Appeal from the Circuit Court of Cook County, the Hon. Joseph
M. Wosik, Judge, presiding.
JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 4, 1984.
Defendant, Jim Edgar, Secretary of State, and intervening defendants, Chicago Automobile Trade Association and the Illinois New Car and Truck Dealers Association, appeal from the judgment of the circuit court of Cook County holding unconstitutional section 5-106 of the Illinois Vehicle Code (Ill. Rev. Stat., 1982 Supp., ch. 95 1/2, par. 5-106). Section 5-106 was added to the Vehicle Code by Public Act 82-788, effective January 1, 1983 (1982 Ill. Laws 1258), and in pertinent part provides that:
"No person licensed under Sections 5-101 [new vehicle dealers] and 5-102 [used vehicle dealers] may keep open, operate, or assist in keeping open or operating any established place of business for the purpose of buying, selling, bartering or exchanging, or offering for sale, barter or exchange, any motor vehicle, whether new or used, on the first day of the week, commonly called Sunday; * * *." Ill. Rev. Stat., 1982 Supp., ch. 95 1/2, par. 5-106.
Plaintiffs are corporations licensed by the Secretary of State to sell automobiles. They filed a complaint seeking an order declaring section 5-106 of the Vehicle Code to be unconstitutional and void and an order enjoining defendant Secretary of State from enforcing it. Joseph W. Longo was given leave to intervene as an intervening plaintiff, but the record contains no pleadings filed on his behalf. In one of the briefs he is described as "an Illinois resident and a consumer," but the nature of his interest in the litigation cannot be determined.
Chicago Automobile Trade Association and the Illinois New Car and Truck Dealers Association were given leave to intervene as defendants. Defendant Secretary of State and the intervening defendants filed motions to dismiss plaintiffs' complaint, and the plaintiffs moved for summary judgment. The circuit court found that section 5-106 constituted "special legislation in violation of article IV section 13 of the Constitution of the State of Illinois," that it denied plaintiffs equal protection of the law "as guaranteed by the Constitution of the United States" and was unconstitutional and void. Because defendant Secretary of State agreed that there would be no attempt to enforce the statute pending appeal, no injunction was ordered. Defendant Secretary of State and the intervening defendants appealed directly to this court (Rule 302(a), 87 Ill.2d R. 302(a)).
The Constitution of 1970 provides:
"The General Assembly shall pass no special or local law when a general law is or can be made applicable. Whether a general law is or can be made applicable shall be a matter for judicial determination." Ill. Const. 1970, art. IV, sec. 13.
Plaintiffs contended in the circuit court, and argue here, that the statute is special legislation in violation of article IV, section 13, and denies them equal protection of the law in violation of the fourteenth amendment to the Constitution of the United States. They argue that the General Assembly "cannot single out auto dealers for a Sunday closing law" and that there is no reasonable basis for the separate classification of automobile dealers to require them to remain closed on Sunday. Defendants contend that section 5-106 is not special legislation, does not create an unreasonable classification, and that plaintiffs have failed to overcome the presumption of the reasonableness of the classification. They argue too that the statute adds a reasonable restriction to "a compendium of rules" which specifically governs a class licensed to engage in the sale of automobiles.
In Illinois Polygraph Society v. Pellicano (1980), 83 Ill.2d 130, the court said:
"Special legislation confers a special benefit or exclusive privilege on a person or a group of persons to the exclusion of others similarly situated. (Bridgewater v. Hotz (1972), 51 Ill.2d 103, 109-110.) It arbitrarily, and without a sound, reasonable basis, discriminates in favor of a select group. Such legislation differs from `local laws' because it is not limited to a geographical portion of the State. (Bridgewater v. Hotz (1972), 51 Ill.2d 103, 109; G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 206 (1969).) Special legislation differs from a violation of equal protection in that the latter consists of arbitrary and invidious discrimination against a person or a class of persons. It results from the governmental withholding of a right, privilege or benefit from a person or a class of persons without a reasonable basis (or, where a fundamental right or suspect classification is involved, a compelling State interest) for doing so. Whether a law is attacked as special legislation or as violative of equal protection, it is still the duty of the courts> to decide whether the classification is unreasonable in that it preferentially and arbitrarily includes a class (special legislation) to the exclusion of all others, or improperly denies a benefit to a class (equal protection). (See Anderson v. Wagner (1979), 79 Ill.2d 295, 315.)" 83 Ill.2d 130, 137-38.
Plaintiffs contend that the presumption of constitutionality has been rebutted and that this court's earlier decision in Courtesy Motor Sales v. Ward (1962), 24 Ill.2d 82, requires affirmance of the judgment. In Courtesy, the court held invalid as violative of article IV, section 22, of the 1870 Constitution (Ill. Const. 1870, art. IV, sec. 22) a statute requiring automobile dealers to close on Sunday. The court said:
"The need for observing Sunday as a day of rest is not unique to those engaged in selling automobiles, nor can we see any way in which the purpose of a Sunday law is promoted by prohibiting such activity that is not equally present in a prohibition of other businesses." 24 Ill.2d 82, 86.
The fact that a similar statute was held unconstitutional in Courtesy does not require that it be held unconstitutional now. In Fenske Brothers, Inc. v. Upholsterers International Union of North ...