City of Chicago v. Rhine

• Decision Date: 17 June 1936
• Docket Number: No. 23581.,23581.
• Citation: 2 N.E.2d 905,363 Ill. 619
• Parties: CITY OF CHICAGO v. RHINE.
• Court: Illinois Supreme Court

363 Ill. 619

2 N.E.2d 905

CITY OF CHICAGO

v.RHINE.

No. 23581.

Supreme Court of Illinois.

June 17, 1936.

Action by the City of Chicago against Charles Rhine. From an adverse judgment, the city appeals.

Reversed and remanded, with directions.Appeal from Municipal Court of Chicago; Eugene L. McGarry, judge.

Barnet Hodes, Corp. Counsel, of Chicago (Martin H. Foss, of Chicago, of counsel), for appellant.

Edgar Bernhard, of Chicago, for appellee.

HERRICK, Chief Justice.

The question presented for decision is the validity of Ordinance No. 974 of the city of Chicago, which prohibits the sale, offering or exposing for sale, or soliciting to purchase any article, daily newspapers excepted, on any street, alley, or public place in two certain restricted territories specifically defined in the ordinance, but which may be referred to as the loop and the Wilson avenue districts, respectively. An amended complaint was filed in the municipal court on June 13, 1935, which charged the defendant with violating the ordinance by unlawfully and willfully offering to sell, and exposing for sale, magazines in front of 22 South Clark street, which is in the loop district. A motion to dismiss, in the nature of a demurrer challenging the legality of the ordinance, was interposed by the defendant.

The grounds urged may be summarized as: (1) There is no statutory authority which granted the city the power to adopt the ordinance; (2) the ordinance is unreasonable and discriminatory; and (3) it violates the Fourteenth Amendment to the Federal Constitution and sections 2 and 4 of article 2 of the State Constitution. The motion was sustained. The presiding judge filed written findings, and therein found that the ordinance was invalid for each of the three reasons cited, and entered judgment for the defendant. The city brings the cause here for review.

The trial judge has made his certificate in statutory form that the validity of a municipal ordinance is involved.

The city holds the title to streets in trust for the people. City of Chicago v. Collins, 175 Ill. 445, 51 N.E. 907,49 L.R.A. 408, 67 Am.St.Rep. 224. That the city might effectually carry out its trusteeship by the regulation and control of the use of such streets for the primary purpose for which they were created, the Legislature by article 5 of the Cities and Villages Act (Smith-Hurd Ann.St. c. 24, § 65 et seq.; Ill.Rev.Stat.1935, c. 24, par. 65(1) et seq., pp. 344-351) delegated to such municipalities certain powers, amongst which, pertinent to the issues here, are: Section 9 (Smith-Hurd Ann.St. c. 24, § 65.8), to regulate the use of the streets. Section 10 (Smith-Hurd Ann.St. c. 24, § 65.9), to prevent and remove encroachments thereon. Section 14 (Smith-Hurd Ann.St. c. 24, § 65.13), to regulate the use of sidewalks. Section 20 (Smith-Hurd Ann.St. c. 24, § 65.19), to regulate traffic and sales upon the streets, sidewalks, and public places. Section 41 (Smith-Hurd Ann.St. c. 24, § 65.40), to license, tax, regulate, suppress, and prohibit hawkers and peddlers. Section 102 (Smith-Hurd Ann.St. c. 24, § 65.101), to pass all ordinances, rules, and make all regulations, proper or necessary, to carry into effect the powers granted to cities or villages, with such fines or penalties as the city council or board of trustees shall deem proper, etc.

From these several grants of power, and others not necessary to enumerate here, it is obvious that it was the legislative intent that cities and like municipalities should have the power to adopt ordinances tending to promote the general welfare of the public in the use of the streets. It was not necessary that the power be derived from a single grant, but it may rest on several grants (City of Chicago v. Arbuckle Bros., 344 Ill. 597, 176 N.E. 761), and the right to regulate sales upon streets, sidewalks, and public places ipso facto carries with it the authority not only to impose reasonable restrictions and regulations but even to suppress sales thereon. People v. Thompson, 341 Ill. 166, 173 N.E. 137; City of Chicago v. Collins, supra. The basic purpose of a street is to afford a way for traffic, both pedestrian and vehicular, to the public, and the public is rightfully entitled to the use of such thoroughfare free of all obstructions and impedimenta which tend to delay or obstruct traffic or annoy the public in the use of the streets. City of Chicago v. Collins, supra, 175 Ill. 445, at page 455, 51 N.E. 907,49 L.R.A. 408, 67 Am.St.Rep. 224;City of Chicago v. McKinley, 344 Ill. 297, 304, 176 N.E. 261. It is the duty of the city to maintain its streets in such condition that the public shall at all times have the unobstructed use thereof. People v. Corn Products Refining Co., 286 Ill. 226, 121 N.E. 574;People v. Harris, 203 Ill. 272, 67 N.E. 785,96 Am.St.Rep. 304. Inasmuch as we hold that the city was acting within the terms of the legislative grants to it in enacting the ordinance about which the controversy has here arisen, the burden is upon the defendant to show that the ordinance is unreasonable. Chicago & Alton Railroad Co. v. City of Carlinville, 200 Ill. 314, 65 N.E. 730,60 L.R.A. 391, 93 Am.St.Rep. 190;Biffer v. City of Chicago, 278 Ill. 562, 116 N.E. 182;McCray v. City of Chicago, 292 Ill. 60, 126 N.E. 557;Ferguson Coal Co. v. Thompson, 343 Ill. 20, 174 N.E. 896.

The defendant contends that the ordinance is unreasonable in that (1) there is no sufficient legal reason why the ordinance should permit the sale of daily newspapers and prohibit the sale of magazines within the restricted territory; and (2) that there is no substantial basis for designating either of the two prohibited areas in which commerce cannot be carried on freely.

It is a matter of common knowledge that the loop and the Wilson avenue districts are severally highly congested areas for travel and transportation, and of this fact we take judicial notice. 23 Corpus Juris, § 1992, p. 165. It doubtless was the thought of the municipal authorities that the indiscriminate sale of articles of merchandise upon the streets in the prohibited territory tended to impede, delay, and obstruct traffic, thereby impairing the legitimate use of the streets. The hampering of traffic movement in the congested areas was a problem presented to the municipal authorities for solution. They were not concerned with the fact that withdrawal of the use of such streets for private gain by street vendors and peddlers might possibly work a hardship in individual cases on those engaged in such commercial pursuits, but realizing it was the city's obligation to arrive at, as nearly as might be, a practical remedy for the relief of the unfavorable travel situation in those streets, overburdened with traffic, the municipal authorities determined upon this ordinance as an appropriate legal remedy.

It is our duty in passing upon the reasonableness of the ordinance to consider the circumstances and conditions existing at the time of its passage and the evils sought to be corrected. Biffer v. City of Chicago, supra. Even though we might not agree with the judgment of the municipal body in the passage of such ordinanceand think it oppressive, yet if it was within the powers granted the municipality we have no right to disturb the ordinance (Metropolis Theater Co. v. City of Chicago, 246 Ill. 20, 92 N.E. 597, affirmed in 228 U.S. 61, 33 S.Ct. 441, 57 L.Ed. 730) unless it is clearly unreasonable. City of Chicago v. Clark, 359 Ill. 374, 194 N.E. 537. It is not within the province of the judiciary to set up its judgment as to the necessity and appropriateness of the legislative act so long as the same may not clearly be unreasonable. Ferguson Coal Co. v. Thompson, supra; Dorwart v. City of Jacksonville, 333 Ill. 143, 164 N.E. 129;Melton v. City of Paris, 333 Ill. 190, 164 N.E. 218. Under the special circumstances existing in the loop and the Wilson avenue areas it was not necessary that the ordinance apply to all portions of the city. City of Chicago v. McKinley, supra; Ferguson Coal Co. v. Thompson, supra; Commonwealth v. Abrahams, 156 Mass. 57, 30 N.E. 79;People v. Keir, 78 Mich. 98, 43 N.W. 1039.

The defendant earnestly insists that because the ordinance permits the sale of daily newspapers within the prohibited districts the ordinance is thereby unconstitutional. In taking up this phase of the case we should glance for the moment at the position of the defendant who it attacking the constitutionality of the ordinance. He is seeking to carry out his private commercial enterprise for his own personal financial profit, on the streets within the loop district, one of the forbidden domains. Although he may have, prior to the passage of the ordinance, pursued his calling on the streets, his use thereof was solely a permissive one. He had no inherent right to operate his business in or upon the streets of the city. People v. Thompson, supra; People v. Wolper, 350 Ill. 461, 183 N.E. 451;People v. Clean Street Co., 225 Ill. 470, 80 N.E. 298,9 L.R.A.(N.S.) 455, 116 Am.St.Rep. 156;Wade v. Nunnelly, 19 Tex.Civ.App. 256, 46 S.W. 668;Rosa v. City of Portland, 86 Or. 438, 168 P. 936, L.R.A.1918B, 851;Greene v. City of San Antonio (Tex.Civ.App.) 178 S.W. 6;West v. City of Waco, 116 Tex. 472, 294 S.W. 832. That some one else is given the privilege of selling newspapers (a commodity not within the same class as the article the defendant was exposing for and offering for sale) did not constitute an unconstitutional discrimination against him. The classification made by the city by which daily newspapers were exempt from the operation of the ordinance was valid. People v. Thompson, supra; Rosa v. City of Portland, supra; Philadelphia v. Brabender, 201 Pa. 574, 51 A. 374,58 L.R.A. 220.

Nor does the ordinance run counter to the Fourteenth Amendment to the Constitution of the United States nor to the cited sections of the State Constitution. The ordinance affected all persons engaged in the same business...