The City of Cairo v. Bross

• Decision Date: 18 January 1882
• Citation: 1882 WL 10188,101 Ill. 475
• Parties: THE CITY OF CAIROv.FREDOLINE BROSS.
• Court: Illinois Supreme Court

101 Ill. 475

1882 WL 10188 (Ill.)

THE CITY OF CAIRO

v.FREDOLINE BROSS.

Supreme Court of Illinois.

Filed at Mt. Vernon Jan. 18, 1882.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Appellate Court for the Fourth District;-- heard in that court on appeal from the Circuit Court of Alexander county; the Hon. DAVID J. BAKER, Judge, presiding.

Messrs. GREEN & GILBERT, for the plaintiff in error:

The special charter of the city of Cairo, in force at the date of the reörganization under the general Incorporation law, gave the city express power to license, tax and regulate merchants. While it is true the general law grants no such express power, it is equally true that it is silent, and does not in any manner prohibit the exercise of such power. On the contrary, the general act (art. 5, sec. 1, item 4,) expressly gives the council power “to fix the amount, terms and manner of issuing and revoking licenses,” generally.

The power to license merchants is not inconsistent with the powers granted by the general law, and the ordinance on that subject is therefore preserved, under sec. 6, art. 1, of that law. A general law does not operate to repeal a special law on the same subject, although passed at the same session. 78 Ill. 549.

In the case of two affirmative statutes, one does not repeal the other, if both may consist together. 77 Ill. 271.

Messrs. LINEGAR & LANSDEN, for the defendant in error:

The general law repealed the power to tax and license merchants. Law et al. v. People, 87 Ill. 387; People v. Cooper, 83 Id. 585; Culver v. Third National Bank, 64 Id. 528; Andrews v. People, 75 Id. 605; Devine v. Comrs. of Cook Co. 84 Id. 590.

Counties and cities are alike subject to the control of the legislature; and has not the legislature, in effect, completely revised and recast the charter of the city of Cairo, by its passage of the general act allowing it to change its organization from the old to the new act?

Again, what was the object of the constitution in providing that no city should be organized, or have its charter changed or amended, except by a general law passed for that purpose? The Supreme Court has said that the object was to bring about a uniformity of organization on the part of cities. There is a like provision relative to counties. Devine v. Commissioners, etc. supra, and Guild v. City of Chicago, 82 Ill. 472.

In case of two statutes relating to the same subject, and not in terms repugnant or inconsistent, if the later statute is clearly intended to prescribe the only rule which should govern in the case, this will be construed as repealing the original act. Sacramento v. Bird, 15 Cal. 294; State v. Conkling, 19 Id. 501; Swan v. Buck, 40 Miss. 268; School District v. Whitehead, 13 N. J. 290; Plank Road v. Allen, 15 Barb. 15.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

This was an action originally instituted by plaintiff in error before a police magistrate, to recover from defendant in error a penalty of $10, imposed by an alleged ordinance of the city of Cairo for carrying on the business of a merchant within the corporate limits of the city without having first procured a license for that purpose, as required by the provisions of the ordinance. There was a judgment for the defendant before the magistrate, and the city appealed to the circuit court, where a similar conclusion was reached. The city thereupon prosecuted an appeal to the Appellate Court for the Fourth District, where the judgment of the circuit court was affirmed, and the case now comes here on error from the Appellate Court.

It appears that the city of Cairo, in 1867, was organized under a special act of the legislature, by the provisions of which it was authorized to license a number of trades and occupations, including that of merchants. In the exercise of this power, the city council passed an ordinance requiring all merchants doing business within the corporate limits of the city to procure licenses for the carrying on of such business, and imposing a penalty of $10 for every breach of such ordinance. In January, 1873, plaintiff in error, in pursuance of a vote of the qualified voters of the city, was reörganized under the general Incorporation law relating to cities and villages, and from thence until the present time has been acting under the same.

While the general Incorporation law authorizes the corporate authorities of the city to license certain trades and occupations, yet it does not, like the special charter of 1867, authorize the licensing of merchants, and in this respect we regard the two acts as in conflict. When the legislature, by the general Incorporation act, declares that the corporate authorities of cities and villages organized and acting under its provisions shall have power to license certain occupations and kinds of business, specifically enumerating them, such declaration must, by a familiar canon of construction, be construed precisely as if the act in express terms inhibited the licensing of all trades and occupations not contained in the enumeration. In discussing this principle, the Supreme Court of the United States, in Thomas v. West Jersey Railroad Co. 101 U. S. 82, says: “Conceding the rule applicable to all statutes, that what is fairly implied is as much granted as what is expressed, it remains that the charter of a corporation is the measure of its powers, and that the enumeration of those powers implies the exclusion of all others.”

Applying the principle to the several provisions of the general and special charters, with respect to the question under consideration, they are clearly inconsistent with each other; for the special charter, as we have already seen, in express terms confers the power to license merchants, while the general charter, by necessary implication, denies it. By section 6, art. 1, of the latter act, it is expressly provided that after such reörganization under the general law, all laws in conflict with its provisions shall no longer be applicable to the municipality under its new organization. The two acts being...