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Roth v. Daley

JANUARY 23, 1970.




Appeal from the Circuit Court of Cook County, County Department, Law Division; the Hon. EDWARD J. EGAN, Judge, presiding. Judgment affirmed in part, reversed in part, and remanded with directions. GOLDENHERSH, J.

Defendants, Richard J. Daley, Mayor of the City of Chicago, the City of Chicago, and James Y. Carter, Public Vehicle License Commissioner of the City of Chicago, appeal from the judgments of the Circuit Court of Cook County, entered in plaintiff's action for Declaratory Judgment and Mandamus. In the declaratory judgment order the circuit court held certain portions of an ordinance to be "arbitrary, unreasonable and capricious as they apply to the petitioner in this lawsuit and void and of no effect as to him." It issued a Writ of Mandamus ordering defendants Carter and Daley to issue plaintiff an Ambulance-Attendant-Driver's license. It also issued a temporary writ of injunction "restraining and enjoining defendants, James Y. Carter and Richard J. Daley, Mayor of the City of Chicago, and their agents and employees, and each and all of them, from doing or taking, or causing to be done or taken, any action to arrest, prosecute or otherwise interfere in the activities of Leonard Roth as they relate to his engaging in the business or occupation of being an ambulance attendant-driver as defined in the applicable sections of the Municipal Code of the City of Chicago, and more particularly as to his engaging in the aforementioned business or occupation without the benefit of having a valid license as defined in the applicable ordinances of the Municipal Code of the City of Chicago; all until the further order of this Court."

Chapter 103 of the Municipal Code of Chicago provides in part:

"103-12. It shall be unlawful for any person to drive an ambulance or to act as an attendant on an ambulance or to participate in the transportation and care of patients in any manner whatsoever on any public way from place to place within the corporate limits of city without first having obtained a license as an attendant, or as an attendant-driver.

"103-13. All applications for ambulance attendants or attendant-driver license shall be made in the same manner as application for public chauffeur license, and shall be subject to provisions of sections 3, 4, and 6 of chapter 28.1 of this code. . . ."

The pertinent portions of Chapter 28.1 provide:

"28.1-3. Applications for public chauffeur licenses shall be made in writing to the commissioner upon forms provided by him therefor. They shall contain the full name and Chicago street address of the applicant and such other information as may be required by the commissioner to properly identify the applicant and disclose any information as to his character, reputation, physical qualifications, past employment and conduct which the commissioner deems relevant to the question of qualifications of the applicant for a chauffeur's license.

"Every applicant shall be at least twenty-one years old, a citizen or declarant of citizenship of the United States of America and the licensee of an Illinois state chauffeur's license. He shall be able to speak, read and write the English language, be of sound physique, have good sight, not be subject to epilepsy, vertigo, heart trouble or other infirmity of body or mind and not be addicted to the use of drugs or intoxicating liquors which may render him unfit to drive a public passenger vehicle.

"No public chauffeur's license shall be issued to any person who has been convicted of a felony or any criminal offense involving moral turpitude within eight years prior to his application for such license, excepting only if such person shall have received, since the time of his conviction, an honorable discharge from any branch of the armed services of the United States of America, and if, in the discretion of the public vehicle license commissioner, such person is trustworthy of the responsibility imposed by the issuance of such license. No such license shall be issued to any person at any time after conviction of a crime involving the use of a deadly weapon, traffic in narcotic drugs, the infamous crime against nature, incest or rape.

"28.1-4. The character and reputation of each applicant shall be investigated under the supervision of the captain of the police district in which the applicant resides, and a report of such investigation containing any facts relevant to the character and reputation of the applicant shall be forwarded by the captain to the commissioner of police, who shall forward the same to the commissioner together with his recommendation. If the commissioner shall be satisfied that the applicant is of good character and reputation and is a suitable person to be entrusted with driving a public passenger vehicle he shall issue the license. Pending such investigation the commissioner may issue a temporary permit authorizing the applicant to drive a public passenger vehicle until the time designated in such permit. If the investigation is not completed by that time the commissioner may, in his discretion, extend the time of such permit until such further time as in the opinion of the commissioner the investigation can be completed.

"28.1-5. Each applicant for a chauffeur's license shall be examined by a person designated by the commissioner as to the applicant's knowledge of the geography of the city, its traffic regulations and the laws and city ordinances governing traffic and the ordinances governing public passenger vehicles and their operations. If the examination discloses lack of adequate knowledge of the above subject matter, the applicant shall be refused the license. If required by the commissioner, each applicant shall demonstrate his skill and ability to handle a public passenger vehicle safely by driving it through a crowded section of the city accompanied by an inspector designated by the commissioner."

The record shows that plaintiff has been an ambulance attendant-driver since 1955, and since 1961 has operated the Acorn Ambulance and Oxygen Service. Prior to the enactment of chapter 103 in its present form, the sole requirement set by the defendant, City of Chicago, for ambulance attendant-drivers was a certificate issued by the Chicago Board of Health. The pertinent provisions of chapter 103 became effective January 1, 1967. It is admitted that plaintiff has been issued an Ambulance Attendant's Certificate by the Commissioner of Health, and has completed the requisite first aid courses.

Plaintiff submitted an application for an Ambulance-Attendant-Driver's license. The record shows that in 1950 plaintiff was convicted of two counts of Armed Robbery and sentenced to the Illinois State Penitentiary. Defendant, Carter, in his capacity as Public Vehicle License Commissioner, denied the application on the ground that plaintiff could not be licensed because of the express prohibition contained in section 28.1-3 above quoted. Because he deemed plaintiff ineligible to be licensed, he did not conduct the investigation and examination provided for in 28.1-4 and 28.1-5.

Defendants contend that enactment of the provision prohibiting the issuance of ambulance attendant and attendant-driver licenses to persons convicted of certain criminal offenses is a valid exercise of the police power, and the circuit court erred in holding the portion of the ordinance void insofar as it applied to plaintiff. They argue further that the trial court's order is neither based upon, nor supported by the pleadings.

[1-3] It is settled that under the delegations of police power from the State, a city may regulate occupations, the unrestricted pursuit of which might injuriously affect the health of its citizens; that whether an ordinance is unreasonable and arbitrary is primarily a question for legislative determination; that the city council is the judge in the first instance of those matters and the courts will not interfere unless the exercise of its judgment and discretion is manifestly unreasonable. Father Basil's Lodge, Inc. v. City of Chicago, 393 Ill. 246, 65 N.E.2d 805. It is equally well settled that enactments which are arbitrary, unreasonable and unrelated to the public purpose sought to be attained, or which are arbitrary in that although ...

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