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Du Bois v. Gibbons

OPINION FILED MARCH 17, 1954.

REGINALD DU BOIS, APPELLANT,

v.

REDMOND P. GIBBONS, APPELLEE. — C. ARTHUR CARLSON, APPELLEE,

v.

THE CITY OF CHICAGO ET AL., APPELLANTS.



APPEAL from the Superior Court of Cook County; the Hon. W.R. O'MALLEY, Judge, presiding.

MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:

This is a direct appeal from a judgment and a decree entered in the superior court of Cook County in separate actions begun in that court but consolidated by order of the trial court at the time of the entry of final judgment and decree in each case. Both actions involve the activities of the emergency committee on crime of the city council of the city of Chicago. The appeal is brought directly to this court because the constitutionality of a statute and an ordinance are in question. The questioned statute is section 23-111 of the Revised Cities and Villages Act. (Ill. Rev. Stat. 1953, chap. 24, par. 23-111.) The challenged ordinance created the emergency committee on crime of the city council of the city of Chicago. It was passed on February 14, 1952. The issues in both cases arise upon the pleadings. Final judgment and decree were entered in the superior court after motions to dismiss were sustained in one case and overruled in the other.

On February 13, 1953, Reginald Du Bois, as a member of the city council of the city of Chicago and chairman of the emergency committee on crime of that body, filed his complaint in the court below seeking to compel the defendant, Redmond P. Gibbons, to answer certain questions put to him by the committee concerning his income and property. The complaint alleges in substance that the ordinance was passed pursuant to the authority of section 23-111 of the Revised Cities and Villages Act; that the membership of the committee was established by council resolution, and that Du Bois, a duly elected and qualified member of the council, is the duly appointed chairman; that the committee had begun certain investigations and had heard oral testimony at hearings in connection therewith; that the investigation then being conducted was an investigation of the Chicago police department and particularly of its Thirty-sixth police district, commanded by the defendant as captain from September, 1949, to May 13, 1952; that the hearings had developed that there were certain criminal activities in the district during the incumbency of the defendant, including gambling, prostitution and tavern violations which were open and notorious; that the testimony had indicated that the captain of the district was controlled by persons who in turn controlled these illegal activities; that persons engaged in these activities were friendly with the police and that the activities apparently were permitted except when supervisory officers of the police department visited the district. The complaint further alleges that the defendant had been examined under oath at a public hearing before the committee; that after denying that he knew certain persons previously connected with illegal activities in the district, defendant further denied that he had received money from these persons or certain of them; that he denied having "received anything of any kind from anybody;" that he was then asked the question: "Starting with the year 1948 and running through to the end of 1952, did you have any income in excess of your salary from any source?"; that defendant refused to answer, stating: "Mr. Rathbun, any questions concerning my privacy I will discuss with you in private. I will gladly discuss it with you in private and if there is anything that is the least bit wrong, I want you to call it to the attention of the commissioner of police but I want my rights to my privacy respected and I don't think I have to discuss my private affairs here in an open meeting." The complaint further alleges that the defendant then refused to answer in a private or executive session of the committee; that the testimony developed constitutes probable cause for inquiry into defendant's financial affairs while captain; that the questions were relevant and necessary and that the committee had authorized the commencement of the suit.

Defendant Gibbons filed a motion to dismiss. It asserts that the statute is unconstitutional because it is special legislation in violation of section 22 of article IV of the Illinois constitution; that in providing for unlimited hearings it subjects citizens' rights to unlimited discretion; that in delegating judicial powers it violates article VI of the State constitution and that the General Assembly cannot delegate the powers enumerated to a single municipal corporation. The motion challenges the validity of the ordinance because it is not within the power delegated by the General Assembly, either expressly or impliedly; because it subjects citizens' rights to unlimited discretion and because it is vague and indefinite, purports to authorize the exercise of power inherent in the State, purports to delegate judicial powers, authorizes impertinent and irrelevant inquiries and authorizes the exercise of powers not possessed by the State or Nation. The trial court sustained the motion to dismiss whereupon plaintiff elected to stand upon the complaint and final judgment was entered against him.

In the other case, plaintiff, C. Arthur Carlson, filed a complaint as a taxpayer against the city of Chicago and the officers and officials named, asserting the unconstitutionality of the statute and ordinance in question and seeking to restrain them from incurring any further expense in connection with the investigations; to enjoin the comptroller from approving the committee's bills; to enjoin him from signing checks on the city treasury and to enjoin the treasurer from honoring checks for committee expense. The defendants filed a motion to dismiss, asserting the constitutionality of the statute and ordinance and that the facts alleged show that the authorities were engaged in an investigation authorized by the enactments of the General Assembly and the city council. The court overruled the motion to dismiss and the defendants then elected to stand upon their motion. The court signed a decree enjoining the further expenditure of money by the emergency committee on crime. Recognizing that the issues in both cases were the same, the trial court ordered the cases consolidated at the time of entry of the final judgment and decree in each case. The propriety of the order of consolidation is not questioned.

The section of the Revised Cities and Villages Act involved in this appeal was enacted by the Sixty-seventh General Assembly and was approved July 2, 1951. It provides in substance that the corporate authorities in municipalities of more than 500,000 population shall have the power to investigate the enforcement of the municipal ordinances, rules and regulations, and the action, conduct and efficiency of all officers, agents and employees of the municipality. In conducting investigations, the authorities are empowered to hold public hearings, to administer oaths and to issue subpoenas to secure the attendance and testimony of witnesses and the production of books and papers relevant to such investigations or to any hearing before such authorities. The act further gives the circuit court or the superior court, upon application of the corporate authorities, power to compel the attendance of witnesses, the production of books and papers and the giving of testimony by attachment for contempt. Appellees successfully contended in the superior court that this statute is unconstitutional and void because it is a special or local law granting a special or exclusive privilege, immunity or franchise, applying only to the city of Chicago, in violation of section 22 of article IV of the constitution of the State of Illinois. That is the principal argument advanced against the constitutionality of the statute here.

Both sides to this appeal have cited extensively decisions of this court in which legislative classification by population has been sustained and denied, but the only conclusion to be drawn is that this court will uphold the classification when it is reasonable and will refuse to give it effect where clearly unreasonable or arbitrary. Each case and each statute must be separately considered and the problem must be resolved by the application of certain time-tested principles to the particular situation. These rules have been stated so often by this court that their reiteration here would appear to be unnecessary. Beginning with the premise that classification is primarily a legislative function with which there should be no judicial interference except to determine whether the legislative action is clearly unreasonable, the rule is finally deduced that a legislative classification based upon population will be sustained where founded on a rational difference of situation or condition existing in the persons or objects upon which it rests and there is a reasonable basis for the classification in view of the objects and purposes to be accomplished. (Gaca v. City of Chicago, 411 Ill. 146; Hansen v. Raleigh, 391 Ill. 536; People ex rel. Johnson v. DeKalb and Great Western Railroad Co. 256 Ill. 290; Chicago Terminal Transfer Railroad Co. v. Greer, 223 Ill. 104; People ex rel. Hatfield v. Grover, 258 Ill. 124; Douglas v. People ex rel. Ruddy, 225 Ill. 536.) Legislation is not special or local merely because it may operate only in a single place where the condition necessary to its operation exists or because, at the time of its enactment, it can be applied only to one city in the State. (People v. City of Chicago, 349 Ill. 304; Mathews v. City of Chicago, 342 Ill. 120; People ex rel. Carr v. Kesner, 321 Ill. 230.) There is always a presumption that the General Assembly and its committees acted conscientiously and did their duty in making a survey of the conditions prevailing in the municipalities of the State before enacting the classification legislation and the result will never be nullified by this court on the ground that its judgment might differ from that of the General Assembly. Only if it can be said that the classification is clearly unreasonable and palpably arbitrary will the courts act to hold the classifying enactment invalid. (Gaca v. City of Chicago, 411 Ill. 146.) It must appear that there is no fair reason for the law which would not require with equal force its extension to other cities of smaller population which are not affected before we should be warranted in interfering with legislative judgment. Hansen v. Raleigh, 391 Ill. 536.

The plain objective of the statute under consideration is to empower the corporate authorities in cities of over 500,000 population to secure information through the investigation of the enforcement of ordinances, rules and regulations and the investigation of the action, conduct and efficiency of the officers, agents and employees of the municipality. It is said that the object of the statute is law enforcement and that this objective is common to all municipalities since it is presumed that all ordinances passed by every city council should be enforced. But this line of argument, we believe, overlooks the true nature and purpose of the statute which is to enable corporate authorities in the cities affected to obtain information through investigation to help determine the possible need for legislative changes and provide a guide for future legislative action, whether by way of new legislation, amendment or repeal. With this objective in mind, was the legislature unreasonable and arbitrary in limiting the availability of the investigatory and subpoena power to corporate authorities in cities of over 500,000 population? Is there a rational difference of situation between aldermen in a city the size of Chicago and those of the smaller municipalities of the State so far as their ability to obtain information is concerned?

Before answering these questions, some facts of which this court takes judicial notice should be stated. The city of Chicago is presently the only city in the State large enough to fall within the challenged classification. In 1950, it had a population of 3,620,952. This population is 32 times as large as that of the city of Peoria, the State's second largest city, which had a population of 111,856 according to the last census. Rockford, with a population of 92,927, ranks third in population. In area the city of Chicago covers 208 square miles as compared to 14 square miles each for Peoria and Rockford. In 1952, Chicago had an average total number of employees of 29,091 of which 7527 were policemen. Comparative figures for Peoria show 740 and 146, and for Rockford 553 and 97. The city council of the city of Chicago is composed of fifty aldermen elected by wards. The populations of the various wards range from 52,936 to 108,761. Only 14 municipalities of the State have populations from 52,936 to 108,761. From each of these wards an alderman is elected and these 50 elected aldermen constitute the city council and exercise the corporate authority of the city. Ill. Rev. Stat. 1953, chap. 24, par. 1-2(2)(a).

An alderman must necessarily obtain information required in his official position either by personal observation or by reports based upon the observation of others. The difficulty of obtaining reliable information by either method is much greater in a large city like Chicago than in smaller municipalities. The alderman in the smaller municipality, living in close contact with the citizens and officers of his community, many of whom are personally known, has an opportunity to observe for himself their conduct and activities. He can get much of the information needed for the intelligent discharge of his duties at first hand. The alderman in a city such as Chicago must find it practically impossible to secure reliable first-hand information if for no other reason than that most of the people he sees are unknown to him. It may be a physical impossibility for a Chicago alderman to visit and observe even a small portion of the city frequently, yet he is required to act upon problems and pass upon legislation affecting not only the residents of his own ward but over three and a half million people residing in a territory covering 208 square miles. Even where reported information is concerned, the aldermen of small cities have a distinct advantage because of their opportunity to know and evaluate their sources of information to a degree not enjoyed by the members of the city council of Chicago. We must presume that the General Assembly was aware of this situation when it provided the city council of the city of Chicago with an effective means for securing and evaluating that information necessary to a proper performance of its duties. There is a rational difference of situation between aldermen in the city of Chicago and those of the smaller municipalities so far as their ability and means to secure information is concerned.

With this difference of situation in mind, is the classification of the statute arbitrary and unreasonable in view of the fact that its object is to facilitate the securing of necessary information? We believe not. This court has frequently held that differences in the size of municipalities may raise special or unique problems in connection with many activities which justify classification including indemnification of policemen, (Gaca v. City of Chicago, 411 Ill. 146;) minimum wages for policemen and firemen, (Littell v. City of Peoria, 374 Ill. 344; People ex rel. Moshier v. City of Springfield, 370 Ill. 541;) local transportation, (People v. City of Chicago, 349 Ill. 304;) bond issues in anticipation of taxes, (Mathews v. City of Chicago, 342 Ill. 120;) special assessment tax administration, (People v. Kesner, 321 Ill. 230;) banking, (People v. Adams State Bank, 272 Ill. 277;) civil-service pension funds, (Hughes v. Traeger, 264 Ill. 612;) financial requirements, (People v. DeKalb and Great Western Railroad Co. 256 Ill. 290;) plumbing, (Douglas v. People, 225 Ill. 536;) administration of justice, (Chicago Terminal Transfer Railroad Co. v. Greer, 223 Ill. 104; People ex rel. Henderson v. Onahan, 170 Ill. 449.) Reasons as compelling as those in the cases cited support the classification under the present statute. The very size of a city like Chicago produces that kind of crime which is difficult to uncover in determining whether legislation is needed and whether the various departments are functioning honestly and efficiently. This court recognized the peculiar situation of Chicago with reference to crime in Gaca v. City of Chicago, 411 Ill. 146, 154, 155: "Preliminary to the passage of the present legislation it must be presumed that some committee of the legislature made a conscientious study and survey of conditions in Chicago to find out if this legislation was warranted. This investigation would doubtless reveal congestion in travel, both pedestrian and vehicular, causing an uncommon number of automobile accidents; blight and slum areas; areas of unassimilated foreign elements where crimes are bred and protection is offered fleeing criminals; skid rows where poverty, crime and general disrespect for law abounds; narcotic rings, hoodlums, gangsters, and racketeers that kill with sawed-off shotguns, all of which pose problems on Chicago that are not found in other parts of Illinois." We cannot say that the General Assembly, presumably aware of the situation with regard to organized crime in the city of Chicago, acted unreasonably in affording the corporate authorities there a special means, by investigation and subpoena, of securing information to determine whether and how the situation could be met by legislation or otherwise. In view of the rational difference in situation and the objects of the statute, we cannot say that the classification is unreasonable or that there is no fair reason for not extending the particular facilities provided by the act to the much smaller cities of the State.

Though appellees did not raise the question in the superior court, the trial judge decided that the act in question here was "destroyed and voided" by the passage of a later act at the same session of the legislature which was given the same section number. It appears that the statute under consideration was introduced as House Bill No. 695. (Laws of 1951, p. 927.) It was entitled "An Act to Amend Section 23-1 of the `Revised Cities and Villages Act,' approved August 15, 1941, as amended, and to add Section 23-111 thereto." By its terms it provided that section 23-1 be amended to provide that corporate authorities have the powers enumerated in sections 23-2 to 23-111, inclusive. It further provided for the investigative powers in cities of over 500,000 population by adding section 23-111. The act was passed on June 13, 1951, and approved on July 2, 1951. At the same session of the General Assembly a statute giving municipal authorities the power to enact a municipal retailers' occupation tax was introduced as Senate Bill No. 731. (Laws of 1951, p. 2017.) This bill was entitled "An Act to amend Sections 23-1 and 23-106 of the `Revised Cities and Villages Act,' approved August 15, 1941, as amended, to add Section 23-111 thereto and repeal Section 23-54.1 thereof." By its terms it amended section 23-1 to provide that corporate authorities should have the powers enumerated in sections 23-2 to 23-111, inclusive. It added section 23-111 providing for the municipal retailers' occupation tax. It repealed section 23-54.1 which was a 1947 act relating to a municipal sales tax. Senate Bill No. 731 was passed on June 30, 1951, and approved on August 3, 1951. The trial court concluded that since at the same legislative session two acts were adopted each amending the Revised Cities and Villages Act by adding section 23-111, and since the subject matter of the bills was foreign to each other and entirely unrelated so that they could not be reconciled, Senate Bill No. 731 had voided House Bill No. 695 because passed and approved at later dates. The effect of the decision of the trial judge is to hold that the act passed later at the same session repealed the earlier act by implication because it carried the same section number.

Repeals by implication are never favored and it is only where there is a clear repugnance between the two acts and the provisions of both cannot be carried into effect that the later law must prevail. The intention of the legislature to repeal must be clear and manifest. For a later statute to operate as a repeal by implication of an earlier one, there must be such manifest and total repugnance that the two cannot stand together. If two statutes are capable of being construed so that both may stand, it is the duty of the court so to construe them. (People v. Holderfield, 393 Ill. 138, and cases cited.) A careful examination of Senate Bill No. 731 shows that it is very explicit as to what it is intended to amend, repeal or add. There is certainly no expressed intention to repeal House Bill No. 695. Such an intention is negated by the express provisions in its title. It is the duty of this court to ascertain the intention of the legislature and to give it effect if possible. Here the acts, both additive in nature, deal with entirely different and wholly unrelated subject matter. The decisions of this court relied upon by the trial judge are clearly distinguishable. In each case there was found to be a repeal by implication because two or more acts sought to deal with the same subject matter. Thus, in People ex rel. Christensen v. Board of Education, 393 Ill. 345, there were two acts which provided different methods, each based upon population ratios, for determining the makeup of the board of education of a school district. In People ex rel. Hines v. Baltimore and Ohio Southwestern Railroad Co. 366 Ill. 318, each of ...


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