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Pozner v. Mauck





Appeal from the Circuit Court of Cook County, the Hon. George J. Schaller, Judge, presiding.


This is an appeal by plaintiffs, licensed insurance solicitors, from a judgment of the circuit court of Cook County upholding Public Act 78-637 which removes all references to solicitors from the Illinois Insurance Code (Ill. Rev. Stat. 1977, ch. 73, pars. 1065.36 through 1065.59). A direct appeal to this court was allowed on the ground that the public interest requires that we promptly adjudicate the matter (58 Ill.2d R. 302(b)).

On February 28, 1974, plaintiffs filed a class action in the circuit court of Cook County on behalf of themselves and all other duly licensed insurance solicitors similarly situated. The complaint sought injunctive and declaratory relief, alleging that Public Act 78-637 arbitrarily, capriciously and unreasonably deprives them of their occupation without due process of law. The Act amends the Illinois Insurance Code (Ill. Rev. Stat. 1977, ch. 73, pars. 1065.36 through 1065.59) by, inter alia, removing all mention of solicitors and their licensure. An agreed order was entered on March 1, 1974, restraining defendant Mauck, Director of the Department of Insurance, from commencing administrative actions against plaintiffs under the new law, until further order of the court.

On July 23, 1974, defendant Mauck filed a motion to dismiss plaintiffs' complaint. The motion was denied, but the circuit court certified that the question presented, the constitutionality of Public Act 78-637, was a proper subject for an interlocutory appeal to the appellate court under Rule 308(a) (58 Ill.2d R. 308(a)). The appellate court ordered that defendant's application for leave to appeal be granted, but subsequently vacated the order and denied the application.

Upon denial of his application, and with the cause now pending in the circuit court, defendant filed a motion in that court for judgment on the pleadings. The court granted the motion on October 27, 1977, and stayed enforcement of its order pending appeal.

The major concern of the plaintiffs here is the effect of Public Act 78-637 on their livelihood. The Act, in effect, requires that plaintiffs meet licensing requirements once imposed only on agents and brokers if they wish to continue in their calling. In determining the propriety of such legislative action, we are guided by ample precedents and the language of the court in Klein v. Department of Registration & Education (1952), 412 Ill. 75, 78-79:

"An inherent feature of our form of government is that every citizen has the inalienable right to engage in any legitimate trade, occupation, business or profession which he sees fit. His labor is his property and is bulwarked by the full and equal protection of the law afforded by the due process clause of the Federal constitution. It is also embraced within the constitutional provision which guarantees to everyone liberty and the pursuit of happiness. [Citation.] The right to pursue a trade or calling is, however, subordinate to the right of the State to limit such freedom of action where the public health, safety or welfare may require. [Citations.] In instances where the police power is invoked to regulate and supervise a legitimate occupation, the restraint imposed must be reasonable. The legislative determination that regulations are needful is not conclusive and is always subject to review. In order for such regulations to be lawfully imposed upon the constitutional rights of the individual to pursue his trade, profession or business, the act passed under the guise of a measure to protect the public health, safety and welfare must have a definite relation to the ends sought to be attained. [Citations.]"

Properly authorized legislative enactments are presumed valid, however (Livingston v. Ogilvie (1969), 43 Ill.2d 9, 12; Board of Library Directors v. City of Lake Forest (1959), 17 Ill.2d 277, 281), and a party attacking a law has the burden of showing that it is unreasonable (Rios v. Jones (1976), 63 Ill.2d 488, 497; Thillens, Inc. v. Morey (1957), 11 Ill.2d 579, 591). The court's only inquiry is whether the legislation represents a rational means to accomplish a proper purpose. (Williamson v. Lee Optical of Oklahoma, Inc. (1955), 348 U.S. 483, 488, 99 L.Ed. 563, 572, 75 S.Ct. 461, 464; Chicago Real Estate Board v. City of Chicago (1967), 36 Ill.2d 530, 541-42.) We will not substitute our judgment for that of the legislature. Thillens, Inc. v. Morey (1957), 11 Ill.2d 579, 591; Gadlin v. Auditor of Public Accounts (1953), 414 Ill. 89, 95.

Having set forth the standards by which Public Act 78-637 is to be scrutinized, we turn to plaintiffs' arguments against the validity of the law. Plaintiffs first argue that prior statutory restrictions on their profession were sufficient, and that no need for further regulation therefore exists. Under the previous regulatory scheme, agents and brokers would merely vouch for the competency of solicitors and assume responsibility for their actions. No examination was required of solicitors.

The fault in plaintiffs' argument is their basic premise that previous law was unquestionably adequate. Defects in the law were noted in the Report of the Illinois Insurance Study Commission to the Seventy-Seventh General Assembly 5-6:

"The Commission will seek to establish rules and regulations for the licensing of insurance brokers and salesmen in order to raise the level of professional competence. The Commission believes that many individuals are selling insurance who have no right to be involved in such a complex endeavor. As an adjunct to this upgrading, the Commission favors greater statutory emphasis upon the responsibility of the insurance companies for the misrepresentations of their agents."

A need for corrective action arose, and the legislature properly responded.

Plaintiffs point to language in Scully v. Hallihan (1936), 365 Ill. 185, 192, stating that a citizen should not be legislated out of his trade where such a measure is not definitely related to the purpose of the law. We agree with the rule set forth therein, but feel that the requisite relationship exists here. As defendant has shown, the purpose of Public Act 78-637 is to better insure that only qualified individuals sell insurance, and to make insurance companies more responsible for the representations of their agents. We cannot say that the law seeks to achieve this proper purpose in an irrational way. ...

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