City of Chicago v. Walden W. Shaw Livery Co.

• Decision Date: 19 April 1913
• Citation: 101 N.E. 588,258 Ill. 409
• Parties: CITY OF CHICAGO v. WALDEN W. SHAW LIVERY CO.
• Court: Illinois Supreme Court

258 Ill. 409

101 N.E. 588

CITY OF CHICAGO

v.WALDEN W. SHAW LIVERY CO.

Supreme Court of Illinois.

April 19, 1913.

Error to Municipal Court of Chicago; Freeman K. Blake, Judge.

Action by the City of Chicago against the Walden W. Shaw Livery Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded.William H. Sexton, Corp. Counsel, and James S. McInerney, Pros. Atty., both of Chicago (Edwin J. Raber and J. Henry Kraft, both of Chicago of counsel), for plaintiff in error.

D'Ancona & Pflaum, of Chicago, for defendant in error.

COOKE, J.

Plaintiff in error, the city of Chicago, brought an action in the municipal court of Chicago against the defendant in error, the Walden W. Shaw Livery Company, to recover a penalty, not exceeding $25, for the violation of section 2728b of the Chicago Code of 1911; it being alleged in the statement of claim filed in the municipal court by the city that the defendant in error did unlawfully operate, and permit to be operated, upon the streets, alleys, and public places of the city a motor vehicle, and permitted to escape therefrom noxious smoke, gas, steam, or other offensive odors, in violation of said section of the Code. The court, upon motion of defendant in error, quashed the summons and dismissed the suit, on the ground that said ordinance was unreasonable and void, and that the state, by the Motor Vehicle Act of June 10, 1911 (Laws of 1911, p. 487), resumed control of the use and operation of automobiles and of the subject-matter embraced in said ordinance. The city of Chicago, having obtained from the trial judge the certificate required by statute therefore, has by writ of error brought the record directly to this court for review.

The ordinance upon which the action was based is as follows: ‘It shall be unlawful for any person to operate, or for any owner of any motor vehicle or motor cycle to permit to be operated, upon the streets, alleys and public places of this city, any motor vehicle, or motor cycle so as to permit to escape therefrom any noxious smoke, gas, steam or other offensive odors, or so as to discharge any embers, oil or residue from the fuel used in the operation thereof. It shall be unlawful for any person to operate, or for any owner thereof to permit to be operated, upon the public streets, alleys and public places of this city, any motor vehicle or motor cycle the exhaust pipe of which, used for carrying exhaust gases from such vehicle or motor cycle, are not parallel to the ground.’

[1] It is contended by defendant in error that the intent and purpose of the Legislature in passing the Motor Vehicle Act of 1911 was to whithdraw from municipalities the power to make any regulation whatever of the use and operation of motor vehicles, and that said act must be regarded as supplying the sole method of regulating the use and operation of motor vehicles within the state. It is not denied that prior to the enactment of this statute plaintiff in error, as one of the municipalities of the state, possessed the power to legislate upon the subject covered by the ordinance in question; but it is insisted that the Motor Vehicle Act of 1911 withdrew that power and by implication repealed the grant theretofore given municipalities to legislate upon this subject.

The Motor Vehicle Act of 1911 contains 21 sections. Section 12 is relied upon as the one which divests municipalities of the power to make such regulation as is attempted by this ordinance. The other sections of the act deal with such questions as the registration by owners of motor vehicles, the placing upon the vehicle of the number plate provided by the Secretary of State, the equipment of the vehicle with lamps, brakes, horns, and the like, the registration by manufacturers, the prohibition against putting a fictitious number upon any vehicle, registration in case of sale, speed, licenses and badges of chauffeurs, the use of motor vehicles without the owners' consent, certain laws of the road, and the like. Section 12 of the act is as follows:

‘No owner of a motor vehicle, except motor trucks and motor-driven commercial vehicles, or motor bicycle, who shall have obtained a certificate from the Secretary of State and paid the registration fees as hereinbefore provided, shall be required to pay any tax for vehicles carrying loads or any other tax upon the use of any such motor vehicle or motor bicycle in excess of the sum of $10 per annum for motor vehicles of thirty-five horse power or less used for the transportation of persons or more than twenty dollars ($20) per annum for motor vehicles of more than thirty-five (35) horse power used for the transportation of persons, from and after May 1, 1912, or to obtain any other license or permit to use or operate the same, nor shall such owner be required to display upon his motor vehicle or motor bicycle any other number than the number of the registration seal, issued by the Secretary of State, or excluded or prohibited from or limited in the free use of his said motor vehicle or motor bicycle, nor limited as to speed upon any public street, avenue, road, turnpike, driveway, parkway, or any other public place, at any time when the same is or may hereafter be opened to the use of persons having or using other vehicles, not be required to comply with other provisions or conditions as to the use of said motor vehicles or motor bicycles except as in this act provided: Provided, however, that nothing in this section contained shall be construed to apply to, or include, any speedway created, provided for, or maintained by the local authorities of any city, village, town or other municipal corporation within the state: And, provided, further, that the local authorities having jurisdiction over the public parks shall not by the terms of this act be prohibited from adopting and enforcing such reasonable ordinances, rules or regulations concerning the speed at which motor vehicles or motor bicycles may be operated within any such parks, provided the rate of speed of motor vehicles or motor bicycles by such ordinances, rules or regulations shall not be lower than the rate fixed for other vehicles and provided such authorities shall, by signs conspicuously placed, indicate the rate of speed permitted by such ordinances, rules or regulations: And, provided, further, that motor vehicles or motor bicycles may be excluded from any cemetery or grounds used for the burial of the dead, by the authorities having jurisdiction over the same. Except as in this section provided, no city, town or village, or other municipality shall have power to make any ordinance, by-laws, or resolution limiting or restricting the use of speed of motor vehicles or motor bicycles, and no ordinance, by-law or resolution heretofore or hereafter made by any city, village or town, or other municipal...