City of Chicago v. Mayer

• Decision Date: 04 December 1919
• Docket Number: No. 12541.,12541.
• Parties: CITY OF CHICAGO v. MAYER.
• Court: Illinois Supreme Court

290 Ill. 142

124 N.E. 842

CITY OF CHICAGO

v.MAYER.

No. 12541.

Supreme Court of Illinois.

Oct. 27, 1919.

Rehearing Denied Dec. 4, 1919.

Error to Municipal Court of Chicago; Hugh J. Kearns, Judge.

Fred A. Mayer was fined for violating the Chicago ordiance fixing rates to be charged for the transportation of goods, wares and merchanidse in the city, and he brings error. Affirmed.

Brady, Rutledge & Devaney, of Chicago (Andrew Rutledge, of Chicago, of counsel), for plaintiff in error.

Samuel A. Ettelson, Corp. Counsel, and Harry B. Miller, both of Chicago (Daniel Webster, of Chicago, of counsel), for defendant in error.

CARTER, J.

This is a writ of error sued out to review the judgment of the municipal court of Chicago in a proceeding wherein Fred A. Mayer, plaintiff in error, who was engaged in the moving and express business in Chicago, was fined $50 and costs for the violation of an ordiance of the city of Chicago which fixed the rates to be charged for the transportation of goods, wares, and merchandise in said city.

Plaintiff in error has been engaged in the moving and express business for a long time in Chicago and contracts with persons, generally who desire his services. In this work he used four auto trucks and various horsedrawn wagons. The complaining witness, Mrs. Viola Neely, called up his place of business on the telephone and requested to have her household goods moved from her then residence to another in the city. She testified that she understood that he was to move her goods for $18. He charged her $30.50. There is some question in the case as to whether or not Mrs. Neely understood from the telephone conversation what was to be charged her for the moving, but there can be no question that the charge made was largely in excess of the rate allowed by said ordinance.

[4] Counsel for plaintiff in error argue that the ordinance in question is unreasonable, unjust, and confiscatory, and therefore unconstitutional and void, and that plaintiff in error should have been allowed to show that fact when he offered evidence tending, as he claims, to prove it. Whether a particular ordinance is unreasonable, and therefore void, is a question for the court, and not for the jury. City of Lake View v. Tate, 130 Ill. 247, 22 N. E. 791,6 L. R. A. 268;Hawes v. City of Chicago, 158 Ill. 653, 42 N. E. 373,30 L. R. A. 225;Harris v. People, 218 Ill. 439, 75 N. E. 1012; 2 Dillon on Mun. Corp. (5th Ed.) § 599. Plaintiff in error in this case waived a jury, and all questions were tried before the court; therefore the evidence could be properly offered at the time the case was being heard on the merits. The presumption is in favor of the validity of an ordinance, and it is incumbent upon any one who seeks to have it set aside as unreasonable to point out or show affirmatively, by clear and definite proof, wherein such unreasonableness exists. Chicago & Alton Railway Co. v. Averill, 224 Ill. 516, 79 N. E. 654;City of Chicago v. Shaw Livery Co., 258 Ill. 409, 101 N. E. 588. For the purposes of this litigation it is immaterial whether the cost of the operation of the express business was 80 per cent. higher than it was when the ordiance was passed. The only question to be decided by the court was whether or not plaintiff in error could, under the ordinance rates, receive a fair, just, and reasonable return on the money invested by him in his business. The form in which the offer of this evidence was made was practically the offer of the conclusion of the witnesses as to whether or not the charges fixed by the municipal ordinance were confiscatory. Witnesses ‘must not usurp the province of the court and jury by drawing those conclusions of law and fact upon which the decision of the case depends.’ Jones on Evidence (2d Ed.) § 372. The evidence offered was not properly admissible because it called for the conclusion of the witnesses upon the ultimate facts. Martin v. Hertz, 224 Ill. 84, 79 N. E. 558;People v. Paisley, 288 Ill. 310, 123 N. E. 573. The trial court, therefore, was not in error in refusing to admit the testimony in the form in which it was offered.

Counsel for plaintiff in error further argue that the city of Chicago had no power to fix rates to be charged by expressmen, because said ordinance had been repealed, in effect, by the Public Utilities Act, and that the Public Utilities Commission is the only body in the state to fix rates under which plaintiff in error and others in a similar business can operate. There can be no question, under the authorities, that expressman are common carriers, as that term is ordinarily understood. Hinchliffe v. Wenig Teaming Co., 274 Ill. 417, 113 N. E. 707;Parmelee v. Lowitz, 74 Ill. 116, 24 Am. Rep. 276;Public Utilities Com. v. Monarch Refrigerating Co., 267 Ill. 528, 108 N. E. 716, Ann. Cas. 1916A, 528; 1 Bouvier's Law Dict. (Rawle's Rev. 3d Ed.) 553. This being so, the Legislature could grant to the Public Utilities Commission the power of regulating and controlling all express business, whether done by companies or individuals. The decisive question involved here is whether or not, under the present Public Utilities Act (Hurd's Rev. St. 1917, c. 111a), it has so provided as to an express business such as plaintiff in error conducts. Paragraph (b) of section 10 of said act provides:

‘The term ‘common carrier,’ when used in this act, includes all railroads, street railroads, express companies, private car lines, sleeping car companies, fast freight lines, steamboat...