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Anders v. Town of Danville

JANUARY 9, 1964.

THOMAS ANDERS, PLAINTIFF-APPELLANT,

v.

TOWN OF DANVILLE, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Vermilion County; the Hon. ROBERT F. COTTON, Judge, presiding. Reversed with directions.

ROETH, JUSTICE.

Plaintiff filed a petition for a writ of mandamus seeking to compel the Town of Danville to issue a license to him to operate a junkyard. The Circuit Court entered an order denying the writ from which order plaintiff appeals. No question has been raised below or here as to the propriety of the action. The sole question presented is whether the authorities involved have the right to deny plaintiff's application for license.

The evidence presented in the lower court was scant and consisted of plaintiff's brief testimony and a stipulation setting out the reasons plaintiff was denied the license by the authorities.

The electors of the Town of Danville at the annual meeting in 1953 passed a resolution dealing with the licensing of junkyards. This resolution was passed pursuant to section 39 and section 39.12 of Chapter 139, Smith-Hurd Illinois Revised Statutes. The Act provides as follows:

"39 . . . The electors present at the annual town meeting shall have the powers enumerated in Section 3.01 to 3.23 inclusive, of this Article. . . ."

"Sec. 39.12. Junk dealers — Licensing and Regulation.) Sec. 3.12. Authorize the licensing and regulation and direct the location of all places of business of purchasers, traders and dealers in junk, rags and any second hand article, including motor vehicles,. . ."

The resolution of the electors reads as follows:

"BE IT RESOLVED, that the Supervisor of Danville Township, by and with the consent of said Danville Township, Vermilion County, Illinois, be and is hereby authorized to license, regulate and direct the location of all places of business of purchasers, traders and dealers in junk, rags and any second hand articles, including motor vehicles, in the said Town of Danville, Vermilion County, Illinois, all as provided under the terms and provisions of Chapter 139, Article IV, Section 39.12, Paragraph 3.12, Illinois Revised Statutes 1951, State Bar Association edition."

Following the annual Town Meeting the Board of Town Auditors of Danville passed a resolution purporting to regulate the operation of junkyards. The resolution, after a recitation of the reasons for the same, prohibited the establishment and maintenance of a junkyard unless the operator complied with certain regulations. The regulations provided for minimum standards relating to physical structure of the property, prohibition against burning of junk in such a manner as to create a nuisance, the manner in which junk on the premises shall be stored, prohibition against the keeping of gasoline in automobiles unless such automobiles can in fact be driven, prohibited the location of any junkyard within 200 feet of any church or school and required that weeds, etc., be kept mowed at all times. The resolution then went on to provide that any person operating such junkyard shall first obtain a license, provided for license fee and the filing of an application, setting forth certain matters to be contained within the application. It provided for the revocation of all licenses for any wilful failure to observe any of the provisions of the resolution and further provided for a fine not exceeding $50 for any violation of the provisions of the resolution.

Plaintiff purchased the property in question to use as a junkyard and filed his application submitting a plat showing the structure he proposed to build. From the record it is apparent that he has met or proposes to meet all of the requirements set forth in the resolution of the Town Board. Inasmuch as plaintiff does not presently maintain a junkyard on the premises sought to be licensed and used, certain paragraphs of the resolution are not involved. It is also apparent that the premises are not within 200 feet of any church or school.

Plaintiff contends that the supervisor and Town Board, after the electors had passed the resolution, or as he refers to it, "the regulatory ordinance," had a purely administrative duty; to issue the license. He contends they had no independent authority to deny a license. While his contention is somewhat vague in that from it it may be inferred that he recognizes the power of the Town Board to pass the resolution in question, the argument does in fact attack this power of the Town Board. Under the resolution of the electors the Supervisor and Town Board were directed to license junkyards and it appears that an attempt was made to delegate the power to regulate and license to the Town Board. The resolution of the electors failed to set any standards and failed in every respect to prescribe the duties of town officers in the handling of license applications. In Bloomington Tp. v. Grinter, 2 Ill. App.2d 528, 119 N.E.2d 818, we stated:

"It is to be observed that the Ordinance with which we are concerned in this case contains no rule or standard by which those who pass upon an application for a license may be guided in reaching a decision as to whether such application should be granted or denied. The generally accepted rule is that an Ordinance vesting such arbitrary discretion with reference to the licensing of an ordinarily lawful business in public officials, and which in effect authorizes the issuing or withholding of a license as such officials may arbitrarily choose, is void as being unreasonable. 38 Am Jur Municipal Corporations, Sec 337."

Applying the principle stated in the Grinter case to the facts in the case at bar it is clear that the resolution did no more than grant power to the Supervisor to perform the physical act of issuing a license unless the electors had the power to delegate this authority or the authority of the Supervisors and Town Board can be inferred from the controlling statute.

It should be first noted that the business of operating a junkyard is not one which may be prohibited in itself, ...


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