Marallis v. City of Chicago

• Court: Illinois Supreme Court
• Writing for the Court: DE YOUNG
• Citation: Marallis v. City of Chicago, 349 Ill. 422, 182 N.E. 394 (Ill. 1932)
• Decision Date: 05 October 1932
• Docket Number: No. 21049.,21049.
• Parties: MARALLIS et al. v. CITY OF CHICAGO et al.

349 Ill. 422

182 N.E. 394

MARALLIS et al.

v.CITY OF CHICAGO et al.

No. 21049.

Supreme Court of Illinois.

June 24, 1932.

As Modified on Denial of Rehearing Oct. 5, 1932.

Suit by George Marallis and others against the City of Chicago and others. From the decree, plaintiffs appeal.

Affirmed.

JONES, J., HEARD, C. J., and ORR, J., dissenting.

Appeal from Superior Court, Cook County; Ross C. Hall, Judge.

William Sherman Stahl, of Chicago (Robert E. Kinnare, of Chicago, of counsel), for appellants.

William H. Sexton, Corp. Counsel, and Daniel A. Roberts, both of Chicago, Edward J. Carmody, of Cicero, and William H. Beckman, of Chicago (William V. Daly and George E. Woods, both of Chicago, of counsel), for appellees.

DE YOUNG, J.

George Marallis and fifty other persons filed their bill of complaint in the superior court of Cook county against the city of Chicago, the commissioners of Lincoln Park, the West Chicago Park Commissioners, and the town of Cicero to enjoin the defendants from interfering with the vending, hawking, and peddling of goods by the complainants. The defendants filed a joint and several demurrer to the bill, the demurrer was sustained, and the bill was dismissed for the want of equity. The validity of a statute is involved in the case and the complainants prosecute an appeal directly to this court.

The appellants allege in their bill that they are residents of the city of Chicago; that they are honorably discharged veterans of the armed forces of the United States; that on August 1, 1931, by authority of an act entitled ‘An Act permitting former soldiers and sailors of the United States or of the State of Illinois, honorably discharged from the military, naval or marine service of the United States, or of the State of Illinois, to vend, distribute, hawk and peddle goods, wares, fruits or merchandise, not prohibited by law, in any county, town, village, incorporated city or municipality in the State of Illinois,’ approved May 11, 1901, in force July 1, 1901, as subsequently amended (Cahill's Stat. 1931, p. 458, pars. 626, 627, Smith-Hurd Rev. St. 1931, p. 486, c. 24, §§ 673, 674), each of the appellants for himself solely, began the vending, hawking, and peddling of goods, wares, and merchandise upon the public streets, parks, beaches, and places of the several appellees; that they pursued their vocation in an orderly manner and that it constituted their sole source of income; and that on August2, 1931, without just cause and to their irreparable damage, they were forcibly prevented by police officers of the defendant municipalities from pursuing their ocupation. Upon these grounds the desired injunction is sought.

The act upon which the appellants rely reads as follows:

‘Section 1. On and after the passage of this Act, all former soldiers and sailors of the United States, or of the State of Illinois, honorably discharged from the military, naval or marine service of the United States, or of the State of Illinois, including former soldiers and sailors of the World War, shall be permitted to vend, distribute, hawk and peddle goods, wares, fruits or merchandise, not prohibited by law, in any county, town, village, incorporated city or municipality, within this State, without a license: Provided, said soldier or sailor is engaged in the vending, distributing, hawking or peddling of said goods, wares, fruits or merchandise, for himself only.

‘Sec. 2. Upon the presentation of his certificate of discharge to the clerk of any county, town, village, incorporated city or municipality in this State, and showing proofs of his identity as the person named in his certificate of honorable discharge, the clerk shall issue to such former soldier or sailor of the United States or of the State of Illinois, a license, but such license shall be free, and said clerk shall not collect or demand for the county, town, village, incorporated city or municipality, any fee therefor. Any clerk of any county, town, village, incorporated city or municipality in this State, who shall violate any of the foregoing provisions of this Act, by failing or refusing to comply with such provisions as herein directed, shall be fined in a sum not less than ten ($10.00) dollars nor more than fifty ($50.00) dollars, to which may be added imprisonment in the county jail, not exceeding ten days.’

The appellants, in seeking a reversal of the decree, contend that honorably discharged soldiers, having rendered a peculiar and extraordinary service, constitute a class founded upon a natural distinction; that this distinction justifies legislation granting them privileges, exemptions, and immunities from the burdens resting upon other citizens; and that the statute they invoke is therefore valid. To sustain the decree, the appellees, on the contrary, insist that the act in question constitutes special or class legislation which arbitrarily grants privileges and immunities to a particular class and denies persons outside of that class the equal protection of the laws constitutionally guaranteed and that the act is therefore void.

[1] The first section of the Fourteenth Amendment to the Federal Constitution declares that: ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.’ Due process of law and the equal protection of the laws, the Supreme Court of the United States said in Duncan v. Missouri, 152 U. S. 377, 14 S. Ct. 570, 572, 38 L. Ed. 485, ‘are secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.’ The equal protection of the laws is a pledge of the protection of equal laws. Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed. 20. By the quoted provisions of the Fourteenth Amendment, it was intended not only that there should be no arbitrary deprivation of life, liberty, or property, but also that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the county for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of any one except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition; and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offenses. Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 S. Ct. 431, 439, 46 L. Ed. 679;Hayes v. Missouri, 120 U. S. 68, 7 S. Ct. 350, 30 L. Ed. 578;Yick Wo v. Hopkins, 118 U. S. 356, 369, 6 S. Ct. 1064, 30 L. Ed. 220;Barbier v. Connolly, 113 U. S. 27, 5 S. Ct. 357, 28 L. Ed. 923.

The invalidity of a statute obnoxious to the Fourteenth Amendment is well illustrated by the case of Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 S. Ct. 431, 439, 46 L. Ed. 679. The Illinois Trust Act of June 20, 1893 (Laws 1893, p. 182), prohibited trusts or combinations in restraint of trade or competition. By section 9 (page 184) the provisions of the act were made inapplicable ‘to agricultural products or live stock while in the hands of the producer or raiser’; and section 10 provided that the purchaser of any article or commodity from such a trust or combination, should not be liable for the price and might plead the act as a defense to any suit therefor. Suit was instituted for sewer pipe sold and delivered and the act was interposed as a defense. The Supreme Court of the United States held that the discrimination created by the ninth section rendered the act repugnant to the provisions of the Fourteenth Amendment respecting the equal protection of the laws. The court said that under the ‘statute all except producers of agricultural commodities and raisers of live stock, who combine their capital, skill, or acts for any of the purposes named in the act, may be punished as criminals, while agriculturalists and live-stock raisers, in respect of their products or live stock in hand, are exempted from the operation of the statute, and may combine and do that, which, if done by others, would be a crime against the state. The statute so provides notwithstanding persons engaged in trade or in the sale of merchandise and commodities, within the limits of a state, and agriculturalists and raisers of live stock, are all in the same general class, that is, they are all alike engaged in domestic trade, which is, of right open to all, subject to such regulations, applicable alike to all in like conditions, as the state may legally prescribe.’

Supplementing the provisions of the Fourteenth Amendment to which reference has been made, section 22 of article 4 of the Constitution of this state prohibits the passage of a special law granting to any corporation, association, or individual any special or exclusive privilege, immunity, or franchise whatever. This provision prevents the enlargement of the rights of one or more persons in discrimination against the rights of others. In many cases this constitutional requirement has been invoked and it often has been held that, to avoid falling within the constitutional prohibition of local or special legislation the classification of subjects or objects must be based upon some reasonable and substantial difference of kind, situation, or circumstance bearing a proper relation to the purposes to be attained by the statute. L'Hote v. Village of Milford, 212 Ill. 418, 72 N. E. 399,...