McDougall v. Lueder

• Decision Date: 17 January 1945
• Docket Number: 28126.,Nos. 28125,s. 28125
• Parties: McDOUGALL et al. v. LUEDER, Auditor of Public Accounts, et al. CAHILL v. SAME.
• Court: Illinois Supreme Court

389 Ill. 141

58 N.E.2d 899

McDOUGALL et al.

v.LUEDER, Auditor of Public Accounts, et al.

CAHILL

v.SAME.

Nos. 28125, 28126.

Supreme Court of Illinois.

Jan. 17, 1945.

Appeal from Circuit and Superior Courts, Cook County; Walter J. LaBuy and U. S. Schwartz, Judges.

Separate actions by Hugh S. McDougall and another against Arthur C. Lueder, Auditor of Public Accounts, and others, and by William E. Cahill against Arthur C. Lueder, Auditor of Public Accounts, and others, for a declaratory judgment that the Community Currency Exchange Act is unconstitutional. From orders of the circuit and superior courts dismissing the complaints for want of equity, the plaintiffs appeal, and the appeals were consolidated.

Affirmed.

Arthur A. Sullivan and Jacob Shamberg, both of Chicago (William E. Cahill, of Chicago, of counsel), for appellants.

George F. Barrett, Atty. Gen. (William C. Wines, of Chicago, of counsel), for appellees.

FULTON, Chief Justice.

This case involves a consolidation of appeals from an order of the circuit court of Cook county and an order of the superior court of Cook county sustaining motions of the appellees to strike complaints filed by the appellants attacking the validity of an act entitled ‘An Act in relation to the regulation of community currency exchanges, and the operators and employees thereof, and to make an appropriation therefor,’ Ill.Rev.Stat.1943, chap. 16 1/2, par. 31 et seq., and dismissing the complaints for want of equity.

The Community Currency Exchange Act became effective July 1, 1943. Section 1 of the act provides in part as follows: ‘For the purposes of this act: ‘Community currency exchange’ means any person, firm, association, partnership or corporation, except banks incorporated under the laws of this State and National banks organized pursuant to the laws of the United States, engaged in the business of and providing facilities for cashing checks, drafts, money orders and all other evidences of money acceptable to such community currency exchange for a fee or service charge, or other consideration, or engaged in the business of selling or issuing money orders under his or their or its name or any other money orders (other than United States Post Office money orders, American Express money orders, Postal Telegraph money orders, or Western Union money orders), or engaged in both such businesses. * * * Nothing in this act shall be held to apply to any person, firm, association, partnership or corporation engaged in the business of transporting for hire, bullion, currency, securities, negotiable or non-negotiable documents, jewels or other property of great monetary value, nor to any person, firm, association, partnership or corporation engaged in the business of selling tangible personal property at retail who, in the course of such business and as an incident thereto, cashes checks, drafts, money orders or other evidences of money.'

Section 2 provides that after October 1, 1943, no person, firm, association, partnership or corporation shall engage in the business of a community currency exchange without first securing a license to do so from the Auditor.

Section 3 provides: ‘No community currency exchange shall be permitted to accept money or evidence of money as a deposit to be returned to the depositor or upon the depositor's order; and no community currency exchange shall be permitted to act as bailee or agent for persons, firms, partnerships, associations or corporations to hold money or evidences thereof or the proceeds therefrom for the use and benefit of the owners thereof and deliver such money or proceeds of evidence of money upon request or direction of such owner or owners; provided, that nothing contained herein shall prevent a community currency exchange from issuing money orders.’

The appellants McDougall and Martin filed their complaint in the circuit court of Cook county alleging they did business as a partnership under the name of ‘mcDougall & Martin Armored Car Check Cashing Service’ in the city of Chicago, carrying on their business at two separate locations; that as part of the objects and among the activities and enterprises of the said partnership is the matter of cashing checks, drafts, money orders and all other evidence of money acceptable to them for a fee of service charge.

In the complaint filed by the appellant William E. Cahill in the superior court of Cook county, it was alleged that he was engaged in the business of cashing checks, drafts, money orders and other evidences of money acceptable to him and of issuing checks to the order of payees designated by the persons at whose instance and request the same are issued, for fees or service charges, under the name and style of ‘Cahill Bros. Currency Exchange;’ that, in addition thereto, he acts as a depositee on depositors' orders and as a bailee at the request of bailors and that he accepts for payment and makes payment of bills issued by various public utility companies and other companies against those persons for whom he acts; that the complaint is filed for the benefit of others engaged in similar activities and similarly situated.

Both complaints alleged that said business and activities were not dangerous to the public directly or indirectly, but afforded facilities for the convenience and benefit of persons desiring to cash checks, drafts, money orders and other evidences of money, and that said business and activities did not affect the public health, public morals, public comfort, public safety, or general welfare of the State, nor did they involve any inherent or innate fraudulent practices.

The complaints seek to declare the Currency Exchange Act unconstitutional on the ground that its attempts to regulate of the police power of the State of Illinois, aof the police power of the State of Illinois, and that it violates the rights of the plaintiffs to liberty and the pursuit of happiness accorded as a privilege under the preamble to the Federal Constitution and guaranteed by section 1 of article II of the Constitution of Illinois, Smith-Hurd Stats.; that it improperly and unreasonably discriminates against the appellants, since there is no regulation of the cashing of checks, etc., generally denying to them equal rights guaranteed by section 2 of article II of the Illinois Constitution, and that section 1 of the act discriminates against them in providing that those persons or businesses who cash checks, drafts, money orders and other evidences of money, in the course of, and while engaged in, the business of selling tangible personal property at retail, are exempt from the provisions of the act; that this violates section 2 of article II and section 22 of article IV of the Constitution of Illinois; that section 7, in providing that every community currency exchange have at all times on hand a minimum of $1,500 of its own cash funds for the uses and purposes of its business, arbitrarily and unlawfully attempts to direct the amount of business each shall be prepared to do, and that the provisions of section 5 and 6, requiring each currency exchange to furnish bond and to provide insurance policies, are contrary to sections 1 and 2 of article II of the Constitution of Illinois and section 1 of the Fourteenth Amendment of the Constitution of the United States; that the statute authorizes the Auditor of Public Accounts to make unreasonable search of the books and records of the exchanges, and subsection (c) of section 4 of the act delegates legislative power to the Auditor of Public Accounts without providing the terms and conditions under which he may act, contrary to section 1 of article IV of the Constitution of Illinois.

In addition to the above objections, it is alleged in the complaint of Cahill that the statute has no application to the activities of those, together with Cahill, who issue checks drawn by them on moneys previously deposited in various banks and held to their credit, and that the statute does not regulate the issuance of checks, since checks are not money orders in the sense that the term is used in the act, checks being negotiable instruments with characteristics not attached to money orders; that if checks are construed within the term ‘money orders,’ then section 22 of article IV of the Illinois Constitution is violated in that special privileges are granted by excepting from the application and operation of the act telegraph and express companies and certain other persons named in section 1 of the act, denying to appellants equal rights guaranteed by sections 1 and 2 of article II of the Illinois Constitution and section 1 of the Fourteenth Amendment to the Constitution of the United States; that section 3 of the act is void in granting special privileges to all persons not engaged in the community currency exchange business to carry on activities prohibited to persons engaged in the community currency exchange business.

Each complaint sought a declaration that the act was unconstitutional and void and prayed that appellees be restrained by injunction from in any manner attempting to enforce the provisions of the act against the appellants.

With these contentions both the circuit and superior courts of Cook county disagreed and a final order was entered by each sustaining a motion to strike the complaint and dismissing the complaint for want of equity.

The appellants here reiterate their objections to the act raised before the courts below, contending that the act in excepting the American Express, Postal Telegraph and Western Union Telegraph companies from the provisions of the act grants special privileges and immunity to those companies, wrongfully denying to the appellants the equal protection of laws; that by section 3, special privileges are granted to others, contrary to constitutional prohibition; that appellants' business of cashing checks is of a beneficial nature from the public standpoint and not dangerous to the public and cannot be...