Potson v. City of Chicago
| Decision Date | 21 October 1922 |
| Docket Number | No. 14446.,14446. |
| Citation | 304 Ill. 222,136 N.E. 594 |
| Parties | POTSON et al. v. CITY OF CHICAGO et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Bill by Michael Potson and another against the City of Chicago and others. Decree for complainants by the Appellate Court (222 Ill. App. 50) on appeal from the superior court, and defendants appeal.
Affirmed.
Samuel A. Ettelson, Corp. Counsel, of Chicago (Berthold A. Cronson and Carl F. Lund, both of Chicago, and Albert S. O'Sullivan, of Mound City, of counsel), for appellants.
Lewis F. Jacobson, of Chicago, for appellees.
Michael Potson and Rocco de Stefano, administrator of the estate of James Colosimo, deceased, filed their bill in the superior court of Cook county, praying for an injunction restraining the city of Chicago, its mayor, and chief of police from enforcing against the complainants, an ordinance requiring a license to conduct the restaurant of the complainants in that city, and from interrupting them in conducting such restaurant business. By leave of court the bill was amended by substituting Stephen A. Malato and Stephen Love, administrators de bonis non of the estate of James Colosimo, in place of Rocco de Stefano, and the temporary injunction prayed for was awarded. A motion to dissolve the injunction was denied, and an appeal was prosecuted to the Appellate Court for the First District, where the order of the superior court was affirmed. The defendants filed a general demurrer to the bill, and, the demurrer being overruled, they elected to stand by it, and a decree was entered making the temporary injunction perpetual and granting the relief prayed for in the bill. The trial judge certified that the validity of an ordinance was involved and allowed an appeal to this court.
The facts alleged in the bill and admitted to be true for the purposes of the demurrer are as follows: In 1911 an ordinance was passed by the city council of the city of Chicago, as a part of the municipal code purporting to require a license for keeping a restaurant, and two sections of the ordinance were amended in 1920. The ordinance provided that no person, firm, or corporation should exercise, within the city of Chicago, the business of keeping a restaurant without first securing a license and paying therefor a fee of $15 per annum. The license was to be issued upon an application accompanied by a bond, and the ordinance provided that any license might be revoked by the mayor by notice in writing whenever it should appear to his satisfaction that the person licensed had violated the provisions of any law of the state of Illinois or of that or any other ordinance of the city, relative to the keeping of restaurants or any condition of the bond. A penalty was imposed for keeping a restaurant without procuring a license, with progressive penalties for continuing such violation.
About the year 1913, James Colosimo opened the restaurant in Chicago, owned by the complainants when the bill was filed, and invested more than $10,000 for fixtures and equipment to conduct the business. The restaurant was an immediate and continued success. About the year 1915, owing to the great increase in popularity and patronage of the restaurant, Colosimo rented additional room and enlarged the restaurant, and in so doing invested more than $15,000. The restaurant became known throughout the United States and the service was of the highest grade and quality and the food of the best kind. Colosimo took into partnership with him the complainant Michael Potson, and the total investment in the premises and equipment was increased to about $75,000. Colosimo died about May 11, 1920, when the business was worth at least $100,000, and it was continued after the death of Colosimo by Potson and the administrator of the estate of Colosimo, representingthat estate. The restaurant had been operated under a license obtained from the city of Chicago, as provided by the ordinance, until October 27, 1920, when police officers, acting under orders of the mayor and chief of police, removed the restaurant license from the wall of the restaurant at a time when more than 100 patrons were at the tables being served. For several days thereafter uniformed policemen, by the order of the mayor, were stationed inside of the restaurant to prevent its being opened, and thereafter the restaurant was kept closed by the mayor and chief of police, and the defendants threatened to forcibly prevent the opening of the premises as a restaurant, and it remained closed. The business had been thoroughly advertised at an expense of about $18,000 annually, and it had acquired a large and valuable good will. The entire investment in the restaurant, of the value of over $100,000, would be lost unless the complainants could resume their business, and the police of the city were financially unable to respond to the damages that complainants would sustain.
That portion of the governmental powers of the state which is legislative in its character is vested by the Constitution in a General Assembly, which may exercise such power directly or may create municipalities and delegate legislative authority to them. It may give or withhold such authority for purposes of local government and take away any such power at its pleasure. Local municipalities derive not only their existence but all their powers from the General Assembly, and having no inherent power they must always be able to point to the particular statutory provision giving them authority to legislate on a particular subject. The settled rule is that statutes, granting powers to municipal corporations, are to be strictly construed, and any fair and reasonable doubt as to the existence of such powers is resolved against the municipal corporation claiming the right to exercise them. A city having no power, except by delegation from the General Assembly, to license any occupation or require the payment of a tax for the privilege of engaging in it, the power must be expressly granted in the charter or be a necessary incident to a power so granted. Where the power is not directly granted, it need not...
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