Herb Bros. v. City of Alton

Mr. Justice Cooke

delivered the opinion of the court:

Herb Bros, and eighteen other meat dealers of the city of Alton filed their bill of complaint in the circuit court of Madison county to enjoin the city of Alton, and the city attorney and the police magistrate thereof, from enforcing or attempting to enforce a certain ordinance requiring dealers in certain kinds of fresh meats to pay the city of Alton a license fee of $100 per year, and providing a penalty of not less than $5 nor more than $200 for each day that business should be conducted without a license. The bill alleges that on March 31, 1909, the city council purported to pass and publish an ordinance entitled “An ordinance in revision and consolidation of the general ordinances of the city of Alton;” that said purported ordinance consisted of thirty, chapters, divided into sections and paragraphs, and that one of the paragraphs was as follows : “Venders of fresh meat, excepting poultry, fish, venison and wild game, shall pay $100 per annum in advance, no license to be taken out for a less period than one year. All meats not smoked or cured shall be deemed fresh meats. This provision shall apply to all such venders, whether in shops, stands or from wagons.” The bill then alleges that said ordinance never became effective or in force because it was not passed by the city council, was not recorded in the ordinance book of the city, was not approved by the mayor and no original of the ordinance was deposited with the city clerk. The constitutionality of the paragraph above quoted is attacked on the grounds that it arbitrarily discriminates between citizens of the same class engaged in the same business, that it is oppressive, unjust and unequal, is in restraint of trade, is calculated to create a monopoly, and deprives dealers in fresh meats of property without due process of law. As reasons for appealing to a court of equity it is alleged that the city has instituted suits against fifteen of the complainants before the police magistrate of the city to collect the penalty prescribed by said ordinance for doing business without a license, and the city authorities have announced that other suits will be instituted,'and the complainants will be harassed by a multiplicity of suits brought by-the city under such pretended ordinance unless an injunction be issued restraining the bringing and prosecution of such suits. Upon the filing of the bill a temporary injunction was granted. Thereafter the city filed its answer and the cause was referred to the master to take the evidence. A hearing before the chancellor upon the evidence taken before the master resulted in the entry of a decree dissolving the temporary injunction and dismissing the bill for want of equity. The complainants have prosecuted this appeal from that decree.

The city offered in evidence an ordinance passed February 9, 1897, which contained a paragraph identical with that above quoted from the alleged ordinance of 1909. The ordinance of 1897 did not prescribe any penalty for doing business without obtaining a license. Whether or not the ordinance of 1909 wás properly passed is largely immaterial, as, with the exception of the penalty clause, it was practically identical with the ordinance of 1897, and if the purported ordinance of 1909 never became effective, the ordinance of 1897, containing the same provision, was then, and is now, in effect. We will therefore determine only the question of the validity of the provision above quoted.

Appellees rely upon clauses 50, 78 and. 98 of section 1 of article 5 of the Cities and Villages act as sustaining the validity of this provision. These clauses are as follows:

“Sec. 1. The'city council in cities, and the president and the board of trustees in villages, shall have the following powers: * * *

“Fiftieth—To regulate the sale of meats, poultry, fish, butter, cheese, lard, vegetables, and all other provisions, and to provide for place and manner of selling the same. * * *

"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-eighth—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 qne offense.”

It was shown that neither by the ordinance under consideration nor by any other ordinance did the city attempt in any way to regulate the sale of fresh meats, other than to provide for the payment of a license fee. It was also shown that the city does not make any inspection or regulation with reference to the handling of fresh meats, and that the license fees collected from venders of fresh meats are not used to defray the expense of investigating or regulating their business but are appropriated by the city for other municipal purposes.

A city possesses no inherent power to license any occupation or to require the payment of a tax for the privilege of engaging in the same. That power must be expressly granted in its charter or be a necessary incident to the powers so granted. (City of Chicago v. Drogasawazs, 256 Ill. 34.) The power given the city under said clause 50 for regulating the sale of meats necessarily confers also the power to license the sale of meats as one of the means of such regulation. (Kinsley v. City of Chicago, 124 Ill. 359; City of Chicago v. Drogasawacz, supra.) While this power to license is thus conferred, it may only be exercised in connection with other proper regulations of the business or occupation for which the license is issued. The city has no power to impose such a license fee solely for the purpose of raising revenue. In this case it is apparent that the sole purpose of the city of Alton in requiring the payment of a license fee was to raise revenue. It made no pretense whatever to regulate the manner in which' those engaged in selling fresh meats should conduct their business. While it is true we said in Kinsley v. City of Chicago, supra, that we had not adopted the narrow rule of construction laid down in Cooley on Taxation j that in cases of this kind while a license fee may be exacted it must be only such a fee as will legitimately assist in the regulation of the business and .should not exceed the necessary or probable expense of issuing the license and of inspecting and regulating the business which it covers but that the fee might be in part for revenue, we have never gone to the extent of holding that such an ordinance may be passed solely for the purpose of raising revenue. The ordinance cannot be sustained upon the theory that it tends to promote health or suppress disease. The only requirement made of the vender of fresh meats is that he pay the license fee. The ordinance is silent as to the quality' or whole1 someness of meats to be sold or as to the sanitary condition of the place in which the business is conducted. No provision is made for inspection. The theory upon which it has been held that the power to regulate confers the power to license in such cases is, that, it is eminently proper that the business regulated should bear the expense of inspection and enforcement of regulation, and that the city authorities might have power to enforce regulation by revoking the license on the failure of the licensee to comply with the requirements imposed. In this case anyone might engage in the business of vending fresh meats by payment of the license fee, and continue such business without restriction or fear of interruption so long as he did not violate any of the general laws of the State or city. As the ordinance is purely a revenue measure and makes no attempt whatever to regulate the business of vending fresh meats it is invalid.

The decree of the- circuit court is reversed and the cause is remanded, with directions to enter a deeree in conformity with the prayer of the bill.

Reversed and remanded, with directions.