Weksler v. Collins

• Decision Date: 05 June 1925
• Docket Number: No. 16110.,16110.
• Citation: 147 N.E. 797,317 Ill. 132
• Parties: WEKSLER v. COLLINS et al.
• Court: Illinois Supreme Court

317 Ill. 132

147 N.E. 797

WEKSLER

v.COLLINS et al.

No. 16110.

Supreme Court of Illinois.

April 24, 1925.

Rehearing denied June 5, 1925.

Suit by Max Weksler against Morgan G. Collins and others. Decree for defendants, and plaintiff appeals.

Affirmed.

Thompson, J., dissenting.

Heard, J., dissenting in part but concurring specially.Appeal from Superior Court, Cook County; Charles M. Foell, judge.

Slottow & Leviton, of Chicago (Charles Leviton, of Chicago, of counsel), for appellant.

Edward J. Brundage, Atty. Gen. (Clarence N. Boord, George E. Dierssen, and Edward E. Wilson, all of Chicago, of counsel), for appellees.

DE YOUNG, J.

Max Weksler, a resident of the city of Chicago and engaged in operating a taxicab for hire, filed his bill of complaint in the superior court of Cook county against Morgan G. Collins, superintendent of police of the city of Chicago, William E. Dever, mayor of that city, Robert E. Crowe, state's attorney of Cook county, Edward J. Brundage, Attorney General, and Louis L. Emmerson, secretary of state, to enjoin them from enforcing sections 42a, 42b, 42c, and 42d of the Motor Vehicle Law approved June 21, 1923 (Laws of 1923, p. 542). Demurrers to the bill were filed by the superintendent of police, the mayor, the Attorney General, and the secretary of state. The state's attorney filed an appearance but did not demur to or answer the bill. A temporary injunction was issued. Thereafter, upon leave granted, complainant added an allegation to his bill that he also filed it on behalf of 200 members of the Independent Taxi Owners' Association, and the demurrers were ordered to stand to the bill as amended. Upon a hearing the several demurrers were sustained and the bill as amended was dismissed for want of equity at complainant's costs. He prosecutes this appeal on the ground that the validity of the act in question is involved.

Section 42a (Laws of 1923, p. 543) makes it unlawful for any person, firm, or corporation to operate any motor vehicle upon any public street in any city of 100,000 or more inhabitants for the carriage of passengers for hire, indiscriminatingly accepting and discharging all such persons as may offer themselves for transportation, unless there is on file with the secretary of state, while such motor vehicle is operated, either:

(1) A bond of its owner with a responsible surety company authorized to do business in this state as surety, or a bond of such owner with one or more personal sureties owning real estate in this state of the value of $5,000 above all incumbrances, accompanied by affidavits of such sureties stating, among other things, the location, legal description, market value, nature and amount, with incumbrances, if any. Either bond is required to be in the sum of $2,500 for each motor vehicle so operated, and shall be conditioned that the owner of the vehicle will pay all final judgments recovered against him for any injury to or death of any person resulting from the negligence of the owner or his agent in the operation of the vehicle, and shall by its terms inure to the benefit of the person recovering any such judgment, and provide that he may sue thereon, ‘and such bond, for the full amount thereof shall, by its terms, be a lien for the benefit of the beneficiaries of said bond on such real estate so scheduled, and shall be recorded in the office of the recorder of deeds in each county in which such real estate is located.’ Any surety may withdraw from such bond by serving 10 days' written notice upon the owner and the secretary of state, either personally or by registered mail, in which event the owner shall file another bond or insurance policy as required by the act. Upon the expiration of the 10-day period, the secretary of state shall mark the bond ‘withdrawn,’ with the date the withdrawal became effective, and the liability of the sureties thereon, so far as any injury or damage sustained thereafter is concerned, shall cease. If at any time for any good cause, in the judgment of the secretary of state, the bond is insufficient, he may require the owner to replace it with another or with an insurance policy, as provided by the act, and upon such substitution the liability of the sureties on the prior bond as to any subsequent injury or damage shall terminate. Or.

(2) A policy of insurance in a responsible company authorized to do business in this state, insuring the owner of the motor vehicle against liability for any injury to or death of any person resulting from the negligence of such owner or his agent in the operation of the vehicle. The policy shall insure the owner for $2,500 for each motor vehicle covered, but where it includes more than one vehicle the liability thereon may be limited to a maximum of $2,500 for each vehicle. The policy shall provide for payment of any final judgment rendered against the owner of such vehicle for such injury or death and that suit may be brought thereon by the owner of any such judgment. The policy shall contain a description of each vehicle, giving the manufacturer's name and number and state license number. If at any time the policy be canceled by the issuing company or its authority to do business in this state be revoked, the secretary of state shall require the owner either to furnish a bond or to replace the policy with another in accordance with the act. The policy shall also contain a provision that it cannot be canceled by the issuing company without giving 10 days' notice, in writing, of such cancellation to the owner and secretary of state, either personally or by registered mail. The provisions with reference to requiring a bond or a new policy in the event of the cancellation of an existing policy, the termination of liability upon the cancellation of that policy so far as subsequent injury and damage are concerned, and the power of the secretary of state if in his judgment, for any good cause, the existing insurance policy is insufficient, to require the owner of the vehicle to substitute a bond or another insurance policy, and the effect of such substitution, are the same as the provisions in subsection 1 concerning the withdrawal of sureties from bonds and the power of the secretary of state with reference to an insufficient bond.

Section 42b provides for the filing with the secretary of state of an application for his approval of the bond or insurance policy tendered under the provisions of the act, and if the secretary of state shall determine that such bond or policy complies with the act he shall accept the bond or policy and issue to the applicant a certificate stating that he has, in respect to the vehicle described therein, complied with the provisions of the act.

Section 42c provides that if any bond or policy so filed shall for any reason become inoperative, it shall be unlawful to operate such motor vehicle until a bond or insurance policy complying with the act shall have been filed with the secretary of state.

By section 42d any violation of any provision of the three preceding sections, or failure to comply with any order of the secretary of state, is made a misdemeanor and punishable by a fine of not less than $100 nor more than $500, or by imprisonment in the county jail for not less than 10 days nor more than one year, or by both such fine and imprisonment.

[1][2][3] Appellant's first contention is that the act contravenes the equal protection and due process clauses of the Fourteenth Amendment to the federal Constitution and section 2 of article 2 of the state Constitution, that no person shall be deprived of life, liberty, or property without due process of law. The equality clause of the Fourteenth Amendment does not deprive a state of its power to pass laws for the protection of the public health, safety, and morals, and the promotion of the general welfare. The General Assembly has a wide discretion in the enactment of such laws, and in pursuance of objects within the scope of its powers may enact laws of limited or particular application so far as persons and property affected are concerned. Such a statute is valid when it applies equally and uniformly to all persons similarly situated, but it is in contravention of the equality clause where the classification or discrimination made by it is unreasonable or has no substantial relation to the object of the act. A statute which applies to one city, only, does not deny the equal protection of the laws where it is based on some real distinction between the particular city and the other territory of the state. New York Tenement House Department v. Moeschen, 179 N. Y. 325, 72 N. E. 231;Moeschen v. New York Tenement House Department, 203 U. S. 583, 27 S. Ct. 781, 51 L. Ed. 328. The state, and its municipal corporations under their delegated powers, may regulate the use of streets and highways where no merely arbitrary discriminations are made. The density and continuity of traffic upon the streets of large cities justify measures to safeguard the public from the peculiar and additional dangers which arise out of the operator of motorvehicles in such cities. Streets are primarily devoted to use by the public in the ordinary way. The state may determine that such use of streets shall be preferred over their use by carriers for hire. The operation of vehicles in streets for purposes of gain is extraordinary and generally may be prohibited, or may be permitted upon such conditions as the Legislature may prescribe. The power to exclude includes, for the most part, the power to permit upon conditions. An occupation or business which may be carried on by permissionwill justify a degree of regulation not admissible in the case of an activity pursued as a matter of right. Davis v. Massachusetts, 167 U. S. 43, 17 S. Ct. 731, 42 L. Ed. 71;Packard v. Banton, 264 U. S. 140, 44 S. Ct. 257, 68 L. Ed. 596.

[4][5] But it is asserted that the act under review is arbitrarily discriminatory because it singles out taxicabs, and...