business without having a license so to do. The municipal court adjudged the hotel company guilty, and assessed a fine of $10 and costs against it. The trial judge having made a proper certificate, a writ of error has been sued out from this court to review the judgment below.

The sole question to be determined is whether the ordinance under which the fine was assessed is valid. That ordinance is, in substance, as follows:

Section 1 defines a hotel as ‘any hotel, inn, rooming house, lodging house, or other public house or place which provides lodging for hire, either with or without board, for the transient accommodation of the public.’

Section 2 provides that no person shall keep, conduct, or maintain a hotel unless he be licensed so to do in accordance with provisions of the ordinance, and that every day in which a hotel is kept, conducted, or maintained without such license shall be a separate violation.

Section 3 provides that the mayor shall grant a license to any person of good character who shall apply to him in writing therefor, and who shall not be indebted to the city of Chicago on account of any unpaid fine adjudged against him for the violation of any provision of any ordinance of the city of Chicago relating to the keeping or conducting of a hotel; that the application shall specifically describe the premises, and the number of lodging rooms for guests, in which it is proposed to conduct such hotel, provides that no license shall be issued to any one other than the proprietor, except in case of a corporation, in which case the license may be issued either to the corporation or to any one designated by such corporation as manager; that, where a corporation is proprietor, the application shall be signed by its president or secretary and shall truly state the names and addresses of all its officers and directors, and that a license to a firm shall be issued in the names of the individual members of the firm, provides that every applicantshall execute to the city a bond, with at least two sureties to be approved by the city collector, in the sum of $500, conditioned that the applicant will faithfully observe and conform to all ordinances in force at the time of his application or thereafter passed during the period of the license applied for, concerning or in any manner relating to the conduct or management of hotels, and will promptly pay all fines which may be adjudged against him for the violation of any provision of any such ordinance during the period of his license; that no application for license shall be considered until the bond shall have been filed and approved.

Section 4 provides that any person complying with the aforesaid requirements, and upon the payment, in advance, to the city collector of a license fee of $15, shall receive a license authorizing the person or persons named to keep a hotel at the place and of the number of rooms designated in the license and for the period stated therein; that licenses may be issued for the full license year or any unexpired portion thereof, the fee to be paid for a portion of a year to bear the same ratio to the sum required for the whole year that the number of days in such unexpired portion bears to the whole number of days in the year; and that no license shall extend beyond the 30th day of April next following its issuance.

Section 5 reads: ‘Every hotel licensed under this ordinance shall at all times keep a book or register wherein shall be entered and registered, at the time and in the proper order, the name of every person becoming a guest of such hotel or an occupant of any room or portion of the premises, except employés of the hotel. Such register shall at all times be open to the inspection of the mayor, the chief of police and the police officers of the city of Chicago and their assistants.’

Section 6 reads: ‘No person keeping or conducting a hotel shall permit the same to be or become a resort of disreputablepersons, nor knowingly permit or suffer the same to be used or occupied by persons for immoral purposes.’

Section 7 provides that any person violating any provision of the ordinance shall be fined in a sum not less than $10 nor more than $200 for such offense; that, if any person has been once convicted for violating any provision of the ordinance, the mayor may, in his discretion, revoke the license of such person, if he has one, in addition to the other penalties provided by the ordinance, and for a second conviction the mayor shall revoke his license, and no license shall thereafter be issued to such person until the expiration of two years after the date of judgment of the second conviction.

Section 8 reads: ‘This ordinance shall not be so construed as to include boarding houses or places where board or lodging alone are furnished exclusively by the week or longer period.’

The validity of this ordinance is assailed by plaintiff in error on several grounds, the most important of which, and the only one which we need to consider, is the want of power in the city to pass the ordinance. Defendant in error concedes that there is no express power given it to license hotels or hotel keepers, since the business of hotel keeping is not enumerated among the occupations which may be licensed or regulated under the express provisions of the city and village act (Hurd's Rev. St. 1909, c. 24). The city contends, however, that under its general police power it had the right to pass the ordinance in question, and concedes that, if the power to pass the ordinance in question does not exist under the police power, it does not exist at all and the ordinance is therefore void.

The city of Chicago is organized under the statute known as the city and village act. It may exercise only such powers as are expressly delegated to it by the Legislature, and such as are necessarily implied from those expressly given. All governmental powers primarily reside in the people. Some of these powers have been delegated to the federal government by the Constitution of the United States. All of the powers not thus delegated are reserved to the people of the several states, and are exercised by the people through their representatives in the Legislature and the other departments of the state government. The Constitution of the state does not confer power upon the Legislature to act, but it is a limitation upon its powers. The state Legislature has inherent power to pass any law that it sees fit, unless it contravenes some provision of the state or federal Constitution. The Legislature may delegate all or a part of its power to municipalities created by the Legislature. Among the essential powers of government are the texing power, the police power, and the power of eminent domain. These powers belong to the state. They are essential to the existence of government. The state cannot divest itself of these powers and retain its sovereignty. Stripped of these great powers, the state would become subordinate to the municipality or corporate entity in which such powers were vested. The mere delegation of any of these powers does not divest the state of its sovereign right to exercise them for itself or to take them away from municipalities at its pleasure. Counties, townships, school districts, cities, villages, and other municipal and quasi municipal corporations are created under the authority of the Legislature, to better accomplish the purposes of local government. These, and all other local municipalities which are authorized by the Legislature, derive their existence and all their powers from the Legislature of the state creating them. There is therefore no such thing as an inherent power in any municipality which is created by legislative enactment.

The police power of the state is difficult to...