Appeal from appellate court, first district.
Assumpsit by William Harmon against the city of Chicago. Deiendant obtained judgment, which was affirmed by the appellate court. Plaintiff appeals. Affirmed. On rehearing. For former opinion, see 26 N. E. Rep. 697.
MAGRUDER, C. J., dissenting.
Schuyler & Kremer, for appellant.
Jonas Hutchinson, M. W. Robinson.
H. H. Martin, and John, S. Miller, for appellee.
The other facts fully appear in the following statement by BAILEY, J.:
This was an action of assumpsit, brought by William Harmon against the city of Chicago, to recover back the sum of $300, paid by the plaintiff on compulsion and under protest for the tug-boat licenses. The declaration consisted merely of the common indebitatus assumpsit counts, to which the defendant pleaded non assumpsit, and the trial was had before the court, a jury being waived, on the following stipulation as to the facts:
‘It is hereby stipulated and agreed that for the purpose of determining the right of the defendant to require of the plaintiff a license and impose and collect a fine or license fee therefor under the ordinance of the said defendant, hereinafter set forth, the following are the ultimate facts under which the said license was required, and the fine or license fee imposed and collected, viz.: That on the 26th day of September, 1888, the said plaintiff was the owner and manager of the following steam-tugs, viz., Tom Brown, F. S. Butler, J. H. Hakley, C. W. Parker, Bob Teed, A. B. Ward, W. H. Wolfe, Crawford, C. B. McClellan, Mary McLane, Success, and Wahbun. That said tugs, and each of them, were of twenty tons burden and upwards, and were on the said date, and for a long time prior thereto had been, enrolled and licensed for the coasting trade, in pursuance of and under the provisions of ‘Title L’ of the Revised Statutes of the United States, to which reference is hereby made, and which are made a part hereof. That prior to the date aforesaid, and on the 5th day of March, 1883, the common council of the said city of Chicago, acting under the power supposed to be vested in it by chapter 24 of the Revised Statutes of the state of Illinois, and under which the said city was at said time incorporated, passed and enacted an ordinanceregulating the navigation of steam-tugs and other vessels on the Chicago river and Lake Michigan and the waters tributary thereto, requiring that the owner thereof take out a license therefor, and imposing upon him a fine or penalty for failing so to do, which said ordinance is in the words and figures following: ‘Be it ordained by the city council of the city of Chicago: Section 1. No person or persons shall keep, use, or let for hire any tug or steam-barge or towboat for towing vessels or craft in the Chicago river, its branches, or slips connecting therewith, or in and about the harbor of the city of Chicago, without first obtaining a license therefor in the manner and way hereinafter mantioned. Sec. 2. All applications for such license shall be made to the mayor, and upon the payment of twenty-five dollars ($25) to the city collector a license shall be issued for the period of one year by the city clerk for such tug or steam-barge or tow-boat, and it shall be the duty of the city clerk to keep a register of the name of the person to whom such license is granted or transferred, the day when issued or transferred, the number of the license, and the name and description of the tug so licensed. Sec. 3. Every tug or steam-barge or towboat shall have the number of the license and the name of the owner marked on both sides of such tug or steam barge or tow-boat in plain, legible figures and letters. Sec. 4. Any individual or person violating any provision of this ordinance shall be subject to a fine of not less than five dollars ($5) nor more than fifty dollars ($50) for each offense. Sec. 5. This ordinance shall be in force from and after its passage.’ That said steam-tags were enrolled and licensed in the manner and for the purpose aforesaid by the United States authorities in and at the northern district of Illinois, in which the said defendant, the said city of Chicago, is situated, and were, on the 26th day of September, 1888, and for a long time prior thereto had been, engaged in the coasting and foreign trade, and in commerce and navigation, namely, in towing vessels engaged in interstate commerce into and out of the Chicago river and harbor from and to said Lake Michigan, and in pursuance of the conduct of the said trade were navigating the said Chicago river and the waters of Lake Michigan and the tributaries thereto, which said river is, from time to time, deepened for navigation purposes by dredging, under the direction and at the expense of said city of Chicago. That on the said day the said city collector of the said city of Chicago, the defendant herein, notified the said plaintiff to apply for and take out a license in pursuance of the requirements of the said ordinance for each of said steam-tugs, and to pay therefor the sum of twenty-five dollars for each of the said tugs, or the sum of three hundred dollars in the aggregate. That the said plaintiff thereupon notified the said collector that the said steam-tugs, and each of them, were licensed for the coasting trade, in pursuance of and in accordance with the requirements of the laws of the United States, and were engaged in said trade on the said Chicago river and said Lake Michigan and the waters tributary thereto, in the manner as aforesaid; and thereupon claimed to the said collector that the said ordinance was invalid, and that the said city of Chicago had no power or authority to require the said plaintiff to take out a license in pursuance of the requirements of the said ordinance, or to pay the said fee of twenty-five dollars for each of the said steam-tugs, and thereupon refused to take out the said license or to pay the said fee, whereupon the said collector of the said defendant caused the said plaintiff to be arrested upon a warrant issued for that purpose; and that, while the said plaintiff was under arrest, he paid the said license fee, under protest, and took out the license as required by the said ordinance, and as demanded of him by the said collector, which said license was thereupon issued to him. That the amount of the fees so as aforesaid paid to the said collector for the said defendant was the sum of three hundred dollars. That the said sum was paid by the said collector into the treasury of the said defendant, the said city of Chicago; and that the questions which arise on the foregoing state of facts are as follows, viz.: (1) Whether or not the said defendant can require the plaintiff to take out the license and collect therefor the fees provided for in the ordinance aforesaid. (2) Whether there was vested in the defendant the power to require of the plaintiff the license and fee provided for in the ordinance aforesaid, and in the manner shown by the foregoing state of facts. (3) Whether the said ordinance under which said license was required and the said fee was imposed and collected is legal and binding upon the plaintiff. (4) Whether the plaintiff is not entitled to judgment for the amount of fees so paid by him as aforesaid. It is hereby further stipulated that the said facts may be presented to the court and tried under the pleadings as they now stand, and that an order may be entered in said suit, submitting the same to the Honorable RICHARD S. TUTHILI, for trial, without the intervention of a jury, and that either party shall have the right to appeal from the decision and final judgment of the court herein, in the same manner, and to the same extent, as they would have if the said case had been tried in the usual and ordinary way.'
The counsel for the plaintiff also offered in evidence the following sections of an ordinance of the city of Chicago, to-wit: ‘Section 1. The inhabitants of all that district of country in the county of Cook and state of Illinois contained within the limits and boundaries hereinafter prescribed shall be a body politic under the name and style of the ‘City of Chicago;’ and by that name sue and be sued, complain and defend, in any court; make and use a common seal, and alter it at pleasure; and take and hold, purchase, lease, and convey such real and personal or mixed estate as the purposes of the corporation may require, within or without the limits aforesaid. Sec. 2. The corporate limits and jurisdiction of the city of Chicago shall embrace and include within the same all of township thirty-nine north, range fourteen east, of the third principal meridian, and all of sections thirty-one, thirty-two, thirty-three, and fractional section thirty-four, in township forty north, range fourteen east, of the third principal meridian, together with so much of the waters and bed of Lake Michigan as lies within one mile of the shore thereof and east of the territory aforesaid. Sec. 3. All that portion of the aforesaid territory lying north of the center of the main Chicago river and east of the center of the north branch of said river shall constitute the north division of said city; all that portion of the aforesaid territory lying south of the center of the main Chicago river and south and east of the center of the south branch of said river and of the Illinois and Michigan canal shall constitute the south division of said city; and all that portion of the aforesaid territory lying west of the center of the north and south branches of said river and of the Illinois and Michigan canal shall constitute the west division of said city.' The foregoing being all the evidence given at said trial, the plaintiff submitted five propositions to be held as the law in the decision of the case, asserting, in substance, the invalidity of the ordinance requiring the payment of a...
