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People v. Tibbitts

OPINION FILED OCTOBER 1, 1973.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

JERRY TIBBITTS, APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Felix M. Buoscio, Judge, presiding. MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

The defendant, Jerry Tibbitts, was charged with soliciting John Kinnerk to sell his residential property after the defendant had received notice that John Kinnerk did not desire to do so. Following a hearing on the defendant's motion to dismiss the criminal complaint, the circuit court of Cook County held the statute which the defendant was charged with violating, section 70-51(d) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 70-51(d)), unconstitutional. The State appealed directly to this court pursuant to our Rule 603. 50 Ill.2d R. 603.

Section 70-51 of the Criminal Code provides:

"It shall be unlawful for any person or corporation knowingly:

(d) To solicit any owner of residential property to sell or list such residential property at any time after such person or corporation has notice that such owner does not desire to sell such residential property or does not desire to be solicited to sell or list for sale such residential property. For the purpose of this paragraph, a person has such notice (1) when the Human Relations Commission has mailed to him pursuant to Section 4.1 of `An Act to create a Commission on Human Relations and to define its powers and duties', approved August 8, 1947, as now or hereafter amended, a list containing the name and address of such owner, or (2) when he has been notified in writing that the owner does not desire to sell or list for sale such residential property."

The statutory notice provision referred to in the above section of the Criminal Code is found in section 4.1 of "An Act to create a Commission on Human Relations and to define its powers and duties" (Ill. Rev. Stat. 1969, ch. 127, par. 214.4-1), which provides:

"The Commission shall publish * * * notice forms which may be executed by owners of residential property who do not desire to sell such residential property or by owners of residential property who do not desire to be solicited to sell or list for sale such residential property. The Commission shall receive, file and index all notices submitted to it on such forms * * *, and shall compile suitable lists by area of the names and addresses of owners of residential property who submit such forms * * *. The Commission shall cause copies of such lists to be mailed by certified mail to those real estate agents and brokers and other persons who are known or believed by the Commission to be soliciting owners of residential property for the sale or listing of such property in the area covered by such list." (Emphasis added.)

We need not consider the defendant's contentions that the statute violates his constitutional right to freedom of speech or his right to contract because we consider the statute which provides for the giving of the notice upon which the prosecution is based constitutes an unlawful delegation of legislative authority to the Human Relations Commission and is thus invalid.

The power to make the laws for this State is a sovereign power vested in the legislature. "On common-law principles, as well as by settled constitutional law, it is a power which cannot be delegated to another body, authority or person." (People ex rel. Chicago Dryer Co. v. City of Chicago, 413 Ill. 315, at 320.) In Hill v. Relyea, 34 Ill.2d 552, at 555, this court summarized its holdings on the subject of delegation of legislative authority as follows:

"There is a distinction between the delegation of true legislative power and the delegation to a subordinate of authority to execute the law. [Citation.] The former involves a discretion as to what the law shall be; the latter is merely an authority or discretion as to its execution, to be exercised under and in pursuance of the law. [Citations.] It is an established rule that the General Assembly cannot delegate its general legislative power to determine what the law shall be. However, it may delegate to others the authority to do those things which the legislature might properly do, but cannot do as understandingly or advantageously. [Citations.] Absolute criteria whereby every detail necessary in the enforcement of a law is anticipated need not be established by the General Assembly. The constitution merely requires that intelligible standards be set to guide the agency charged with enforcement, [citations] and the precision of the permissible standard must necessarily vary according to the nature of the ultimate objective and the problems involved. [Citations.]"

This court has also stated that the legislature in delegating to an administrative agency the performance of certain functions may not invest that agency with arbitrary powers. (Department of Public Works and Bldgs. v. Lanter, 413 Ill. 581, 587; McDougall v. Lueder, 389 Ill. 141, 154.) The legislature cannot vest an administrative agency with the power in its absolute and unguided discretion to apply or withhold the application of the law or to say to whom a law shall or shall not be applicable. (1 Am. Jur.2d, Administrative Law, sec. 108.) "Should a statute clothe an administrative officer with the discretion as to the administration of the statute and also clothe him with the right to determine what the law is, or give to him the opportunity to apply it to one and not apply it to another in like circumstances, either would constitute an unlawful delegation of legislative power." People v. Brown, 407 Ill. 565, at 581.

Also, due process of law requires that an act shall not be vague, indefinite or uncertain and must provide sufficient standards to guide the administrative body in the exercise of its functions. People ex rel. Stamos v. Public Building Com., 40 Ill.2d 164, 174.

Summarizing the statutory provisions involved: section 70-51(d) of the Criminal Code makes it unlawful to solicit an owner of residential property to sell or list his property for sale after the person soliciting has received notice as provided in section 4.1 of "An Act to create a Commission on Human Relations"; section 4.1 authorizes the Human Relations Commission to receive forms executed by owners of residential property who do not desire to sell or be solicited to sell or list for sale their property; the Commission is required to compile suitable lists by area of the names and addresses of owners of residential property who submit such forms; the Commission is then required to cause copies of the lists to be mailed to those real estate agents and brokers and other persons who are known or believed by the Commission to be soliciting owners of residential property in the areas covered by such lists.

The statute does not define what constitutes an "area" and does not specifically state who has the authority to create them. We must assume that the statute vests in the Commission the absolute and arbitrary power to divide the State of Illinois or portions thereof into "areas." The statute establishes no guidelines or standards for the Commission to follow in designating an "area," leaving it entirely to the whim of the Commission what part of the State shall be encompassed within an "area" and to a great extent who shall be prohibited from soliciting those who have executed the forms. For example, it is conceivable that a large number of such forms will be executed by people who reside in a particular neighborhood composed of a few square blocks in the city of Chicago. However, by defining the "area" as the entire city of Chicago a real estate broker who has never solicited the owners of residential property in that neighborhood but who has so solicited in other parts of the city would be barred from soliciting for the sale or listing of real estate in the neighborhood from which executed forms were received. Conversely, by defining a small geographic "area" a person who may have been soliciting owners of real estate up to the very boundaries of that neighborhood but not within it would not receive a notice from the Commission and would thus be free to solicit the owners who had executed the forms.

It is contended that section 70-51(d) of the Criminal Code is a part of "An Act to prohibit the solicitation or inducement of sale or purchase of real estate on the basis of race, color, religion, or national origin or ancestry." (Ill. Rev. Stat. 1969, ch. 38, par. 70-51 et seq.) However, nothing in section 70-51(d) of the Criminal Code or in section 4.1 of the act creating the Commission on Human Relations establishes any guidelines or standards for the Commission to follow to effectuate this purpose. The Commission has the authority to arbitrarily establish "areas" for the purpose of prohibiting the solicitation of the sale of real estate for any purpose, whether or not it is related to the purpose of the Act. In fact, by treating the State of Illinois as one "area" the Commission could effectively prohibit solicitation of those who had executed the forms by all real estate brokers or salesman by the simple practice of sending copies of the lists to all those who are licensed by the State of Illinois to engage in those occupations. The same could be true as to any city or county. Such a legislative intent is not discernible from the statute. We express no opinion as to whether or not the legislature itself could prohibit solicitation or whether such a prohibition ...


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