City of Marengo v. Rowland
263 Ill. 531
Ill.
1914
Check Treatment
Mr. Justice Carter

delivered the opinion of the court:

• This wаs an action of debt brought by appellant against appellee before a police magistrate in the city of Marengo, McHenry county, to- colleсt a penalty for the violation of an ordinance prohibiting the keeping open of barber shops on Sunday. The circuit court, on appeal, found the issues in favor of appellee and held the ordinance invalid, the trial judge certifying that the validity of a municipal ordinance was involved and in his opinion the public interest rеquired the cause to- be taken directly to- this court.

The sole question presented here is the validity of ‍‌‌​‌‌​‌‌​‌​​‌​‌‌​‌​‌​‌​​​​​‌‌​‌‌‌‌‌​​‌‌‌​​‌‌​‌‌‌‍said ordinance passed May 15, igoo5 and reading:

“Sec. 1. That hеreafter it shall be unlawful for any barber shop or shops, tonsorial parlor or parlors, to be opened for business on the first day of the week, commonly called Sunday, nor shall any tonsorial business be done in any of said shops or parlors on said first day of the week. A violation of the provisions of this ordinance shall subject the offеnder to a penalty -of not less than ten dollars ($10) and not exceeding the sum of twenty-five dollars ($25) for each offense. The term Sunday, under this ordinance, shall include the pеriod between the usual closing hour on Saturday night and twelve (12) o’clock midnight on the following night.”

This court, in Eden v. People, 161 Ill. 296, held unconstitutional a statute, substantially like the ordinance here in question. Counsel on both sides concede that unless that decision is overruled or .can be distinguished the ‍‌‌​‌‌​‌‌​‌​​‌​‌‌​‌​‌​‌​​​​​‌‌​‌‌‌‌‌​​‌‌‌​​‌‌​‌‌‌‍decision of the circuit court must be upheld. Counsel for appellant, however, сontend that this court, in effect, has overruled that decision in City of Springfield v. Richter, 257 Ill. 578, City of Clinton v. Wilson, 257 id. 580, and other recent cases of like cháracter. With this we do not agree. In the two cases just cited, ordinances were construed which forbade, generally, the keeping open of business places or pursuing ordinary day labor on Sunday, but containing provisos excepting persons who usually observe some other day of the week as the Sabbath, arid excepting cases of necessity, hotels, eating hоuses, drug stores, and certain other enumerated lines of business. In every case in this State relied upon by counsel for appellant as not being in harmony with Eden v. People, supra, there was no attempt to overrule, in terms, the latter case. On the facts and the law every one of those cases is readily distinguishable. It requires no argument tо prove that there is a well marked difference between an ordinance which forbids all secular business on Sunday, with certain clearly defined and reasonable еxceptions, from one which picks out one particular business and forbids it being exercised on Sunday but permits all other kinds of business.

Municipal authorities- have only such powers as are granted to them by the legislature. ‍‌‌​‌‌​‌‌​‌​​‌​‌‌​‌​‌​‌​​​​​‌‌​‌‌‌‌‌​​‌‌‌​​‌‌​‌‌‌‍They exercise only delegated and limited powers. (City of Earlville v. Radley, 237 Ill. 242; City of Chicago v. McCoy, 136 id. 344.) The power of the city tо pass an ordinance must be found in its charter in express terms, or it must be necessary in order to carry out the powers expressly granted, or be essential, and not simply convenient, to the declared objects and purposes of the corporation. (City of Chicago v. Weber, 246 Ill. 304; City of Chicago v. M. & M. Hotel Co. 248 id. 264.) Under the Cities and Villages act no provisiоn is found granting to municipalities, in express terms, the authority to prohibit labor on Sunday and set that day apart as a day of rest. Clause 66 of section 1 of article 5 of the Cities and Villages act (Hurd’s Stat. 1911, p. 266,) gives the power to incorporated ‍‌‌​‌‌​‌‌​‌​​‌​‌‌​‌​‌​‌​​​​​‌‌​‌‌‌‌‌​​‌‌‌​​‌‌​‌‌‌‍cities and villages to regulate the police of the city or village and pass and enforсe all necessary police ordinances. It was under this general grant of power that this court upheld ordinances prohibiting, generally, the engaging in business on Sunday, with certain reasonable exceptions, in McPherson v. Village of Chebanse, 114 Ill. 46, City of Springfield v. Richter, supra, and City of Clinton v. Wilson, supra. Said section 1 of article 5 was amended as to several clauses and the entire section re-enacted in 1911, (Laws of 1911, p. 173,) but no change was made in said clause 66 or any other clause that in any way enlarged the authority of municipalities on the question here under consideration. It must be assumed that the legislature then had in mind the ruling of this court in Eden v. People, supra, and therefore did not intend to extend the authority of municipalities on this question. The present statutes and general laws of the State should be construed in the light of that decision. Ordinances of municipalities inconsistent with these general laws and statutes must. be held of no effect unless they are authorized by an express legislative grant. (2 Dillon on Mun. Corp.—5th ed.—sec. 601; MсQuillin on Mun. Ordinances, sec. 16.) Municipal authorities, under general grant of power, cannot adopt ordinances which infringe the spirit of a State law or are repugnаnt to the general policy of the State. (City of Chicago v. Ice Cream Co. 252 Ill. 311; 25 Am. & Eng. Ann. Cas. 675, note; City of Clinton v. Wilson, supra.) The public policy of the State is found in its constitution and statutes, and, when ‍‌‌​‌‌​‌‌​‌​​‌​‌‌​‌​‌​‌​​​​​‌‌​‌‌‌‌‌​​‌‌‌​​‌‌​‌‌‌‍they are silent, in its judicial decisions and the constant practice of" its public officials. Zeigler v. Illinois Trust and Savings Bank, 245 Ill. 180.

The common law of England as adopted in this Stаte does not prohibit citizens from pursuing ordinary labor on Sunday. This was changed by statute 29 Car. 2, which provided that “no tradesman, artificer, laborer, workman or other persоn whatsoever shall do or exercise any worldly business or work on the Lord’s day,” works of necessity and charity being excepted. This statute has been substantially adopted in mаny of the States. This State, however, has not adopted that statute. Legislation here on that sub-' ject is found in paragraph'261 of our Criminal Code, which reads.: “Whoever disturbs the рeace and good order of society by labor (works of necessity and charity excepted) or by any amusement or diversion on Sunday, shall be fined not exceеding $25. This section shall not be construed to prevent * * * the due exercise of the rights of conscience by whomever thinks proper to keep any other day as a Sabbath.”

It will be seen that there is a clear distinction between our statute and the English statute. The latter prohibits labor and business on Sunday; while ours merely prohibits labor and amusement which “disturbs the peace and good order, of society.” The English statute is much more comprehensive than ours. (Richmond v. Moore, 107 Ill. 429; Eden v. People, supra.) The legislaturе not having modified this statute since it was construed by this court in the cases last cited, obviously the public policy of the State on this question is the, same as it was when those deсisions were rendered. Even if we were disposed to disagree with the reasoning in Eden v. People, supra, until authority is granted to municipalities by the legislature to.pass an оrdinance such as this one under consideration such an ordinance must necessarily be held void.

The decisions cited from other jurisdictions by counsel for appellant need not be considered. Most of them were in relation to laws very similar to the English statute heretofore referred to. Moreover, with few exceptions, the acts or ordinances construed were general in their nature, substantially similar, in wording, to the ordinances in McPherson v. Village of Chebanse, supra, City of Springfield v. Richter, supra, and City оf Clinton v. Wilson, supra. The fact barbers were included in those lines of business prohibited in the ordinance in City of Springfield, v. Richter, supra, and were in the excepted classes in City оf Clinton v. Wilson, supra, does not render those two decisions inconsistent with each other or with Eden v. People, supra. In those two cases, in harmony with a long line of other decisions rendered by this court, it was held that a law or ordinance applicable to a certain class or classes of citizens, to be constitutional must be basеd upon some substantial difference between the situation of such class or classes and other individuals or classes to which it does not apply. In Eden v. People, suрra, it was held that there was no substantial difference in the business done by barbers from that done in many other lines of employment, while in the other two cases just referred to it wаs held that there was a substantial difference existing in the classes of employment and business embraced within the prohibitions in the ordinance and those excepted from such prohibitions.

The judgment of the circuit court will be affirmed.

Judgment affirmed.