« ForrigeFortsett »
cising Its appellate jurisdiction. Where the
(316 III. 60) parties to the proceedings make no effort to CITY OF ROCKFORD V. NOLAN. set aside the judgment of the court for error
(No. 16360.) in its proceedings, and the judgment stands unimpeached, a stranger in a collateral pro
(Supreme Court of Illinois. Feb. 17, 1925.) ceeding cannot challenge its validity. Swiggart v. Harber, 4 Scam. 364, 39 Am. Dec. 418. 1. Municipal corporations 57-Powers de.
rived from General Assembly. When the general character of a judgment is such that its subject-matter falls within the
Municipal corporation derives existence and general jurisdiction of the court that enters powers from General Assembly, and has no in
herent power. it, a collateral attack cannot be made thereon, even though the pleadings may be defec- 2. Municipal corporations 58—Statute grant. tive and subject to demurrer. Christianson ing powers strictly construed. v. King County, 239 U. S. 356, 36 S. Ct. 114, Statute granting powers to municipal corpo60 L. Ed. 327; Jarrell v. Laurel Coal & Land ration is strictly construed, and any fair or Co., 75 W. Va. 752, 84 S. E. 933, L. R. A. reasonable doubt of existence of such powers is 1916E, 312; Tube City Mining & Milling Co. resolved against it. v. Otterson, 16 Ariz, 305, 146 P. 203, L. R. A.
3. Municipal corporations Om59 "Implied 1916E, 303; Altman v. School District, 35
powers" necessarily incident to express pow. Or. 85, 56 P. 291, 76 Am. St. Rep. 468; In re James' Estate, 99 Cal. 374, 33 P. 1122, 37 Am.
“Implied powers” of municipal corporations St. Rep. 60; Trumble v. Williams, 18 Neb. are those necessarily incident to powers granted. 144, 24 N. W. 716.
[Ed. Note.-For other definitions, see Words (9-12] The questions raised with respect and Phrases, First and Second Series, Implied to the proceedings in the county court are Powers.) not before us for decision, but, assuming that all the errors urged are well taken, none 4. Licenses em 6(2)-Power to license occupa. of them are of a character to deprive the
tion must be expressly granted or necessarily
Incident to power expressly delegated. court of jurisdiction. Grant that the petition should have contained a formal prayer
Power to license or require payment of tax to declare Smith insane, the action of the to engage in occupation, must be expressly county court in treating the petition as suffi- granted in city's charter, or necessarily implied
in or incident to power expressly delegated. cient and rendering its judgment appointing the conservator can be nothing more 5. Licenses Ow6(2)-No power to legislate con-' than error. And the same may be said of cerning occupations not enumerated in stat. the action of the court in entering its nunc
ute, but power may be derived from several
items of enumeration. pro tunc order at a subsequent term. There is no bill of exceptions in this record, nor
Express enumeration in Cities and Villages could there be, showing that the court did Act, art. 5, § 1, of occupations or businesses, not have before it proper memoranda jus- control, excludes all others, but power to legis
not nuisances per se, over which city is given tifying the entry of the order. All of the au- late on given subject may be derived from sevthorities in this state are to the effect that eral items of enumeration. the county court has general jurisdiction of an insane ward's estate, and that in the ex. 6. Licenses Ow6(12)—Act authorizing city to ercise of that jurisdiction it has power to
open, improve, and regulate use of streets
does not authorize licensing of occupation or direct the sale of real estate belonging to
business such as renting vehicles without the ward. In the proceeding here questioned drivers. the court had jurisdiction of the subject-mat
Cities and Villages Act, art. 5, § 1, subds. ter, and had jurisdiction of all the persons 7, 9, conferring general authority to open, imhaving claims against the estate. Whether prove, and regulate use of streets, does not auit erred in ordering the real estate sold free thorize licensing of occupation or business, such from the liens of those whose claims are as that of renting motor vehicles without drip. secured by mortgages on the real estate in-ers. volved, and whose claims have been reduced 7. Licenses Om6(12) Licensing business of to judgment, is a question not open for con renting motor vehicles without drivers aot sideration in the proceeding in the circuit authorized by act permitting licensing of court to compel the specific performance of a hackmen, etc.; "all others pursuing like oc. contract for the sale of the real estate. The
cupations." proceeding in the county court was one in Cities and Villages Act, art. 5, § 1, subd. rem, and the orders entered by it are, until 42, authorizing city to license hackmen, dray. set aside, reversed, or modified in a regular men, etc., and "all others pursuing like occupaand direot proceeding, binding on all the of renting motor vehicles without drivers for
tions," does not authorize licensing of business world.
use wherever bailees desire; quoted words beThe decree of the circuit court is affirmed. ing limited to pursuit of same class or nature Decree affirmed.
as those specified.
(146 N.E.) 8. Licenses 6(12)-Licensing of business of , for rent or hire, either by the day or other
renting motor vehicles without drivers not wise, when no driver or chauffeur is furauthorized by statute delegating police pow. nished, any motor truck or motor vehicle for ers.
the transportation of persons of property Cities and Villages Act, art. 5, § 1, subd. 66, without obtaining a license therefor, as reauthorizing cities to pass all necessary police quired by and otherwise complying with the ordinances, does not confer unlimited police
ordinance. Section 2 authorizes the mayor power, but merely authorizes exercise thereof to make effective powers expressly given, and to issue such a license to any person over hence does not authorize licensing of business of 21 years of age upon the deposit with the renting motor vebicles without drivers.
city clerk of an insurance policy, as
quired by the third section, and the execu9. Bailment am 21-Bailor for hire not respon- tion of a bond, to the satisfaction of the sible to third person for bailee's negligence.
mayor, in the sum of $500, conditioned upon Bailor for hire, pot retaining control of automobile or other chattel, is not responsible to ties and damages for which the licensee may
the prompt payment to the city of all penalthird person for its negligent use by bailee.
become liable, and upon the payment to the 10. Municipal corporations Cm703(1)-Ordi- city clerk for each such truck or vehicle of nance requiring bailor of automobiles for hire
a license fee ranging from $5 to $25 annualto obtain policy providing for payment of ly, depending upon its capacity. The third judgment for damages from bailee's negli- section requires every applicant for a license gence, void.
Ordinance requiring bailor of automobile for (1) to file with the city clerk an application hire to obtain insurance policy, providing for setting forth the make or type of vehicle payment of any final judgment for damages used, its engine, factory, and state license from negligent operation of car by bailee, sub- number, and its seating or carrying capacrogation of judgment creditor to bailor's rights ity; and (2) to deposit with the city clerk against insurer, and abrogation of policy stipu- / an insurance policy issued by a company lations as defense to action on policy by any one authorized to transact business in this state, except insured, held void, as changing law on and providing, among other things (a) for subject of bailor's liability to third person with the payment of any final judgment that may out statutory authority.
be rendered against the insured because of Appeal from Circuit Court, Winnebago the negligent operation of such truck or veCounty; Earl D. Reynolds, Judge.
hicle by its driver, in a sum not exceeding
$5,000 for injuries to any one person, $10,000 Proceedings by the City of Rockford for injuries to more than one person, and against James Nolan, for violating an or- $5,000 for damages to property; (b) that in dinance. From a judgment of acquittal in the event of a final judgment against the circuit court, on defendant's appeal from insured within the company's liability, pay. adverse judgment before police magistrate, ment of or on account of the policy shall not the city appeals. Affirmed.
be made to the insured within one year David D. Madden, Corp. Counsel, and Wil- from the rendition of the judgment without liam D. Knight, City Atty., both of Rock the written consent of the person recovering ford, for appellant.
it, who shall be subrogated to all the rights Hyer, Gill & Rang, of Rockford, for ap- of the insured, and may directly enforce pellee.
the company's liability on the policy, if any;
and (c) that the policy's stipulations and conDE YOUNG, J. A complaint was filed be- ditions concerning accidents and claims, and fore a police magistrate of the city of Rock- any rules governing the conduct of the inford that James Nolan, on December 14, 1923, sured, shall not be a defense to any action violated the provisions of an ordinance of brought on the policy by any person other that city entitled “An ordinance regulating than the insured. The third section further motor trucks and motor vehicles rented by provides that every licensee shall keep such the day, hour or otherwise, when no driver insurance in force; that the insurance comor chauffeur is furnished." The magistrate pany shall give the city clerk written notice found Nolan guilty, and imposed upon him of any proposed cancellation of the policy, a fine of $10 and costs. Nolan appealed to and that, upon any such cancellation, the the circuit court of Winnebago county, and license shall become void, and no truck or veupon a trial in that court without a jury he hicle shall be operated under it until a new was found not guilty. The city prosecutes | insurance policy shall have been filed. Sec. this appeal, the validity of a municipal or- tion 4 fixes the expiration of all licenses dinance being involved in the case, and the granted pursuant to the ordinance, and the trial judge having certified that in his opin- fifth section prescribes a penalty of not ion the public interest requires that the ap- less than $5 nor more than $200 for the viopeal should be taken directly to this court. lation of any of its provisions.
The first section of the ordinance provides At the time this prosecution was institutthat no person shall let or cause to be let, ed, appellee, Nolan, conducted a garage in or keep or use or cause to be kept or used Rockford. He had three sedans and
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
roadster, which he let, without a driver or Cas. 1915A, 292. But the city's power to leg.
"Seventh-To lay out, to establish, open, alter, insurance policy required by its provisions. streets, alleys, avenues, sidewalks, wharves,
Appellant contends that the ordinance is parks and public grounds, and vacate the authorized by the seventh, ninth, forty-sec- same. ond, and sixty-sixth subsections of section 1 "Ninth-To regulate the use of the same. of article 5 of the Cities and Villages Act
"Forty-Second-To license, tax and regulate (Smith's Stat. 1923, p. 222), while appellee
hackmen, draymen, omnibus drivers, carters, insists (1) that the city of Rockford lacks cabmen, porters, expressmen and all others pur
suing like occupations, and to prescribe their the power to enact the ordinance; (2) that
compensation. the ordinance is unreasonable; and (3) that
"Sixty-Sixth-To regulate the police of the it violates both the state and federal con- city or village and pass and enforce all necesstitutions.
sary police ordinances." [1-4] A municipal corporation derives its existence and its powers from the General The seventh subsection confers general Assembly. It possesses no inherent power. authority to open and improve streets and In order to legislate upon or with reference public ways, while subsection 9 grants the to a particular subject or occupation it must power to regulate their use. Neither aube able to point out the statute which gives thorizes the licensing of an occupation or it the power to do so, A statute which business, and obviously cannot be invoked grants powers to a municipal corporation is to sustain the ordinance in question. strictly construed, and any fair or reasonable  Each of the occupations which the city doubt of the existence of such powers is re- is specifically authorized by subsection 42 solved against the municipality which claims to license, tax, and regulate involves the the right to exercise them, The implied operation of the vehicle upon or the use of powers which a municipal corporation pos- the streets and public places of the city by sesses and can exercise are those necessarily the licensee. The words "and all others incident to the powers expressly granted. pursuing like occupations,” which follow the Since a city has no power, except by dele specific enumeration of occupations in the gation from the General Assembly, to license subsection, are limited to pursuits of the any occupation, or to require the payment same class or nature as those specified. Potof a tax for the privilege of engaging in it, son v. City of Chicago, supra; People v. City the power must be expressly granted in the of Chicago, supra. The ordinance here incity's charter, or necessarily implied in or volved does not license, tax or regulate hackincident to the power expressly delegated. men, draymen, omnibus drivers, carters, cab. Arms v. City of Chicago, 314 Ill. 316, 145 N. men, porters or expressmen. It does exact E. 407; Potson v. City of Chicago, 304 Ill. a license from every person who lets to an. 222, 136 N. E. 594; Condon v. Village of For- other for hire a motor vehicle without a est Park, 278 Ill. 218, 115 N. E. 825, L. R. A. driver, and by whose letting the bailee ob1917E, 314; City of Chcago v. Pettibone & tains sole custody and exclusive control of Co., 267 Ill. 573, 108 N. E. 698; City of the car and drives it wherever he desires. Chicago v. M. & M. Hotel Co., 248 Ill. 261, The business regulated by the ordinance is 93 N. E. 753; Wilkie v. City of Chicago, 188 essentially different from the occupations Ill. 444, 58 N. E. 1004, 80 Am. St. Rep. 182. specified in subsection 42, and that statutory
 The express enumeration, in section 1 provision does not, either expressly or by of article 5 of the Cities and Villages Act, implication, authorize the ordinance in ques. of the occupations or businesses which are tion here. not nuisances per se, over which the city is  The authority granted by subsection given control, is the exclusion of all other 66 to regulate the police, and pass and enoccupations or businesses. Arms v. City of force all necessary police ordinances, is not Chicago, supra; Potson v. City of Chicago, a delegation of the entire police power of the supra; People v. City of Chicago, 261 Ill. state to municipal corporations. It was not 16, 103 N. E. 609, 49 L. R. A. (N. S.) 438, Ann. I the intent of the General Assembly by that
(146 N.E.) subsection to confer upon cities and villages, 2. Highways Cw127 (3) When county vote unrestrained or unlimited police power. It
prior to July 1, 1921, does and does not aumerely authorizes the exercise of that power
thorize additional highway tax in excess of to make effective the powers expressly given,
constitutional limitation stated. Arms y, City of Chicago, supra; Moy v. City
Where legal voters of county have, prior to of Chicago, 309 Ill. 242, 140 N. E. 845; Stoes. authorizing county highway tax (unaffected by
the taking effect on July 1, 1921, of the act sand v. Frank, 283 Ill. 271, 119 N. E. 300, L 1923 amendment of the Counties Act and the R. A. 1918D, 685; City of Chicago v. M. & M. Revenue Act), providing for levying of addiHotel Co., supra. In the absence of express tional annual tax not to exceed 25 cents, to be power to pass the ordinance in question, known as county highway tax, authorized adsubsection 66 cannot support it.
ditional highway tax pursuant to Roads and (9,10] The ordinance requires of the bail- | Bridges Act, 150, without specifically providor an insurance policy, which shall provide, ing that the additional tax is to be in excess of among other things, for the payment of any consider this additional tax in making its an
the constitutional limitation, county board must final judgment for damages resulting from nual levy and must not levy an amount to exthe negligent operation of the car by the ceed 25 cents on the $100 valuation for highbailee, the subrogation of the person recover-way' purposes, unless the people of the county ing such judgment to the bailor's rights have, by vote on the question, authorized it to against the insurance company, and the ab- levy an amount in excess of 25 cents. rogation of the rules and stipulations of the policy, although binding upon the insured, as
Appeal from Alexander County Court; a defense to an action on the policy by any Fred Hood, Judge. other person.
The bailor in a contract of On application of the People, on the relabailment for hire, who does not retain con- tion of James C. Roche, County Collector, the trol of the chattel, is not responsible to a county court entered a judgment against the third person for its negligent use by the Missouri Pacific Railroad Company for cerbailee. 3 R. C. L. 145; 6 Corpus Juris, 1151. tain taxes which the latter refused to pay, The rule applies to a motor vehicle let un- and from that judgment the Railroad Comder the same conditions. Berry on Automo- pany appeals. Reversed. biles (3d Ed.) 8 1306, p. 1178. The ordinance
Josiah Whitnel, of East St. Louis (Edward attempts to change the law upon the subject. No such power has been delegated to J. White, of St. Louis, Mo., L. O. Whitnel, of a city council by subsections 7, 9, 42 or 66 East St. Louis, and Reed Green and David S. of section 1 of article 5 of the Cities and Vil- Lansden, both of Cairo, of counsel), for ap
pellant. lages Act.
Leslie L. Wilbourn, State's Atty., Dewey & The ordinance in question is void for the Cummins and Asa J. Wilbourn, all of Cairo, want of authority to pass it. The judgment
THOMPSON, J. The aggregate tax for
county purposes (exclusive of registered bond tax), levied by the county board of Alexander county for the year 1923, required a rate
of $1.02 on each $100 assessed valuation, (316 Ill. 137)
being 50 cents for general county purposes, PEOPLE ex rel. ROCHE, County Collector, v. 32 cents for payment of interest and princi
MISSOURI PAC. R. CO. (No. 16515.) pal of county road bonds and 20 cents for (Supreme Court of Illinois. Feb. 17, 1925.)
county highway tax. Appellant refused to
pay the county highway tax, and judgment 1. Highways 127(3)-What notice of elec- was rendered against it on the api tion of
tion or ballot must make clear to county vot the county collector.
lar taxes for the year 1922 were before us
thorized a tax of 25 cents for the payment of ing that the tax is to be levied in excess of the interest and principal of such bonds, which rate allowed for all county purposes.
tax was to be in addition to the tax of 50 (Ed. Note.-- For other definitions, see Words cents for general county purposes. The oband Phrases, First and Second Series, Addi-jection was that the additional 10 cents
levied for the payment of interest and prin. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
cipal of county road bonds, being in excess thorize, a tax of 35 cents in excess of the
 Appellant has never contended in this
highway tax that the county board in every Appellee contends, and the trial court held, county should have authority to levy an anthat a vote authorizing "an additional tax nual tax not to exceed 25 cents on the $100 for the payment of interest and principal” | valuation for highway purposes, but it is of county road bonds, authorizes a tax in ad- equally clear that it did not thereby intend dition to all other taxes for county purposes to authorize double taxes in counties where authorized by law at the time the levy is the legal voters had theretofore authorized made each year, and that in the case at bar the county board to levy an additional tax the vote authorizing the additional tax of 35 for the same purpose. Therefore, where the cents in effect authorized a tax of 35 cents in legal voters have prior to July 1, 1921, auexcess of the constitutional limitation of 75 thorized an additional highway tax without cents where the county levies the full 75 cent specifically providing that the additional tax tax for other authorized county purposes. is to be in excess of the constitutional limi
 Whether the Legislature can by an act tation, the county board must take into conprovide that a tax, if authorized by the vot- sideration this additional tax in making its ers of a county, shall be in excess of the con- annual levy, and not levy an amount to ex. stitutional limitation where the ballot does ceed 25 cents on the $100 valuation for highnot so provide, and the attention of the voter way purposes, unless the people of the county is not by direct reference to a statute or in have, by vote on the question, authorized it any other manner di ed to the fact that to levy an amount in excess of 25 cents. the tax will be in excess of the constitutional The judgment of the county court is relimitation, it is clear that the vote taken in versed. Alexander county April 6, 1921, did not au