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Thillens, Inc. v. Morey

OPINION FILED MAY 23, 1957.

THILLENS, INC., APPELLEE,

v.

LLOYD MOREY, AUDITOR OF PUBLIC ACCOUNTS, ET AL., APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM J. TUOHY, Judge, presiding.

MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 19, 1957.

The Auditor and Attorney General of the State of Illinois together with the State's Attorney of Cook County, and certain currency exchanges as intervening defendants, have appealed directly to this court from a declaratory judgment of the circuit court of Cook County adjudging that the 1951 amendment to the Community Currency Exchange Act of 1943 (Ill. Rev. Stat. 1951, chap. 16 1/2, pars. 30 et seq.) is invalid and unconstitutional as applied to plaintiff's business because it has no proper foundation in the police power of the State.

The constitutionality and validity of a State statute being the principal issue, the appeal properly comes direct to this court.

Plaintiff's complaint prayed a declaratory judgment declaring the 1951 amendment to the Community Currency Exchange Act void and unconstitutional and that the defendant public officials and the individual defendant currency exchanges, as representative of all other currency exchanges, be enjoined from exercising any of the rights, powers or duties conferred upon them respecting the enforcement of the amended act.

The 1951 amendatory act amended the title of the original Community Currency Exchange Act to read: "An Act in relation to the definition, licensing and regulation of Community Currency Exchanges and ambulatory currency exchanges, and the operators and employees thereof, and to make an appropriation therefor, and to provide penalties and remedies for violation thereof."

Section .01 of the amendatory act contains a finding and declaration by the General Assembly in reference to ambulatory currency exchanges as follows: "* * * that there has arisen also the ambulatory currency exchange business, as hereinafter defined in Section I, which has engaged heretofore in unlicensed competition with the licensed community currency exchange business; that it is in the public interest to promote and foster the community currency exchange business and to assure the financial stability thereof; that the operations of the ambulatory currency exchange business have enabled it to appropriate the most profitable function of the community currency exchange business without incurring the expenses of, or subjecting itself to the regulations imposed upon the community currency exchange business, and to secure thereby an unfair advantage; that there has resulted therefrom an unfair and ruinous competition to the licensed community currency exchange business; that the nature of the ambulatory currency exchange business is such as to render it hazardous and dangerous to the public safety and security; that the public welfare demands that no ambulatory currency exchange business should be operated without a license, or otherwise than in accordance with the regulations provided in, or to be provided pursuant to this Act." Ill. Rev. Stat. 1951, chap. 16 1/2, par. 30.

Section 1 of the amendatory act defines a community currency exchange as being "any person * * * engaged at a fixed and permanent place of business, in the business or service of, and providing facilities for, cashing checks," and defines an ambulatory currency exchange as being "any person * * * engaged in performing any one or more of the foregoing services, at any location other than that of a fixed and permanent place of business of his, their or its own." Section 1 also exempts from the operation of the act any party engaged primarily in a business of transporting for hire bullion, currency, securities, negotiable or non-negotiable articles, jewels or other property of great monetary value, and who, in the course of such business, and only as an incident thereto, cashes checks or other evidences of money directly for, or for the employees of and with the firms of and at a cost only to, the person or firm for whom the party is then actually transporting said property pursuant to a written contract for such transportation, and all incidents thereto. It also exempts any party engaged in the business of selling tangible personal property at retail who, in the course of such business, and only as an incident thereof, cashes checks or other evidences of money.

Section 2 of the amendatory act provides that no community currency exchanges or ambulatory currency exchange can engage in business without a license from the Auditor of Public Accounts; that no license shall issue for the conduct of an ambulatory currency exchange on any public street or highway; that an ambulatory currency exchange shall secure a license for the conduct of its business at each and every location served by it as provided in section 4; and that violators of said section shall suffer prescribed penalties.

Section 3 of the act provides what operations a community or ambulatory currency exchange may or may not engage in.

Section 4 provides for written applications for licenses and certain information relative to the applicant's history; that applications for both types of exchanges for a license shall be accompanied by an investigation fee of $25 for the cost of investigating the application; that an annual license fee of $50 shall be paid by a community currency exchange; that an ambulatory currency exchange shall pay an annual license fee of $10 for each and every location served by it; that an approved applicant shall not be required to pay the initial investigation fee of $25 more than once; and that with respect to each location the applicant shall file with the Auditor a letter or memorandum under oath signed by the owners or authorized representative of the place of business where service is to be rendered, containing a statement that such service is desired and that the person signing is authorized so to do.

Section 10 specifies certain qualifying conditions precedent to the issuance of a license and provides that no application shall be denied by the Auditor without notice and hearing and the right of review in accordance with section 22.01 of the act.

Section 14 provides for the payment of annual license fees and the filing of annual license bonds, reports and insurance policies as and if required by ...


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