*1 (No. 71580. al., et INC., v. THE VIL- AMOCO, Appellants,
OPYT’S al., Appellees. HOLLAND et LAGE OF SOUTH 25, 1992. Opinion June filed *2 FREEMAN, JJ., part. BILANDIC and took no HEIPLE, J., dissenting. *3 Gunter,
Bruce M. Bozich and Clifford Lee of South Holland, for appellants. Buikema,
Michael J. Marovich and Ronald Marovich, Ltd., of Buikema, Hiskes, Dillner, O’Donnell & Holland, for South appellees. the CLARK delivered the court: opinion
JUSTICE filed in the This case involves two actions separate in the circuit court of Cook and consolidated County ap- 2691, In a court. case number pellate appellate 89— in the of South Village of businesses group operating (the Village) Holland filed judgment action declaratory against Village seeking the to declare Closing its (the ordinance) Ordinance unconstitutional. Each mem- ber of plaintiffs the had group been previously cited for violating ordinance. The plaintiffs’ included group Amoco; Opyt’s 1-80 Investments d/b/a Truck-o- Company, mat; Ltd., Linge, Plaza; d/b/a Calumet Auto Truck Kar Inc., Kleen Kwik Stop, Wash; d/b/a Kar Kleen Car Graske, Quick Six George d/b/a Amoco. The parties filed cross-motions for summary judgment. The trial court de- nied the plaintiffs’ granted motion and mo- Village’s tion. 2908, case appellate number filed a 89—
quasi-criminal complaint against defendant Kar Kleen Inc., Kwik Wash, d/b/a Kar Kleen Stop, Car alleging violation The Sunday Closing Ordinance. com- that plaint alleged defendant sold illegally cigarettes and car washes October 1988. After a Sunday, bench trial, defendant was convicted on each count and fined $100.
The court affirmed the court’s appellate trial judg each (209 ments in instance. Ill. 3d 473.) We App. granted for 2d plaintiffs’ petition (134 leave to Ill. appeal R. 315). pertinent
The most sections of the ques- tion provide:
“(a) Wholesale and retail mercantile merchandis- ing It for any person establishments. shall unlawful in the engage selling, business or dispensing, renting distributing, retail, at or goods, wholesale wares or mer- of any description chandise kind an or from established place [Sunday] village, of business within provided this subsection not applicable shall works of medicine, drugs or to charity the sale of sale or of articles food and drink for human con- dispensing *4 machines, from vending dispensing the sale or sumption consumption of articles of food and drink for human from of daily preparation is the sole purpose whose premises the intent be- public, for retail sale to and drink food retail from estab- dispensing and drink ing to allow food restaurants, pro- as commonly are known lishments that drink shall food and that the sale of said further vided Sunday on drive-through facility allowed from a not be and drink dispensing food drive-through facilities and all newspa- of closed, the sale and distribution shall remain cream, ice, milk, gaso- ice the sale of magazines, pers products articles and oil, the sale of line, lubricating or on public needs of emergency to meet the necessary village. in the * * * It shall be unlaw- Maintenance Work.
(c) Repair and to en- firm, or association any person, corporation ful for maintaining, renovat- gage repairing, in the business of washing any rehabilitating, cleaning, property or ing, business, place from an established description, kind or Holland; pro- South [Sunday] within however, applicable not vided, that this section shall repair of motor ve- charity emergency or to the works hicles, repair or to transportation equipment, public emer- necessary to meet the property maintenance of Village of Sunday in the gency public needs of the Holland, Village of South (Code of the South Holland.” I, 3(a), (c).) art. §§9— to con- relating provisions sections contain similar
Other
3(b)),
(section
maintenance work
struction and
9—
3(d)).
(section
services
personal
9—
is an unauthorized
that the ordinance
Plaintiffs claim
to its
Pursuant
Village’s police power.
assertion of the
to “restrict
has the power
a municipality
police power,
it is
trade where
legitimate
the exercise of a
or prohibit
health, morals,
the public
protection
for
necessary
4 Ill. 2d
v. Cummins
(Figura
or welfare.”
safety
of the police
exercise
In order to constitute
valid
relationship
a reasonable
an ordinance must bear
power,
and the
protected
interest
sought
to the public
*5
means
must
a
adopted
be
reasonable method of accom
plishing the chosen objective. Crocker v. Finley (1984),
Due process
requirements prevent
arbitrary
unreasonable
exercise of the police power.
(Illinois
Breeders Association v. Block (1979), 75 Ill.
Gamefowl
443,
2d
453.) Thus, “[wjhere a
ordinance em
prohibitory
braces activities or businesses
no effect
having
upon the
relevant
of the
object
police
it cannot
power,
be sus
Homes,
tained.” (Pacesetter
Inc. v. Village
South Hol
of
247,
land
18 Ill.
(1959),
2d
Once the
255.)
legislature
identifies a problem and enacts
legislation
protect and
promote
citizens,
welfare of
general
its
the legisla
tion is presumed to
a valid exercise
police
power. (Illinois
Breeders,
This court long has of the recognized power legis lature to enact a comprehensive law un Sunday closing der the general welfare branch of the power. (See police McPherson v. (1885), Chebanse 114 Ill. law, upholding closing this court has previously stated:
“Sunday has
traditionally
day
been observed
as a
normal, nonessential,
which the
nonemergency activity
the business world ceases.
primar
This has been achieved
ily by voluntary
custom,
compliance
every
with
but it is
recognized
where
legislative
may
that
bodies
act
properly
custom,
to preserve
deep-rooted,
this
nation-wide
provid
ing only
adopted
the measures
are reasonable.”
Chevrolet,
Humphrey
City
(1955),
Inc. v.
Evanston
Ill. 2d
405.
Given the fact that the ordinance is directed at pro
moting
legitimate governmental
interest,
the issue in
this case concerns the means
adopted
achieve this
noted that Sun
Chevrolet, this court
In Humphrey
goal.
cate
into three
generally
placed
laws
day closing
may
of busi
types
certain
prohibits only
The first
gories.
type
remain
others to
but
operating,
permits
nesses from
(See
of statute is
disfavored.
generally
This
open.
type
in
this court
(where
The ordinance in case in Hum- this court upheld nance similar to the ordinance difference fact, significant In the phrey only Chevrolet. con- ordinance 3(a) and Evanston between section 9— that 3(a) is section Humphrey sidered in Chevrolet 9— for human consump- of food and drink the sale permits from take-out restau- tion from machines and vending ex- Chevrolet rants, Humphrey the ordinance in whereas consumption and drink for the sale food empted least to Thus, respect at with only. the seller’s premises in this case is 3(a), pivotal question section 9— whether these additional exceptions contained in the or- it dinance render unreasonable and arbitrary. Plaintiffs argue that the is ordinance invalid because these additional exceptions the ordinance from prevent its accomplishing “It purported objective. apparent is if that a general Sunday closing is to be [up *** the to exceptions its must operation bear some held] to relationship health, reasonable the public safety, mor or general Vernon, als welfare ***.” (City 369 Ill. of Mt. at Plaintiffs contend that permitting businesses to remain but open, limiting goods sell, can they does nothing promote to peace and quiet. Plaintiffs further contend it is sell arbitrary permit merchant food and drink from a vending machine not “over but counter,” and to permit the sale of from prepared food take-out restaurant prohibit but sale similar food from a store. argue
Plaintiffs
that
this court’s
opinion
City of
Chicago
v. Netcher (1899), 183 Ill.
directly
and, therefore,
that
point
we should reverse based on
Netcher,
case.
this court invalidated two Chicago
ordinances
designed
prohibit certain commercial acti
vities by “department
stores.” The first ordinance pro
“meat,
fish, butter, cheese, lard,
hibited
sale
vege
tables or
other
any
provisions” from any store which
sold “dry goods, clothing, jewelry and drugs” (Netcher,
*7
273 class, from a limited of businesses only and prevented contrast, In the ordi the proscribed products. selling to all situated similarly in the case applies nance present Thus, Netcher is Sundays. then on only businesses and distinguishable. in court’s rely opinion
Plaintiffs also this Paceset Homes, v. South Holland ter Inc. case, court the Vil
Ill. 2d 247. In that this invalidated it law because Sunday closing prohibited lage’s previous (Pacesetter, as as harmful businesses. harmless well all Pacesetter, 2d at the ordinance prohibited Ill. fa "medical, dental and funeral business activity except utilities, cilities, and and activities transportation public village of the resi for needs’ necessary ‘emergency Thus, at unlike (Pacesetter, 249-50.) dents.” Ill. 2d and the present the ordinances in Chevrolet Humphrey in case, commodity- the ordinance Pacesetter was not Indeed, in this court distinguished law. Pacesetter type or Humphrey Chevrolet the basis that the Pacesetter dinance was more than the ordinance ap restrictive noted, in Chevrolet. As the proved Humphrey previously is less current ordinance restrictive than ordinance Thus, in we find Pacesetter is dis Humphrey Chevrolet. tinguishable rely holding and instead this court’s upon Humphrey Chevrolet. Chevrolet,
Under we believe Humphrey exercise of the de- Village’s police powers is a reasonable in the The or- contained ordinance. spite exceptions benefits of dinance strikes a balance the public between ability on the one hand and the quiet pur- peace food, and other necessities on the other chase drink limits hand. To the ordinance promote peace quiet, In this for sale to the public. available types goods the ordinance decreases amount automobile way, fewer citizens will travel to stores traffic because time, At the the ordinance goods. permits same purchase *8 274
limited access to specified goods. As the Supreme Court stated the case of McGowan v. Maryland (1961), 366 420, U.S. L. 393, 6 Ed. 2d 81 S. Ct. 1101: legislature reasonably could find that the Sunday
“[A]
sale of the exempted commodities was necessary either
for the health of
populace
or for the enhancement of
the recreational atmosphere of the day
a family
—that
which takes a Sunday ride into the
will
country
gas-
need
oline for the automobile and may
pleasant
find
a soft
***
drink or fresh fruit
that newspapers
drug
prod-
ucts should always
McGowan,
public.”
available
426,
366
399,
U.S. at
Nor do we believe the ordinance is arbitrary because it permits the sale of prepared food and drink from a restaurant but not from other businesses. Plaintiff Opyt’s Amoco contends that it is arbitrarily prevented from selling prepackaged hamburgers while a local McDonald’s restaurant to sell permitted similar The products. legislature could decide that legitimately the sale of food and drink from restaurants would en- hance the recreational of the atmosphere day. (McGo- wan, 366 426, U.S. at 6 L. 399, Ed. 2d at 81 S. Ct. at At time, the same could legislature legiti- decide that mately prepared foods should be available from restaurants See v. only. Gallagher Crown Kosher Super Market 366 617, 623, U.S. 6 L. Ed. 2d stated, the Court 540, 1122, (where S. Ct. that, although many could determine legislature “[T]he desserts, to Crown, permit sell frozen retailers, including inn-holders, and com- druggists a limited number of only *9 serve the to sell them on would mon victuallers and, these items on Sunday purpose providing public limit activities ordinar- time, at the same the commercial to their sale”). attendant ily against
A a classification legislative court will uphold if set of facts can be challenge any an equal protection sustain the classification. conceived which will reasonably 113 Ill. 2d (1986), Lawn v. Rosewell Oak (Village of set of facts exists. case, In this such a conceivable an ordinance Chevrolet, this court Humphrey approved con the sale of food and drink be excepted the of the on the seller’s Given nature premises. sumed business, it diffi extremely modern fast-food would be food would be cult for restaurants to monitor whether or taken out. The legislature ehten on premises could to re impractical have decided it would be legitimately food and drink consumed on quire prepared Instead, the ordinance that all requires seller’s premises. facilities at restaurants in the drive-through in closed on We hold the restaurant Sunday. exception Village’s the ordinance is a reasonable exercise of the In so we note that the police holding, power. situated busi similarly
does not discriminate between nesses. leg- it for the arbitrary we do not believe
Similarly,
from a store
islature to
the sale of
permit
products
some
a
argument,
but not other
Under
products.
plaintiffs’
milk must also
which is
to sell
permitted
store
grocery
in
inventory.
to sell
other
its
any
product
be permitted
scenario,
would swallow
exception
Under this
of the ordinance.
and,
rule
defeat the
thereby,
purpose
Further,
almost
Sun-
argument,
under plaintiffs’
every
law this State
invalid.
day closing
would be
that the
a legiti
We have found
ordinance promotes
have also concluded
governmental objective.
mate
We
accomplish
that the ordinance is a reasonable means of
Thus, we hold that the
ing
governmental objective.
this
ordinance also meets the
of the
requirements
equal pro
of the
States and
tection and due
clauses
United
process
(1986),
Illinois
See Bernier v. Burris
Constitutions.
Ill. 2d 219
test under the due
(holding
appropriate
clause for a statute which does not
fun
process
impact
a rational
damental
is whether the
bears
right
legislation
Peo
legitimate governmental
interest);
relationship
v. Anderson
Although ordinance, our with force 3(a) findings apply equal of the *10 the ordinance. have reviewed the to the remainder of We ordinance in its and find that it is a reasonable entirety a legitimate governmental objective. means of promoting in Further, find the the ordi- exceptions we contained nance do not render the ordinance arbitrary. uncon- also contend the ordinance is plaintiffs
Finally, not the terms because it does define stitutionally vague, Plaintiffs to an affi- “emergency.” point and “necessary” judg- their motion for summary davit submitted with to attempted ment in a woman stated she diabetic health purposes. and cheese for purchase orange juice the ordinance that it is unclear from argue Plaintiffs that situation of these in products whether the sellers addition, In plaintiffs to subject prosecution. would be a truck circumstances it is unclear under what argue meet the needs emergency would be necessary wash of the public.
277 not “so that a statute must Due requires process must intelligence necessarily men of common vague v. Garrison (People meaning application.” at its guess addition, In “the statute 444, 453.) Ill. 2d (1980), for law en definite standards sufficiently must provide fact that its application and triers of forcement officers on their private conceptions.” does not depend merely Ill. 2d at To (Garrison, 453.) satisfy requirements a must be suffi prohibitions of due statute’s process, common understand definite when measured ciently by 109 Ill. 2d (1985), v. Wawczak ing (People practices. to the use 244, However, as we are 249.) “[condemned words, certainty can never mathematical expect we (1972), v. language.” Grayned City from our Rockford 222, 228-29, 92 S. Ct. 104, 110, 33 L. Ed. 2d 408 U.S. 2294, 2300. are constitu presumed
We note that all statutes 275, 64 Ill. 2d (1976), 281), tional v. Schwartz (People has the and the the statute burden party challenging v. establishing infirmity (People its constitutional clearly In a 182, 188). considering Bales 108 Ill. 2d (1985), statute, legis to a vagueness challenge contrary absent intent, “the used in the lative a court will assume words understood statute have their ordinary popularly used, to the language addition meanings. [Citations.] legislative also to the ob given consideration [will] [be] designed remedy.” the evil the statute is jective and Ill. 2d When v. LaPointe (People stat challenged each word or phrase ever possible, some given meaning. ute will be reasonable has defined as: been “Emergency” oc- happening; “A an unforeseen unexpected sudden *11 condition; contingency compli- perplexing currence or circumstances; occasion unexpected a sudden cation of is an action; necessity. Emergency exigency; pressing for calls for of circumstances unforeseen combination Dictionary (5th ed. (Black’s Law immediate action.” 1979).) common un- with the comports this definition
We believe Further, that as we believe “emergency.” derstanding is means that which “necessary” in the ordinance used in the Thus, the use of these terms required. reasonably unconstitution- the ordinance does not render ally vague. reasons, judgment we affirm foregoing
For the court. the appellate
Judgment affirmed. took no part BILANDIC and FREEMAN JUSTICES this case. or decision of in the consideration HEIPLE, dissenting: JUSTICE of several busi in this case consist The plaintiffs limits of the South within the municipal nesses Opyt’s station. gas/service Amoco is a Opyt’s Holland. automobile gasoline, the sale regularly engages items, cig newspapers, snack food repairs, and products cassettes. the rental of video arettes, tickets, and lottery car wash. automated fully Kar Kleen is a coin operated, regu gas Food station/mini-mart Shop Amoco sandwiches, and hamburgers prepackaged sells larly food of other variety beverages various chips, ad which is located stop Plaza is a truck items. Calumet In addition to Route 6. to Interstate and U.S. jacent fuel, prod and automotive diesel selling gasoline, store, a restau a retail ucts, consists of stop the truck is on the stop The truck rant, garage. an automotive zoned residentially 94. The nearest east side Interstate a mile one-half of one-fourth to is between property Truck-o- Interstate 94. the west side of and is on away located on Plaza, is also mat, to Calumet similarly of U.S. 94, at the confluence of Interstate east side *12 of 94. The business primary Route 6 and Interstate fuel, truck the of diesel and gasoline, Truck-o-mat is sale of Village seek to have the washes. The above plaintiffs declared un Closing South Holland’s Ordinance Sunday summary judg The trial court granted constitutional. the of the and both Village, appellate ment in favor of this and the (209 473) majority court Ill. 3d App. court affirm. a violation
The which constituted plaintiffs’ activities video following: renting of the ordinance included the vehicles; ciga- and cassettes; selling pretzels, washing rolls, The ordi- rettes, crackers, cinnamon and charcoal. alia, inter of of nance, selling goods any the prohibits However, numerous excep- kind there are Sunday. on on Vending operated Sunday tions. machines be may drive-through restaurants their may open, and while be specifi- must closed. Items which have been facility on therefore sold declared and cally exempt, may milk, ice, ice magazines, include Sunday, newspapers, cream, oil, goods necessary and gasoline, lubricating ex- also prohibits, due to an The ordinance emergency. basis, in the busi- engaging on an cept emergency of washing any prop- ness of repairing, maintaining Holland, of South Village Code of the erty Sunday. I, 3(a), (c). art. §§9— out, in order for correctly pointed
As the majority it must constitutional this of ordinance to be found type the means purpose governmental have a legitimate (149 rational. must be to achieve this purpose adopted opinion the majority It is unclear from 270-71.) Ill. 2d the no furthering as view ordinance they whether rest or day be a general tion that should allow individuals is to goal the ordinance’s whether Motor Courtesy (See from disturbance. free worship 82, 85; Pacesetter Ward 24 Ill. 2d Sales v. (1962), Ill. 2d Holland Homes, v. South Inc. 247, 255.) Regardless, ordinance, in my opinion, fails rationally goals. achieve either these potential
The feels that the with majority its speci exceptions fied “strikes balance between public benefits peace the one hand and the quiet abil food, ity drink and other necessities on purchase (149 view, other hand.” Ill. at to this 2d I Contrary believe that plethora exceptions are de essentially void of reason and foster for the law. disrespect Even more of the telling unsteady foundation which the upon ordinance rests is an examination of its numerous incon *13 gruities. Cigarettes be sold from may vending machines not but be sold over the Milk may sold, counter. bemay water, but tea even orange juice, and bottled may not. Ice cream be sold cookies not. A may but motorist may is a allowed it unclear at fill-up gasoline but is best a whether motorist diesel fuel also obtain requiring may a fill-up. Newspapers magazines, and includ presumably sold, ing sexually explicit books, but magazines, may Bible, would include the not. Pre necessarily may food, such a packaged ready-to-eat hamburger, as may businesses, restaurants, be sold from but other which are restaurants, not exclusively not sell may prepackaged food over counter. restaurants are Finally, allowed to “take-out,” sell but are not allowed to the order accept through drive-through windows.
The ordinance as drafted serves no legitimate govern mental It no bears purpose. relationship protec tion of public health, morals, or welfare. No safety Rather, is it public protected. reasonable interest repre sents an exercise of the arbitrary po unreasonable lice Its between can be sold and power. distinctions what fact, a are, Only what cannot be sold ridiculous. judge This could read it without lawyer laughing. should found unconstitutional under the due process 1970, I, clause of the Illinois art. (Ill. Constitution Const. ig the unfortunately this case offered say, Sad to §2). earlier this court to reconsider its for opportunity nored laws Sunday closing which defined allowed decisions The observance of challenge. to survive constitutional and individ worship personal of rest or day specific governmental no for imposing matter. There is basis ual A closer examination such customs. sanctions enforce re their surface would laws beneath Sunday closing mer to protect are a device they principally veal from on Sunday do not want stay open chants who such, simul they from those that do. As are competition process. and violative of due hypocritical taneously I from the decision Accordingly, dissent respectfully of the court.
(No. 72044. PRESS, v. THE CODE ENFORCE- JAY Appellee, al., Appellants. MENT BOARD OF APPEALS et Opinion 1992. June filed