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Town of Cicero v. Weilander

MAY 16, 1962.

THE TOWN OF CICERO, A MUNICIPAL CORPORATION, PLAINTIFF-APPELLEE,

v.

GEORGE WEILANDER, SR., DEFENDANT-APPELLANT.



Interlocutory appeal from the Town Court of Cicero; the Hon. LOUIS W. KIZAS, Judge, presiding. Reversed.

MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

This interlocutory appeal is taken from an order entered in the Town Court of Cicero in favor of the Town of Cicero enjoining the defendant, George Weilander, Sr., from operating a trailer camp in the Town of Cicero without a license from the town. The order was entered by the court on notice and after a preliminary hearing, but without bond.

The defendant contends that the Cicero trailer ordinance under which the plaintiff is proceeding is illegal and void; that the State Trailer Coach Park Act under which the defendant has a license is controlling; and that no temporary injunction should have been issued in any case, or if it is held that a temporary injunction should have been issued, it should not have been issued without bond.

The Town of Cicero filed a complaint for injunction on November 6, 1961, and by leave of court an amended complaint was subsequently filed. The amended complaint alleged that the defendant was operating a trailer camp in the Town of Cicero; that until July 1, 1961 the defendant was licensed by the Town of Cicero to operate such trailer camp under a Cicero ordinance, chapter 20, article II; that on June 6, 1961 defendant was notified that he was in violation of the trailer ordinance and if the violations were not corrected his license would be revoked; that on July 6, 1961 the defendant was notified that because of ordinance violations his license would not be renewed, and since July 1st the defendant has been operating his trailer camp without a license from the town. The complaint further alleges that the defendant continues to operate his trailer camp without a license under conditions of "neglect, congestion, and lack of proper sanitation," and that the plaintiff has no adequate remedy at law and piecemeal prosecution would not remove the continuing danger to the public. The complaint prayed that the defendant be enjoined from continuing to operate his trailer camp without a Cicero license and that a temporary injunction issue enjoining the defendant during the pendency of the action from interfering with the plaintiff in enforcing the Cicero trailer ordinance. Attached to the complaint is a letter of June 6, 1961 from the town attorney to the defendant setting out some eighteen violations of the ordinance.

The defendant filed an answer admitting the existence of the Cicero ordinance, but alleging that it is illegal and void and is in conflict with the Illinois Trailer Camp Act, and that the State has preempted the regulation of trailer camps in its Act (Ill Rev Stats 1961, c 111 1/2, §§ 158-185). The answer further alleges that the Cicero ordinance has failed to comply with the requirements of paragraph 185 of that chapter as the Cicero ordinance does not meet the minimum requirements of the Act as to location, construction and operation, and further that the fact of the nonapplication of the Act is not evidenced by a certificate of examination from the State Department of Public Health. The answer admits that the defendant is now operating without a license from the Town of Cicero, but states that he is operating under a license issued by the Department of Public Health of the State of Illinois on May 24, 1961 and expiring April 30, 1962. The answer admits that there are approximately 100 trailers on plaintiff's property and denies all the allegations which the plaintiff has made in its complaint as to the absence and inadequacy of toilet and bathing facilities, absence of hot or cold water, failure to provide adequate wiring, violations of the Cicero ordinance as to garbage cans, distance of trailers from service building, deficiencies in rigid piping; that the water and sewer connections are connected closer than five feet, contrary to the State plumbing code, that the camp is in an unsanitary condition, and that there is any threat to the health, welfare and safety of the public. The answer admits that the Town of Cicero has notified trailer occupants to move from the premises and that he, the defendant, has advised them to disregard such notice, and admits that he will continue to interfere with the invalid Cicero ordinance since he is duly licensed by the State of Illinois to operate the trailer camp.

After hearing, the court entered an order purporting to be a temporary injunction, enjoining the defendant from operating the trailer camp without a Cicero license, and also from interfering with the plaintiff or any of its officers in enforcing the Cicero ordinance and "in resisting the investigation of violations," and the order further recites: "The Court being of the opinion that said proceedings being in the public interest, bond of the plaintiff is waived."

Under the pleadings and the procedure in this case it is necessary for us to consider the validity of the town ordinance. The Cicero trailer camp ordinance was passed on May 20, 1946. The defendant contends that at the time the ordinance was passed the Town of Cicero had no authority to pass such an ordinance. The plaintiff contends that it had such right under the general police powers granted to it under its special charter (Laws of Illinois 1869, Private Laws, vol 3, p 666) and under par 87-1.1, chap 24, Ill Rev Stats 1959, granting to the town as concurrent and additional powers those granted cities and villages and incorporated towns under chap 24, par 23-61, defining and abating nuisance; par 23-72, regulating fire hazards; par 23-81, promoting health; par 23-85, regulating and prohibiting running at large of animals; par 23-89, prohibiting offensive business; par 23-90, regulating unwholesome places; par 23-105, granting police powers; and par 23-106, granting the right to the municipality to execute those powers and to impose a punishment.

The object of a license is to confer a right or power which does not exist without it, and it may be to regulate and control the occupation or privilege for which the license is granted, so as to subserve the public good or prevent its being conducted in a manner injurious to the public welfare, or to raise revenue. 53 CJS Licenses, sec 2.

In Father Basil's Lodge, Inc. v. City of Chicago, 393 Ill. 246, 65 N.E.2d 805, the Supreme Court discusses this question at some length, and the court says:

"The first contention of appellant is that the city is not authorized by the legislature, either expressly or by implication, to regulate and license `Homes' and `Nursing Homes,' and was therefore without power to pass the ordinances in question. The principles governing the powers of cities, including the power to license and regulate, and the source and exercise of such powers have been so frequently enunciated and so fully discussed in the recent decisions of this court (Arnold v. City of Chicago, 387 Ill. 532; City of Bloomington v. Wirrick, 381 Ill. 347); that further elaboration upon the subject is unnecessary. It is well settled that a city, like all other municipal corporations, derives its existence and its powers from the General Assembly; that it possesses no inherent power; that in order to legislate upon, or with reference to, a particular subject or occupation, it must be able to point to the statute which gives it the power to do so; that statutes granting powers to municipal corporations are strictly construed, and any fair or reasonable doubt of the existence of an asserted power is resolved against the municipality which claims the right to exercise it; that the only implied powers which a municipal corporation possesses and can exercise are those which are necessarily incident to powers expressly granted; and that since a city has no power except by delegation from the General Assembly, in order for it to license or regulate any occupation, the power to do so must be expressly granted or be necessarily implied in, or incident to, other powers which are expressly granted.

". . . The authority for the passage of an ordinance need not be wholly derived from a single grant of power by the legislature, but may be derived from several different grants of power. . . ."

The court states that there was no express power given to the city to regulate homes and nursing homes such as were involved in the case before it. The court points out that the legislature has delegated to cities and villages the power and authority to protect the lives of their citizens from the danger of fire, to promote the health of their population, and protect them from disease, and that under such delegations of police power a city may regulate any occupation or business the unrestricted pursuit of which might either injuriously affect the health of the citizens or subject them to danger from fire. The court states that if the regulation of such conditions requires the conduct of the business peculiarly affected by them to be controlled by the limitations of a licensing ordinance, the power of the city to adopt such an ordinance will be necessarily implied. In the case the court calls attention to the fact that it has been held that cities, under their power to guard against fire and regulate the storage of combustible material, etc., were authorized to license and regulate the business of dry cleaning (Klever Shampay Karpet Kleaners, Inc. v. City of Chicago, 323 Ill. 368, 154 N.E. 131), the business of manufacturing cosmetics (Chicago Cosmetic Co. v. City of Chicago, 374 Ill. 384, 29 N.E.2d 495), the business of operating a filling station (Fligelman v. City of Chicago, 348 Ill. 294, 180 NE 797), and, under the power to guard against fire, were authorized to regulate and license the business of installing heating plants (City of Chicago v. Wonder-Heating and Ventilating Systems, Inc., 345 Ill. 496, 178 N.E. 192), and, under the power to promote health, were authorized to license and regulate laundries (Ruban v. City of Chicago, 330 Ill. 97, 161 N.E. 133; Don v. City of Chicago, 314 Ill. 201, 145 N.E. 386; Moy v. City of Chicago, 309 Ill. 242, 140 N.E. 845). The court held that the city had the right to pass a license ordinance regulating homes such as were involved in the case.

In an article in the Illinois Law Forum the Father Basil's Lodge case is discussed, and the writers take the view that that case, together with Chicago Cosmetic Co. v. City of Chicago, supra, and Klever Shampay Karpet Kleaners, Inc. v. City of Chicago, supra, indicates that the court in the field of regulatory licensing is coming to recognize the breadth of implied power which is actually needed to meet the difficulties of governing our growing urban centers. "Licensing as a Regulatory Device," Ancel and Siegel, Ill L Forum, vol 1957, No 1, p 61. In City of Chicago v. Drogasawacz, 256 Ill. 34, 99 NE 869, the court upheld a city ordinance regulating and licensing bakeries, and the court says that the city "has the power, under section 78 of paragraph 62 of the Cities and Villages Act `to do all acts, make all regulations which may be necessary or expedient for the promotion of health or suppression of disease.' One of the most important of police powers is that of caring for the health of a community. Not only under sections 50 and 53, but also under this provision of the Cities and Villages Act, plaintiff in error was authorized to pass the ordinance in question. . . . [Citing cases.]"

Where a municipality has the power to regulate it also has the power to license. City of Chicago v. Michalowski, 318 Ill. App. 533, 48 N.E.2d 541; City of Chicago v. Drogasawacz, supra; City of ...


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