City of Chicago v. Kluever

• Decision Date: 20 February 1913
• Citation: 100 N.E. 917,257 Ill. 317
• Parties: CITY OF CHICAGO v. KLUEVER.
• Court: Illinois Supreme Court

257 Ill. 317

100 N.E. 917

CITY OF CHICAGO

v.KLUEVER.

Supreme Court of Illinois.

Feb. 20, 1913.

Error to Municipal Court of Chicago; Sheridan E. Fry, Judge.

Fred Kluever was convicted of operating a motor vehicle in Chicago without having obtained a license after due examination, in violation of Chicago Municipal Code 1911, § 2696, and he brings error pursuant to a certificate of importance. Affirmed.

Zimmerman & Myers, Edward A. Zimmerman, and Abram L. Myers, all of Chicago, for plaintiff in error.

William H. Sexton, Corp. Counsel, and James S. McInerney, Pros. Atty., both of Chicago (Edwin J. Raber, of Chicago, of counsel), for defendant in error.

CARTWRIGHT, J.

Fred Kluever, the plaintiff in error, was charged in the municipal court of Chicago with violating section 2696 of the code of ordinances of 1911 of said city, requiring operators of motor vehicles, engaged in the transportation of passengers, merchandise, or any other purpose for hire or reward, to be duly examined and licensed, and upon a trial by the court was found guilty. The court imposed a fine of $5 and costs, and certified that the validity of the ordinance was involved, and the public interest required that the question should be decided by this court. In pursuance of that certificate, a writ of error was sued out to bring the record here for review. Section 2696 is as follows: ‘No motor vehicle engaged in the transportation of passengers, merchandise or any other purpose for hire or reward shall be propelled or driven upon or along any street, alley or public way in the city of Chicago unless the person in charge of such vehicle who is acting as operator thereof (such person being herein referred to as ‘operator’) and as such operator controls the means of propulsion of any vehicle, shall be a person duly examined in the manner hereinafter provided and found competent and qualified to operate or drive such vehicle through the city streets without endangering the public safety, and duly licensed as provided for herein.'

The defendant, who had no license from the city, was arrested while operating an automobile and carrying a passenger in a public street of the city; and the validity of the ordinance was the only matter in dispute at the trial. The defendant was an operator of automobiles licensed by the Secretary of State and employed as a chauffeur by the UnionClub Livery Company, a corporation operating a garage in Chicago. He did not solicit customers or business on the street nor occupy a public stand. The livery company owns and maintains a garage at 944 North Clark street, under a license granted to it by the city for carrying passengers for hire, and uses the streets for the purpose of transporting passengers. It retains the right to let its automobiles to whomsoever it desires, and does not claim to hold itself out as a common carrier.

[1] The legislative power is vested in the General Assembly, which may delegate so much as may be deemed proper to municipal corporations for the regulation of local affairs. As a municipal corporation possesses only such legislative power as is so delegated, the authority to pass ordinances must be found in its charter. The inquiry, then, is whether there is in the charter of the city of Chicago any delegation of power to provide that a person in charge of a motor vehicle, and acting as operator thereof in the transportation of passengers or merchandise, shall be a person competent and qualified to operate or drive such vehicle through the city streets, without endangering the public safety.

[2] If there is such power, an examination for the purpose of ascertaining competency and qualifications, and a license, are proper methods of exercising the power. It is argued that there is no such power, and especially that, under the stipulation of fact, the livery company was not a common carrier, and therefore did not come within the fortysecond and therefore did not come within the forty-second clause of section 1 of article 5 of the license, tax and regulate hackmen, draymen, omnibus drivers, carters, cabmen, porters, expressmen, and all others pursuing like occupations.'

Counsel regard the decision in Farwell v. City of Chicago, 71 Ill. 269, as settling the question that the livery company was not a common carrier. In that case defendants were wholesale merchants, who kept and used wagons for the purpose of transporting goods sold by them to the depot or wharf for shipment, and they charged cartage to the purchasers. They were held not to be within the letter or spirit of the forty-second clause. But their business was not of the same nature as that of the livery company. Cases where teaming was done with trucks and wagons, under time contracts, for hauling goods for wholesale firms, of course have no relation to the proposition contended for. The question, however, whether the livery company was a public or common carrier is of no importance in this case, if there are other provisions of the charter authorizing the enactment of the ordinance; and, as it seems clear that there are such other provisions, the question whether the livery company was a common carrier is not decided.

[3] The seventh clause of section 1, above mentioned, empowers the city councel ‘to lay out, to establish, open, alter, widen, extend, grade, pave or otherwise improve streets, alleys, avenues, sidewalks, wharves, parks and public grounds, and vacate the same’; and the ninth clause gives power ‘to regulate the use of the same.’ These are sweeping provisions intended to give very extensive control over streets; and the sixty-sixth clause gives the city council power ‘to regulate the police of the city or village, and pass and enforce all necessary police ordinances.’ It is true that the sixty-sixth clause was not intended to delegate to municipalities the entire police power of the state, and that their powers are confined within the general scope of municipal functions, and the subjects enumerated in their charters. The decision in City of Chicago v. M. & M. Hotel Co., 248 Ill. 264, 93 N. E. 753, was based on that ground; but if a regulation, referable to the police power, falls within the range of the subjects, over which control has been given to a municipality, it is within the delegated power.

In Spiegler v. City of Chicago, 216 Ill. 114, 74 N. E. 718, the validity of an ordinance requiring a license for tank wagons using the streets and prohibiting such use unless the wagons were equipped with drip pans or other suitable device for the purpose of preventing the spilling of oils upon the pavement, was disputed. The ordinance was sustained, and it was held that the city derived power to enact it from various clauses of section 1, including the authority to regulate the use of streets and to pass and enforce all necessary police ordinances; and, as to the word ‘necessary,’ the court said that ‘indispensable’ was not intended thereby, ‘but power was conferred upon the city to pass all ordinances which would be conducive to the promotion of the health, safety, and welfare of its inhabitants.’ As to the police power, the court quoted from Price v. People, ...