Thillens, Inc. v. Morey

• Decision Date: 23 May 1957
• Docket Number: No. 34315,34315
• Citation: Thillens, Inc. v. Morey, 144 N.E.2d 735, 11 Ill.2d 579 (Ill. 1957)
• Parties: THILLENS, Inc., Appellee, v. Lloyd MOREY, Auditor of Public Accounts, et al., Appellants.
• Court: Illinois Supreme Court

Page 735

144 N.E.2d 735

11 Ill.2d 579

THILLENS, Inc., Appellee, v.Lloyd MOREY, Auditor of Public Accounts, et al., Appellants.

No. 34315.

Supreme Court of Illinois.

May 23, 1957.

As Modified on Denial of Rehearing Sept. 19, 1957.

Latham Castle, Atty. Gen. (William C. Wines and Ben Schwartz, Chicago, of counsel), for appellantsLloyd Morsy et al.

Charles H. Thompson, Harrisburg, C. Wayland Brooks, Hirsch E. Soble, and Thomas H. Fitzgerald, Chicago, for intervening-appellants.

Kirkland, Fleming, Green, Martin & Ellis and Tenney, Sherman, Bentley & Guthrie, Chicago (David Jacker, Henry F. Tenney, Georges Dapples, and Thomas J. Kerwin, Chicago, of counsel), for appellee.

BRISTOW, Justice.

The Auditor and Attorney General of the State of Illinois together with the State's Attorney of Cook County, and certain currency exchanges as intervening defendants, have appealed directly to this court from a declaratory judgment of the circuit court of Cook County adjudging that the 1951amendment to the Community Currency Exchange Act of 1943(Ill.Rev.Stat.1951, chap. 16 1/2, pars. 30 et seq.) is invalid and unconstitutional as applied to plaintiff's business because it has no proper foundation in the police power of the State.

The constitutionality and validity of a State statute being the principal issue, the appeal properly comes direct to this court.

Plaintiff's complaint prayed a declaratory judgment declaring the 1951amendment to the Community Currency Exchange Act void and unconstitutional and that the defendant public officials and the individual defendant currency exchanges, as representative of all other currency exchanges, be enjoined from exercising any of the rights, powers or duties conferred upon them respecting the enforcement of the amended act.

The 1951 amendatory act amended the title of the original Community Currency Exchange Act to read: 'An Act in relation to the definition, licensing and regulation of community currency exchanges and ambulatory currency exchanges, and the operators and employees thereof, and to make an appropriation therefor, and to provide penalties and remedies for violation thereof.'

Section .01 of the amendatory act contains a finding and declaration by the General Assembly in reference to ambulatory currency exchanges as follows: '* * * that there has arisen also the ambulatory currency exchange business, as hereinafter defined in Section 1, which has engaged heretofore in unlicensed competition with the licensed communiy currency exchange business; that it is in the public interest to promote and foster the community currency exchange business and to assure the financial stability thereof; that the operations of the ambulatory currency exchange business have enabled it to appropriate the most profitable function of the community currency exchange business without incurring the expenses of, or subjecting itself to the regulations imposed upon the community currency exchange business, and to secure thereby an unfair advantage; that there has resulted therefrom an unfair and ruinous competition to the licensed community currency exchange business; that the nature of the ambulatory currency exchange business is such as to render it hazardous and dangerous to the public safety and security; that the public welfare demands that no ambulatory currency exchange business should be operated without a license, or otherwise than in accordance with the regulations provided in, or to be provided pursuant to this Act.'Ill.Rev.Stat.1951, chap. 16 1/2, par. 30.

Section 1 of the amendatory act defines a community currency exchange as being 'any person * * * engaged at a fixed and permanent place of business, in the business or service of, and providing facilities for, cashing checks,' and defines and ambulatory currency exchange as being 'any person * * * engaged in performing any one or more of the foregoing services, at any location other than that of a fixed and permanent place of business of his, their or its own.'Section 1 also exempts from the operation of the act any party engaged primarily in a business of transporting for hire bullion, currency, securities, negotiable or non-negotiable articles, jewels or other property of great monetary value, and who, in the course of such business, and only as an incident thereto, cashes checks or other evidences of money directly for, or for the employees of and with the firms of and at a cost only to, the person or firm for whom the party is then actually transporting said property pursuant to a written contract for such transportation, and all incidents thereto.It also exempts any party engaged in the business of selling tangible personal property at retail who, in the course of such business, and only as an incident thereof, cashes checks or other evidences of money.

Section 2 of the amendatory act provides that no community currency exchanges or ambulatory currency exchange can engage in business without a license from the Auditor of Public Accounts; that no license shall issue for the conduct of an ambulatory currency exchange on any public street or highway; that an ambulatory currency exchange shall secure a license for the conduct of its business at each and every location served by it as provided in section 4; and that violators of said section shall suffer prescribed penalties.

Section 3 of the act provides what operations a community or ambulatory currency exchange may or may not engage in.

Section 4 provides for written applications for licenses and certain information relative to the applicant's history; that applications for both types of exchanges for a license shall be accompanied by an investigation fee of $25 for the cost of investigating the application; that an annual license fee of $50 shall be paid by a community currency exchange; that an ambulatory currency exchange shall pay an annual license fee of $10 for each and every location served by it; that an approved applicant shall not be required to pay the initial investigation fee of $25 more than once; and that with respect to each location the applicant shall file with the Auditor a letter or memorandum under oath signed by the owners or authorized representative of the place of business where service is to rendered, containing a statement that such service is desired and that the person signing is authorized so to do.

Section 10 specifies certain qualifying conditions precedent to the issuance of a license and provides that no application shall be denied by the Auditor without notice and hearing and the right of review in accordance with section 22.01 of the act.

Section 14 provides for the payment of annual license fees and the filing of annual license bonds, reports and insurance policies as and if required by the act on or before November 15 annually.

Section 15 provides that no licenses shall be revoked by the Auditor without notice and hearing and right of review in accordance with section 22.01.

Section 16 provides for annual reports to the Auditor and requires that the Auditor shall, at least once a year, inspect the locations served by an ambulatory currency exchange for the purpose of determining whether such exchange is complying with the provisions of the act in such location served, and provides for subpoena powers of the Auditor and examination fees with a maximum fee of $20 per day.

Section 19.1 requires an ambulatory currency exchange actively engaged in any place or station on a location licensed under the act and cashing checks other than from an armored vehicle to provide at least one armed guard at each such place in addition to the person cashing checks.Section 19.2 requires that before any license or renewal of license is issued for any location served by an ambulatory currency exchange, such applicant shall file a surety bond in the penal sum of $2000 conditioned that the licensee serving the location shall comply with section 19.1 of the act and shall pay all lawful claims for money or other property loss or bodily injury suffered in the course of and by reason of a holdup at such location that shall occur at the time or times when such licensee failed to comply with said section 19.1, said bond to run to the Auditor for the benefit of any person or persons who establish a lawful claim or claims as aforesaid.The applicant is given an option to file annually in lieu of separate bonds for each location a blanket bond not to exceed $100,000 on the same conditions.

Section 28 provides that if an ambulatory currency exchange does not engage in selling or issuing money orders in its own name, then sections 5,6, and7 of the act are not applicable to it.

Section 29 declares the operation of any unlicensed exchange or the unlawful conduct of any licensed exchange constitutes unfair competition with licensed and legally operated currency exchanges doing business in the same community and authorizes such licensed and legally operating currency exchanges doing business in the same community to apply for and obtain an injunction restraining such unfair competition.

Section 30 of the act provides that if any provision of the act is declared unconstitutional the unconstitutionality of such provision shall not invalidate the constitutional provisions of the act.

Plaintiff's complaint in substance alleges that it is an Illinois corporation organized in 1949 for the purpose, among others, of engaging in the business of transporting currency and cashing payroll checks issued to employees in industrial and business concerns, only on the premises of employers issuing such checks, and only pursuant to contract between the company and the employers.The corporation succeeded to the assets and operation of the business previously conducted by the principal stockholder continuously and without interruption from August, 1934, to the date of filing the complaint.The plaintiff's sole business consists of transporting currency...