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Kewanee v. Riverside Industrial Materials Co.

MAY 6, 1959.

CITY OF KEWANEE, ILLINOIS, A MUNICIPAL CORPORATION, PLAINTIFF-APPELLANT,

v.

RIVERSIDE INDUSTRIAL MATERIALS CO. OF ILLINOIS, AN ILLINOIS CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Henry county; the Hon. GEORGE O. HEBEL, Judge, presiding. Judgment affirmed.

JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT.

This is a civil action brought by the City of Kewanee, Illinois, to recover a penalty for an alleged violation of a city ordinance by the defendant, Riverside Industrial Materials Company of Illinois, an Illinois Corporation.

The case was tried before a jury in the Circuit Court of Henry County, but upon the jury being unable to reach a verdict, the parties stipulated that the trial judge who presided at the hearing might decide the case upon the same evidence heard by the jury. The trial judge thereupon found the issues for and entered judgment for the defendant corporation. From that judgment the City of Kewanee takes this appeal.

An ordinance of the City of Kewanee, Illinois, entitled "Junk Yards," in force at the time in question, provided in pertinent part as follows:

"1. License Required.) No person, firm or corporation shall operate or maintain a Junk Yard within the City Limits of the City of Kewanee, without first having obtained a license from the City of Kewanee.

"3. Definitions.) A Junk Yard shall be defined, as a plot of ground, which may be covered with buildings; partly covered with buildings, or without any buildings; which plot is used for the buying, selling, storing, and trading of old iron, rags, hides, furs, old furniture, rubber, wool, used cars, used car parts, old metals, bottles and the like commonly called junk.

"5. Purchases From Minors Prohibited.) A licensee under this Ordinance shall not purchase or receive from minors any article whatsoever without the written consent of their parents or guardian.

"7. Penalty.) A person or corporation establishing and operating a Junk Yard contrary to the terms of this Ordinance shall be subject to a fine of $25.00 a day for every day so operated."

The Complaint alleges that the defendant failed to secure a license from the City of Kewanee to operate or maintain a junk yard in accordance with the ordinance just quoted, and that as a result the defendant was liable for the penalty of the ordinance amounting to $25 per day for each day's operation without a license. The answer of the defendant denied the validity of the ordinance, denied its applicability to the defendant, alleged that the ordinance was unconstitutional, and denied that any amount was due the City of Kewanee. The reply of the plaintiff city denied all the affirmative defenses.

It is contended on behalf of the plaintiff that the ordinance in question is applicable to the defendant corporation and is a valid exercise of the city's power under Sec. 23-94 of the Revised Cities and Villages Act (Ill. Rev. Stats. 1957, Chapter 24, Section 23-94), which empowers the corporate authorities of a municipality:

"To license, tax, locate, and regulate all places of business of dealers in junk, rags, and any secondhand article whatsoever.

"To forbid any person from purchasing or receiving from minors without the written consent of their parents or guardians, any article whatsoever."

It has long been settled in this State that local governments possess no inherent power to license any occupation or to require the payment of a tax for the privilege of engaging in the same (Herb Bros. v. Alton, 264 Ill. 628). In order to legislate upon or with reference to a particular subject or occupation, the municipal corporation must be able to point out the statute which gives it the power to do so, and such a statute is strictly construed (Chicago v. Northern Paper Stock Co., 337 Ill. 194). The principle that the power must be expressly granted or be a necessary incident to the powers so granted is simple to state, but difficulties arise in its application in particular cases. Section 23-94 of the Revised Cities and Villages Act, set forth above, has been construed by the Supreme Court of Illinois and the Appellate Courts of Illinois on numerous occasions. Those decisions furnish guides in determining (1) whether a particular exercise of power granted is applicable to a certain person or activity, and (2) whether it is a valid exercise.

At the outset there is a question as to what constitutes "junk" and "any second-hand article whatsoever" within the meaning of the statute. The courts of Illinois have followed the principle of ejusdem generis in this respect and held that the phrases "junk" and "any second-hand article whatsoever" were intended to authorize the licensing and regulation only of those stores or shops carrying on a business similar to junk stores, dealers in junk, rags, and similar articles, where inducements are ...


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