Pacesetter Homes, Inc. v. Village of South Holland

• Decision Date: 19 November 1959
• Docket Number: 35293,Nos. 35100,s. 35100
• Citation: 18 Ill.2d 247,163 N.E.2d 464
• Parties: , 38 Lab.Cas. P 65,939 PACESETTER HOMES, INC., Appellant, v. VILLAGE OF SOUTH HOLLAND et al., Appellees. Aloysius CISEK d/b/a Starlite Motel, et al., Appellees, v. VILLAGE OF SOUTH HOLLAND et al., Appellants.
• Court: Illinois Supreme Court

Page 464

163 N.E.2d 464

18 Ill.2d 247, 38 Lab.Cas. P 65,939

PACESETTER HOMES, INC., Appellant, v. VILLAGE OF SOUTH HOLLAND et al., Appellees.

Aloysius CISEK d/b/a Starlite Motel, et al., Appellees, v. VILLAGE OF SOUTH HOLLAND et al., Appellants.

Nos. 35100, 35293.

Supreme Court of Illinois.

Nov. 19, 1959.

As Modified on Denial of Rehearing Jan. 21, 1960.

Lyle, havey & Gager, Chicago (Edward T. Havey, Chicago, of counsel), for appellant in No. 35100 and for appellees in No. 35293.

William Jacobs, South Holland (William O. Krohn, Chicago, of counsel), for appellees in No. 35100, and for appellants in No. 35293.

Turner, Hunt & DeBolt, Chicago (Frederick W. Turner, Jr., and Murray B. Woolley, Chicago, of counsel), for amicus curiae Home Builders Association of Chicago-land.

KLINGBIEL, Justice.

Aloysius Cisek and two other businessmen in the village of South Holland who operate a motel, a restaurant and a gasoline service station, respectively, together with two residents desiring to avail themselves of the formers' accommodations or products, brought a declaratory judgment action in the circuit court of Cook County challenging the validity of South Holland's Sunday closing ordinance. The court held the ordinance unconstitutional 'in so far as it prohibits the businesses of the plaintiffs.' The village appeals directly to this court, upon certificate of the trial court that the validity of a municipal ordinance is involved and that the public interest requires such direct appeal.

A second action was brought against the village, in the same court, by Pacesetter Homes, a corporation engaged in constructing and selling houses. The complaint in this case alleges that the ordinance prevents the plaintiff from merely exhibiting its houses or having them open for inspection on Sundays. The same relief was prayed, namely that the ordinance be declared unconstitutional. The circuit court in this case, however, upheld the validity of the ordinance, and the appeal to this court has been taken by the plaintiff. The two cases have been consolidated for review.

The ordinance in question is comprehensive in its terms. It refers as such neither to restaurants, motels, service stations, or the construction and sale of houses, but is directed at business activity generally. Although subdivided under general headings-i. e., Wholesale and Retail Mercantile and Merchandising Establishments, Manufacturing and Construction Work, Repair and Maintenance Work, and Personal Services and Ordinary Labor-no difference in treatment is made between the various types, the section concluding with a prohibition of 'All other business activities or ordinary secular pursuits for gain or profit.' The only exceptions are medical, dental and funeral facilities, public transportation and utilities, and activities necessary for 'emergency needs' of the village residents.

To reverse the judgment in the Cisek case the village argues that it cannot be said as a matter of law, without evidence, that the ordinance is unconstitutional as applied to the sale of gasoline, food and lodging. To sustain the judgment in the Pacesetter Homes case the village contends that since the evidence was conflicting as to whether disturbance was caused by its exhibition of model homes, the plaintiff failed to prove unreasonableness of the ordinance as applied to such activity. These contentions, we think, misconceive the nature of the present proceedings. The validity of a penal ordinance such as the one in question here cannot be made to depend upon facts found in the particular case. Since testimony and other evidence vary from case to case, such a rule would result in the absurdity of declaring the law constitutional one day and unconstitutional the next. See 11 Am.Jur. 822, Constitutional Law, sec. 143. In People v. Elerding, 254 Ill. 579, at page 587, 98 N.E. 982, 985, 40 L.R.A.,N.S., 893, we upheld a law limiting the hours of women's employment in certain places, including hotels. In answer to the contention that the evidence showed there was no reasonable connection between the restriction and the health of the employees, this court said 'we cannot determine the question here involved from a consideration of a particular instance. The law must be considered in its general application to all cases and conditions existing throughout the state. It must be considered from its application to all employers and employe § and not to any individual employer or employe . If a law of this character must be considered with reference to the particular circumstances and conditions existing in each hotel, it might lead to the absurdity of its being valid in one case and invalid in another. The law is general in its application, embracing all hotels, and is valid as to all or none.' The constitutional validity of a law is to be tested, not by what has been done under it but by what may by its authority be done (People v. Marquis, 291 Ill. 121, 128-129, 125 N.E. 757, 8 A.L.R. 874); and it does not sustain validity that on the facts of the particular case there would be a reasonable relation to the objects of police power had the law been written so as to embrace only such cases.

Nor can legislation general in its terms be valid as applied to one kind of activity within its terms and invalid as applied to another kind equally within its terms. See Butts v. Merchants & Miners Transportation Co., 230 U.S. 126, 33 S.Ct. 964, 57 L.Ed. 1422. It is either valid as to all that it embraces, or it is invalid as to all that it embraces. The Supreme Court of the United States pointed this out in United States v. Ju Toy, 198 U.S. 253, 262, 25 S.Ct. 644, 646, 49 L.Ed. 1040, 1044, where it observed that 'the relevant portion being a single section, accomplishing all its results by the same general words, must be valid as to all that it embraces, or altogether void. An exception of a class constitutionally exempted cannot be read into those general words merely for the purpose of saving what remains. That has been decided over and over again. (Citations.)' Any other rule would result in an endless testing of the present ordinance or similar ones, not only as to each business, such as motel, restaurant, gas station and so on, but as to each phase or aspect of every business, e. g., the showing of model homes by one engaged in constructing and selling them, the display of sings or other advertising, the making of deliveries by grocers, etc.

The function of a court, in a case such as this, is to ascertain from the words of the law itself whether constitutional restraints have been exceeded. The question is one of law, not of fact. To say that an ordinance or statute of broad or unlimited sweep is valid as applied to one activity and invalid as applied to another is not to judge the law as written by the legislature but to make a different law. As the United States Supreme Court remarked in United States v. Reese, 92 U.S. 214, 23 L.Ed. 563, 566, 'It would certainly be dangerous if the Legislature could set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could be rightfully detained and who should be set at...