Henson v. City of Chicago

• Decision Date: 24 September 1953
• Docket Number: No. 32683,32683
• Citation: 114 N.E.2d 778,415 Ill. 564
• Parties: HENSON et al. v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

Page 778

114 N.E.2d 778

415 Ill. 564

HENSON et al. v. CITY OF CHICAGO et al.

No. 32683.

Supreme Court of Illinois.

Sept. 24, 1953.

Joseph E. Snowden, Chicago (William R. Ming, Jr., Chicago, of counsel), for appellants.

John J. Mortimer, Corporation Counsel, of Chicago (L. Louis Karton, Charles P. Horan, and Harry H. Pollack, of Chicago, of counsel), for appellees.

HERSHEY, Justice.

Appellants, hereinafter to be referred to as plaintiffs, are retail liquor licensees and female employees of such licensees. Plaintiffs appeal here from an order of the superior court of Cook County granting the motion of defendants below and dismissing the suit to restrain the enforcement of an ordinance of the city of Chicago prohibiting women, other than licensees or the mother, daughter, wife or sister of a licensee from being employed as bartenders. The constitutionality of a municipal ordinance being involved, the appeal comes here directly.

In 1941 the General Assembly amended section 1 of article IV of the Liquor Control Act to provide in part that: 'In every city, village or incorporated town, the city council or president and board of trustees * * * shall have the power by general ordinance or resolution * * * to prohibit any woman or minor, other than a licensee or the wife of a licensee, from drawing, pouring or mixing any alcoholic liquor as an employee of any retail licensee; * * * and to establish such further regulations and restrictions upon the issuance of and operation under local licenses not inconsistent with law as the public good and convenience may require; * * *.' Ill.Rev.Stat.1951, chap. 43, par. 110.

Subsequently, on January 30, 1952, the city council of the city of Chicago amended its ordinances as follows:

'Be It Ordained by the City Council of the City of Chicago:

'Section 1. Section 147-15 of the Municipal Code of Chicago is amended to read as follows:

'147-15. Employment of females.) It shall be unlawful for any licensee, his manager, or other person in charge of any licensed premises where alcoholic liquor is sold or offered for sale for consumption thereon to engage, employ or permit the engagement or employment of any female person other than the licensee or the mother, daughter, wife or sister of the licensee to draw, pour or mix any alcoholic liquor, not shall any other female be permitted to remain on said premises, who shall solicit any patron or customer thereof to purchase alcoholic or nonalcoholic liquor for her, himself, or any other person therein; provided, however, that nothing herein contained shall prohibit any adult manageress or waitress who shall be regularly employed therein from accepting and serving the order of a patron or customer in the regular course of her employment as such manageress or waitress.

'Section 2. This ordinance shall be in force and effect from and after its passage and publication.'

It was thereafter provided that any person violating the above provision shall be fined not more than two hundred dollars for each offense, every day that the violation continues constituting a separate and distinct offense.

When enforcement of the Chicago ordinance was threatened, these plaintiffs instituted a suit in the superior court of Cook County against the city of Chicago, the mayor, the commissioner of police and others to restrain its enforcement. Plaintiffs alleged that the purpose of the amendment is to enable male bartenders to monopolize the trade and calling of drawing, pouring and mixing alcoholic liquors on licensed premises where alcoholic liquor is sold or offered for sale for consumption. They also asserted that the limitations on, and interference with, the business of selling alcoholic liquors at retail are so arbitrary and unreasonable as to be in violation of, and repugnant to, sections 1, 2, and 13 of article II, and section 22 of article IV of the constitution of the State of Illinois, section 1 of article IV of the Liquor Control Act, and the fourteenth amendment to the constitution of the United States. These assertions are based on the contention that the city of Chicago lacked authority to so regulate the business of the plaintiffs, that the contested ordinance deprives the plaintiffs of liberty and property without due process of law and denies them equal protection of the laws of Illinois, and, moreover, that if section 1 of article IV of the Liquor Control Act does so authorize the city, the said section 1 is itself likewise arbitrary and unreasonable for the same reasons. Finally, plaintiffs contend the ordinance is so vague, indefinite and uncertain as to be incapable of precise application.

Plaintiffs moved for a temporary injunction and defendants moved to strike the amended complaint and to dismiss the suit. The superior court granted the motion to dismiss.

On this appeal it is first contended by plaintiffs that the city of Chicago had no authority to adopt this ordinance. It is asserted that the city council did not do what the legislature had authorized, in that the legislature had directed that if women were prohibited from 'drawing, pouring, and mixing alcoholic liquors' only licensees or wives of licensees were to be exempted. The council, however, exempted mothers, daughters and sisters as well as the wives of licensees, and, in addition, plaintiffs assert, provided that adult manageresses and waitresses may be employed to draw, pour and mix.

It is undisputed that the power to license, regulate or prohibit the traffic in intoxicating liquors rests in the police power of the State, and the State may delegate it to municipalities if it so desires. The only power a municipality has to regulate the sale of alcoholic beverages is that conferred upon it by the State. Sager v. City of Silvis, 402 Ill. 262, 83 N.E.2d 683. Section 1 of article IV of the Liquor Control Act merely states that any and all women may be prohibited from 'drawing, pouring or mixing' alcoholic liquors except licensees and wives of licensees. That constitutes the limits restricting the actions of the city council in passing such an ordinance. Section 1 of article I of the Liquor Control Act (Ill.Rev.Stat.1951, chap. 43, par. 94,) provides that: 'This Act shall be liberally construed, to the end that the health, safety and welfare of the People of the State of Illinois shall be protected and temperance in the consumption of alcoholic liquors shall be fostered and promoted by sound and careful control and regulation of the manufacture, sale and distribution of alcoholic liquors.'

In line with this admonishment in the act itself, it is obvious that the language with which we are concerned directed merely that of all women, licensees and wives of licensees could not in any case be prohibited from 'drawing, pouring or mixing' alcoholic liquors. That act does not direct that only licensees and wives of licensees may be excused from the prohibition. Authority is deposited with the city council in the enactment of an ordinance pursuant thereto, to exclude any other women it may see fit to exclude under that part of the act giving it the right to 'establish such further regulations and restrictions upon the issuance of and operation under local licenses not inconsistent with law as the public good and convenience may require'. The act merely sets the most extreme limits to which the council may go in enacting an ordinance pursuant to the legislative authorization. We have previously held that 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. Father Basil's Lodge, Inc. v. City of Chicago, 393 Ill. 246, 65 N.E.2d 805.

The ordinance does not, as plaintiffs contend, permit adult manageresses and waitresses to draw, pour and mix alcoholic liquors but merely authorizes them to accept and serve the order of a patron or customer. The very language of the ordinance draws a difference between 'drawing, pouring or mixing' and 'accepting and serving an order.' Obviously, 'accepting and serving an order' is merely receiving the request of a customer and placing the requested article before him. Such an enactment is authorized by the grant of power to regulate and restrict the issuance and operation under local licenses.

The second issue raised by plaintiffs is that this municipal ordinance deprives them of their liberty and property without due process of law in that they are deprived of freedom of contract and the right to work at a trade or occupation of their own choosing. The constitutions of Illinois and of the United States expressly prohibit governmental action which deprives any person of his life, liberty or property without due process of law. Const.Illinois, art. II, sec. 2; Const. of the United States, 14th amendment.

It is axiomatic that an ordinance passed in pursuance of competent statutory authority is presumptively valid. Kinney v. City of Joliet, 411 Ill. 289, 103 N.E.2d 473. The power of the judiciary in determining the constitutionality of laws or ordinances is limited to deciding whether or not...