Jensen v. Wilton E. Wilcox Lumber Co.

• Decision Date: 21 December 1920
• Docket Number: No. 13563.,13563.
• Citation: 295 Ill. 294,129 N.E. 133
• Parties: JENSEN v. WILTON E. WILCOX LUMBER CO. et al.
• Court: Illinois Supreme Court

295 Ill. 294

129 N.E. 133

JENSEN

v.WILTON E. WILCOX LUMBER CO. et al.

No. 13563.

Supreme Court of Illinois.

Dec. 21, 1920.

Action by Hans C. Jensen against the Wilton E. Wilcox Lumber Company and another. From judgment for defendants, plaintiff appeals.

Reversed and remanded.

Appeal from Circuit Court, Cook County; Thomas G. Windes, judge.

Otto G. Ryden, of Chicago, for appellant.

Clithero & Swett, of Chicago, for appellees.

FARMER, J.

This suit was originally begun as an action of replevin against the Wilton E. Wilcox Lumber Company and the sheriff of Cook county for the possession of a Haynes automobile. The car was not recovered, but the writ was served on defendants and counts in trover filed. The plea was the general issue. After the evidence was heard, the trial court directed a verdict for the defendants, which the jury returned and upon which the court rendered judgment and adjudged costs against plaintiff. On the ground that the constitutionality of a statute known as the Garage Keeper's Lien Act was involved, an appeal was prosecuted direct to this court.

Paul D. Jensen was the owner of a five-passenger Haynes automobile which he purchased in January, 1917, for $1,500. He kept it in his private garage until June, when he moved to an apartment at 4434 North Drake avenue, Chicago. He then stored the car in the public garage of E. L. Bogasch, doing business under the name of Republic Garage & Machine Company, located about a block from where Jensen resided. In August, Jensen put a Ford roadster owned by him in the same garage. The charge for storage on each car was $9 per month, payable in advance. November 24, 1917, Jensen, being indebted to Oscar F. Johnson in the sum of $1,500, executed his note for that amount, due in two years, and secured the same by giving Johnson a chattel mortgage on both the Haynes and Ford cars. In January, 1918, Jensen paid Johnson $300 on the note, and the Ford car was released from the mortgage. That the chattel mortgage was properly executed and recorded is not questioned. On May 30, 1918, Bogasch sold the Haynes car for nonpayment of storage and other charges he claimed were due and unpaid. The sale was made under the supposed authority of sections 3a, 3b, and 3c of chapter 82 of Hurd's Statutes of 1917. These sections, together with section 3d, were added to the chapter of our statute on liens by amendment in 1917. Section 3a is as follows:

‘Sec. 3a. Garage keepers shall have a lien upon any motor vehicle, parts and accessories thereof, kept by them for the proper charges due, for the keeping thereof, the repair thereof, the materials furnished thereto, and the expenses bestowed thereon at the request of the owner, or the person having the possession thereof: Provided, that such a lien shall not apply to motor vehicles, parts or accessories sold on conditional sale while the vendor remains unpaid: And provided, further, that the contract of sale of mortgage of the conditional vendor has been filed for record in the recorder's office in the county in which said sale takes place, before any lien sought to be enforced under this act attaches.’

Section 3b is not here important. Section 3c authorizes the enforcement of the lien by sale of the property upon giving to the owner, if he and his residence are known to the garage keeper, 10 days' notice in writing of the time and place of sale, and, if the owner or his place of residence are unknown, an affidavit of that fact shall be filed with the clerk of the county court and notice of the sale published once a week for three successive weeks in some newspaper of general circulation published in the county. The amount of the lien and costs are to be paid out of the proceeds of the sale and the surplus, if any, paid to the owner of the property. This act, especially sections 3a and 3c, it is contended is unconstitutional and void.

There is a sharp dispute as to whether there were any charges due the garage keeper on the Haynes car at the time the chatted mortgage was given and recorded. Appellant contends that all charges on the car were paid up to December 4. The chattel mortgage was given on November[295 Ill. 297]24. Appellees claim there were charges unpaid on that date to the amount of $57.39. Bogasch, the garage proprietor, testified there was due him May 4, 1918, $127.98, and that there was due May 30, 1918, the date of the sale, $170.18. If the Garage Keeper's Lien Act is unconstitutional, then, of course, the judgment was wrong and must be reversed.

Appellant claims the right to the possession of the car as assignee, for value, of the Johnson chattel mortgage and note. After the car was sold without actual notice to Paul D. Jensen, and without notice of any kind to Johnson, who was at that time the owner of the note and chattel mortgage, appellant became the owner of the note and chattel mortgage, located the car in the garage of one Nielsen and took possession of it under the chattel mortgage, under which there was $1,250 unpaid, for the purpose of foreclosing the chattel mortgage. He stored it in a private garage September 18, 1918, and locked the doors. The appellee lumber company began a replevin suit for the car, making Paul D. Jensen, Oscar F. Johnson, and Nielsen defendants. Appellant was not made a party to the suit. Possession of the car was taken under the writ by the lumber company. On the trial of the case the plaintiff elected to take a non-suit. Judgment was thereupon entered for defendants and a writ of retorno ordered. The car was never found afterwards and never came to the possession of defendants in that suit nor to the possession of appellant.

It is urged by appellant that the lien statute referred to is special legislation, in violation of section 22, art. 4, of our state Constitution; that it deprives chattel mortgagees of vested property rights, in violation of section 2 of our Bill of Rights, and is in conflict with the Fourteenth Amendment to the federal Constitution.

The statute involved is not declaratory of a common-law lien, but the lien created is solely dependent on the terms of the statute. We are of opinion the act is void as special legislation, giving garage keepers superior rights and advantages over other classes and persons similarly situated. There is not, and could not reasonably be, any claim here that the Garage Lien Act has any relation to the police power. The Legislature may classify persons and occupations for the purpose of legislative regulation, provided the classification is not arbitrary and is based on some substantial difference which bears a proper relation to the classification. People v. Schenck, 257 Ill. 384, 100 N. E. 994,44 L. R. A. (N. S.) 46, Ann. Cas. 1914A, 1129. An act which arbitrarily discriminates in favor of one class, leaving unaffected others similarly situated between whom and the class favored there exists no reasonable basis for distinction or discrimination, violates the constitutional provision prohibiting special legislation. Bailey v. People, 190 Ill. 28, 60 N. E. 98,54 L. R. A. 838, 83 Am. St. Rep. 116. We see no...