People ex rel. Auburn Coal & Material Co. v. Hughes, No. 22514.

• Court: Supreme Court of Illinois
• Writing for the Court: DE YOUNG
• Citation: 357 Ill. 524,192 N.E. 551
• Decision Date: 19 October 1934
• Docket Number: No. 22514.
• Parties: PEOPLE ex rel. AUBURN COAL & MATERIAL CO. v. HUGHES, Secretary of State.

357 Ill. 524
192 N.E. 551

PEOPLE ex rel. AUBURN COAL & MATERIAL CO.
v.
HUGHES, Secretary of State.

No. 22514.

Supreme Court of Illinois.

Oct. 19, 1934.

Proceeding by the People, on the relation of the Auburn Coal & Material Company, against Edward J. Hughes, Secretary of State, for mandamus. From a judgment granting a peremptory writ of mandamus, respondent appeals.

Affirmed.

[357 Ill. 524]Appeal from Circuit Court, Cook County; George Fred Rush, Judge.
Otto Kerner, Atty. Gen. (George C. McCarthy, of Chicago, and Truman A. Snell, of Springfield, of counsel), for appellant.

Kirkland, Fleming, Green & Martin, of Chicago (Joseph B. Fleming, Joseph H. Pleck, and Manly K. Hunt, all of Chicago, of counsel), for appellee.

[357 Ill. 525]DE YOUNG, Justice.

The people of the state, on the relation of the Auburn Coal & Material Company, filed an amended petition for a writ of mandamus in the circuit court of Cook county against Edward J. Hughes, as Secretary of State, to compel him to approve the relator's applications for, and to issue, licenses to operate certain motor trucks. The respondent interposed a general demurrer to the amended petition; the demurrer was overruled, the respondent elected to abide by his pleading, and judgment was rendered awarding the peremptory writ of mandamus in accordance with the prayer of the amended petition. From that judgment, the respondent prosecutes this appeal.

The relator, a domestic corporation, by its amended petition, charged that in December, 1933, it applied to the respondent for licenses to operate three motor trucks during the year 1934; that the applications were made upon forms provided by the respondent; that each of the trucks had four wheels and the applications disclosed their gross weights, including the vehicle and the maximum load, as 25,100, 25,600, and 18,200 pounds, respectively; that with the applications, the relator tendered to the respondent a check for $411.50 composed of the following items: License fee, first truck, $150, license fee, second truck, $150, license fee, third truck, $110, and three certificates of title at 50 cents each, $1.50; that the respondent rejected the applications and returned them with the check assigning as his reason the insufficiency of the license fees remitted for the first and the second trucks to the extent of $200; that on January 5, 1934, the relator re-submitted its applications for the licenses accompanied by its certified check for $411.50 and the written representation that its trucks were operated wholly within the city of Chicago; that the sum for which the check was drawn constituted the fees, and all the fees, prescribed by law; and that the respondent [357 Ill. 526]again refused to issue the licenses requested because $250 had not been tendered as the license fee for each of the two larger trucks. It is further alleged in the amended petition that pursuant to the authority conferred by paragraph 2 of section 3 of the Motor Vehicle Law (Smith-Hurd Ann. St. c. 95 1/2, § 3, par. 2), the council of the city of Chicago passed an ordinance, known as section 2054 of the Municipal Code, by which four-wheeled vehicles having a maximum gross weight, when loaded, of 36,000 pounds, may be operated on the streets of the city; that the relator operates its trucks within and not beyond the limits of the city of Chicago; that it has complied with all the requirements of the statutes of the state and the ordinances of the city respecting the operation of its motor trucks; and that, for the fees tendered to the respondent, it is entitled to state licenses to operate its trucks within the boundaries of that city.

[192 N.E. 552]

The appellant, the Secretary of State, contends that he is prohibited by paragraph 1 of section 3 of the Motor Vehicle Law (Smith-Hurd Ann. St. c. 95 1/2, § 3, par. 1) from issuing a license for the operation of any self-propelled four-wheel vehicle, the gross weight of which, including the vehicle and the maximum load, exceeds 24,000 pounds. To sustain the judgment, the appellee maintains that the license fee for a four-wheel truck having a maximum gross weight of more than 20,000 pounds is fixed at $150 by subdivision (g) of section 9 of the same act (Smith-Hurd Ann. St. c. 95 1/2, § 9(g); that this sum is the maximum license fee for such a truck; and that section 3 does not modify or conflict with the provisions of section 9.

By section 2 of the Motor Vehicle Law (Smith-Hurd Ann. St. c. 95 1/2, § 2, Cahill's Rev. St. 1933, c. 95a, § 2, p. 1882) motor vehicles are classified into two divisions. Of these the first comprises vehicles designed and used for the carrying of not...