City of Chicago v. Netcher

• Decision Date: 05 December 1899
• Citation: 55 N.E. 707,183 Ill. 104
• Parties: CITY OF CHICAGO v. NETCHER.
• Court: Illinois Supreme Court

183 Ill. 104

55 N.E. 707

CITY OF CHICAGO

v.NETCHER.

Supreme Court of Illinois.

Dec. 5, 1899.

Appeal from criminal court, Cook county.

Action by the city of Chicago against Charles Netcher for violation of an ordinance. From an order declaring the ordinance void, the city appeals. Affirmed.

Charles M. Walker and Denis E. Sullivan, for appellant.

William W. Gurley and Horace G. Stone, for appellee.

CARTWRIGHT, C. J.

Two prosecutions were instituted before a justice of the peace by the city of Chicago, appellant, against Charles Netcher, appellee, for the violation of two ordinances of said city. In each case he was found guilty, and fined $25 and costs by the justice. On appeal to the criminal court of Cook county the cases were tried upon agreed statements of fact before the court without a jury. In each case the court held the ordinance upon which the prosecution was based to be void, in propositions of law submitted for that purpose, and found the defendant not guilty. The city prosecuted appeals from these judgments to this court. The cases, being of the same nature, and largely involving the same questions of law, have been argued together, and will be considered and disposed of in this opinion.

The defendant is the owner of what is known as a ‘department store,’ or general store for the sale of different kinds of merchandise, divided into separate departments, in the city of Chicago. The ordinances are directed against stores of that class, and the object of each is to prohibit the sale of certain kinds of merchandise in any store or place of business where certain other kinds of merchandise are sold. One of these ordinances provides as follows: ‘It shall be unlawful for any person, firm, or corporation doing business in this city, where dry goods, clothing, jewelry, and drugs are sold, to have exposed for sale, or sell to any person, firm, or corporation, any meats, fish, butter, cheese, lard, vegetables, or any other provisions.’ The facts agreed upon at the trial for the violation of this ordinance were that the defendant owned, conducted, and operated the store in question, and in the basement and on certain floors exposed for sale and sold dry goods, clothing, jewelry, and drugs, and on a different floor, where no such articles were sold or exposed for sale, he exposed for sale and sold meats, fish, butter, cheese, lard, vegetables, and other provisions. The city of Chicago is organized under the general incorporation law, and must find in its charter authority for the exercise of every power which it claims to possess. The authority to pass this ordinance is claimed by virtue of clause 50, § 1, art. 5, of said act, which enumerates among the powers of the city council the following: ‘To regulate the sale of meats, poultry, fish, butter, cheese, lard, vegetables, and all other provisions, and to provide for place and manner of selling the same.’ Hurd's Rev. St. 1895, p. 267. Regulations concerning the sale of provisions have relation to the public health, and may be necessary or proper for its preservation and the suppression of disease. Kinsley v. City of Chicago, 124 Ill. 359, 16 N. E. 260. The clause of the incorporation act relied upon confersuponcities organized under the act the right to regulate the sale of provisions, with the object of promoting or preserving the public health, where the regulation tends to serve that purpose. But this ordinance does not regulate the business of selling provisions, nor prescribe the manner in which the business shall be carried on. It merely prohibits persons engaged in the business of selling dry goods, clothing, jewelry, and drugs from selling in their stores the provisions enumerated in the ordinance. It permits a person to sell in any place or manner, provided, only, that he does not at the same time sell certain other things. A dealer may sell provisions at the same place with hardware, furniture, boots and shoes, hats and caps, millinery, books and stationery, crockery and glassware, carpets, confectionery, wooden ware, wall paper, or any other sort of merchandise except dry goods, clothing, jewelry, and drugs. This is not a regulation, but a prohibition, and a purely arbitrary one, which attempts to deprive certain persons of exercisinga right which has always been lawful, and has been heretofore exercised throughout the state and country without question. The ordinance is also an attempted interference by the city with rights guarantied to the defendant by the constitutions of the United States and of this state. The questions involved are not new. They have been before this and other courts throughout this country in numerous cases, and the rights of the citizen, as against such interference, have been frequently defined, and uniformly upheld. These constitutions insure to every person liberty, and the protection of his property rights, and provide that he shall not be deprived of life, liberty, or property without due process of law. The liberty of the citizen includes the right to acquire property, to own and use it, to buy and sell it. It is a necessary incident to the ownership of property that the owner shall have a right to sell or barter it, and this right is protected by the constitution as such an incident of ownership. When an owner is deprived of the right to expose for sale and sell his property, he is deprived of property, within the meaning of the constitution, by taking away one of the incidents of ownership. Liberty includes the right to pursue such honest calling or avocation as the citizen may choose, subject only to such restrictions as may be necessary for the protection of the public health, morals, safety, and welfare. The state, for the purpose of public protection, may, in the proper exercise of the police power, impose restrictions and regulations; but the right to acquire and dispose of property is subject only to that power. The individual may pursue, without let or hindrance from any one, all such callings or pursuits as are innocent in themselves, and not injurious to the public. These are fundamental rights of every person living under this government. The legislature can neither, by an enactment of its own, interfere with such rights, nor authorize a municipal corporation to do so. Frorer v. People, 141 Ill. 171, 31 N. E. 395,16 L. R. A. 492;Ramsey v. People, 142 Ill. 380, 32 N. E. 364,17 L. R. A. 853;...