Father Basil's Lodge, Inc. v. City of Chicago

Decision Date20 March 1946
Docket NumberNo. 29149.,29149.
Citation393 Ill. 246,65 N.E.2d 805
PartiesFATHER BASIL'S LODGE, Inc., v. CITY OF CHICAGO et al.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Appeal from Superior Court, Cook County; John C. Lewe, Judge.

Suit by Father Basil's Lodge, Inc., against the City of Chicago and its officials to restrain them from enforcing two ordinances relating to the licensing and regulation of ‘Homes' and ‘Nursing Homes.’ From a decree dismissing the complaint for want of equity, the plaintiff appeals.

Decree affirmed.

Irving Breakstone, of Chicago, for appellant.

Barnet Hodes, Corporation Counsel, of Chicago (J. Herzl Segal, Fred V. Maguire, and Sidney R. Drebin, all of Chicago, of counsel), for appellees.

THOMPSON, Chief Justice.

Appellant is a nonprofit corporation, organized under the laws of this State for the purpose, among other things, of providing homes for aged and enfeebled persons; and in carrying out this corporate purpose it conducts and maintains the Sunset Harbor Rest Home for aged men receiving pensions under the Old Age Assistance Act of Illinois. The home is located at 5749 Woodlawn avenue, in the city of Chicago, and has been in operation since June 1, 1944. It is a two-story brick building, built for and originally used as a private residence. It was subsequently converted into and used as a fraternity house and is now owned by the Zeta Beta Tau fraternity, from whom appellant rents the property. At the time of the institution of this suit twenty-five men were living in the home, and we infer from the evidence that it usually has about that number. These men are referred to the home by the social workers of the Department of Public Welfare of the county. They all receive old age pensions which they turn over to appellant, who in return furnishes them both board and lodging and any other necessities which they may require. The ages of the twenty-five men now living at the home range from sixty-five to seventy-eight years. None of them are sick or helpless. They all perform domestic duties and ordinary housework incident to the maintenance of the home. They make their own beds, scrub, dust, wash dishes and serve as waiters at the table. They are allowed to have visitors and can come and go from the home as they please.

This suit was filed in the superior court of Cook county by appellant March 27, 1945, to restrain the city of Chicago and its officials from enforcing two ordinances; one, which is chapter 136 of the municipal code of Chicago and consists of fourteen sections, being an ordinance definingand providing for the licensing and regulation of ‘Homes,’ and the other, which is chapter 136.1 of the code and contains sixteen sections, being an ordinance defining and providing for the licensing and regulation of ‘Nursing Homes.’ The case was heard before the chancellor upon the complaint and answer thereto and a decree was entered May 29, 1945 dismissing the complaint for want of equity. Plaintiff has appealed directly to this court, the trial judge having certified that the validity of two municipal ordinances is involved and that in his opinion the public interest requires a direct appeal to this court.

Appellant claims that the city was without authority, either express or implied, to pass the ordinances and the same are therefore invalid; or, if the city did have power to pass ordinances defining, regulating and licensing homes and nursing homes respectively, that these particular ordinances are unreasonable and discriminatory and deprive appellant of its property without due process of law, in violation of the State and Federal constitutions. Appellant also contends that in any event the ordinances are not applicable to a home such as the Sunset Harbor Rest Home operated by appellant at 5749 Woodlawn avenue, Chicago.

The ordinance licensing and regulating homes defines a home, as used in the ordinance, to mean any institution, place or family used for the reception or care of three or more infants or children apart from their parents, and also provides that a home is further defined to mean any institution used for the reception or care of persons who are dependent or not capable of properly caring for themselves, and shall be understood to include homes for the aged or infirm, orphan asylums, half-orphan asylums, refuges and shelters. The ordinance licensing and regulating nursing homes defines nursing homes to mean any place for the reception or care of three or more persons of the age of sixteen years or over who are not related to the keeper and are dependent or not capable of properly caring for themselves. It further provides that for the purposes of the ordinance the term ‘nursing home’ includes a mutual care home, which is defined as meaning any place for the reception or care of three or more persons under sixteen years of age, who are not related to the keeper and whose parents or guardian are also resident in the same place and share daily care of such persons with the keeper.

These ordinances require the operators of any such homes to which they relate to be licensed. They also contain fire prevention regulations and ventilation and sanitation requirements, and provide for the isolation of persons in the home suffering from communicable diseases and for the inspection of the premises by the board of health. Each ordinance provides that any person violating any of its provisions shall be fined not less than $10 nor more than $200 for each offense, and further provides that in the event of a conviction of any person for a violation of any of its provisions relating to the safety and accommodation of inmates, the board of health is authorized to close such home and to cause its vacation pending the repairs, alterations or additions necessary to make it safe and proper for the occupancy of its inmates and to make it comply with the terms of the ordinance.

The first contention of appellant is that the city is not authorized by the legislature, either expressly or by implication, to regulate and license ‘Homes' and ‘Nursing Homes,’ and was therefore without power to pass the ordinances in question. The principles governing the powers of cities, including the power to license and regulate, and the source and exercise of such powers have been so frequently enunciated and so fully discussed in the recent decisions of this court (Arnold v. City of Chicago, 387 Ill. 532, 56 N.E.2d 795;City of Bloomington v. Wirrick, 381 Ill. 347, 45 N.E.2d 852) that further elaboration upon the subject is unnecessary. It is well settled that a city, like all other municipal corporations, derives its existence and its powers from the General Assembly; that it possesses no inherent power; that in order to legislate upon, or with reference to, a particular subject or occupation, it must be able to point to the statute which gives it the power to do so; that statutes granting power to municipal corporations are strictly construed, and any fair or reasonable doubt of the existence of an asserted power is resolved against the municipality which claims the right to exercise it; that the only implied powers which a municipal corporation possesses and can exercise are those which are necessarily incident to powers expressly granted; and that since a city has no power except by delegation from the General Assembly, in order for it to license or regulate any occupation, the power to do so must be expressly grated or be necessarily implied in, or incident to, other powers which are expressly granted.

Appellees rely upon sections 5, 70, 72, 81, 83, 105, and 106 of article 23 of the Revised Cities and Villages Act as authority for the adoption of these ordinances. Ill.Rev.Stat.1945, chap. 24, pars. 23-5, et seq. The authority for the passage of an ordinance need not be wholly derived from a single grant of power by the legislature, but may be derived from several different grants of power. City of Bloomington v. Wirrick, 381 Ill. 374,45 N.E.2d 852;City of Chicago v. R. & X. Restaurant, Inc., 369 Ill. 65, 15 N.E.2d 725, 117 A.L.R. 1313;City of Chicago v. Arbuckle Bros., 344 Ill, 597, 176 N.E. 761. Section 105 of article 23 of said act confers upon municipalities the power to pass and enforce all necessary police ordinances, meaning thereby those police ordinances and those only which are necessary to the effective exercise of the powers expressly granted to municipalities. City of Chicago v. Arbuckle Bros., 344 Ill. 597, 176 N.E. 761. This section cannot be invoked by a municipality as an independant source of legislative power, since it was not intended by this section to confer any power except the power to carry other other powers expressly delegated. City of Bloomington v. Wirrick, 381 Ill. 347, 45 N.E.2d 852. The same is true of section 106 of said article, which authorizes a city to pass all ordinances and make all rules and regulations proper or necessary to carry into effect the powers granted to municipalities.

Section 5 gives to municipalities the power to fix the amount, terms and manner of issuing and revoking licenses, but this section confers no authority to issue a license for any purpose. It applies only to cases where the city, by express or implied delegation of power, has been authorized to issue a license. If power is given a city to regulate certain subject matter, such power includes also the authority to exact a license fee for the purpose of defraying all or a part of the cost of regulation or inspection. Larson v. City of Rockford, 371 Ill. 441, 21 N.E.2d 396. It is admitted that the city was given no express power to regulate and license the establishment and operation of homes and nursing homes, as defined in the ordinances here involved, but that fact does not render the ordinances void, if the legislature has expressly delegated to the city one or more powers the efficient exercise of which requires that the operation of such institutions be controlled by the limitations of a regulatory or...

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    ...has been properly delegated by the state,8 such power may be exercised on the local level as well. See Father Basil's Lodge v. City of Chicago, 393 Ill. 246, 252, 65 N.E.2d 805 (1946). In terms of equal protection and due process, the test of whether a city has properly exercised the police......
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    ...legislate upon or with reference to that, or any other subject, unless authorized by the General Assembly to do so. Father Basil's Lodge, Inc., v. City of Chicago, 393 Ill. 246, 65 N.E.2d 805. The enactment of article 73 of the Revised Cities and Villages Act, (Ill.Rev.Stat.1949, chap. 24, ......
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