Fligelman v. City of Chicago

Appellants' petition for rehearing having been allowed the cause has been further considered. We adhere to the view expressed in the foregoing opinion that the city of Chicago in this case has power to regulate the business of selling gasoline and volatile oils and to license such business. In addition to the reasons given in the opinion, it may be observed that in 1919 the General Assembly passed an act entitled, "An act to regulate the storage, transportation, sale and use of gasoline and volatile oils," in force July 1, 1919. (Laws of 1919, p. 692.) This act provides that "except in cities or villages where regulatory ordinances upon the subject are in full force and effect the Department of Trade and Commerce shall have power to make and adopt reasonable rules and regulations governing the keeping, storage, transportation, sale or use of gasoline and volatile oils." This is more than a mere implication of power in the city to regulate the sale of gasoline. It is, in effect, a declaration of the General Assembly that such ordinances as had been enacted prior to the passage of the act and were then in force are to stand as a valid exercise of the power given by clause 65 of section I of article 5 of the Cities and Villages act. The power to regulate the business of selling gasoline rests in the legislature and it may grant or withhold it as it chooses. In Kizer v. City of Mattoon, 332 Ill. 545, this court held that power was conferred on the city of Mattoon by clause 65 of section I of article 5 of the Cities and Villages act to pass an ordinance regulating the sale of gasoline.

We have re-examined the abstract and adhere to the former holding that the license fee here imposed is not invalid as unreasonable or as bearing no reasonable relation to the additional burdens imposed upon the municipality by the business of operating gasoline filling stations but is justified by the necessary expense involved in police supervision, thus falling within the rule stated in the cases cited in the opinion on that point. The record shows that the business of handling and selling gasoline is attended with unusual hazards, and, while not a nuisance per se, is, by reason of the dangerous character of the substance handled, one requiring, in the interest of public safety and health, an unusual degree of regulation. Whether a thing not a nuisanceper se is a nuisance per accidens or in fact, depends upon its location and surroundings, the manner of its conduct, or other circumstances. (McPherson v. First Presbyterian Church,120 Okla. 40,248 P. 561.) The evidence in the record shows numerous instances where the regulatory forces of the city were engaged for extended periods of time in correcting damage done by the leakage of gasoline tanks, fires caused by the explosive and highly combustible nature of the ingredients handled and the necessity for health regulations arising out of the business. Chapter 41 of the Chicago municipal code, incorporated in the ordinance here attacked, contains extensive regulations necessitated by the dangerous character of gasoline and like volatile oils. These regulations impose a substantial service and expense in the protection of the public against those dangers. The evidence shows that inspections and corrections of defects are from time to time made by the health department, police department and bureau of fire prevention and safety. These unusual precautions are occasioned by the character of the ingredients handled in gasoline filling stations. The burden of regulating the sale of gasoline under this and the incorporated ordinance is not alone one of inspection but includes all burdens of protection arising from the nature of gasolines and volatile oils. It cannot be said, therefore, that the fees exacted do not bear a reasonable relation to the burdens of regulation.

Counsel in argument on rehearing do not agree as to the provision of section 288 concerning the number of inspections required. As set out in the pleadings, it provides at least two inspections per year. They likewise disagree concerning an item in the schedule of license fees provided in section 286, whether that item is $25 or $50. These sections of the ordinance are quoted in the opinion as they appear in the pleadings. They do not appear to have been offered in evidence before the master and this court is unable to determine who of counsel are correct. The determination of that dispute is not, however, vital to the decision of the case.

We are of the opinion that the ordinance is valid. The decree of the circuit court will therefore be affirmed.

Decree affirmed.

Mr. JUSTICE ORR, dissenting.