Detailed Analysis of the Code Here
Related Story Here
So, what is it about a city council that makes them believe they have the right to pass an ordinance requireing anyone to procure a permit to live in their own home? Well, for one, if one claims “residency” within the corporate municipality then are then deemed to be considered to be regulated by the rules (by-laws) and ordinances which pertain only to that corporate body. Likewise, for U.S. citizens, there are no Constitutional protections since much of what regulates their behavior is codes, and regulations.
Most people do not understand what a municipality is. Here is an excerpt from a page I have which explains Municipal Law:
B. [1.2] General Concepts and Definitions
A “municipal corporation” has been defined as a public corporation created by government for political purposes and having subordinate and local powers of legislation. People ex rel.Mortell v. Bergman, 253 Ill. 469, 97 N.E. 695 (1912); BLACK’S LAW DICTIONARY, p. 1042 (8th ed. 2004). As they exist today, these public corporations can be compared with private corporations. Just as private corporations have a charter under which they are organized, so, too, municipalities have a “charter” in the sense that they are organized under the general law as it exists in the Illinois Municipal Code (Code), 65 ILCS 5/1-1-1, et seq. Just as shareholders control the operations of a private corporation by ratifying a charter and electing a board of directors, the citizens comprising the electorate control the workings of the public corporation by opting to form either a city or a village under one of the forms provided in the Code and by electing officials (city council or village board), who in turn carry on the business (government) and affairs of the city or village by passing and adopting ordinances (akin to bylaws passed by the board of directors of a private corporation).
[My Commentary] So, if we look at it in these terms, we could say that Ford is a corporation (municipality) that is owned by the shareholders (Citizens/electors) who in turn elect the Officers, or Board (City Council, Mayor…) to perform the duties set forth in the Charter which were written to control the function of the “body” in achieving the ends of the shareholder/citizen. This body, in turn, passes ordinances (By-laws) that regulate the functions of that body in meeting the objectives of the shareholder/citizen. The shareholders believe that their dividends (benefits) are being wasted on providing health care coverage to workers (City employees) who smoke, and therefore want to make Ford a non-smoking company (municipality). The Board of Ford (City council) passes an ordinance (By-law) that prohibits smoking for employees of Ford (City employees). Now, does that mean that Ford can force the smoking shareholders to quit smoking as well? No. The shareholders are not subject to the regulations governing the operation of the corporate body of Ford, the same way that Citizens are not subject to the regulations (ordinances) of the corporate body (Collinsville).
So, how do we, the People, create a government that is laid out with a charter and by-laws for the purpose of securing our freedoms and liberty, as well as performing in a collective capacity that which would be otherwise inefficient or cumbersome for us to perform individually? Why, you take up “residency”, of course. Normally, Citizens retain all of their natural rights that are protected by the Constitution. However, if you want to derive any of the “corporate benefits” of the “corporation”, you must become a resident of that corporation and therefore subject to the governing by-laws of that corporation. You do not need to be a resident to walk into a public library and read a book. However, in order to take that book out of the library’s control and have it entrusted to you for safe-keeping and return, you must be a resident of that corporate body which subjects you to the ascribed penalties for violating your agreement with the library for the use and safe return of that book. That library card, that you have to sign (give your permission and therein claim the status of resident) your name and claim residency. That contract is then enforceable with fines and punishment for your violating any provision of that agreement.
Residents derive benefits or exercise privileges that Citizens do not. If your tax dollars are going to fund a function of government then you have paid your way and are asking for nothing more than a Citizen is entitled to. However. if you are deriving a benefit that cannot be traced to a service provided through your payment of taxes, then you are acting as a resident. Most of the things provided by government in its proper capacity are paid by our taxes, i.e.., water, sewer, trash, roads…etc. The City gets you to claim the status of resident in order to receive these services, which is a trap, but you are not automatically conscripted to the ordinances unless they specifically apply to a particular benefit derived.
If you read the proposed ordinance you will see a section called Definitions. What happens is, the drafters of the legislation use words which have common meanings, but used in a particular way which possess a “special” or “legal” meaning. They are terms, not words. The legislation imposes a duty, and penalties, upon persons. Are you a person? Look at the definition:
“Person means any natural person; firm; joint venture, including all participants; partnership, including all partners; association, social club, or fraternal organization, including all officers and directors; corporation, including all officers, directors and significant stockholders; estate; trust; business trust; receiver; or any other group or combination acting as a unit.”
Of course, most of you will see the term “natural person” and believe you are natural and therefore a natural person. A natural person is a flesh-and-blood human being, but one which is charged with a fiducary obligation or acting as a representative for an incorporeal entity. All natural persons are flesh-and-blood but not all flesh-and-blood are natural persons.
There is a canon of statutory construction called ejusdem generis which reads:
Ejusdem generis (Of the same kinds, class, or nature)
When a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. For example, where “cars, motor bikes, motor powered vehicles” are mentioned, the word “vehicles” would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes).
Look at the definition of the word person above. What follows? Firm, joint venture, partnership, association… these are not “natural” things. These are organizations of individuals, many of which are formed pursuant to an act found in statutes. Nowhere does an individual human being come into play unless they are part of a legal structure. A natural person is a flesh-and-blood human being who has taken a position or joined as a member of some other incorporeal or fictional body.
So, what does this mean? People have natural, unalienable rights. Corporations, as well as other legal fictions, do not. Constitutions are created by People to create another legal fiction called the State for the purpose of protecting their natural, unalienable rights. The State is nothing more than the People acting in a collective capacity and forming a political body. The State is not some natural manifestation which possesses some supernatural control or authority over the People. The People, being the creators of the Constitution have the power to permit artificial, incorporeal entities like corporations, partnerships, associations… to be created and therefore, make conditional their existence to the will of the people. People cannot make anybody else’s existence or exercise of rights conditional.
Looking at the definition of person in the ordinance, what is being regulated are things owing their existence to a legal construct. If there is a legal nexus between the entity and the State where a registration or permit has been issued or recognized then it is a legal fiction and thereby subject to regulation. In the case of this legislation, a landlord who is a private individual owning and renting property has an obligation to provide a safe abode for his tenants and is subject to any harm caused by his neglect. He has a duty. However, as a tenant, people have the right to rent accommodations which may appear less than desirable to outside observers. Provided the landlord honors his duty to ensure there are no hazards which endanger the health or life of a tenant he has fulfilled his obligation.
I would recommend the following approach should the ordinance pass, and I believe it will because most of the people serving on the Council are ignorant, arrogant, self-serving, Oligarchs. Most of them have probably not even read the Constitution of Illinois or of the United States. What needs to happen is massive civil disobedience. If people do not possess the temerity to assert their liberty then I say they deserve whatever they get. Otherwise, I would take a property owned by a private individual, not one acting in a corporate capacity such as an LLC or other entity, and through a Quit Claim Deed take “ownership” for valuable consideration of $1 with a promise to release the property back after 30 days for the same valuable consideration. What this would do is create a nexus where I would take ownership and thereby be “required” to procure an occupancy permit to occupy the premises. I would then take up “occupancy” and wait for the ensuing litigation. In the mean-time, I would expect an information campaign relating to this matter to be disseminated to the public, as well as promoting the people’s right to exercise jury nullification as their right. Hopefully, a jury would not convict or I would just refuse to comply, relying on legal arguments I have previously confronted various governmental bodies with. In-short, I would not comply.
I will not make myself available for such a tactic without the explicit commitment of others desiring to challenge and confront this ordinance. I will also not put myself in harm’s way for people who prefer their chains, but prefer them under their terms. I favor NO chains. That said, I will await contact……
Since the last post it seemed as though the City was going to mothball the issue. Recently it has come to light that there is another push to pass this ordinance. Not much has changed in the wording. The intent is the same, viz., to deceive the “residents” by claiming an interest in health, safety, welfare, and morals of the people (the so-called Police Power).
I will be updating this post with information as I do more research. I would first like to address the Police Power, it’s limitations, interpretations, and applications.
When a municipality has the power to tax, it may raise revenue through a license fee payable in connection with the taxable subject matter. See, e.g., Rozner v. Korshak, 55 Ill.2d 430, 303 N.E.2d 389 (1973) (sustaining Cook County’s vehicle licensing ordinance as home rule revenue measure). When authorized by statute, a municipality may also charge license fees in connection with the exercise of its regulatory police powers, but it may not use the fees to raise revenue substantially in excess of the cost of regulation. In short, a municipality may license for revenue purposes only when it has the power to tax the subject matter of the license. Under a regulatory ordinance, the license fees must bear some reasonable relationship to the costs of regulation. Quad Canteen Service Corp. v. Ruzak, 85 Ill.App.3d 256, 406 N.E.2d 616, 40 Ill.Dec. 610 (2d Dist. 1980). The mere probability that the license fees may in some degree exceed the cost of administration and inspection under a regulatory ordinance will not render the ordinance invalid. Village of Roxana v. Costanzo, 41 Ill.2d 423, 243 N.E.2d 242 (1968). The costs of printing and issuing the license tags, collecting the license fees, keeping records of the licenses issued and fees collected, and inspecting and testing the subject of regulation have been recognized as elements of the cost of administration and inspection. Larson v. City of Rockford, 371 Ill. 441, 21 N.E.2d 396 (1939).
A licensing ordinance that contains genuine regulatory provisions cannot, on its face, be condemned as a revenue device. Id. However, license fees may be so grossly excessive as to be deemed arbitrary and unreasonable as a matter of law. City of Chicago Heights v. Public Service Company of Northern Illinois, 408 Ill. 604, 97 N.E.2d 807 (1951). Generally, in the absence of proof to the contrary, it must be presumed that a reasonable relationship exists between the license fees and the costs of administration and inspection. Gibbons v. City of Chicago, 34 Ill.2d 102, 214 N.E.2d 740 (1966). The presumptive validity of a licensing ordinance must be rebutted by clear and affirmative evidence. Aladdin’s Castle, Inc. v. Village of North Riverside, 66 Ill.App.3d 542, 383 N.E.2d 1316, 23 Ill.Dec. 289 (1st Dist. 1978). When it is found that the license fees greatly exceed the costs of administration and inspection so as to render the licensing ordinance a revenue measure rather than a regulatory device, enforcement of the ordinance may be enjoined and the license fees paid under protest ordered refunded. Quad Canteen Service, supra.
Compare Quad Canteen Service, supra, with A & H Vending Service, Inc. v. Village of Schaumburg, 168 Ill.App.3d 61, 522 N.E.2d 188, 118 Ill.Dec. 733 (1st Dist. 1988), in which the court held that licensing fees imposed by home rule municipalities have a valid regulatory, as opposed to revenue-generating, purpose even though revenue generated by the fee exceeded by a five-to-one margin the municipality’s cost of inspection. See also Oak Park Trust & Savings Bank v. Village of Mount Prospect, 181 Ill.App.3d 10, 536 N.E.2d 763, 129 Ill.Dec. 713 (1st Dist. 1989), in which the court held that a landlord-tenant ordinance contained genuine regulatory provisions and the license fee assessed pursuant to the ordinance was not an improper revenue raising measure since the purpose of the licensing provision was to ensure that multiunit dwellings in the village met the requirements, rules, and regulations of the village code. Moreover, the license fees were reasonably related to costs of regulation when evidence was presented to indicate that the fees charged were insufficient to cover all necessary costs of regulation.
In Alnoa G. Corp. v. City of Houston, Texas, 563 F.2d 769 (5th Cir. 1977), the Fifth Circuit Court of Appeals held that special assessments are taxes for which no federal court relief may be had if the state provides a plain, speedy, and efficient remedy. However, in Bung’s Bar & Grille, Inc. v. Township Council of Township of Florence, 206 N.J.Super. 432, 502 A.2d 1198 (1985), the Superior Court of New Jersey held that if an assessment exceeds the value of the benefit, is arbitrary, exceeds the limits of the police power, and deprives a person of property without due process of law, it constitutes a violation of the Fourteenth Amendment and, therefore, the plaintiffs could claim attorneys’ fees in defending the action under 42 U.S.C. §1988. In addition, see Bowman v. City of Franklin, 980 F.2d 1104 (7th Cir. 1992), relative to an attack on a special assessment proceeding in federal court.
[A] municipality’s right to regulate its streets “must find basis in the doctrine of overruling necessity, or bear some substantial relation to the public good.” . . . [A] municipality’s regulatory and police powers over its public streets are subject to a reasonableness limitation. . . . A determination of reasonableness must be made in each case by weighing the particular circumstances in light of the aim of the restriction. . . . Further, one who challenges an ordinance as failing this test of minimum rationality bears the burden of proving “by clear and affirmative evidence that the ordinance constitutes arbitrary, capricious and unreasonable municipal action, that there is no permissible interpretation which justifies its adoption, or that it will not promote the safety and general welfare of the public.” [Citations omitted.] 664 N.E.2d at 299.
The “police power” of government is its authority to enact laws, including zoning ordinances, in furtherance of the public health, safety, morals, and general welfare. County of Cook v. Priester, 62 Ill.2d 357, 342 N.E.2d 41 (1976); Sternaman v. County of McHenry, 454 F.Supp. 240 (N.D.Ill. 1978). The police power is an inherent attribute of sovereignty: it is the power necessary to conduct and maintain government. Although the police power defies precise definition, it was described as follows by the court in State Public Utilities Commission ex rel. Quincy Ry. v. City of Quincy, 290 Ill. 360, 125 N.E. 374, 375 – 376 (1919): The police power of the state has never been exactly defined or circumscribed by fixed limits. It is considered as being capable of development and modification within certain limits, so that the powers of governmental control may be adequate to meet changing social, economic and political conditions. In a general way it may be defined “as comprehending the making and enforcement of all such laws, ordinances and regulations as pertain to the comfort, safety, health, convenience, good order and welfare of the public.” Wice v. Chicago and Northwestern Railway Co., 193 Ill. 351; 6 R. C. L. 189. Since the police power is reserved to the states by the Constitution (Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 64 L.Ed. 194, 40 S.Ct. 106 (1919)), local government has no inherent police power. It has only those powers delegated to it by the state constitution or statute. Tuftee v. County of Kane, 76 Ill.App.3d 128, 394 N.E.2d 896, 31 Ill.Dec. 694 (2d Dist. 1979); Cederberg v. City of Rockford, 8 Ill.App.3d 984, 291 N.E.2d 249 (2d Dist. 1972); Park Ridge Fuel & Material Co. v. City of Park Ridge, 335 Ill. 509, 167 N.E. 119 (1929).
In Illinois, the statutory provisions described in §§2.6, 2.8, and 2.9 below constitute the state delegation of zoning powers to non-home rule units of local government (municipalities, counties, and townships respectively). The Illinois Constitution vests home rule units of local government with police power. The Supreme Court in Kanellos v. County of Cook, 53 Ill.2d 161, 290 N.E.2d 240, 243 (1972), explained: The concept of home rule adopted under the provisions of the 1970 constitution was designed to drastically alter the relationship which previously existed between local and State government. Formerly, the actions of local governmental units were limited to those powers which were expressly authorized, implied or essential in carrying out the legislature’s grant of authority. Under the home-rule provisions of the 1970 constitution, however, the power of the General Assembly to limit the actions of home-rule units has been circumscribed and home-rule units have been constitutionally delegated greater autonomy in the determination of their government and affairs. To accomplish this independence the constitution conferred substantial powers upon home-rule units subject only to those restrictions imposed or authorized therein.
“. . . An ordinance will be presumed to be valid, and the one attacking [it] bears the burden of demonstrating its invalidity. The challenging party must establish by clear and convincing evidence that the ordinance, as applied, is arbitrary and unreasonable and bears no substantial relation to the public health, safety or welfare. [Citations.]” Tomasek v. City of Des Plaines (1976), 64 Ill.2d 172, 179 – 80. In City of Carbondale v. Brewster, 78 Ill.2d 111, 398 N.E.2d 829, 831, 34 Ill.Dec. 838 (1979), the court similarly stated: To be a valid exercise of police power, the legislation must bear a reasonable relationship to one of the . . . interests which is sought to be protected, and the means adopted must constitute a reasonable method to accomplish such objective. . . . Although the determination of reasonableness is a matter for the court, the legislature has broad discretion to determine not only what the interests of the public welfare require but what measures are necessary to secure such interest. . . . The court will not disturb a police regulation merely where there is room for a difference of opinion as to its wisdom, necessity and expediency. [Emphasis added.] [Citations omitted.]
See also Hewette v. Carbondale Zoning Board of Appeals, 261 Ill.App.3d 803, 634 N.E.2d 1223, 199 Ill.Dec. 869 (5th Dist. 1994). Accordingly, the plaintiff must do more than establish that its proposed use is reasonable in order to prevail in a challenge to the constitutionality of a zoning ordinance. Quoting Buhrinaster v. County of DuPage, 16 Ill.App.3d 212, 305 N.E.2d 722, 725 (2d Dist. 1973), the court in Coney v. County of DuPage, 51 Ill.App.3d 980, 367 N.E.2d 152, 153, 9 Ill.Dec. 718 (2d Dist. 1977), wrote: Faced with this presumptive validity of the zoning ordinance, it was incumbent upon the plaintiffs to establish that the legislative decision as to the subject property is clearly unreasonable, rather than that the property could reasonably be classified as plaintiffs wished. Kambich v. Village of Riverwoods, 308 Ill.App.3d 772, 721 N.E.2d 709, 242 Ill.Dec. 430 (2d Dist. 1999).
See also Zeitz, supra; American National Bank & Trust Company of Rockford v. City of Rockford, 55 Ill.App.3d 806, 371 N.E.2d 337, 13 Ill.Dec. 620 (2d Dist. 1977). Even if a municipality admits the invalidity of its zoning restriction, the plaintiff carries the burden of proving by clear and convincing evidence that prohibition of the proposed use is unreasonable. National Boulevard Bank of Chicago v. Village of Schaumburg, 83 Ill.2d 228, 415 N.E.2d 333, 47 Ill.Dec. 328 (1980).In Pioneer Trust & Savings Bank v. County of McHenry, 41 Ill.2d 77, 241 N.E.2d 454, 459 (1968), the court stated that if the gain to the public is small when compared with the hardship imposed upon the individual property owner by the restriction . . . no valid basis for an exercise of the police power exists.
The Wes Ward court relied on People ex rel. Barrett v. Thillens, 400 Ill. 224, 79 N.E.2d 609, 613 (1948): It is a fundamental and well-established rule, both in the United States courts and in the courts of this State, as a firmly settled constitutional principle, that every citizen is guaranteed the right to engage in any lawful, useful and harmless business or trade, and it is not within the constitutional authority of the State legislature, in the exercise of police power, to interfere with the rights of the individual to carry on a legitimate business, where no interest of the public safety, welfare or morals is damaged or threatened. 355 N.E.2d at 136.
The Wes Ward court went on to reason that if an ordinance tends, in some degree, to prevent an offense or preserve the public health, morals, safety, or welfare, then the ordinance is within the police power of the state. The Peoria ordinance met this low level of scrutiny. The court also found no violation of equal protection even though the ordinance contained exemptions for state licensed professions like hospital and nursing home employees, healing arts practitioners, barbers, and cosmetologists.
As noted in §5.4 above, the power of a municipality to license is strictly construed against the municipality. The principle of ejusdem generis — which holds that when general words follow an enumeration of specific things such general words are interpreted as applying only to things of the same general kind as those specifically mentioned — is implicit in any strict construction of the law. However, the courts have not always agreed on when to apply that principle. The courts have, in several instances, applied the principle in interpreting licensing powers under Illinois Municipal Code §11-42-3, which authorizes the corporate authorities of each municipality to license, tax, locate, and regulate all places of business of dealers in junk, dismantled or wrecked motor vehicles or parts thereof, rags, and any secondhand article whatsoever. 65 ILCS 5/11-42-3. In City of Chicago v. Moore, 351 Ill. 510, 184 N.E. 621 (1933), a secondhand store license ordinance was declared invalid as applied to a store selling secondhand books. The court held that this power to license extended only to those secondhand stores that carried on a business similar to junk shops. Identical reasoning in Bullman v. City of Chicago, 367 Ill. 217, 10 N.E.2d 961 (1937), removed various automobile-related businesses from municipal regulation under this section (note that Bullman was decided under a previous version of the statute, and the current statute does allow dismantled or wrecked motor vehicle dealers as a licensable subject), as did City of Chicago v. Stone, 328 Ill.App. 345, 66 N.E.2d 100 (1st Dist. 1946), regarding used musical instruments, and City of Kewanee v. Riverside Industrial Materials Co., 21 Ill.App.2d 416, 158 N.E.2d 86 (2d Dist. 1959), regarding industrial scrap.
On the other hand, Code §11-42-5 reads: The corporate authorities of each municipality may license, tax, regulate, or prohibit hawkers, peddlers, pawnbrokers, itinerant merchants, transient vendors of
merchandise, theatricals and other exhibitions, shows, and amusements and may license, tax, and regulate all places for eating or amusement.
The court in Stiska v. City of Chicago, 405 Ill. 374, 90 N.E.2d 742 (1950), refused to apply the principle of ejusdem generis. The plaintiffs argued that the term “amusements” was within the class of theatricals and other exhibitions, thereby not applying to bowling, billiards, and pool halls. The city, on the other hand, argued that the term “amusements” was not within the class of “theatricals and other exhibitions” since it was not strictly an item of that series in point of syntax. The court held that if the statute was limited to exhibitive entertainment, such an interpretation would render the term “shows, and amusements” superfluous and devoid of meaning, which the court was not willing to do. “The rule of ejusdem generis is only a rule of construction to aid in ascertaining and giving effect to the legislative intent. . . . It cannot be applied to defeat the evident purpose of the statute or to restrict the scope of subjects the legislature intended to include.” [Citation omitted.] 90 N.E.2d at 747. See also Lamere v. City of Chicago, 391 Ill. 552, 63 N.E.2d 863 (1945).
Although statutes authorizing licensing are to be strictly construed against the municipality, it should also be noted that ordinances are presumptively valid. In Aladdin’s Castle, Inc. v. Village of North Riverside, 66 Ill.App.3d 542, 383 N.E.2d 1316, 23 Ill.Dec. 289 (1st Dist. 1978), the court upheld the validity of an ordinance licensing and regulating coin-operated amusement devices. The village relied on Code §§11-42-2 (“The corporate authorities of each municipality may license, tax, regulate, or prohibit pinball, or bowling alleys, billiard, bagatelle, pigeon-hole, pool, or any other tables or implements kept for a similar purpose in any place of public resort.”) and 11-42-5 (quoted above) in passing the ordinance. Among other things, the ordinance contained an age restriction, a space restriction, and a maximum limit on the number of machines per establishment.
One of the plaintiff’s contentions was that its property and liberty rights in the premises and its business were violated. The court acknowledged the existence of the plaintiff’s private rights but stated that a valid exercise of the police power superseded those rights. In determining that the ordinance was a valid exercise of the police power, the court stated: [T]he provisions of Ordinance No. 75-0-16 in issue are clothed with presumptive validity which must be rebutted by clear and affirmative evidence that their adoption constitutes arbitrary, capricious, and unreasonable municipal action; that there is no permissible interpretation which justifies their adoption; or that they will not promote the safety or general welfare of the people of the village. 383 N.E.2d at 1319.
Grants of power to corporate authorities may come from separate sources: “The authority of a municipality to adopt an ordinance may be derived from a single grant or a combination of enumerated powers.” City of Chicago v. R. & X. Restaurant, Inc., 369 Ill. 65, 15 N.E.2d 725, 726 (1938). The power to license may be inferred from several sources of statutory power, even though none of them grants explicit authority to license. The leading case for this proposition is Father Basil’s Lodge, Inc. v. City of Chicago, 393 Ill. 246, 65 N.E.2d 805 (1946). The court sustained a Chicago ordinance regulating nursing homes although it was based on no explicit grant of
In so doing, the court relied on several sections of the Code, including §§11-30-4 and 11-8-2 dealing with the construction of buildings and prevention of fire hazards (65 ILCS 5/11- 30-4, 5/11-8-2) and §11-20-5 (65 ILCS 5/11-20-5) dealing with the general maintenance of health and suppression of disease. The court ruled that under these delegations of police power from the state, a city may regulate any occupation or business that the unrestricted pursuit of might either injuriously affect the health of the citizens or subject them to danger from fire. The court went on to state: If the regulation of certain conditions affecting the public safety has been delegated to a city and the efficient regulation of such conditions requires the conduct of a business peculiarly affected by them to be controlled by the limitations of a licensing ordinance, the power of the city to adopt such an ordinance will be necessarily implied. 65 N.E.2d at 812.
On the other hand, an attempt to license an occupation unnamed in the statutes by pooling authority from a combination of powers to license related businesses was invalidated in Ives v. City of Chicago, 30 Ill.2d 582, 198 N.E.2d 518 (1964). In Ives, the city attempted to sustain an authority to license general contractors by referring to the power to license particular kinds of contractors under numerous sections of the Code, including air conditioning and refrigeration contractors (§11-32-1), electrical contractors (§11-33-1), persons in charge of steam boilers (§11- 34-1), plumbers (§11-35-1), and masonry contractors (§11-36-1). The court ruled that the existence of the enumerated statutory powers had just the opposite effect by precluding the imposition of regulation and licensing on contractors in fields other than those to which cities have expressly been given regulatory power.
If the city has the power by implication to fill the gaps between contractors enumerated by statutes for regulation and all other contractors, there was little purpose in the legislature’s selectivity in choosing certain contractors for regulation. . . . The authorization to regulate certain classes of contractors other than building contractors neither authorizes nor permits licensing of the latter. 198 N.E.2d at 520.
NOTE: Like many of the cases cited in this chapter, this case was decided prior to the enactment of the 1970 Constitution, which granted home rule authority. See §§5.21 – 5.25 below for a discussion of home rule licensing powers. The authors further note that despite the court’s holding in Ives a number of non-home rule municipalities have adopted or are considering the adoption of ordinances licensing and regulating general contractors. While passage of such an ordinance is without lawful authority, there seems to be little objection in the construction industry to date. The careful practitioner should, however, advise any municipal client of the risks involved with such action.
The grant that “[t]he corporate authorities of each municipality may pass and enforce all necessary police ordinances” (65 ILCS 5/11-1-1) may be used to effect other statutory provisions granting the power to license, but it cannot stand alone as authority for a licensing ordinance. The court has held in City of Chicago v. M. & M. Hotel Co., 248 Ill. 264, 93 N.E. 753 (1910), that Illinois Municipal Code §11-1-1 is intended to give cities and villages the power to pass and enforce all necessary police ordinances with respect to those subjects and occupations the regulation and control of which are expressly delegated to such municipalities by other specific clauses. Code §11-1-1 is not a general delegation of all police power of the state, which if given to them, would authorize cities and villages to pass and enforce all police ordinances on any and all subjects without regard to any other specific delegation of power.
Similarly, in Lowenthal v. City of Chicago, 313 Ill. 190, 144 N.E. 829 (1924), the city argued that its police powers authorized an ordinance licensing and regulating the sale of drugs and such articles as are commonly sold in drug stores. The court stated that “[i]f the business sought to be regulated has no tendency to injure the public health or public morals or interfere with the general welfare it is not a subject for the exercise of the police power.” 144 N.E. at 831. The court struck down the ordinance, noting that there was no statutory authority granting the city the right to regulate or license drug stores and that drugs and medicine were already subject to direct state regulation. The other aspects of operating a drug store were no different from other retail stores, which presented no public health hazards; therefore, the licensing ordinance could not be imposed on the plaintiff. As discussed in §5.9 below, the power to regulate also means the power to license. Conversely, the courts have held that the power to license not only implies the power to regulate,
but mandates it. In R. & X. Restaurant, supra, 15 N.E.2d at 727, the court stated: “An ordinance providing for a license, without regulatory provisions of any kind, is solely a revenue measure and not within the police power.” See also City of Chicago Heights v. Western Union Telegraph Co., 406 Ill. 428, 94 N.E.2d 306, 310 (1950) (“A licensing ordinance which does not regulate in any degree must be considered to be a revenue measure, and, unless the power to tax has been expressly conferred by the legislature, the ordinance is void.”); Lamere v. City of Chicago, 391 Ill. 552, 63 N.E.2d 863 (1945); Ward Baking Co. v. City of Chicago, 340 Ill. 212, 172 N.E. 171 (1930).
Since licensing for revenue only is not permitted, municipalities do not have unfettered discretion in fixing the amount of license fees. City of Bloomington v. Ramey, 393 Ill. 467, 66 N.E.2d 385 (1946); Ward Baking, supra. However, a license fee for regulatory purposes will be sustained as long as the license fee bears some reasonable relation to the cost of regulation. In R. & X. Restaurant, supra, the court upheld a licensing ordinance that based the annual license fees for food-dispensing establishments on seating capacity. In response to the defendant’s contention that the license fee did not bear a reasonable relation to the burdens placed on the city because of the regulatory provisions, the court stated:
When the legislative department of a city has exercised its power of regulation upon a subject within the police power, unless there is a palpably arbitrary exercise of
such power, the courts will not declare the regulatory provisions void. . . . [A] license fee which will legitimately assist in the regulation of the business may be exacted, and it is not essential that it be confined to the exact expense of issuing a license and regulating and inspecting the business. 15 N.E.2d at 728. In A & H Vending Service, Inc. v. Village of Schaumburg, 168 Ill.App.3d 61, 522 N.E.2d 188, 118 Ill.Dec. 733 (1st Dist. 1988), the court upheld a regulatory ordinance resulting in a five-to one ratio of revenue to cost of enforcement; the enforcement scheme involved administration of records and physical inspection of vending machines by licensing and health inspectors. In reaching its decision, the court stated: [I]t is clear that a license fee for regulatory purposes can be sustained as long as the license fee bears some reasonable relation to the cost of regulation. (Arends v. Police Pension Fund (1955), 7 Ill.2d 250, 253, 130 N.E.2d 517, 519.)
The burden of proof is upon those seeking to invalidate the fees to show the lack of any reasonable relation between the fee and the cost of enforcement. (Village of Roxana v. Costanzo (1968), 41 Ill.2d 423, 425, 243 N.E.2d 242, 243.) Unless that fee is arbitrary or in great excess of the cost of enforcement and as long as the ordinances contain genuine regulatory provisions, the courts have been generous in sustaining a licensing fee for regulatory purposes. See Larson v. City of Rockford (1939), 371 Ill. 441, 444, 21 N.E.2d 396. See also Village of Roxana v. Costanzo (1968), 41 Ill.2d 423, 243 N.E.2d 242; City of Chicago v. Schall (1954), 2 Ill.2d 90, 116 N.E.2d 872. 522 N.E.2d at 190. See also Oak Park Trust & Savings Bank v. Village of Mount Prospect, 181 Ill.App.3d 10, 536 N.E.2d 763, 129 Ill.Dec. 713 (1st Dist. 1989). For a case that found no reasonable relation between the fee and the cost of regulation, see Quad Canteen Service Corp. v. Ruzak, 85 Ill.App.3d 256, 406 N.E.2d 616, 40 Ill.Dec. 610 (2d Dist. 1980), in which the court found a revenue versus cost ratio of ten to one unconstitutional when no inspections were done until after the lawsuit was filed and the inspections were minimal.
Thus, although many municipalities have a licensing ordinance that merely lists business categories and respective fees, the legally proper ordinance should contain some regulatory provisions regarding health, safety, or registration for each business that the municipality desires to license. However, it is not a valid attack on such an ordinance that the actual personnel available may not be able to carry out the full regulatory scheme contained in the ordinance. In American Banking Co. v. City of Wilmington, 370 Ill. 400, 19 N.E.2d 172 (1938), the court upheld an ordinance licensing vehicles used for the storage or delivering of food. The ordinance provided for inspections to determine compliance with its provision, but the plaintiffs argued that there was only one police officer to make such inspections and that the provisions for inspection were not being enforced. The court rejected this argument and stated: “This is wholly irrelevant as to the validity of the ordinance. It relates only to its enforcement. An ordinance is not rendered void by failure of the city to enforce it.” 19 N.E.2d at 174. See §5.11 below for a discussion of how the power to tax affects the validity of the amount of license fees.
As with the power to license, the power to regulate can be implied from various sources. Father Basil’s Lodge, Inc. v. City of Chicago, 393 Ill. 246, 65 N.E.2d 805 (1946). See also Alarm Detection Systems, Inc. v. Village of Hinsdale, 326 Ill.App.3d 372, 761 N.E.2d 782, 788, 260 Ill.Dec. 599 (2d Dist. 2001). In addition, the power to regulate includes the power to license. Therefore, a licensing ordinance can be authorized by either the implied or express authority to regulate. Some examples of cases applying this rule include the following: The power to regulate the storage of flammable liquids was held to authorize the licensing of dry cleaners in Klever Shampay Karpet Kleaners v. City of Chicago, 323 Ill. 368, 154 N.E. 131 (1926). The power to prevent fire hazards and to protect the public health was construed to permit the licensing of cosmetic manufacturers using alcohol and toxic materials in Chicago Cosmetic Co. v. City of Chicago, 374 Ill. 384, 29 N.E.2d 495 (1940).
The power to regulate the storage of lumber justified an ordinance licensing furniture manufacturers who maintain over 5,000 board feet of lumber in connection with their business in City of Chicago v. Churchill Cabinet Co., 379 Ill. 351, 40 N.E.2d 518 (1942). The power to establish and improve streets and sidewalks, to regulate the use of streets, and to prescribe the strength and manner of constructing all buildings allowed building contractors and those engaged in laying streets and sidewalks to be licensed in Concrete Contractors’ Association of Greater Chicago v. Village of La Grange Park, 14 Ill.2d 65, 150 N.E.2d 783 (1958). The power to prescribe the strength and manner of constructing buildings and to prevent fire hazards, among other powers, authorized a licensing ordinance regarding carpenter contractors in Village of Maywood v. Weglarz, 24 Ill.App.2d 495, 165 N.E.2d 362 (1st Dist. 1960). However, in Chicago Coin Meter Co. v. City of Rolling Meadows, 6 Ill.App.3d 418, 286 N.E.2d 22 (1st Dist. 1972), the court held that the statutory power to locate and regulate the use and construction of laundries was insufficient to authorize a license requirement for companies that leased coin-operated washing machines and dryers to owners of apartment complexes. See §5.8 above for a discussion of other cases in which various grants of statutory authority were held insufficient to authorize licensing. As with licensing ordinances authorized by the express or implied power to license, licensing ordinances authorized by the express or implied power to regulate must actually contain regulatory provisions. In Aberdeen-Franklin Coal Co. v. City of Chicago, 315 Ill. 99, 145 N.E. 613 (1924), the court struck down an ordinance requiring coal dealers to be licensed, noting that the ordinance contained no regulatory provisions. In doing so, the court stated: “While the power to license is an incident of the power to regulate, and a regulatory ordinance may require a license and the payment of a license fee as an incident to regulation, to sustain the power to license as an incident to regulation the ordinance must be a regulatory ordinance.” 145 N.E. at 615. Again, however, the fact that the regulatory provisions are not actually enforced will not necessarily invalidate the ordinance. See discussion in §5.8 above.