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Gadlin v. Auditor of Public Accounts





APPEAL from the Superior Court of Cook County; the Hon. JAMES J. McDERMOTT, Judge, presiding.


This suit was instituted in the superior court of Cook County by Samuel Gadlin, doing business as Gadlin's Currency Exchange, against the Auditor of Public Accounts of the State of Illinois, seeking judicial review of an administrative decision of the Auditor denying the plaintiff a license to operate a currency exchange at a specific location in the city of Chicago. Erie Currency Exchange, Inc., and others were, upon their petition, given leave to appear as intervenor defendants. The superior court rendered judgment affirming the order of the Auditor and the appeal therefrom was taken directly to this court under the provisions of the Currency Exchange Act and because the constitutionality of a section of that statute is involved.

Plaintiff filed an application for a license to operate a currency exchange at 340 West Chicago Avenue, Chicago, and satisfied all requirements of the Currency Exchange Act, (Ill. Rev. Stat. 1951, chap. 16 1/2, par. 34.1 et seq.,) except section 4.1 thereof which was added in 1945 and amended in 1951. Section 4.1, as amended, provides as follows:

"Upon receipt of an application for a license for a community currency exchange, the Auditor shall investigate the need of the community for the establishment of a community currency exchange at the location specified in the application.

"`Community,' as used in this Act, means a locality where there may be or can be available to the people thereof the services of a community currency exchange reasonably accessible to them. If the issuance of a license to engage in the community currency exchange business at the location specified, will not promote the convenience and advantage of the community in which the business of the applicant is proposed to be conducted, then the application shall be denied."

Plaintiff urges that section 4.1 is unconstitutional on the grounds that it is an unreasonable exercise of the police power, that it contravenes the due process clauses of the Federal and State constitutions, that it violates the separation and distribution of governmental powers and the provisions of articles II, IV, V and VI of the Illinois constitution, since it is an unwarranted delegation of legislative and judicial authority to an administrative agency, and that it violates section 22 of article IV of the Illinois constitution as an attempt by the General Assembly to grant special privileges and franchises to individual corporations.

Since this is a judicial review under the Administrative Review Act, no evidence was taken by the trial court. The complaint waived the filing of a transcript of the evidence taken before the hearing officer, and, at the request of plaintiff defendant included the findings and decision of the Auditor in his answer. The plaintiff does not contend that such findings were contrary to the evidence and they stand admitted for the purpose of this appeal.

Briefly, the facts are as follows: The location sought to be licensed is less than a mile north and two blocks west of the northwest corner of Chicago's loop; it is largely an industrial area containing many large manufactories and warehouses; a substantial number of the businesses pay their employees by cash or furnish check-cashing facilities by armored truck or otherwise; the area contains many old rundown residential properties some of which are vacant and others have been razed; there are five licensed currency exchanges, a U.S. post office and a national bank located within one-fourth mile of the proposed location, one of which exchanges is within one-half block and another is operating at a loss because of a depreciating volume of business; within one-half mile there are fourteen currency exchanges operating; and an exchange formerly in business at the same location closed in 1950 because its operation was unprofitable.

Various private persons, some of whom resided or were employed within one-fourth mile, testified that they made use of facilities similar to those applied for, that they found the existing exchanges convenient and accessible and that they had no difficulty in obtaining currency exchange services.

It is not contended, nor does it appear, that the following findings of the Auditor were arbitrary or unreasonable: that there exist in the area reasonably accessible currency exchanges; and that there presently exists no need for an exchange at the proposed location. The sole and only question therefore, is whether section 4.1 of the Act is constitutional.

The first contention of the plaintiff is that section 4.1 of the Currency Exchange Act is an improper and unreasonable exercise of the police power by the legislature. The right of the legislature to regulate currency exchanges has been passed upon by the court in the case of McDougall v. Lueder, 389 Ill. 141. The precise question raised here was not there involved since section 4.1 was subsequently added to that act.

The provisions of the entire act must be read together to determine whether the section in question will promote, or bears substantial relation to, the public health, safety, morals and common welfare. Section .01 dealing with the community currency exchange business, reads in part, "The General Assembly has found and declares * * * that it is affected with a public interest and should be licensed and regulated as a business affecting the convenience, general welfare, and economic interest of the people of this State; * * * that the number of community currency exchanges should be limited in accordance with the needs of the communities they are to serve, and in accordance with the provisions of this Act; * * *." Other sections of the act provide for a hearing, judicial review and the right of appeal.

Plaintiff stresses the rather narrow view that section 4.1 presupposes that where a community is served adequately any additional exchanges cannot add to its convenience and advantage and that if additional ones cannot add to convenience and advantage of a community already adequately served, they are automatically injurious to the public to a degree sufficient to warrant their exclusion by legislative mandate. Section 4.1 does not prohibit private individuals from establishing and operating a currency exchange business not detrimental to the public, but ...

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