Spiegler v. City of Chicago
74 N.E. 718
Ill.
1905
Check Treatment
Mr. Justice Hand

delivered the opinion of the court:

The first question raised upon this record is whether or not the superior court, sitting as a court of equity, had jurisdiction to entertain a bill to enjoin the enforcement by the city of Chicago of the provisions of said ordinance against complainants. The rule is well settled in this State that where a city is attempting to enforce an ordinance which is alleged to be invalid, against numerous persons whose interests are identical, such persons may file a bill, upon behalf of themselves and all other persons similarly situated, against the city for an injunction, and that a court of equity, in order to avoid a multiplicity of suits and to the end that the controversy may be determined in one suit, will, if the ordinance be found to be invalid, enjoin the enforcement thereof by the city. In City of Chicago v. Collins, 175 Ill. 445, three hundred and seventy-three bicyclists filed a bill in the circuit court of Cook county, on behalf of themselves and all other persons similarly situated, against the city of Chicago, to enjoin the city and, its officers from enforcing against them an ordinance providing that all vehicles used upon the streets of the city of Chicago, including those for private use, for pleasure, etc., should pay an annual license fee, and that every person using any vehicle upon the streets of said city without having obtained a license therefor or having said vehicle properly tagged, so that it would appear that the license fee thereon had been paid, should, on conviction, be fined a sum not less than $10 nor more than $50 for each offense. The circuit court took jurisdiction, and upon a hearing held the ordinance invalid and enjoined the city from enforcing the same. Upon an appeal to this court by the city it was held that a court of equity, in order to avoid a multiplicity of suits, will enjoin the enforcement of an illegal ordinance, where it appears that the interests of the complainants and many other persons are identical and injuriously affected by the ordinance. And in Wilkie v. City of Chicago, 188 Ill. 444, Wilkie and seventy-eight other master plumbers engaged in the plumbing business in the city of Chicago filed a bill against the city to enjoin the enforcement of an ordinance requiring each master plumber doing work in said city to obtain a license and pay a fee of $30 per year' therefor, and imposing a penalty of not less than $50 nor more than $100 for each and every offense of doing any plumbing work in the city of Chicago without having obtained such license. The circuit court overruled a demurrer to the bill and granted an injunction restraining the city from enforcing the ordinance. The decree, upon appeal, was reversed by the Appellate Court for the First District, but upon a. further appeal to this court the judgment of the Appellate Court was reversed and the decree of the circuit court was affirmed, and if was held that persons following a particular occupation, whose interests and liabilities are identical, may join in a suit in equity to restrain the enforcement of an illegal ordinance requiring them to take out a license, where the city is threatening each of them with prosecution for non-compliance with the terms of such ordinance and each prosecution would involve a determination of the validity of the ordinance. Here the city was attempting to enforce an ordinance against each of the complainants, which the complainants averred was unconstitutional and void. The prosecution of each of the complainants, therefore, involved the same question, namely, the validity of said ordinance. It was also averred that some three or four thousand persons and corporations in the city of Chicago, besides the complainants, were engaged in handling oil in “tank-wagons or other wagons or vehicles” upon the streets of Chicago, and that the city had commenced numerous suits against the complainants for a violation of said ordinance, and were threatening to commence other suits of a like character against them and the other persons engaged in handling oil in “tank-wagons or other wagons or vehicles” upon the streets of Chicago, and under the Collins case and the Wilkie case we are of the opinion, in order to avoid a multiplicity of suits and that the controversy might be settled in one suit, the superior court had jurisdiction to entertain the bill at the suit of the complainants to determine the validity of said ordinance.

It is next urged that the ordinance is unconstitutional and void. In the Collins case, supra, it'was held that a court of equity cannot determine the question whether an ordinance has been violated upon a bill to enjoin the enforcement thereof, but that its jurisdiction in such case is confined solely to a determination of the question whether the ordinance is valid. In this case the preliminary injunction having been dissolved upon motion, after the filing of an answer and replication, and the bill dismissed for want of equity, the motion to dissolve must be treated as a demurrer to the bill and the case decided upon the face of the bill as though no answer or replication had been filed.

It is first urged that the city was without power to pass the ordinance regulating the handling of the oils mentioned therein upon its streets from “tank-wagons or other wagons or vehicles.” Section i of article 5 of the City and Village act (Hurd’s Stat. 1903, p. 291,) confers, among others, the following powers upon cities and villages in this State: “Fourth, to fix the amount, terms and manner of issuing and revoking licenses.” “Ninth, to regulate the use of the same,” [streets, alleys, avenues, sidewalks, wharfs, parks and public grounds.] “Fifteenth, to regulate and prevent the throwing or depositing of ashes, offal, dirt, garbage, or any offensive matter in, and to prevent injury to any street, avenue, alley or public ground.” “Twentieth, to regulate traffic and sales upon the streets, sidewalks and public places.” “Forty-first, to license, tax, regulate, suppress and prohibit hawkers, peddlers, pawn-brokers, keepers of ordinaries, theatricals and other exhibitions, shows and amusements, and to revoke such license at pleasure.” “Sixty-sixth, to regulate the police of the city or village, and pass and enforce all necessary police ordinances.” “Seventy-eighth, to do all acts, make all regulations which may be necessary or expedient for the promotion of health or the suppression of disease.” “Ninety-sixth, to pass all ordinances, rules, and make all regulations, proper or necessary, to carry into effect the powers granted to cities or villages, with such fines or penalties as the city council or board of trustees shall deem proper: Provided, no fine or penalty shall exceed $200, and no imprisonment shall exceed six months for one offense.”

In Gundling v. City of Chicago, 176 Ill. 340, it was held an ordinance may derive its validity from several different grants of power, and does not depend upon any single clause or section of the statute containing such grant. The various oils named in the ordinance are known to all to be highly combustible, and under some conditions and unless handled with care, explosive, and they have been recognized by the legislature of this State (City and Village act, art. 5, sec. 1, subd. 65,) and by this court (Standard Oil Co. v. City of Danville, 199 Ill. 50,) to be dangerous in character. By the City and Village act the city of Chicago is given power to pass and enforce all necessary police ordinances. By the word “necessary,” indispensable was not intended, but power was conferred upon the city to pass all ordinances which would be conducive to the promotion of the health, safety and welfare of its inhabitants, which power we think may reasonably be held to include the power to pass an ordinance regulating in a reasonable manner the handling of the oils mentioned in the said ordinance, in “tank-wagons or other wagons or vehicles” upon the streets of the city of Chicago.

In discussing the exercise of the police power in Price v. People, 193 Ill. 114, on page 117, it was said: “It is an attribute of sovereign power to enact laws for the exercise of such restraint and control over the citizen and his occupation as may be necessary to promote the health, safety and welfare of society. This power is known as the police power. In its exercise the General Assembly may provide that any occupation which is the proper subject of the power may not be pursued by the citizen except authorized by a license issued by public authority so to do. Such enactment may require the payment of a fee and the execution of a bond with security, conditioned in view of the objects and purpose of the act, as a prerequisite to the issuance of such license.”

• And in Patterson v. Johnson, 214 Ill. 481, in considering the power of the city of Chicago to pass an ordinance .regulating the construction or removal of wooden buildings within its corporate limits outside the “fire limits,” it was said (p. 488): “While no express power has been pointed out authorizing municipalities organized under the City and Village act to pass ordinances regulating the construction or removal of wooden buildings within their corporate limits outside the 'fire limits,’ the city council or board of trustees of a city or village organized under that act has the power to declare what shall be considered nuisances and to abate and remove the same, and to regulate the police of the town, and we think the power to regulate the construction or removal of wooden buildings anywhere within the corporate limits of such municipalities is clearly implied as incident to those powers, although such powers are conferred upon such municipalities only in general terms.”

And in Chicago, Burlington and Quincy Railroad Co. v. Haggerty, 67 Ill. 113, in discussing the power of a town in this State to pass an ordinance regulating the rate of speed of railway trains passing through said town, on page 115, it was said: “There is no grant of power to this town, in express terms, tó regulate the rate of speed of railway trains passing through the town, but by its charter (Private Laws of 1857, pp. 540, 541,) the board of trustees of the town have the power to declare what shall be considered as nuisances and to prevent and remove the same, and to regulate the police of the town, and to make such ordinances as ,the good of the inhabitants of the town may require. Under these powers we think the town possessed the authority so to order the use of private property within its limits as to prevent its proving dangerous to the safety of the persons and property of citizens ; and we view the ordinance in question as but a police regulation for the preservation of the safety of persons and property, the adoption of which was no more than a fair exercise of the-police power vested in the town.”

We think it obvious the legislature has "conferred upon cities and villages power to regulate the handling of oils from “tank-wagons or other wagons or vehicles” upon the public streets of such municipalities, and that the ordinance in question cannot be said to be void for want of power in the city to legislate upon such subject.

It is next urged that the ordinance is void by reason of the provisions found in section 3, to the effect that each “tank-wagon or other wagon or vehicle” from which oil is handled shall be equipped with drip-pans or other devices which shall effectually prevent the spilling of the commodity contained therein, which drip-pans or devices shall be subject to the approval of the commissioner of public works, as it is contended said section leaves the kind or character of said drip-pans or devices which shall be used, entirely to the discretion, whim, caprice and pleasure of the commissioner of public work's, and it is said the effect of such provision is to delegate to him legislative power, which should be exercised by the common council, In Arms v. Ayer, 192 Ill. 601, the constitutionality of the statute providing for the erection of fire-escapes upon certain buildings named in said statute was attacked upon the ground that legislative power was conferred upon the inspectors of factories, in that such inspectors were given power by the statute to determine the number, location, material and method of construction of the fire-escapes which the act provided should be erected upon the buildings specified in the act. The contention was not sustained but the act was held to be constitutional. We think the principles there announced are applicable to the case at bar. This ordinance provides that each “tank-wagon or other wagon or vehicle” from which the designated oils shall be delivered upon the streets of the city shall be equipped with drip-pans or other devices, which drip-pans or devices shall effectually prevent the spilling of the commodity and which drip-pans or other devices shall be approved by the commissioner of public works of said city. The power to legislate is not conferred by said ordinance upon the commissioner of public works, but he is only given power to approve the drip-pans or other devices with which the said “tank-wagons or other wagons or vehicles” are equipped. The power thus conferred upon the commissioner of public works pertains solely to the execution of the ordinance, and not to the passage thereof. In the Arms case, supra, the distinction between the power to pass a law, which may not be delegated, and the power to carry it into execution, which may be, was pointed out on page 611. The court there said, quoting from Sutherland on Statutory Construction: “The true distinction is between a delegation of power to make the law, which involves a discretion as to what the law shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no objection can be made.” In People v. Reynolds, 5 Gilm. 1, the court said (p. 13) : “While the legislature may not divest itself of its proper functions or delegate its general legislative authority, it may still authorize others to do those things which it might properly, yet cannot understanding^ or advantageously, do itself. Without this power legislation would become oppressive, and yet imbecile.” Under the authority of Arms v. Ayer, supra, we are of the opinion the power conferred by section 3 upon the commissioner of public works to approve the drip-pans or other devices which the ordinance provides shall be attached to “tank-wagons or other wagons or vehicles” from which the designated oils are delivered upon the streets of said-city does not render that section of the ordinance void.

It is next contended that section 4 of the ordinance, which provides that licenses granted under said ordinance may be revoked by the mayor at any time upon proof of a violation by the licensee of any of the provisions of the ordinances of the city of Chicago in force at the date of the passage of the ordinance or that may thereafter be passed, confers judicial power upon the mayor. We do not agree with such contention. The provision found in the ordinance is authorized by the statute and is one usually found in similar ordinances, and such right of revocation is a proper one, and one of the most effectual means which the city has of enforcing a compliance, with the terms of such ordinances. It is said, however, the right of revocation is not confined to a violation of . the ordinances covering the subject matter embraced in said ordinance, but is broad enough to cover a violation of any of the ordinances of the city of Chicago. It must be admitted the ordinance is inartificially drawn. In construing an ordinance, if two constructions can be placed thereon, one of which would render it meaningless and void and one of which would make it a valid enactment, the one which would make the ordinance valid should be adopted. We think the .right of revocation found in this ordinance is confined to a violation of the ordinances of the city upon the subject covered by the ordinance now under consideration, and not a violation of the ordinances, generally, of the city,

It is also urged that section 6 of the ordinance is invalid because it requires the bond provided for in that section to be given to be conditioned that the licensee will comply with all the provisions of the ordinance and any other ordinance touching the business licensed, thereafter passed, without limiting the liability on the bond to the life of the license. This position is without force. The bond provided for in that section would become void at the expiration of the period covered by the license in case no breach of its terms had occurred during that period.

It is also urged that a license fee of $io per annum per wagon is so high as to amount to a prohibition upon the business sought to be licensed. The ordinance, when properly construed, means that a license fee of $io should be paid for each “tank-wagon or other wagon or vehicle” for a full year or a proportionate part of that sum for a fractional part of a year, and when so construed the license fee fixed by the ordinance is not unreasonably high,—at least not so high as to justify a court in holding the ordinance void by reason of the amount of the license fee fixed by the ordinance. In Price v. People, supra, it was held that the amount fixed by the legislative power to be paid as a license fee is conclusive, unless it is manifest that its real purpose is to raise revenue under the guise of a police regulation or to prohibit the exercise by the citizen of a lawful calling by means of an oppressive license fee.

The appellants have raised other objections to the validity of said ordinance, none, however, which we deem of controlling force. We are of the opinion said ordinance, by its terms, applies only to sales and deliveries of the designated oils made from tank-wagons or other similar wagons and vehicles upon the public streets and ways of the city of Chicago, and that it does not apply to sales and deliveries made in cans or other unbroken packages, although delivered in wagons or other vehicles. The object of the ordinance clearly is to prevent the oils named therein from being handied upon the streets from tank-wagons or other similar vehides in such manner as to be spilled or otherwise allowed to escape upon the surface of the street. This construction is clear from the fact that it is specifically provided that tank-wagons, etc., shall be equipped with drip-pans or other devices. When thus construed the ordinance is not unreasonable and is clearly within the police power of the city.

Finding no reversible error in this record the decree of the superior court will be affirmed.

Decree affirmed.