APPEAL from the County Court of Macon County; the Hon. WILLIAM
C. CALVIN, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
Defendants George Chasteen, Gene Willis and Robert Bryson appealed directly to this court from separate judgments entered against them and in favor of plaintiff City of Decatur in the county court of Macon County. The actions, originally brought by the city in the court of a justice of the peace to collect penalties for an alleged violation of an ordinance, were decided in favor of defendants and plaintiff perfected appeals to the county court. Defendants there filed lengthy motions to dismiss each case, alleging certain facts concerning the business in which they were engaged and challenging the constitutionality of the ordinance.
The trial court denied the motions to dismiss, allowed plaintiff's motions for judgments on the pleadings and imposed a penalty against each defendant. Since the cases involve the same facts and issues of law, they were consolidated on this appeal. The trial judge certified that the constitutionality of an ordinance is involved and that the public interest requires a review by this court. Therefore a direct appeal is authorized.
The facts are undisputed. The defendant Chasteen operated a business in the city of Decatur in connection with which motor vehicles owned by him were available for hire for the transportation of passengers. These vehicles operated without a fixed route or schedule and the business was conducted on a "call" basis at rates agreed upon when the customer telephoned for service. Defendants Willis and Bryson were employed as drivers by Chasteen and were engaged in the operation of vehicles owned by him in his business at the times involved in the complaints. No license had been applied for or obtained from the city by any of defendants for the operation of these vehicles, but defendant Chasteen had obtained livery-car license plates and registrations from the Secretary of State under the applicable statute and regulations promulgated by that office.
Chapter 70 of the municipal code of the city of Decatur prescribed certain rules, standards and regulations for the licensing and supervision of taxicabs and taxicab service. The ordinance defined a taxicab as "a vehicle for hire by passengers not having any fixed route or schedule" and provided that no taxicab shall be operated or driven on the streets without a license therefor, unless it conforms to the requirements of the chapter. Applications for a license were to be made in writing to the chief of police who was authorized to hold a public hearing, make findings in certain definite respects and file a report of his findings and recommendations with the city council, which shall consider the report, make such additional investigation as it deems advisable, and determine whether or not public convenience and necessity required the proposed service and whether or not the license shall be granted.
The ordinance specifically provided that: "Every taxicab operated on the streets of this City shall have affixed thereto a taximeter, which has been inspected and found to be accurate, and that complies with the provisions hereof. It shall be unlawful for any person to own, operate or drive a taxicab in this City unless the fare to be charged is determined by an approved taximeter, and no other or different fare shall be charged to passengers than is recorded on the reading face of said taximeter for the trip, except as herein provided." The ordinance prescribed certain penalties for its violation.
Defendants do not deny their failure to comply with the ordinance. Rather, they urge that, as applied to their "livery business," the law is unconstitutional. In this connection they seek to draw a distinction between livery and taxicab service. They assert that livery service is operated on a call basis with fares fixed by agreement in advance, while taxi service indiscriminately carries all persons who offer themselves as passengers, either on a call or pick-up en route basis, uses cab stands and cruising operations and charges according to mileage by use of a taximeter. They argue that, by classifying as taxicabs all vehicles not having any fixed route or schedule which carry passengers for hire, the ordinance is arbitrary, confiscatory, prohibitory and unreasonable, and denies to defendants equal protection of the law and deprives them of their life, liberty and property without due process of law in violation of the applicable provisions of the State and Federal constitutions. Defendants also urge that the ordinance is special legislation within the prohibition of section 22 of article IV of the Illinois constitution.
Plaintiff city denies that there is any fundamental distinction between the alleged types of operation of such vehicles and contends that the city has the right to regulate vehicles carrying passengers for hire and to classify and regulate them as taxicabs when they do not operate on a fixed route or schedule regardless of the manner in which they may choose to accept calls for service and fix their charges. It also asserts that the regulations of the ordinance are reasonable and necessary for the promotion of the comfort and general welfare of the citizens of the municipality.
Defendants do not dispute the power or authority of the city to pass ordinances regulating "the use of the streets" or to "license, tax and regulate hackmen * * * cabmen * * * and all others pursuing like occupations, * * *." (Ill. Rev. Stat. 1957, chap. 24, pars. 23-10, 23-51.) They concede that the State, in its legitimate exercise of the police power, has delegated the exercise of these functions, among others, to the various municipalities, subject to constitutional limitations. Thus, the question of power to legislate upon this subject is not involved in this appeal. Defendants do not deny the authority of the city to make reasonable regulations concerning their business. They object only to the classification and method adopted.
The due process clauses, limiting the exercise of the State's police power, prohibit only an arbitrary, unreasonable and improper use of such power. (Father Basil's Lodge, Inc. v. City of Chicago, 393 Ill. 246, 257.) One who challenges the validity of an ordinance as arbitrary and unreasonable must prove by clear and affirmative evidence that the ordinance constitutes arbitrary, capricious, and unreasonable municipal action; that there is no permissible interpretation which justifies its adoption, or that it will not promote the safety and general welfare of the public. Petterson v. City of Naperville, 9 Ill.2d 233, 247; First Nat. Bank v. County of Lake, 7 Ill.2d 213.
Where an ordinance is passed pursuant to a legislative grant of power, a presumption favoring its validity obtains. (First Nat. Bank v. County of Lake, 7 Ill.2d 213; People ex rel. Keller v. Village of Oak Park, 266 Ill. 365; City of Chicago v. Washingtonian Home, 289 Ill. 206.) The fact alone that the ordinance may operate to impose burdens or restrictions on the property which would not have existed without the enactment of the ordinance is not determinative of the question of its validity. (Miller Bros. Lumber Co. v. City of Chicago, 414 Ill. 162.) The privilege of every citizen to use his property according to his own will is both a liberty and a property right, but these rights are always subordinate to the interests of the public welfare. Father Basil's Lodge, Inc. v. City of Chicago, 393 Ill. 246; People v. Anderson, 355 Ill. 289; Durand v. Dyson, 271 Ill. 382.
The foregoing principles apply to the case at bar. Defendants' assumption that they have a constitutionally protected right of property in connection with the use of the streets for business purposes is not supported by any case cited by them. We have repeatedly held that no one has any inherent right to use the streets or highways for business purposes. (Jackie Cab Co. v. Chicago Park District, 366 Ill. 474; Chicago Park District v. Lattipee, 364 Ill. 182; People ex rel. Johns v. Thompson, 341 Ill. 166.) "Where one seeks a special or extraordinary use of the streets or public highways for his private gain, as by the operation of an omnibus, truck, motorbus or the like, the State may regulate such use of the vehicle thereon or may even prohibit such use. People ex rel. Johns v. Thompson, 341 Ill. 166, 169.
The power to regulate and prohibit in such cases is beyond question, and the power to exclude includes, for the most part, the power to permit upon conditions. (Chicago Park District v. Lattipee, 364 Ill. 182, 185; Weksler v. Collins, 317 Ill. 132, 139.) Thus a city, under its right to regulate the use of the streets, may by ordinance limit or restrict the number of taxicabs which are to be operated though the effect may be to deny ...