182 N.E. 394 | Ill. | 1932
Lead Opinion
George Marallis and fifty other persons filed their bill of complaint in the superior court of Cook county against the city of Chicago, the commissioners of Lincoln Park, the West Chicago Park Commissioners and the town of Cicero to enjoin the defendants from interfering with the vending, hawking and peddling of goods by the complainants. The defendants filed a joint and several demurrer to the bill, the demurrer was sustained, and the bill was dismissed for the want of equity. The validity of a statute is involved in the case and the complainants prosecute an appeal directly to this court.
The appellants allege in their bill that they are residents of the city of Chicago; that they are honorably discharged veterans of the armed forces of the United States; that on August 1, 1931, by authority of an act entitled "An act permitting former soldiers and sailors of the United States or of the State of Illinois, honorably discharged from the military, naval or marine service of the United States, or of the State of Illinois, to vend, distribute, hawk and peddle goods, wares, fruits or merchandise, not prohibited by law, in any county, town, village, incorporated city or municipality in the State of Illinois," approved May 11, 1901, in force July I, 1901, as subsequently amended, (Cahill's Stat. 1931, p. 458; Smith's Stat. 1931, p. 486), each of the appellants for himself solely, began the vending, hawking and peddling of goods, wares and merchandise upon the public streets, parks, beaches and places of the several appellees; that they pursued their vocation in an orderly manner and that it constituted their sole source of income, and *424 that on August 2, 1931, without just cause and to their irreparable damage, they were forcibly prevented by police officers of the defendant municipalities from pursuing their occupation. Upon these grounds the desired injunction is sought.
The act upon which the appellants rely reads as follows: "Section 1. On and after the passage of this act, all former soldiers and sailors of the United States, or of the State of Illinois, honorably discharged from the military, naval or marine service of the United States, or of the State of Illinois, including former soldiers and sailors of the World War, shall be permitted to vend, distribute, hawk and peddle goods, wares, fruits or merchandise, not prohibited by law, in any county, town, village, incorporated city or municipality, within this State, without a license: Provided said soldier or sailor is engaged in the vending, distributing, hawking or peddling of said goods, wares, fruits or merchandise, for himself only. Section 2. Upon the presentation of his certificate of discharge to the clerk of any county, town, village, incorporated city or municipality in this State, and showing proofs of his identity as the person named in his certificate of honorable discharge, the clerk shall issue to such former soldier or sailor of the United States or of the State of Illinois, a license, but such license shall be free, and said clerk shall not collect or demand for the county, town, village, incorporated city or municipality, any fee therefor. Any clerk of any county, town, village, incorporated city or municipality in this State, who shall violate any of the foregoing provisions of this act, by failing or refusing to comply with such provisions as herein directed, shall be fined in a sum not less than ten ($10.00) dollars nor more than fifty ($50.00) dollars, to which may be added imprisonment in the county jail, not exceeding ten days."
The appellants, in seeking a reversal of the decree, contend that honorably discharged soldiers, having rendered a peculiar and extraordinary service, constitute a class founded *425 upon a natural distinction; that this distinction justifies legislation granting them privileges, exemptions and immunities from the burdens resting upon other citizens and that the statute they invoke is therefore valid. To sustain the decree, the appellees, on the contrary, insist that the act in question constitutes special or class legislation which arbitrarily grants privileges and immunities to a particular class and denies persons outside of that class, the equal protection of the laws constitutionally guaranteed and that the act is therefore void.
The first section of the fourteenth amendment to the Federal constitution declares that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." Due process of law and the equal protection of the laws, the Supreme Court of the United States said in Duncan v. Missouri,
The invalidity of a statute obnoxious to the fourteenth amendment is well illustrated by the case of Connolly v. UnionSewer Pipe Co.
Supplementing the provisions of the fourteenth amendment to which reference has been made, section 22 of article 4 of the constitution of this State prohibits the passage of a special law granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever. This provision prevents the enlargement of the rights of one or more persons in discrimination against the rights of others. In many cases this constitutional requirement has been invoked and it often has been held that, to avoid falling within the constitutional prohibition of local or special legislation the classification of subjects or objects must be based upon some reasonable and substantial difference of kind, situation or circumstance bearing a proper relation to the purposes to be attained by the statute. (L'Hote v. Village of Milford,
Each person subject to the laws has a right that he shall be governed by general, public rules. Laws and regulations entirely arbitrary in their character, singling out particular persons not distinguished from others in the community by any reason applicable to such persons, are not of that class. Distinctions in rights and privileges must be based upon some distinction or reason not applicable to others. (Harding v. People,
The Federal Supreme Court was unable to discover a reasonable basis for the legislative classification invoked to sustain the statute involved in Connolly v. Union Sewer Pipe Co. supra. The court said: "The difficulty is not met by saying that, generally speaking, the State when enacting laws may, in its discretion, make a classification of persons, firms, corporations and associations, in order to subserve public objects. For this court has held that classification 'must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis. * * * But arbitrary selection can never be justified by calling it classification. The equal protection demanded by the fourteenth amendment forbids this. * * * No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which *429 is the foundation of free government. * * * It is apparent that the mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of the fourteenth amendment, and that in all cases it must appear not only that a classification has been made, but also that it is one based upon some reasonable ground — some difference which bears a just and proper relation to the attempted classification — and is not a mere arbitrary selection.' " The court declared that a statute such as the one under review was not a legitimate exercise of the power of classification; that it rested upon no reasonable basis; that it was purely arbitrary, and that it plainly denied the equal protection of the laws to those against whom it discriminated.
An information was filed in State v. Shedroi,
A section of the Iowa code required all peddlers plying their vocation outside of any city or town to secure a license from the county auditor and to pay a tax therefor, but persons who had served in the Union army or navy were exempted from the payment of the tax. In State v. Garbroski,
Numerous other authorities may be cited to the effect that neither in tax laws nor in police regulations can the fact of prior completed military service be made the basis of discrimination between citizens. Among these authorities areState v. Whitcom,
The first section of the act upon which the appellants rely provides that all former soldiers and sailors of the United States or of this State, honorably discharged from the military, naval or marine service, shall be permitted to vend, distribute, hawk and peddle goods, wares, fruits or *432 merchandise, not prohibited by law, without a license. The second section of the same act requires the clerk of the particular municipality, upon the presentation of the proper certificate of discharge and proof of identity, to issue a license to the former soldier or sailor for his pursuit of the occupation stated without collecting a fee for the license. So far as honorably discharged soldiers and sailors who desire to peddle goods are concerned, the first section dispenses with the necessity of obtaining a license, while the second makes the issuance of such a license mandatory. Apart from this inconsistency and the omission from the second section of any provision for an inquiry into the fitness and character of the applicant, for a bond or other requirement to secure obedience by the licensee to the laws and ordinances regulating his occupation, and for the termination of the license by reason of misconduct or a breach of the law, the ultimate question in the present case is whether an honorable discharge from the military, naval or marine service is a reasonable basis for the exemption of the holder of such a discharge from appropriate regulation and the payment of a license fee which all other persons desiring such a license are required to pay.
The sole ground for the discrimination made by the act under review is an honorable discharge from the service defined. All persons holding such discharges are declared exempt from regulation imposed by public authority and the payment of the license fee without regard to the length or character of their military, naval or marine service, their sound or debilitated condition of body or their affluence or poverty. Events long since past, and neither present condition nor a difference in situation between the honorably discharged soldiers and the other members of the community or State, are therefore the basis of the legislative classification.
The soldier or sailor, after his discharge, returned to civil life, became a part of the community in which he *433 lived and enjoyed the same rights and was subjected to the same burdens as other citizens similarly circumstanced legally in the same jurisdiction. The power to grant pensions or bounties to discharged soldiers and sailors is well established, but is not involved in this case. Certainly no considerations of gratitude to them could authorize the legislature to exempt them, as a class, from all taxation or from punishment for crime. The classification made by the legislature in the act under consideration bears no relation whatever to the subject matter of the act, and the classification has no reasonable basis. The act denies the equal protection of the laws and it grants a special privilege or immunity to a certain class in violation of constitutional provisions. It is therefore void.
The decree of the superior court is affirmed.
Decree affirmed.
Dissenting Opinion
The majority opinion holds void the act permitting former soldiers and sailors of the United States to peddle fruits and merchandise without paying a municipal license fee. The holding is based on the theory that the statute constitutes special or class legislation and is contrary to the provisions of section 22 of article 4 of the constitution of the State of Illinois, and also that it violates the provision for the equal protection of the laws contained in section 1 of amendment 14 of the constitution of the United States. The essential question in this case is whether or not there is a reasonable basis for extending to honorably discharged soldiers and sailors, as a separate class, the privilege of peddling and vending merchandise in municipalities without a license.
The majority of the court approves the doctrine announced inState v. Shedroi,
Notwithstanding a different view has been expressed by some courts, we believe the prevailing rule is that ex-soldiers may be segregated into a class for the purpose of extending bounty and reward. The right granted by the act is a privilege given former soldiers and sailors by the government *435
in consideration of military services rendered in its behalf. That privilege has much the same basis as the granting of pensions. It is designed to assist the soldier or sailor in providing for his daily wants. It is not a matter of contract and is not founded upon any legal liability. It is in the nature of a reward given by the government in consideration and recognition of meritorious past services, and has been described as a bounty springing from the appreciation and graciousness of the sovereign and may be given or withheld at its pleasure. (People v. Retirement Board,
The defendants contend that the service of a soldier bears no relation to the business of a peddler, and therefore no basis exists for placing soldiers in a different class and discriminating in their favor against other citizens. Of course, there is no relation between the service of a soldier and the business of a peddler, but there is a relation between the duty of the sovereign growing out of the service of a soldier and the granting of privileges to him which will enable him to provide for his daily needs. That relation has been made the basis of a great deal of legislation of this character by both Federal and State governments.
Because of the above reasons we think the demurrer should have been overruled. *436