6 F. 555 | U.S. Circuit Court for the District of Illinois | 1880
On March 18, 3 878, the council of the city of Chicago passed an ordinance requiring the companies which operated street cars for the conveyance of passengers upon any lines of horse or city railway within the city of Chicago to obtain a license in the month of April of each year, and pay for the same the sum of $50 for each car operated or run. A penalty was imposed for failing or refusing to take out a license. The company obtaining the license was required to place conspicuously in every ear so operated and run in the city a certificate signed by the city clerk, and giving the number of the car, and stating that a license had been obtained, and that the necessary fee had been paid; and a penalty was also imposed for a failure to post or keep such certificate in the car.
The only question in the case, which arises on a demurrer to the bill of complaint filed by a stockholder of the city railway company to enjoin the payment of the license fee, is whether this ordinance was valid. Several corporations operating street cars in the city of Chicago have been au
By the general law of 1872, for the incorporation of cities and villages in this state, it is provided that the city council in cities shall have authority to license hackmen, draymen, omnibus drivers, cabmen, expressmen, and all others pursuing like occupations, and to prescribe their compensation. This was obviously intended as conferring a police power upon the city council in relation to the various classes named in the statute. This is a power that has been uniformly exercised, and, construing the statute literally, cannot well be questioned. But it is claimed it does not include the street railway, because it is not pursuing an occupation like any of those named.
Omnibuses may be licensed. They may pass over even the same streets as those occupied by the horse railways, and they may carry passengers in the same manner. The only distinction which can be called substantial between the two classes of occupation is that one carriage goes upon iron rails, in a regular track, with wheels, and the other carriage goes with wheels upon the ordinary street way.
The supreme court of Pennsylvania has held that these street-railway carriages are of a like nature as omnibuses, and there can be no doubt, I think, of the right of the city to demand a license from ail omnibus drivers, and to include every omnibus which may belong to a particular company or corporation, and to require the payment of a license for such omnibus that may be so owned and used.
The court of appeals of New York, in the case of Mayor v. Second Avenue R. 32 N. Y. 261, held that an ordinance of the city of New York, in many respects like this, was invalid, as an attempt, through color of a license, to impose a tax upon the railroad company, refusing to treat it as an exercise of the police power of the city. The price charged in that ease for the license was the same as in this.
In the ease of Frankfort é Philadelphia Passenger Co. v. City of Philadelphia, the city obtained its power to impose the license from a statute substantially similar to that under which the city of Chicago claims the power in this case. In that case the act of the legislature declared that the city council of Philadelphia should have authority to provide for the proper regulation of omnibuses, or vehicles in the nature thereof, and to this end “it shall be lawful for the council to provide for the issuing of licenses to such and so many persons as may apply to keep and use omnibuses, or vehicles in the nature thereof, and to charge a reasonable annual or other sum therefor.” In that statute the words “vehicles in the nature thereof,” in this the words “pursuing a like occupation,” are used. I cannot see that there is any substantial distinction in that respect between the two statutes.
In the case of 88 Illinois, already referred to, the corporation was organized and doing business under the laws of this state. A question arose in that case as to the power of the city to issue a license. It was denied in the argument of the case that the power existed, but the supreme court held that, under the-power “to regulate the management” of the business, the city had the right to issue a license and to prescribe the compensation. That was also under the same law — the act of 1872 — which conferred power upon cities to grant licenses and regulate omnibus drivers, and all others pursuing a like occupation, and to prescribe their compensation. The supreme court of this state decides in that case that the power to require a license is one of the means of regulating the exercise of a pursuit or business; that there are other means that might be adopted to accomplish the purpose, but
The supreme court must also have considered and passed upon a question which has been discussed in this case, namely, whether or not the act which gave the authority to the city to license was a general law under the constitution of this state; and they held that it was, and that it was intended to apply to all cities which might adopt it. It is true that was a case of licensing a business which was generally admitted to be injurious in its character to those near the place where it was carried on; but it was a question of power, and the point in controversy was whether the city of Chicago had the right to exercise the power of licensing. The license fee demanded in that case was $100. It seems to mo that the question involved in this case arose substantially in that, and it was decided by the supreme court of the state that it was a val id exercise of the power to regulate a particular business. That is also the view taken by the supreme court of Pennsylvania in the cases referred to. In view of these decisions, and of several decisions of the supreme court of the United States within the last few years, (Munn v. Illinois,, 94 U. S. 113, and others,) I think the weight of authority is in favor of regarding this as a police regulation.
One of the difficulties I have had with the case has been whothor it ought not to be regarded as a tax for revenue under the form of a license. It may be conceded that the argument is strong for treating it as a revenue measure; but, as I before stated, there are some objections which I consider very weighty, and which would prevent me at this time from placing the decision on that ground. It may be admitted that, viewing it as a police regulation requiring the payment of a fee for the license, in amount it goes to the very verge of the exercise of police power; but as other courts have held that such a tax did not exceed that limit, I cannot hold that
There have been some arguments used by counsel which, I think, do not properly apply to the pleadings. It is insisted that the court must construe this as a tax, and not a mere police regulation. It is admitted that the court of appeals of New York did construe a similar license fee as a tax. The supreme court of Pennsylvania has given a different construction, and held it to be a police regulation. There is nothing in the bill by which the court can regard it absolutely as the exercise of the taxing power of the city. There is nothing in the bill which would authorize the court to hold, if it were a tax, that it was in violation of the constitution of 1870, as not being uniform upon the particular class on which it operates. It is urged that it cannot be treated as a tax, because, if so, it would not be within this requisition of the constitution of 1870, because the street railways come in direct competition with some of the steam railways; as that of the Illinois Central and the Northwestern to Hyde Park and Evanston. There is nothing in the pleadings which would warrant the court in considering these facts, unless the court should take judicial notice that they do thus come in competition, without any allegation in the pleadings. Under the authorities, and upon the statements contained in the pleadings, the court cannot necessarily construe this as a tax. The court is at liberty, I think, to construe it as a police regulation.
These views have been given for the purpose of enabling the parties, if they desire, to take the case to the supreme court of the United States. The district judge who heard the application for an injunction in the first instance, and granted it, is inclined to hold, as I understand, that this was not the proper exercise of the police power. I hold, for the purpose of deciding the case, that it is; and if the case is to be determined by the pleadings as they at present stand, it can be certified up to the supreme court as upon a division of opinion between the judges. If, however, the counsel