Spiegler v. City of Chicago
| Decision Date | 23 June 1905 |
| Citation | 216 Ill. 114,74 N.E. 718 |
| Parties | SPIEGLER et al. v. CITY OF CHICAGO. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Cook County; Jesse Holdom, Judge.
Bill by Frederick J. Spiegler and others against the city of Chicago to enjoin the enforcement of an ordinance. From a decree in favor of the city, complainants appeal. Affirmed.Alfred D. Eddy and Chauncey W. Martyn, for appellants.
Maclay Hoyne, Asst. Corp. Counsel (Edgar Bronson Tolman, Corp. Counsel, of counsel), for appellee.
This was a bill in chancery filed by Frederick J. Spiegler, Max Mildenberg, the Republic Oil Company, and the Standard Oil Company in the superior court of Cook county, on behalf of themselves and all other persons and corporations similarly situated doing business in the city of Chicago, to enjoin the enforcement by said city and its officers of the provisions of an ordinance of said city passed on January 4, 1904, entitled ‘An ordinance regulating and licensing oil peddlers.’ The ordinance reads as follows: ‘Be it ordained by the city council of the
City of Chicago:
‘Section 1. That it shall be unlawful for any person, firm or corporation to engage or continue in the business of peddling, selling, dealing in or delivering any turpentine, kerosene, gasoline, benzine, naphtha, coal oil or product thereof, or any oil used for lubricating, illuminating or fuel purposes, from any tank-wagon or other wagon or vehicle in or upon any public street or way in the city of Chicago without first procuring a license therefor as hereinafter required, nor unless such tank-wagon or other vehicle be equipped with drip-pans or other suitable devices for the purpose of preventing the spilling of any such oils upon the pavement in said streets or ways.
‘Sec. 2. The annual license fee to be paid by every such person, firm or corporation as may be licensed under the provisions of this ordinance shall be at the rate of ten dollars ($10) for each and every wagon or vehicle used by such person, firm or corporation for the peddling, selling, dealing in or delivery of any of the commodities mentioned in section 1 hereof.
‘Sec. 3. Every person, firm or corporation desiring a license to engage or continue in the business hereinbefore mentioned shall equip the wagon or wagons or other vehicle or vehicles to be used in such business, with drip-pans or other devices which shall effectually prevent the spilling of any of the commodities contained therein, which drip-pans or devices shall be subject to the approval of the commissioner of public works, and when such device or devices are approved by said commissioner of public works he shall furnish a certificate to that effect. Application for license shall be made in writing to the mayor, accompanied by the certificate of approval by the commissioner of public works. The application shall set forth the number of vehicles for which it is desired to procure a license, and the city clerk shall issue to the applicant the license desired, said license to be delivered to the applicant after the payment to the city collector of the license fee hereinbefore mentioned.
‘Sec. 4. Every such license shall expire on the 30th day of April of each year following its issue, and shall be revocable by the mayor at any time on proof of violation by the licensee of any of the provisions of the ordinances of the city of Chicago now in force or which may hereafter be passed.
‘Sec. 5. The city clerk shall furnish each applicant with a tag or plate bearing the number of the license issued to applicantfor each vehicle licensed, which tag or plate shall be securely fastened to each such vehicle in some conspicuous place by the licensee, and kept there at all times when such vehicle is in use on any public street or way.
‘Sec. 6. Every person, firm or corporation applying for any such license shall execute a bond to the city of Chicago in the penal sum of five hundred dollars ($500), with not less than two sureties to be approved by the mayor, conditioned that the party licensed will comply with all the provisions of this ordinance and of all other ordinances now in force or which may hereafter be passed touching the business licensed.
‘Sec. 7. It shall be unlawful for any person, firm or corporation to spill any turpentine, kerosene, gasoline, benzine, naphtha, coal oil or any product thereof, or any oil used for lubricating, illuminating or fuel purposes, or allow any of said fluids to escape to or upon any asphalt pavement of the city of Chicago, or to operate or permit to be operated any tank-wagon or other vehicle from which any of said fluids are permitted to escape.
‘Sec. 8. Every person, firm or corporation violating any of the provisions of this ordinance shall, upon conviction thereof, be subject to a fine of not less than twenty-five dollars ($25) nor more than two hundred dollars ($200).
‘Sec. 9. The ordinance entitled ‘An ordinance relating to the licensing of oil peddlers,’ passed by the city council on May 20, 1901, is hereby repealed.
The bill alleges that Frederick J. Spiegler is, and has been for several years, engaged in the business of selling kerosene and gasoline in the city of Chicago, and uses in that business eight wagons commonly known as ‘tank wagons,’ each wagon having a tank thereon in which oil is carried, which kerosene and gasoline are sold and delivered by the employés of said Spiegler from such wagons throughout the city of Chicago; that Max Mildenberg is and has been selling oils for several years in the city of Chicago, and uses 40 to 44 wagons, each of which is daily driven by an employé about the streets of the city of Chicago, carrying cans containing kerosene or gasoline oil, in which cans such oils are delivered, but that said Mildenberg does not peddle oils in said city, and said kerosene or gasoline is not poured from the can in making such delivery; that the Republic Oil Company has its principal office in the city of Cleveland, state of Ohio; that it has a warehouse in the city of Chicago where it stores oil and conducts the business of selling oils; that it uses four or more tank wagons, from which it delivers oil to oil dealers only in said city, but that it does not peddle or retail oil to consumers; and that the Standard Oil Company has its principal place of business in Whiting, state of Indiana, and conducts a branch of its business in the city of Chicago, where it sells kerosene, gasoline, naphtha, and other oils; that it uses 45 tank wagons, from which it delivers oil to oil dealers only in said city, but that it does not peddle or retail oil to consumers; that there are in the city of Chicago between three and four thousand other persons or corporations engaged in the business of peddling, selling, dealing in, or delivering turpentine, kerosene, gasoline, benzine, naphtha, coal oil, or some product thereof, or some oil used for lubricating, illuminating, or fuel purposes, from ‘tank-wagons or other wagons or vehicles' in or upon the public streets or ways of the city of Chicago; that on April 15, 1904, the city of Chicago instituted a suit against each of the complainants before a justice of the peace in Cook county, to recover from them, respectively, the fines imposed by said ordinance for alleged failure upon their part to comply with the provisions thereof by procuring a license, or giving the bond required by the terms of said ordinance; that such proceedings were had that one or more judgments were rendered against each of the complainants, from which judgments they severally prosecuted appeals to the criminal court of Cook county, where such appeals are now pending and undetermined; that on August 18, 1904, ten other like suits were commenced, one against Frederick J. Spiegler (three against Max Mildenberg, one against the Republic Oil Company, and five against the Standard Oil Company) for further supposed violations of said ordinance, which said suits are still pending and undetermined; that the city of Chicago threatens to bring other suits against the complainants and other dealers in oils in the city of Chicago for supposed violations of said ordinance. The bill avers that said ordinance is unconstitutional and void, and prays that the city of Chicago be restrained from prosecuting pending suits or from instituting other suits against the complainants, and from attempting to enforce the provisions of said ordinance against the complainants or other persons similarly situated to them. The city of Chicago filed an answer, and a replication was filed thereto, whereupon, upon the motion of the city, a temporary injunction which had been granted upon the filing of the bill was dissolved, and the bill was dismissed for want of equity. An appeal has been prosecuted by the complainants to this court, and it is assigned as error that the superior court erred in not holding said ordinance invalid, unconstitutional, and void.
HAND, J. (after stating the facts).
The first question raised upon this record is whether or not the superior court, sitting as a court of equity, had jurisdiction to entertain a bill to enjoin the enforcement by the city of Chicago of the provisions of said ordinance against complainants. The rule is well settled in this state that where a city is attempting to enforce an ordinance which is alleged to be invalid, against numerous persons whose interests are identical, such persons may file a bill, upon behalf of themselves and all other persons similarly situated, against the city for an injunction, and that a court of equity, in order to avoid a multiplicity of suits, and to the end that the controversy may be determined in one suit, will, if the ordinance be found to be invalid, enjoin the enforcement thereof by the city. In City of Chicago v. Collins, 175 Ill. 445, 51 N. E. 907,49 L. R. A. 408, 67 Am. St. Rep. 224, 373...
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