59 N.E.2d 829 | Ill. | 1945
Appellant, Frank Aliotta, and forty-five others, who own and operate barber shops in the city of Chicago, filed their complaint in chancery on behalf of themselves and of others similarly situated, to enjoin the city from enforcing an ordinance providing for the licensing and regulation of barbers and barbershops in the city, and to enjoin the defendant and its officials from prosecuting certain quasi-criminal actions against individual barbers for failing to pay license fees under said ordinance, and to declare said ordinance void for want of power in the city to enact it, and because it is vague, uncertain and indefinite in vital respects. The city and its officials filed a motion to strike and dismiss the complaint, which was allowed by the court, and, the plaintiffs having elected to abide by the complaint, the suit was dismissed. The plaintiffs' motion for a temporary injunction was also denied. The chancellor certified the validity of a municipal ordinance was involved, and in his opinion the public interest required that an appeal be taken directly to the Supreme Court.
The ordinance licensing and regulating barbershops was enacted December 15, 1943. It defines barbershops; it requires a license to operate one; it exacts a license fee based upon the number of barber chairs used in the licensed premises; fixes the amount of the license fee per chair; makes provision for sanitary requirements, location of shops, and periodic inspections, and provides penalties for violation of any of its provisions.
The first and most vigorous contention made by appellants is that the city is without power to pass an ordinance regulating barbers, because the State of Illinois has fully occupied the field by the enactment by the General Assembly, in 1937, of a statute in relation to the practice of barbering, which delegates to the Department of Registration and Education the power to adopt reasonable rules *420
providing for sanitary regulation of barbershops and barber schools, with other measures for the sanitary regulation thereof, and that such Department has adopted a set of rules which are detailed and complete, requiring payment of registration fees, and that the licensing and regulation by the State were intended to fully occupy the field of licensing and regulating barbers and barbershops, and thereby repealed any power which the General Assembly might previously have granted to municipalities. Appellants rely very largely upon the case of City of Chicago v.Jensen,
The history of barbershop legislation is as follows: In 1909 the legislature enacted a law regulating and licensing barbers. (Laws of 1909, p. 98.) This was amended in 1929 and again in 1935. In 1937, an act revising the law in relation to barbers was enacted, and the act of 1909 repealed. (Ill. Rev. Stat. 1397, chap. 16 3/4, par. 141 et seq.) The law of 1909 covered substantially the same features as that of 1937, except the latter went into greater detail. Prior to 1935 there was no statute expressly authorizing a city to license or regulate barbers, but in that year the powers of the city were extended, under which a city was given the authority to "tax, license and regulate * * * barbers, and barber shops." (Ill. Rev. Stat. 1935, chap. 24, par. 65(91).) It is the contention of appellants that the statute of 1937, completely revising and re-enacting the act of 1909 relating to barbers, disclosed an intention upon the part of the legislature to recall the authority given to cities and villages to license, tax and regulate under the law of 1935, and to thereby repeal such last-mentioned statute by implication.
It seems to us that this contention cannot be determined without examining further legislation on the subject in *421 the Revised Cities and Villages Act of 1941. In this act, by section 23-91, the power of the city to tax and regulate certain occupations is again granted in the following language: "To license, tax and regulate auctioneers, * * * barbers, * * * and the keepers or owners of * * * barber shops." (Laws of 1941, vol. 2, p. 177.) The point made by appellants that the General Assembly, as in point of time, has given the regulation of barbers and barbershops to the State, subsequent to the granting of a like authority to the city, is not, in fact, accurate.
This contention fails to take into consideration section 87-1 of the Revised Cities and Villages Act, which provides: "The provisions of this act shall be cumulative in effect, and if any provision is inconsistent with another provision of this Act or with any other Act not expressly repealed by section 87-4 it shall be considered as an alternative or additional power and not as a limitation upon any other power granted to or possessed by municipalities." (Laws of 1941, vol. 2, p. 399.) The act of 1937, revising the law in relation to barbers is not repealed by section 87-4 of the Revised Cities and Villages Act, and therefore, under the provisions of section 87-1, section 23-91, if inconsistent with the Barbers Act of 1937, shall be considered as an alternative or additional power granted to, or possessed by, municipalities.
These statutory provisions negative the theory that the power of the city to license or regulate barbers has been repealed by the act of 1937. Section 2 of the act relating to construction of statutes (Ill. Rev. Stat. 1943, chap. 131, par. 2,) providing that a re-enactment of a former statute, as far as it is the same, shall not be considered a new enactment, does not apply, for the reason that, while the barber provision in the 1941 Revised Cities and Villages Act is the same as that found in the laws of 1935, it has, in addition, attached and read into it a part thereof that, in case of conflict, the provision in the later act shall be considered *422
either as an alternative or additional power. This renders the consideration of the cases cited by appellants on this proposition unnecessary. It might be remarked, however, that in each of the cases of City of Chicago v. Jensen,
The regulation of barbershops comes under the general police power. (People v. Logan,
This leaves for consideration the claim that the ordinance is void because it is vague, uncertain and indefinite in vital respects. The complaint sets forth the ordinance in full and alleges, generally, that it is vague, indefinite and uncertain in that it vests sole and uncontrolled discretion in the president of the board of health to determine when the premises are "clean and in a sanitary condition," and is therefore void. The complaint also alleges the defendant and its employees have threatened to enforce the ordinance and compel the plaintiffs and others to submit thereto, but *423
the specific acts committed by the defendant or defendant's officials to enforce the ordinance consist in bringingquasi-criminal proceedings for failure to take out licenses and to pay license fees, as provided in said ordinance! This is not sufficient to entitle the plaintiffs to maintain a complaint in equity to question the provisions of the ordinance not involving the payment of license fees. In Moy v. City of Chicago,
In Kearney v. City of Canton,
In the present case, the principal argument of appellants is directed to the validity of section 6 of the ordinance, which, it is claimed, vests arbitrary power in city officials. There is no claim in the complaint that any of the plaintiffs have been affected by this section, but what they do complain of is that they are being prosecuted for failure to take out a license and to pay license fees. The city has authority, as we have pointed out, to enact such an ordinance, and to require the payment of license fees, and hence the specific reason alleged entitling plaintiffs to an injunction does not exist.
The principle is applied in Village of East Alton v. Arst,
In the present case, the city of Chicago had the undoubted right to enact an ordinance regulating barbershops, and requiring the payment of a license fee. The plaintiffs complain they were being required to pay the license fee. That part of the ordinance requiring the payment of the license fee was enforcible, although section 6 granting certain powers to the city officials may be invalid, under the authorities above pointed out. In the present case, the claim for relief because the statutory power of the city *425 to license and regulate barbers and barbershops did not exist, involved every part of the ordinance, and if sustained, would have required us to grant the relief prayed. But, when that contention is decided adversely and the power of the city to license and regulate upheld, then, upon a complaint charging illegal exaction of a license fee, the entire ordinance may not be invalidated because there may be improper provisions for regulation.
Under such circumstances, it is unnecessary for us to pass upon the validity of section 6 of the ordinance, since the plaintiffs have failed to show they have the requisite interest to maintain a bill in equity to declare the whole ordinance void.
The superior court of Cook county properly sustained the motion to strike the bill of complaint, and its decree is, accordingly, affirmed.
Decree affirmed.