Bailey v. People
60 N.E. 98
Ill.
1901
Check Treatment
Mr. Chief Justice Boggs

delivered the opinion of the court:

The act of the General Assembly entitled “An act to create and establish a board of health in the State of Illinois,” approved May 28, 1877, in force July 1, 1877, (Hurd’s Stat. 1899, p. 1604,) was amended by the addition of four sections thereto by an enactment approved April 21, 1899, entitled “An act to amend an act entitled ‘An act to create and establish a board of health in the State of Illinois.’” (Hurd’s Stat. 1899, p. 1606.) Section 15 of the amendatory act provides the State Board of Health shall have supervision of “all lodging houses in cities of 100,000 inhabitants or more.” Section 16 of the amendatory act is as follows: “It shall be unlawful for more than six persons to occupy the same room for sleeping purposes at the same time in any such lodging house, and no room in such lodging house shall be occupied for sleeping purposes which does not contain four hundred cubic feet or more of space for each person sleeping therein at the same time.” A complaint was filed before a justice of the peace alleging that the plaintiff: in error was the landlord óf a “lodging house" at No. 39 Custom House place, in the city of Chicago, and that on the 26th day of November, 1899, he willfully and knowingly permitted more than six persons to occupy the same room for sleeping purposes at the same time in said lodging house, in violation of the provisions of said section 16, herein-before set out. The plaintiff in error was arrested on a complaint filed with a justice of the peace, tried and convicted of the offense purported to be set forth in the complaint, and a fine of $25 assessed against him. He prosecuted an appeal to the criminal court of Cook county, where, upon a hearing, he was again adjudged guilty and condemned to pay a fine in the sum of $100 and the costs in the cause. He prosecutes this writ of error to reverse such judgment of said criminal court.

The evidence established, without dispute, that the plaintiff in error kept a lodging house at No. 39 Custom House place, in Chicag'o, and on November 26, 1899, permitted nineteen persons to sleep in one room of the said lodging house, the dimensions of said room being seventy feet in length, sixty-two feet in width and thirteen feet and three inches in height; that there were sixty-four beds in the room, of which nineteen were occupied on the occasion in question.

The only defense presented in the lower court was, that said section 16 was in contravention of the rights guaranteed to the plaintiff in error by the constitution of the State, and therefore void. Propositions of law to that effect were presented to the trial court, but were refused. The action of the court in passing upon the propositions of law is the sole error assigned in this court.

The guaranty of section 2 of article 2 of the constitution of 1870 is, that no person shall be deprived of liberty or property without due process of law. The term “property” includes every interest any one may have in any and everything that is the subject of ownership by man, together with the right to freely possess, use, enjoy and dispose of the same. (Frorer v. People, 141 Ill. 171; Braceville Coal Co. v. People, 147 id. 66; Ritchie v. People, 155 id. 98; Gillespie v. People, 188 id. 176; 19 Am. & Eng. Ency. of Law, 284, 285; Booth v. People, 186 Ill. 43.) The privilege of contracting to receive gains and profits for the right to use property granted to another is both a liberty and property right. (Frorer v. People, supra.) The right to make a reasonable contract with reference to the use of a thing is an attribute of property and a property right. (Booth v. People, supra.) The right to entertain lodgers in a lodging house, and to fix, by contract with them, the price to be paid for such accommodation and the number who shall occupy the same room at the same time for sleeping purposes, is a liberty and also a property right. Any restriction upon or abridgment of this right deprives the citizen of both libert;r and property.

The Attorney General insists section 16 of the enactment in question, though it infringes the property right of the plaintiff in error, may be upheld„as a proper exercise of the police power. In Booth v. People, 186 Ill. 43, we said (p. 48): “The State inherently possesses, and the General Assembly may lawfully exercise, such power of restraint upon private rights as may be found to be necessary and appropriate to promote the health, comfort, safety and welfare of society. This power is known as the police power of the State. In the exercise of this power the General Assembly may, by valid enactments, —i. e., ‘due process of law,’—prohibit all things hurtful to the comfort, safety and welfare of society, even though the prohibition invade the right of liberty or property of an individual.”

“Due process of law” means a general public law, legally enacted, binding upon all members of the community under all circumstances, and not partial or private laws affecting only the rights of private individuals or classes of individuals. An enactment which deprives one class of persons of the right to acquire and enjoy property, or to contract with relation thereto, in the same manner as others under like conditions and circumstances are permitted to acquire and enjoy property or contract with relation to it, is not comprehended within the true meaning of the words “due process of law,” and is prohibited by the provisions of section 22 of article 4 of the constitution of 1870. The penalties of the section under consideration are leveled against one class,—the keepers of lodging- houses. The keeper of a lodging house is not, in a legal sense, an inn keeper, a hotel keeper or a boarding house keeper. (Pullman Palace Car Co. v. Smith, 73 Ill. 360; 16 Am. & Eng. Ency. of Law,-2d ed.-p. 510.) Hotel, inn and boarding house keepers are given a lien upon the bagg'age of their guests by paragraph 42 of chapter 82, (Starr & Cur. Stat. 1896, p. 2581,) ánd keepers of inns or hotels and keepers of boarding houses are by the common law answerable under a different rule of liability for the loss of the effects of their guests. (16 Am. & Eng. Ency. of Law,—2d ed.-^-530-532.) Our statute in respect of the liability for the safe custody of the property of guests applies only to landlords and keepers of public inns and hotels, and the keepers of the various places of public entertainment may so conduct their business as that they may bear the relation of an inn or hotel keeper to some of their guests and that of a boarding house keeper or lodging house keeper to others; but nevertheless, lodging house keepers constitute a class distinguishable from the keepers of other houses of public entertainment, such as hotels, inns, taverns or boarding houses. This legislation is directed only against lodging house keepers. Keepers of boarding houses, inns, hotels and taverns do not fall within the purview of its prohibition. If the enactment is a valid one, inn or hotel keepers and the keepers of boarding houses may lodge seven or any greater number of guests or patrons in the same room, at the same time, for sleeping purposes, as may suit their convenience, subject, only, to the consent of their patrons or guests, without incurring the penalties which, under the provisions of this enactment, would be visited upon a lodging house keeper should he allow more than six persons to occupy the same sleeping apartment at the same time. This is to discriminate against the lodging house keepers as a class, and to deprive them of liberty and a property right which other persons engaged in business of the same general character and similarly conducted may freely exercise without let or hindrance. As we said in Frorer v. People, supra (p. 181): “If A is denied the rig'ht to contract and acquire property in a manner which he has hitherto enjoyed under the law, and which B, G and D are still allowed by the law to enjoy, it is clear that, he is deprived of both liberty and property to the extent that he is thus denied the right to contract.”

In Millett v. People, 117 Ill. 294, an enactment which prohibited the owners and operators of coal mines from making contracts which other owners of property and employers of labor might lawfully make, was held unconstitutional and could not be maintained as a lawful exercise of the police power. The same ‘'doctrine was reiterated in Frorer v. People, supra. In Ritchie v. People, supra, an enactment which prohibited contracts for the employment of females to work for more than eight hours in any one day in any factory or workshop whére clothing, wearing apparel- or articles of a similar nature were manufactured, was held to be partial and discriminatory in character, and void, as contravening constitutional guaranties, for the reason that other manufacturers and their employees, though engaged in other branches of industry, were not forbidden to so contract. In Harding v. People, 160 Ill. 459, an act which made “that an offense if committed by a person engaged in one branch of mining which if done by persons in another branch of the same business is lawful, without any reason for distinction between the two,” was declared to be unconstitutional. In Eden v. People, 161 Ill. 296, we held a statute which made it unlawful for a barber to follow his ordinary pursuit on Sunday, and which did not place the like restriction on any other class of business, deprived persons following that avocation of property and unjustly discriminated against them, and could not be sustained as a valid enactment under the police power of the State, because of the unequal operation of the law. The doctrine of City of Chicago v. Netcher, 183 Ill. 104, is, an attempt to deny a property right to a particular class in a community where all other members of the community are left to enjoy it is an unwarrantable interference with constitutional rights, whether such denial is contained in a statute or in an ordinance passed under a statute.

The principle which may be deduced from the declarations of this court on the subject is, that an act which arbitrarily discriminates against one class in the transaction of a business of a lawful occupation, and leaves unaffected by such discriminatory enactment other persons or classes of persons engaged in acquiring property in a manner not distinguishable in character from that in which the class discriminated against is employed, is in contravention of the constitutional guaranties under consideration.

The Attorney General concedes that the term “lodging house” and the words “inn,” “hotel” or “boarding house” are none of them convertible terms or words, and that a distinction exists between these several institutions and a lodging house, but he insists that the act, though it has no penalties against the inn or hotel keeper or boarding house keeper, may be legally enforced against keepers of lodging houses as a sanitary measure, under the police power. Some lodging houses, as it is urged, may be, and doubtless are, the recognized abiding places of unclean, diseased and vermin-infected guests or patrons, who, together with the owners or keepers of the lodging houses, are wholly indifferent to sanitary conditions, rendering such houses sources of contagious and infectious diseases. But it cannot be asserted that all lodging houses are of this character; neither can it be said boarding houses, inns and hotels are not to be found which shelter the same class of patrons, and whose keepers are likewise indifferent to sanitary conditions. The public health is less endangered by a cleanly and well conducted lodging house than by a filthy, ill-managed, disease-breeding hotel or boarding house. The lodging of more than six persons in any one room in a cleanly lodging house cannot be condemned, from a sanitary point of view, any more than the lodging of a like number of guests in one room in a hotel or boarding house. If intended as a measure to protect health, the act should have been directed against the evil which threatens to introduce sickness or disease, whether found in a lodging house, boarding house or hotel, and as its penalties are- not so leveled it can but be regarded as partial and discriminatory legislation. In Frorer v. People, supra, we said (p.'186): “The police power is limited to enactments having reference to the comfort, the safety or the welfare of society, and under guise of it a person cannot be deprived of a constitutional right. It is impossible that, under that power, what is lawful if done by A, if done by B can be a misdemeanor, the circumstances and conditions being the same.”

If the enactment is not referable to the police power, as. being for the preservation of the public health, we would feel constrained to declare it unconstitutional because violative of section 13 of article 4, viz.: “No act hereafter passed shall embrace more than one subject, and that shall be expressed in the title.” The title of the amendatory act is, “An act to amend an act entitled ‘An act to create and establish a board of health in the State of Illinois,’ approved May 28, 1877, in force July 1, 1877, by adding thereto four new sections, to be numbered fifteen (15), sixteen (16), seventeen (17) and eighteen (18).” There could be uo valid provision in the amendatory act not germain or pertinent to the general subject of the original act, which is, the health and lives of the citizens of the State. If the act was passed for the'purpose of the purification of elections, it should be declared unconstitutional on the ground that the subject and object of the legislation were not expressed in the title of the act. Moreover, the fights of property will not be permitted to be invaded under the guise of a police regulation for the preservation of health, when such is clearly not the object and purpose of the regulation.

We are constrained to declare the section of the enactment in question is in contravention of constitutional g'uaranties and provisions, and therefore inoperative and void.

The judgment will be reversed and the cause will not be remanded.

Judgment reversed.