City of Chicago v. Drake Hotel Co.

• Decision Date: 05 October 1916
• Docket Number: No. 10145.,10145.
• Citation: 274 Ill. 408,113 N.E. 718
• Parties: CITY OF CHICAGO v. DRAKE HOTEL CO.
• Court: Illinois Supreme Court

274 Ill. 408

113 N.E. 718

CITY OF CHICAGO

v.DRAKE HOTEL CO.

No. 10145.

Supreme Court of Illinois.

June 22, 1916.

Rehearing Denied Oct. 5, 1916.

Error to Municipal Court of Chicago; John Courtney, Judge.

Suit by the City of Chicago against the Drake Hotel Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Dunn and Cartwright, JJ., dissenting.

Samuel A. Ettelson, Corp. Counsel, of Chicago (Leon Hornstein and Harry L. Brin, both of Chicago, of counsel), for plaintiff in error.

Mayer, Meyer, Austrian & Platt, of Chicago (Levy Mayer and Alfred S. Austrian, both of Chicago, of counsel), for defendant in error.

COOKE, J.

The city of Chicago instituted suit in the municipal court of Chicago against the Drake Hotel Company, a corporation, to recover a penalty for the violation by the defendant of the following provision of an ordinance of the city:

‘No person, firm or corporation, either as owner, lessee, manager, officer or agent of a restaurant or public place of refreshment conducted in any other place than a licensed dance hall, shall conduct a dance of the patrons therein or suffer or permit the patrons of same to indulge in dancing while the said place or the room in which the said dancing is indulged in is open to the general public as a place where the public may purchase refreshments.’

The penalty provided by the ordinance for a violation of the above provision is a fine of not less than $5 nor more than $100 for each offense. A hearing was had before the court upon the defendant's motion to strike the plaintiff's statement of claim, which set up the cause of action from the files to quash the complaint and to dismiss the suit. Upon the hearing of this motion it was stipulated that the motion be treated as a motion by the defendant, at the close of all the evidence, to direct a verdict in its favor, and the following stipulation signed by the parties was presented for consideration by the court in passing upon the motion:

‘It is hereby stipulated and agreed by and between the parties hereto, by their respective attorneys, that the defendant herein is the manager of a restaurant, and permits its patrons to indulge in dancing while the said restaurant is open to the general public; that said defendant charges no admission fee of any kind to its said restaurant and none for the privilege of dancing in its said restaurant; that the dancing permitted in said restaurant by said defendant has been and is orderly, dignified, quiet, respectable, decent, and peaceful, and in no sense injurious to the public morals, welfare, or health, and in no sense is a public nuisance.’

In addition to the stipulation the city offered in evidence an ordinance of the city dividing, for the purpose of licensing, ‘all theatricals, shows and amusements offered, operated, presented or exhibited for gain or for admission to which the public is required to pay a fee,’ into 21 classes, and providing, under a penalty that ‘no person or corporation either as owner, lessee, manager, officer or agent, shall give, conduct, produce, present or offer for gain or profit any of the foregoing entertainments without a license issued for that purpose.’ The sixth class includes ‘dances * * * carried on or engaged in in any hall, structure or building.’ The city also offered evidence showing that the defendant was the owner and manager of the Blackstone Hotel, in the city of Chicago, and of the restaurant therein, and on January 13, 1915, suffered and permitted the patrons of said restaurant to indulge in dancing while the restaurant was open to the general public as a place where refreshments might be purchased, which restaurant was not a licensed dance hall. In addition to the matters shown by the stipulation, the defendant proved, and the court found, that dancing, as conducted in restaurants and public places of refreshment in the city of Chicago, ‘has always been and is orderly, dignified, quiet, respectable, decent, and peaceful, and in no sense was or is a public nuisance, but was and is a reasonable and harmless method of amusement for the public is said city.’

The court quashed the complaint and ordered the statement of claim stricken from the files. The city refusing to file an amended complaint or statement of claim, the suit was dismissed, and the defendant was discharged. The city has brought the record here for review by writ of error; the trial judge having certified that the validity of a municipal ordinance is involved, and that, in his opinion, the public interest requires that the cause be taken directly to this court.

The only controversy here is whether the city possessed the power to pass the ordinance which defendant in error is charged with having violated. The city contends that the ordinance is proper municipal legislation under and by virtue of clause 41 of section 1, art. 5, of the Cities and Villages Act, which confers upon the city council in cities the power ‘to license, tax, regulate, suppress and prohibit hawkers, peddlers, pawnbrokers, keepers of ordinaries, theatricals and other exhibitions, shows and amusements, and to revoke such license at pleasure.’ One of the contentions made by the defendant in error is that this provision of the statute does not confer power upon the city council to license dance halls, but we do not consider it unnecessary to pass upon that question. The city in its argument assumes that the effect of the ordinance which defendant in error is charged with having violated is to require defendant in error to obtain a license from the city authorizing it to conduct its restaurant as a dance hall before permitting the patrons of the restaurant to indulge in dancing while the restaurant is open to the general public as a place where refreshments may be purchased. That such is not the effect of the ordinance, when considered alone, is apparent from a mere reading of the same. By its express terms it is an absolute prohibition against permitting the patrons of a restaurant to indulge in dancing while the same is open to the general public as a place where the public may purchase refreshments, unless the restaurant is conducted in a licensed dance hall. In an apparent attempt to show that this ordinance should not be considered alone in determining its purpose and effect, the city offered in evidence another ordinance providing for the licensing of certain amusements, including dances carried on or engaged in in any hall, structure, or building. That ordinance, however, relates only to amusements ‘offered, operated, presented or exhibited for gain or for admission to which the public is required to pay a fee,’ and does not apply to amusements where the public is not required to pay any fee or compensation in order to participate in the same. The necessary conclusion to be deduced from this record is that under the ordinances of the city of Chicago, if valid, the owner of a restaurant or public place of refreshment cannot permit his patrons to indulge in dancing while the restaurant or place of refreshment is open to the public for refreshments, unlesshe charges them a fee for the privilege of dancing. That the city has no power to compel the owner of a restaurant to charge a fee or compensation for any privilege that he may see fit to extend to his patrons is too clear to permit of argument. The matter here presented for determination, therefore, resolves itself into the question whether the city council of the city of Chicago has the power to prohibit dancing in restaurants by the patrons thereof where no fee is charged for the privilege. The question whether the city council has the power to regulate dancing in such restaurants is not presented.

For the purpose of this decision it may be conceded that the Legislature has by clause 41 of section 1, art. 5, of the Cities and Villages Act attempted to confer upon the city council the power to prohibit amusements, and that dancing is one of such amusements. The Legislature, however, could confer upon the city council no greater power than the Legislature itself possessed, and we have recently held that:

‘The Legislature had not the power to pass an act prohibiting all...