Harry Gundling v. City of Chicago

• Decision Date: 09 April 1900
• Docket Number: No. 209,209
• Citation: 44 L.Ed. 725,20 S.Ct. 633,177 U.S. 183
• Parties: HARRY GUNDLING, Plff. in Err. , v. CITY OF CHICAGO
• Court: U.S. Supreme Court

177 U.S. 183

20 S.Ct. 633

44 L.Ed. 725

HARRY GUNDLING, Plff. in Err.,

v CITY OF CHICAGO.

No. 209.

Argued March 22, 1900.

Decided April 9, 1900.

Messrs. Lee D. Mathias and Charles H. Aldrich for plaintiff in error.

Messrs. Frederic D. McKenney, Charles M. Walker, and Henry Schofield for defendant in error.

Mr. Justice Peckham delivered the opinion of the court:

The plaintiff in error was convicted in a police court of the city of Chicago of a violation of an ordinance of that city forbidding the sale of cigarettes by any person without a license, and was fined $50. From the judgment of conviction he appealed to the criminal court of Cook county, where it, was affirmed, and thence to the supreme court of the state, where it was again affirmed, and he now brings the case here on writ of error.

Sections 1, 2, and 8 of the ordinance referred to read as follows:

'Sec. 1. The mayor of the city of Chicago shall from time to time grant licenses authorizing the sale of cigarettes within the city of Chicago, in the manner following, and not otherwise.

'Any person, firm, or corporation desiring a license to sell cigarettes shall make written application for that purpose to the commissioner of health, in which shall be described the location at which such sales are proposed to be made. Said application shall be accompanied by evidence that the applicant, if a single individual, all the members of the firm, if a copartnership, and person or persons in charge of the business, if a corporation, is or are persons of good character and reputation. The commissioner of health shall thereupon submit to the mayor the said application with the evidence aforesaid, with his opinion as to the propriety of granting such license, and if the mayor shall be satisfied that the persons before mentioned are of good character and reputation, and are suitable persons to be intrusted with the sale of cigarettes, he shall issue a license in accordance with such application, upon such applicant filing a bond payable to the city of Chicago, with at least two sureties, to be approved by the mayor, in the sum of $500, conditioned that the licensed person, firm, or corporation shall faithfully observe and obey all laws of the state of Illinois and ordinances of the city of Chicago now in force or which may hereafter be passed, with reference to cigarettes; provided, however, that nothing herein contained shall be held to authorize the sale of cigarettes containing opium, morphine, jimson weed, belladonna, glycerine, or sugar.

'Sec. 2. Every person, on compliance with the aforesaid requirements and the payment in advance to the city collector, at the rate of $100 per annum, shall receive a license under the corporate seal, signed by the mayor and countersigned by the clerk, which shall authorize the person, firm, or corporation therein named to expose for sale, sell, or offer for sale cigarettes at the place designated in the license; provided, that no license shall be granted to sell within 200 feet of a schoolhouse.

'Sec. 8. Any person who shall hereafter have or keep for sale or expose for sale or offer to sell any cigarettes at any place within the city of Chicato, without having first procured the license provided, shall be fined not less than $50 and not exceeding $200 for every violation of this ordinance, and a further penalty of $25 for each and every day the person, firm, or corporation persists in such violation after a conviction for the first offense.' The other sections are not material to this inquiry.

The plaintiff in error made no application to the health commissioner to obtain a license from the mayor in accordance with the above-mentioned ordinance. He specially set up in the courts below that the ordinance was invalid, because in violation of the Fourteenth Amendment, as depriving him of his property without due process of law. He contended in the state courts that the common council of the city of Chicago had no right to pass the ordinance in question, because no such power was given to it under the general act of the state of Illinois which incorporated the city of Chicago. The supreme court of the state, however, in construing that act, decided that it did authorize the city to pass the ordinance, and the plaintiff in error admits that this decision is conclusive upon us as the decision of a question of local law by the highest court of the state.

He makes two claims here upon which he bases the statement that the ordinance violates his rights under the Fourteenth Amendment of the Federal Constitution. Quoting from counsel's brief, these claims are: 'First, that the state itself, acting through the common council of the city of Chicago, is inhibited by the Federal Constitution from making those provisions in the ordinance which delegate to the mayor the entire subject of granting and revoking licenses to persons engaged in the business of selling cigarettes; second, that the ordinance is unconstitutional and void as being an unreasonable exercise of the police power by imposing a license fee of $100, a sum manifestly greater than the expense of issuing the license and providing for the regulation, thereby depriving persons of their liberty and property by an interference with their rights which is neither necessary to the protection of others nor the public health.'

He contends that the ordinance vests arbitrary power in the mayor to grant or refuse a license to sell cigarettes, and that such arbitrary power is a violation of the amendment in question.

He claims also that he has been denied the equal protection of the laws, because in other kinds of business, where licenses are granted to persons engaged in any trade or occupation, no member thereof is 'singled out and subjected to the absolute supervision of an irresponsible magistrate while his neighbor is protected in his right by the customary safeguards of the law.'

It seems somewhat doubtful whether the plaintiff in error is in a position to raise the...