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Andruss v. City of Evanston

OPINION FILED OCTOBER 5, 1977.

LEE J. ANDRUSS, JR., ET AL., APPELLEES,

v.

THE CITY OF EVANSTON ET AL., APPELLANTS.



Appeal from the Circuit Court of Cook County, the Hon. Samuel B. Epstein, Judge, presiding.

MR. JUSTICE DOOLEY DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 23, 1977.

The defendant city of Chicago, through an ordinance (Municipal Code of Chicago, secs. 113-23, 113-29), undertook to provide that it shall be unlawful to engage in the business of a real estate broker without having first been licensed by the State and then by the city of Chicago. An annual license fee for a city of Chicago license was $25.

The other defendants, the city of Evanston, the village of Park Forest, the village of Elmwood Park, and the village of Flossmoor, also enacted similar local laws pertaining to real estate brokers.

The question here is whether such licensing is the exclusive power of the State and beyond that of a home rule unit. Since this issue is so broad, what we say concerning the city of Chicago ordinance will be applicable to all local units of government.

The question arises in an action in the circuit court of Cook County by the plaintiffs, real estate brokers on behalf of themselves and all other real estate brokers in Cook County registered under the Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1975, ch. 114 1/2, par. 101 et seq.). Declaratory and injunctive relief, as well as repayment of all fees collected by the defendants, were sought. The city of Evanston filed a counterclaim alleging it had the power to license persons seeking to act as real estate brokers. It seeks an injunction against the plaintiffs doing business as brokers in Evanston and a declaration that the ordinance was constitutional and enforceable. The counterclaim is determined by the issue in the principal suit. In substance, plaintiffs' complaint was that the General Assembly, by a statute effective September 5, 1974, preempted to the State the exclusive power to license real estate brokers.

The circuit court held all local ordinances of the local governmental units were void and directed that each municipality segregate and deposit into an interest-bearing account the sums collected. The court reserved the question of refund.

The city of Chicago and the city of Evanston filed notices of appeal to the appellate court. Their motion for direct appeal to this court under Rule 302(b) was granted. (58 Ill.2d R. 302(b).) The village of Park Forest has joined in the appeal.

Sections 6(a), 6(h), and 6(i) of article VII of the 1970 Illinois Constitution provide:

"(a) * * * Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt."

(h) The General Assembly may provide specifically by law for the exclusive exercise by the State of any power or function of a home rule unit other than a taxing power or a power or function specified in subsection (l) of this Section.

(i) Home rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State's exercise to be exclusive."

By an amendment to the Real Estate Brokers and Salesmen License Act which became effective September 5, 1974 (Pub. Act 78-1208, 1974 Ill. Laws 1164), section 24 was added to the statute (Ill. Rev. Stat. 1975, ch. 114 1/2, par. 124). This new section provides as follows:

"* * * It is declared to be the public policy of this State, pursuant to paragraphs (h) and (i) of Section 6 of Article VII of the Illinois Constitution of 1970, that any power or function set forth in this Act to be exercised by the State is an exclusive State power or function. Such power or function shall not be exercised concurrently, either directly or indirectly, by ...


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