Appeal from the Circuit Court of Cook county; the Hon. HARRY
M. FISHER, Judge, presiding. Reversed and remanded with
JUDGE MCCORMICK DELIVERED THE OPINION OF THE COURT.
A petition was filed February 25, 1954 by eighteen relators for a writ of mandamus to compel William P. Flynn, Public Vehicle License Commissioner of the city of Chicago, to issue certain taxicab licenses to them. Answer was filed by Flynn and the writ was ordered to issue. Thereafter the order was vacated, and the Yellow Cab Company and the Checker Taxi Company, Inc. (hereafter referred to as intervenors) were given leave to intervene. They filed intervening petitions, and the plaintiffs filed an answer thereto. The intervenors made a motion for summary judgment. The court sustained the motion and dismissed the petition for mandamus, from which ruling of the court this appeal is taken.
The original petition for mandamus alleged, among other things, that pursuant to and by virtue of certain sections of article 23 of the Cities and Villages Act (Ill. Rev. Stat. 1953, chap. 24) an ordinance was passed by the council of the city of Chicago December 20, 1951, as amended, which became effective January 1, 1952 (chap. 28, Municipal Code of Chicago); that under such ordinance it was the duty of William P. Flynn, Public Vehicle License Commissioner, to ascertain the fitness of applicants for license and the fitness of their motor vehicle to be operated as taxicabs, and his further duty to issue licenses to those applicants found fit not in excess of 3,761; that the plaintiffs had filed applications for licenses and in all other respects had complied with the requirements of the said ordinance; that the defendant Flynn had conducted an investigation as to the character and reputation of the plaintiffs as required by the ordinance and had found them fit to pursue the occupation of cab driver; that subsequent to January 30, 1952 there were 3,761 licenses issued and in use; that at the time of the filing of the present petition the number of licenses issued and in use had been reduced by death or other causes to 3,742; that there were 19 existing and unissued licenses and it was the duty of the defendant Flynn under the provisions of said ordinance to issue 18 of the said licenses to the plaintiffs; that he had failed and refused to issue such licenses after being duly served with notice and demand.
To the petition Flynn filed an answer, in which as a defense he set up that under the ordinance it was not mandatory upon him to issue such licenses up to 3,761 to applicants even though they had been ascertained to be qualified.
Plaintiffs filed a motion for judgment on the pleadings and on August 4, 1954 the trial court entered a judgment order in favor of the plaintiffs for a writ of mandamus, which order directed the defendant Flynn to forthwith issue public passenger vehicle licenses to each and all of the plaintiffs. On the same day a writ of mandamus was served on the defendant Flynn.
On August 24, 1954 a petition of the Yellow Cab Company for leave to intervene was filed. The petition in substance alleged that on February 25, 1946 a decree was entered in case No. 46 C 943 forever enjoining and restraining the city of Chicago from issuing more than 3,000 public passenger vehicle licenses except in accordance with the terms of the decree; that the decree provided that the city of Chicago be restrained from issuing licenses in excess of 3,000 without first holding hearings with respect to the public convenience and necessity therefor and without first affording plaintiffs therein (intervenors here) an opportunity to apply for and obtain such licenses to the number provided for by an ordinance adopted December 22, 1937.
On September 20, 1954 an order was entered granting Checker Taxi Company, Inc. leave to intervene. The allegations contained in its petition were substantially the same as those contained in the petition of the Yellow Cab Company. On September 27, 1954 Flynn filed motions to strike the petitions filed by the said intervenors. Similar motions were filed by the plaintiffs. These motions alleged in substance that the petitions to intervene should be denied for the reason that the injunction decree relied on by the intervenors was based on a contract ordinance passed by the city council on December 22, 1937, as amended; that the said contract ordinance expired on December 31, 1951; that the injunction decree neither enlarged nor created rights beyond those granted in the said contract ordinance; and that therefore the petitioners had no interest in the subject matter of the action now before the court.
On January 19, 1956 the motions were overruled and the intervening petitions were permitted to stand as answers to plaintiffs' petition for a writ of mandamus. The plaintiffs by leave of court filed replies to the aforesaid petitions of the intervenors, in which, among other things, they realleged the authority of the city of Chicago to issue the licenses in question under the then controlling taxicab ordinance and denied that the intervenors had any property interests in the subject matter of the action. No reply was filed by Flynn.
On February 26, 1956 the intervenors filed a motion for summary judgment, in which they alleged that under the provisions of chapter 28 of the Municipal Code of Chicago the Public Vehicle License Commissioner, while restricted to the issuance of not more than 3,761 public passenger vehicle licenses, is under the obligation only to issue licenses in renewal of valid outstanding licenses for the preceding year, and is not required and has no authority to issue any licenses to applicants who were not prior thereto the holders of valid unrevoked licenses. The substance of the decree for injunction issued in the Circuit Court of Cook county in 1946 is set out, and it is alleged that under such decree the city of Chicago and the Public Vehicle License Commissioner are prohibited from issuing any licenses in excess of 3,000 without first holding hearings with respect to the public convenience and necessity therefor and without first affording the intervenors the opportunity to apply for and obtain such licenses to the number thereof provided for in the ordinance passed by the city council on December 22, 1937; that the said decree had been affirmed by the Supreme Court of Illinois in Yellow Cab Co. v. City of Chicago, 396 Ill. 388, and that the said decree is now in full force and effect. The substance of the ordinance of December 22, 1937 is set out, and it is alleged that no opportunity has been given the intervenors to apply for and receive additional licenses up to the number provided for in the said ordinance; that since the plaintiffs in this case seek the issuance of a writ of mandamus to require the Public Vehicle License Commissioner to issue 18 licenses to them and such licenses would be in excess of the total number of 3,000 public passenger vehicle licenses and as such are licenses to which the intervenors have a prior right, the plaintiffs therefore have no right in law to the issuance of such licenses to them; and that the issuance of such licenses would be in violation of the injunction decree and the contract between the city of Chicago and the intervenors.
On February 24, 1956 the court entered an order that the plaintiffs take nothing by their suit and the defendants go hence without day. The trial judge made no written findings, but at the time he entered the order he made an oral statement which appears in the record, and in which he based his decision upon the existence of the injunction issued in 1946 and upon the theory that under the 1937 ordinance the city had no power to issue any additional licenses until it had restored the licenses surrendered by the intervenors at that time. The plaintiffs take this appeal from such order. Flynn filed no briefs, nor did he take any part in the appeal.
In the judgment order for the writ of mandamus entered by the trial court on August 4, 1954 the court found, among other things, that the plaintiffs had filed applications in the office of the Public Vehicle License Commissioner for public passenger vehicle licenses for the operation of taxicabs in the city of Chicago and had done all other things necessary and according to law as to said applications in compliance with chapter 28 of the Municipal Code of Chicago; that the corporate authorities of the city of Chicago have lawfully created 3,761 public passenger vehicle licenses by reason of public necessity; that due to surrender, failure to renew and other reasons there are presently 3,742 issued licenses and that there are presently 19 existing and unissued licenses; that the Public Vehicle License Commissioner has investigated the plaintiffs to this action and their vehicles in compliance with the city ordinance and has found that the plaintiffs were qualified and fit to pursue the occupation of cabmen and that their vehicles for which licenses were applied were of safe and proper condition as provided for by the said ordinance; and that thereupon it became and was the duty of the said Public Vehicle License Commissioner to forthwith issue to them the licenses for which they applied.
The only issues raised by the answers of the intervenors to the original petition for the writ of mandamus and by the reply filed by the plaintiffs to such answers, was the question of the effect of the contract ordinance of 1937 and the 1946 injunction decree of the Circuit Court. These issues were the only ones before the trial court which could in any way affect its findings in the original order for a writ of mandamus. In order to dismiss the petition for mandamus the trial court must have found, and did find, (1) that the injunction decree of the Circuit Court prohibiting the issuance of any licenses in excess of 3,000 was in full force and effect at the time the instant case was before it, and (2) that the 1937 ordinance was still in full force and effect and that under the provisions thereof the Public Vehicle License Commissioner could issue no licenses in excess of 3,000 except upon public hearings with reference to the public necessity and convenience therefor and a recognition of the prior right of the intervenors to apply for such licenses as they had surrendered at the time of their acceptance of the 1937 ordinance.
For greater convenience in following the subsequent discussion we set forth a chronological table of various enactments and proceedings with reference to ...