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Concrete Contractors v. La Grange Park

OPINION FILED MAY 21, 1958.

CONCRETE CONTRACTORS' ASSOCIATION OF GREATER CHICAGO ET AL., APPELLEES,

v.

THE VILLAGE OF LA GRANGE PARK ET AL., APPELLANTS.



APPEAL from the Superior Court of Cook County; the Hon. A.L. MAROVITZ, Judge, presiding.

MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 18, 1958.

A decree of the superior court of Cook County held that certain ordinances of the villages of La Grange Park and Brookfield are invalid and enjoined their enforcement. The villages appeal. The trial judge has certified that the validity of municipal ordinances is involved and that in his opinion the public interest requires a direct appeal. Ill. Rev. Stat. 1957, chap. 110, par. 75.

The ordinances in question relate to the licensing of persons engaged in concrete construction work. The ordinance of La Grange Park provides: "No person, firm or corporation shall engage in the business of cement contractor or the construction or repair of cement work within the Village without first obtaining a license therefor." The Brookfield ordinance provides: "That no person, firm or corporation shall engage in the business commonly known as mason contracting or of constructing or repairing sidewalks in any public street or place in the Village without first having obtained a license therefor * * *." Despite the difference in the terms used to describe the licensed occupation, the parties agree that both ordinances apply to persons engaged in concrete construction work. The La Grange Park ordinance provides for a license of $25 and the Brookfield ordinance for a fee of $15.

The complaint attacking the ordinances was originally filed by the Concrete Contractors Association of Greater Chicago, a not-for-profit trade association with a membership of 300 concrete construction contractors. Subsequently five individual contractors engaged in business in the two villages and directly subject to the ordinances in question intervened as party plaintiffs. Their presence makes it unnecessary to consider the standing of the Association to maintain the action.

The case was tried upon a stipulation of facts. The work of the contractors consists of constructing concrete footings, foundations and flat work. Footings and foundations are the first component parts of a building and the concrete contractor is usually the first subcontractor at the site after the excavation is made. Floors and sidewalks are generally installed near the end of the building construction. Ninety per cent of the concrete used by the contractors is purchased by them from redi-mix concrete companies and delivered to the building site in company trucks. The purchaser of redi-mix concrete, whether a concrete contractor, builder or home owner, can, however, alter the combination of ingredients making up the redi-mix concrete. About eighty-five per cent of the business of the concrete contractors is done on subcontract. The villages require the general contractor or builder to take out all permits for new buildings, and before a permit is issued plans and specifications must be submitted to the building commissioner for approval. About fifteen per cent of the business of concrete contractors is done on direct contract with home owners for the replacement of deteriorated concrete or for the installation of new concrete work.

Both villages have enacted ordinances dealing with standards for the construction of buildings and sidewalks. The ordinances of both are substantially similar, and a description of the ordinances of Brookfield will suffice. They provide that all building materials and all debris, in street, lawn spaces or sidewalks adjacent to buildings, shall be removed by contractors or owners, and, upon their failure to do so, upon notice by the village police, the debris shall be removed by the village. All sidewalks in the village, unless otherwise provided in any special tax or special assessment ordinance, are to be constructed of Portland cement and conform to specifications prescribed in detail and all work is to be subject to approval and acceptance by the village engineer. All private driveways are required to be constructed of concrete from sidewalk to curb, according to detailed specifications.

The building ordinances prescribe a specified standard quality for Portland cement, standards for the quality of lime, mortar for masonry, concrete aggregates, and proportions of plain concrete. They also prescribe standards for reinforced concrete. Tests of the actual construction must satisfy the building commissioner.

In 1956 the village of Brookfield (with a population of 15,472 in 1950) issued 600 building permits and licensed 95 concrete and mason contractors. In the same year, the village of La Grange Park (with a population of 6,176 in 1950) issued 277 building permits and granted licenses to 93 concrete contractors. Expenses are necessarily incurred incident to the inspection and regulation of the cement and concrete construction work. Plaintiffs have not challenged the reasonableness of the amounts of the respective license fees.

The basic contention of the plaintiffs is that the power to license persons engaged in concrete construction work has not been delegated to municipalities. There is no express grant of authority which in terms authorizes cities and villages to license concrete contractors. For their authority the villages rely upon powers derived from the following provisions in article 23 of the Revised Cities and Villages Act: "To fix the amount, terms and manner of issuing and revoking licenses" (sec. 5); "To vacate, lay out, establish, open, alter, widen, extend, grade, pave, or otherwise improve streets, alleys, avenues, sidewalks, * * *" (sec. 8); "To regulate the use of the streets and other municipal property" (sec. 10); "To prescribe the strength and manner of constructing all buildings, structures and their accessories and of the construction of fire escapes thereon" (sec. 70); "To pass and enforce all necessary police ordinances" (sec. 105); "To pass all ordinances and make all rules and regulations, proper or necessary, to carry into effect the powers granted to municipalities, with such fines or penalties as may be deemed proper." (sec. 106). Section 1 of article 63 declares: "In addition to any other manner authorized by law, any municipality, by ordinance, may provide for the construction of sidewalks therein, along or upon any street or streets or part of streets therein." Ill. Rev. Stat. 1957, chap. 24, pars. 23-5, 23-8, 23-10, 23-70, 23-105, 23-106 and 63-1.

The fact that the villages have not been granted express power to license concrete contractors is not controlling if the General Assembly has expressly granted to the villages one or more powers, the efficient exercise of which requires that the business of the contractors be regulated. Authority for the enactment of an ordinance may be derived either from a single power or from two or more municipal powers in combination. Father Basil's Lodge, Inc. v. City of Chicago, 393 Ill. 246; City of Bloomington v. Wirrick, 381 Ill. 347; Arms v. City of Chicago, 314 Ill. 316; Consumers Co. v. City of Chicago, 313 Ill. 408; Gundling v. City of Chicago, 176 Ill. 340.

To determine whether defendant villages are impliedly authorized to license persons engaged in cement work, the licensing ordinances must be considered in conjunction with the powers which are expressly granted and are being lawfully exercised. If the licensing ordinances are reasonably necessary to effectuate the regulations prescribed by other valid ordinances dealing with the same subject matter, they may be sustained as regulatory measures. (See: Bauer v. City of Chicago, 321 Ill. 259.) The licensing provisions thus do not stand in isolation, but must be read together with the comprehensive regulatory ordinances dealing extensively with the composition of the concrete to be used in sidewalks, driveways and buildings. Plaintiffs do not question these regulatory provisions, which were adopted under express powers granted to establish and improve streets and sidewalks, (section 23-8) to regulate the use of streets, (section 23-10) and to prescribe the strength and manner of constructing all buildings, structures and their accessories (section 23-70).

Plaintiffs, it is stipulated, not only furnish concrete but also do concrete footing, foundation and flat work. Municipalities are empowered "To prescribe the thickness, strength, and manner of constructing all buildings." That power is essential to the protection of the public safety, and it offers protection as well against construction work of poor quality of which the owner or purchaser may be unaware. The building ordinances require the village officials to test the strength of foundations by standard tests particularly described in the ordinances. From the agreed facts it is also clear that the operation of the concrete contractors and their trucks may cause damage to the streets. Building material and debris are placed by contractors on streets, lawn spaces and sidewalks. The ordinances require the removal of this material.

The sidewalk and building ordinances of the two villages, which the licensing provisions supplement, contain numerous regulatory provisions; they are essentially regulatory in nature. The power to exact a license fee to defray all or a part of the cost of the regulation or inspection is implicit in the power to regulate. Larson v. City of Rockford, 371 Ill. 441; American Baking Co. v. City of Wilmington, 370 Ill. 400; City of Chicago v. R. & X. Restaurant ...


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