Harder's Fireproof Storage & Van Co. v. City of Chicago

• Decision Date: 18 June 1908
• Court: Illinois Supreme Court
• Parties: HARDER'S FIREPROOF STORAGE & VAN CO. v. CITY OF CHICAGO.

235 Ill. 58

85 N.E. 245

HARDER'S FIREPROOF STORAGE & VAN CO.

v.CITY OF CHICAGO.

Supreme Court of Illinois.

June 18, 1908.

Appeal from Circuit Court, Cook County; G. A. Carpenter, Judge.

Bill by Harder's Fireproof Storage & Van Company against the city of Chicago to restrain enforcement of an ordinance of said city. From a decree for defendant, complainant appeals. Affirmed.

Cartwright, C. J., dissenting.

Robert W. Dunn, for appellant.

Edward J. Brundage, Corp. Counsel, Emil C. Wettin, Edwin H. Cassels, and Clarence N. Boord, for appellee.

This was a bill in chancery filed by Harder's Fireproof Storage & Van Company, a corporation, on its own behalf and on behalf of all other persons, firms, and corporations similarly situated who desired to join therein and pay their proportionate share of the cost of the litigation, in the circuit court of Cook county, against the city of Chicago, in which it was alleged: That the complainant was engaged in the teaming business in the city of Chicago, carting and removing furniture and other merchandise, and was using daily upon the streets of Chicago, in the carrying on of its business, 20 vans or wagons. That in the city of Chicago there were in daily use upon the streets of said city upwards of 75,000 other vehicles, of the value of more than $3,000,000, owned by many thousands of different persons, firms, and corporations. That the Legislature of the state of Illinois had amended section 1 of article 5 of chapter 24 of Hurd's Revised Statutes of said state, so that the same now reads as follows:

‘The city council in cities, and president and the board of trustees in villages, shall have the following powers: * * * Ninety-sixth. To direct, license and control all wagons and other vehicles, conveying loads within the city, or any particular class of such wagons, and other vehicles, and prescribe the width and tire of the same, the license fee when collected to be kept as a separate fund and used only for paying the cost and expense of street or alley improvement or repair;’ that the city of Chicago, in pursuance of the power claimed to have been conferred upon its city council by said amendment, had passed an ordinance, a portion of which is as follows:

‘Section 1. That it shall be unlawful for any person, firm or corporation to use, or to cause or permit any of his or its agents or employés to use, any wagon or other vehicle in the transportation of persons or property upon the streets, avenues or alleys of the city unless such wagon or vehicle be licensed, as hereinafter provided: Provided, however, that this ordinance shall not be construed as applying to street cars running on metallic rails.

‘Sec. 2. That any person, firm or corporation desiring a license for any such wagon or vehicle shall file an application with the city clerk, upon a form provided by him, setting forth the name and address of the applicant, a description of the wagon or vehicle for which the license is desired and the place where such wagon or vehicle is to be kept when not in use; also the number and kinds of other wagons or vehicles kept by said applicant at such place, and such other information as may be prescribed. Such application shall be transmitted to the mayor, and upon the payment by the applicant of the license fee hereinafter provided to the city collector, the mayor shall issue or cause to be issued a license, which shall be attested by the city clerk, authorizing the use of such wagon or vehicle within the city until the expiration of such license.

‘Sec. 3. That the license fees to be paid annually to the city collector shall be as follows: One-horse wagon or vehicle, $5; two-horse wagon or vehicle, $10; three-horse wagon or vehicle, $15; four-horse wagon or vehicle, $25; six or more horse wagon or vehicle, $35; automobiles with seats for two persons, $12; automobiles with seats for more than two persons, exclusive of trucks, coaches and buses, $20; automobile trucks, coaches and buses, $30. All such licenses shall expire on the thirtieth day of April following the date of issue, and when issued for a period of less than one year, the fee to be paid for the unexpired license period shall be the proportionate part of the annual rate fixed by the ordinance, but no fee shall be less than one-fourth of the annual rate. All revenues derived from such license fees shall be kept as a separate fund and used only for paying the cost and expenses of street or alley improvement or repair.

‘Sec. 4. That upon the issuance of said license the city clerk shall deliver to the applicant a metal plate bearing a number and the name of the class to which said wagon or vehicle belongs and the year for which said license is issued, and it shall be the duty of such applicant to affix such plate in a conspicuous place upon the right-hand side of said wagon, vehicle or horse, where it can be readily seen. And it shall be unlawful for any wagon or vehicle, although duly licensed, to be used upon the streets, avenues or alleys of the city unless such plate is attached thereto: Provided, however, that it shall not be necessary for owners of automobiles to have the metal plate bearing a number provided for in this section attached to their automobile: And provided further, that it shall not be necessary for any wagon or vehicle to have the aforesaid metal plate attached to it except when actually in use upon the streets, avenues or alleys of the city.

‘Sec. 5. That any person, firm or corporation violating any of the provisions of this ordinance shall be fined not less than five dollars ($5) nor more than one hundred dollars ($100) for each and every offense; and each day any wagon or vehicle is used upon the streets, avenues or alleys of the city without having procured a license and without having complied with the provisions of this ordinance shall be considered a separate and distinct offense.’

This ordinance the city was about to enforce against the complainant and other persons, firms, and corporations similarly situated as the complainant, and the statute as amended, and ordinance, it was averred, were unconstitutional and void, and the city was by said bill sought to be enjoined from enforcing said ordinance. A demurrer was interposed to the bill, which was sustained, and the complainant having elected to stand by its bill, a decree was entered dismissing the same for want of equity, and the complainant has prosecuted an appeal to this court to review the action of the circuit court.

HAND, J. (after stating the facts as above).

The bill in this case was filed by the complainant to test the constitutionality of the ‘wheel tax’ ordinance passed by the city of Chicago and the statute under which said ordinance was passed.

It is first contended that the Legislature is without power to authorize the city of Chicago to pass an ordinance requiring vehicles using its streets to pay a license fee, which fee, when collected, shall be kept as a separate fund and used for improving and keeping in repair the streets and alleys of the city, as it is said, first, the license fee thus provided for is a tax; and, second, the privilege of using the streets of the city with wagons and vehicles cannot be taxed. We think it clear in this state that a license may be imposed and the fee for such license collected with a view to revenue only, and, if such be the law, the fact that the license required to be paid by said ordinance in this case is for revenue only does not render the statute under which the ordinance was passed, and the ordinance, unconstitutional. In Wiggins Ferry Co. v. City of East St. Louis, 102 Ill. 560, a suit was brought to recover a license fee imposed upon the Wiggins Ferry Company, and the court, on page 567, said: ‘The Constitution has not prohibited the General Assembly from imposing or authorizing the imposition of the duty to procure a license to pursue any calling, nor has it limited the power or limited its exercise. In this respect the power of the Legislature is the same as it has ever been since the organization of the state government, and no one we presume will question the legislative power to require persons engaged in various avocations to procure a license for the purpose, and thus regulate the exercise of an avocation. It is a power exercised by all governments, and is one of the essential means of providing for raising revenue for both the state and local governments and the regulation of business. If the constitutional convention had intended to make so radical a change as to deprive the Legislature of this power, or to make a license fee uniform throughout the state on all persons exercising the same calling, without regard to the capital invested, business done, or profits realized, that body would have employed very different language from that which we find in that instrument. They were aware that this court had held that a license fee was not a tax, in the constitutional sense, and we have a right to suppose they used the term ‘tax’ in a sense to exclude a license. That body could not have intended to deprive municipal bodies of this great source of revenue, and to abandon the power, either directly or through municipal bodies, to regulate various callings. If they had intended to prevent all licenses for all purposes, they would have said it, or, if it was intended to restrain the exercise of the power to regulate them, it would have been so provided.' In Banta v. City of Chicago, 172 Ill. 204, 219, 50 N. E. 233, 238,40 L. R. A. 611, in which case an ordinance requiring brokers to be licensed was held to be valid, the court said: ‘The occupation may be lawful in itself, and not subject to prohibition or regulation by the state, yet it may be prohibited in order to compel the taking out of a license if the purpose is to raise revenue by means of license fees. * * * In the view we take of the case, it is not material to determine whether the license fee is...