(146 N.E.)

8. Licenses 6(12)-Licensing of business of for rent or hire, either by the day or otherrenting 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.

Cities and Villages Act, art. 5, § 1, subd. 66, authorizing cities to pass all necessary police ordinances, does not confer unlimited police power, but merely authorizes exercise thereof to make effective powers expressly given, and hence does not authorize licensing of business of renting motor vehicles without drivers.

9. Bailment 21-Bailor for hire not respon-
sible to third person for bailee's negligence.
Bailor for hire, not retaining control of au-
tomobile or other chattel, is not responsible to
third person for its negligent use by bailee.
10. Municipal corporations 703(1)-Ordi-
nance requiring bailor of automobiles for hire
to obtain policy providing for payment of
judgment for damages from bailee's negli-
gence, void.

Ordinance requiring bailor of automobile for hire to obtain insurance policy, providing for payment of any final judgment for damages from negligent operation of car by bailee, subrogation of judgment creditor to bailor's rights against insurer, and abrogation of policy stipulations as defense to action on policy by any one except insured, held void, as changing law on subject of bailor's liability to third person without statutory authority.

Appeal from Circuit Court, Winnebago County; Earl D. Reynolds, Judge.

Proceedings by the City of Rockford against James Nolan, for violating an ordinance. From a judgment of acquittal in circuit court, on defendant's appeal from adverse judgment before police magistrate, the city appeals. Affirmed.

David D. Madden, Corp. Counsel, and William D. Knight, City Atty., both of Rockford, for appellant.

the transportation of persons of property without obtaining a license therefor, as required by and otherwise complying with the ordinance. Section 2 authorizes the mayor to issue such a license to any person over 21 years of age upon the deposit with the city clerk of an insurance policy, as required by the third section, and the execution of a bond, to the satisfaction of the mayor, in the sum of $500, conditioned upon ties and damages for which the licensee may the prompt payment to the city of all penalbecome liable, and upon the payment to the city clerk for each such truck or vehicle of a license fee ranging from $5 to $25 annually, depending upon its capacity. The third section requires every applicant for a license (1) to file with the city clerk an application setting forth the make or type of vehicle used, its engine, factory, and state license number, and its seating or carrying capacity; and (2) to deposit with the city clerk an insurance policy issued by a company authorized to transact business in this state, and providing, among other things (a) for the payment of any final judgment that may be rendered against the insured because of the negligent operation of such truck or vehicle by its driver, in a sum not exceeding $5,000 for injuries to any one person, $10,000 for injuries to more than one person, and $5,000 for damages to property; (b) that in the event of a final judgment against the insured within the company's liability, payment of or on account of the policy shall not be made to the insured within one year from the rendition of the judgment without the written consent of the person recovering 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 conditions concerning accidents and claims, and any rules governing the conduct of the insured, shall not be a defense to any action brought on the policy by any person other than the insured. The third section further provides that every licensee shall keep such insurance in force; that the insurance company shall give the city clerk written notice of any proposed cancellation of the policy, and that, upon any such cancellation, the license shall become void, and no truck or vehicle shall be operated under it until a new insurance policy shall have been filed. Section 4 fixes the expiration of all licenses granted pursuant to the ordinance, and the fifth section prescribes a penalty of not

DE YOUNG, J. A complaint was filed before a police magistrate of the city of Rockford that James Nolan, on December 14, 1923, violated the provisions of an ordinance of that city entitled "An ordinance regulating motor trucks and motor vehicles rented by the day, hour or otherwise, when no driver or chauffeur is furnished." The magistrate found Nolan guilty, and imposed upon him a fine of $10 and costs. Nolan appealed to the circuit court of Winnebago county, and upon a trial in that court without a jury he was found not guilty. The city prosecutes this appeal, the validity of a municipal ordinance being involved in the case, and the trial judge having certified that in his opinion the public interest requires that the ap-less than $5 nor more than $200 for the viopeal should be taken directly to this court. The first section of the ordinance provides that no person shall let or cause to be let, or keep or use or cause to be kept or used

lation of any of its provisions.

At the time this prosecution was instituted, appellee, Nolan, conducted a garage in Rockford. He had three sedans and one

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[6] The subsections of section 1 of article 5 of the Cities and Villages Act (Smith's Stat. 1923, pp. 222, 223, 224) which appellant asserts support the ordinance are:

roadster, which he let, without a driver or | Cas. 1915A, 292. But the city's power to legchauffeur, for the transportation of passen-islate upon a given subject, or with refergers. He interrogated the person who sought ence to a particular occupation, is not necesto rent one of these automobiles to deter- sarily derived from one item of the enumeramine whether he was capable of driving it, tion. It may be derived from several. Arms and he refused to let a car to a child, an v. City of Chicago, supra; Consumers' Co. intoxicated person or one unable to operate v. City of Chicago, 313 Ill. 408, 145 N. E. it. He made a certain charge per mile for 114; Potson v. City of Chicago, supra; the use of each car, plus 20 cents an hour on Gundling v. City of Chicago, 176 Ill. 340, 52 Sundays and holidays, and after 6 o'clock N. E. 44, 48 L. R. A. 230. p. m. on other days. The person who rented a car was not only permitted to use it in Rockford, but might drive it beyond the city limits and even out of the state. Nolan had never applied for a license under the ordinance, nor had he given the bond or the insurance policy required by its provisions. Appellant contends that the ordinance is authorized by the seventh, ninth, forty-second, and sixty-sixth subsections of section 1 of article 5 of the Cities and Villages Act (Smith's Stat. 1923, p. 222), while appellee insists (1) that the city of Rockford lacks the power to enact the ordinance; (2) that the ordinance is unreasonable; and (3) that it violates both the state and federal constitutions.

[1-4] A municipal corporation derives its existence and its powers from the General Assembly. It possesses no inherent power. In order to legislate upon or with reference to a particular subject or occupation it must be able to point out the statute which gives it the power to do so. A statute which grants powers to a municipal corporation is strictly construed, and any fair or reasonable doubt of the existence of such powers is resolved against the municipality which claims the right to exercise them. The implied powers which a municipal corporation possesses and can exercise are those necessarily incident to the powers expressly granted. Since a city has no power, except by delegation from the General Assembly, to license any occupation, or to require the payment of a tax for the privilege of engaging in it, the power must be expressly granted in the city's charter, or necessarily implied in or incident to the power expressly delegated. Arms v. City of Chicago, 314 Ill. 316, 145 N. E. 407; Potson v. City of Chicago, 304 Ill. 222, 136 N. E. 594; Condon v. Village of Forest Park, 278 Ill. 218, 115 N. E. 825, L. R. A. 1917E, 314; City of Chcago v. Pettibone & Co., 267 Ill. 573, 108 N. E. 698; City of Chicago v. M. & M. Hotel Co., 248 Ill. 264, 93 N. E. 753; Wilkie v. City of Chicago, 188 Ill. 444, 58 N. E. 1004, 80 Am. St. Rep. 182.

"Seventh-To lay out, to establish, open, alter, widen, extend, grade, pave or otherwise improve streets, alleys, avenues, sidewalks, wharves, parks and public grounds, and vacate the same.

"Ninth-To regulate the use of the same. "Forty-Second-To license, tax and regulate hackmen, draymen, omnibus drivers, carters, cabmen, porters, expressmen and all others pursuing like occupations, and to prescribe their compensation.

"Sixty-Sixth-To regulate the police of the city or village and pass and enforce all necessary police ordinances."

The seventh subsection confers general authority to open and improve streets and public ways, while subsection 9 grants the power to regulate their use. Neither authorizes the licensing of an occupation or business, and obviously cannot be invoked to sustain the ordinance in question.

[7] Each of the occupations which the city is specifically authorized by subsection 42 to license, tax, and regulate involves the operation of the vehicle upon or the use of the streets and public places of the city by the licensee. The words "and all others pursuing like occupations," which follow the specific enumeration of occupations in the subsection, are limited to pursuits of the same class or nature as those specified. Potson v. City of Chicago, supra; People v. City of Chicago, supra. The ordinance here involved does not license, tax or regulate hackmen, draymen, omnibus drivers, carters, cabmen, porters or expressmen. It does exact a license from every person who lets to another for hire a motor vehicle without a driver, and by whose letting the bailee obtains sole custody and exclusive control of the car and drives it wherever he desires. The business regulated by the ordinance is essentially different from the occupations specified in subsection 42, and that statutory provision does not, either expressly or by implication, authorize the ordinance in question here.

[5] The express enumeration, in section 1 of article 5 of the Cities and Villages Act, of the occupations or businesses which are not nuisances per se, over which the city is [8] 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. | the intent of the General Assembly by that

(146 N.E.)

When county vote prior to July 1, 1921, does and does not authorize additional highway tax in excess of constitutional limitation stated.

subsection to confer upon cities and villages, 2. Highways 127 (3)
unrestrained or unlimited police power. It
merely authorizes the exercise of that power
to make effective the powers expressly given,
Arms v. City of Chicago, supra; Moy v. City
of Chicago, 309 Ill. 242, 140 N. E. 845; Stoes-
sand v. Frank, 283 Ill. 271, 119 N. E. 300, L.
R. A. 1918D, 685; City of Chicago v. M. & M.
Hotel Co., supra.
In the absence of express
power to pass the ordinance in question,
subsection 66 cannot support it.

[9, 10] The ordinance requires of the bail-
or an insurance policy, which shall provide,
among other things, for the payment of any
final judgment for damages resulting from
the negligent operation of the car by the
bailee, the subrogation of the person recover-
ing such judgment to the bailor's rights
against the insurance company, and the ab-
rogation of the rules and stipulations of the
policy, although binding upon the insured, as
a defense to an action on the policy by any
other person.
The bailor in a contract of
bailment for hire, who does not retain con-
trol of the chattel, is not responsible to a
third person for its negligent use by the
bailee. 3 R. C. L. 145; 6 Corpus Juris, 1151.
The rule applies to a motor vehicle let un-
der the same conditions. Berry on Automo-
biles (3d Ed.) § 1306, p. 1178. The ordinance
attempts to change the law upon the sub-
ject. No such power has been delegated to
a city council by subsections 7, 9, 42 or 66
of section 1 of article 5 of the Cities and Vil-

lages Act.

The ordinance in question is void for the want of authority to pass it. The judgment of the circuit court must therefore be affirmed.

Judgment affirmed.

(316 III. 137)

Where legal voters of county have, prior to the taking effect on July 1, 1921, of the act 1923 amendment of the Counties Act and the authorizing county highway tax (unaffected by Revenue Act), providing for levying of additional annual tax not to exceed 25 cents, to be known as county highway tax, authorized additional highway tax pursuant to Roads and Bridges Act, § 15d, without specifically providing that the additional tax is to be in excess of the constitutional limitation, county board must consider this additional tax in making its annual levy and must not levy an amount to exceed 25 cents on the $100 valuation for highway purposes, unless the people of the county have, by vote on the question, authorized it to levy an amount in excess of 25 cents.

Appeal from Alexander County Court; Fred Hood, Judge.

On application of the People, on the relation of James C. Roche, County Collector, the county court entered a judgment against the Missouri Pacific Railroad Company for certain taxes which the latter refused to pay, and from that judgment the Railroad Company appeals. Reversed.

Josiah Whitnel, of East St. Louis (Edward

J. White, of St. Louis, Mo., L. O. Whitnel, of
East St. Louis, and Reed Green and David S.
Lansden, both of Cairo, of counsel), for ap-

pellant.

Leslie L. Wilbourn, State's Atty., Dewey & Cummins and Asa J. Wilbourn, all of Cairo, for appellee.

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, being 50 cents for general county purposes,

PEOPLE ex rel. ROCHE, County Collector, v. 32 cents for payment of interest and princiMISSOURI PAC. R. CO. (No. 16515.) (Supreme Court of Illinois. Feb. 17, 1925.)

pal of county road bonds and 20 cents for county highway tax. Appellant refused to pay the county highway tax, and judgment was rendered against it on the application of the county collector.

1. Highways 127(3)-What notice of election or ballot must make clear to county voters to create "additional" county highway tax In People v. Missouri Pacific Railroad Co., In excess of maximum tax for all county pur-310 Ill. 424, 141 N. E. 717, objections to simiposes.

To create an additional county highway tax in excess of the maximum tax allowed for all county purposes, notice of election or ballot must make clear to the voters that the addithe maximum tax for all county purposes then allowed by law; the mere use of the word "additional" in connection with the tax not meaning that the tax is to be levied in excess of the rate allowed for all county purposes.

tional tax authorized is to be levied in excess of

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Additional.]

lar taxes for the year 1922 were before us for consideration. In that case the objector conceded that the voters of Alexander county had, by proceedings under section 15d of the Roads and Bridges Act (Smith-Hurd Rev. St. 1923, c. 121, § 19), legally issued $350,000 in road bonds, and that they had legally authorized a tax of 25 cents for the payment of interest and principal of such bonds, which tax was to be in addition to the tax of 50 cents for general county purposes. The objection 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 of the constitutional limitation of 75 cents, was not a legal tax. We held that, inasmuch as it was conceded that the additional tax voted was a tax in addition to the 50 cents authorized for general county purposes, the voters authorized the full 35 cent tax, which made the tax 10 cents in excess of the constitutional limitation. On this appeal the apple v. Wabash Railway Co. 286 Ill. 15, 121 N. pellant concedes that the 35 cent tax authorized by the voters for the payment of interest and principal of county road bonds is a legal tax, and is to be levied in addition to the regular 50 cent tax for general county purposes.

(315 Ill. 341)

(146 N.E.)

dustrial Commission of Illinois an application

DAVIS, Director General of Railroads, v. IN- for compensation against the Southern RailDUSTRIAL COMMISSION et al.

(Supreme Court of Illinois. Feb. 17, 1925.) 1. Railroads 52, New, vol. 6A Key-No. Series-Conditions prescribed by government for bringing actions on claims arising out of federal control of railroads must be strictly complied with.

Since United States cannot be sued without its consent, and cases arising out of federal control of railroads are claims against United States, federal government had power to prescribe conditions under which actions might be brought on such claims, and such conditions must be strictly complied with.

tion of federal control.

Petition for compensation for injuries filed against railroad company in 1919 not naming Director General of Railroads as party was not an action, suit, or proceeding pending at termination of federal control within Transportation Act Feb. 28, 1920, § 206 (U. S. Comp. St. Ann. Supp. 1923, § 100714 cc), and substitution of agent designated by President was unauthorized, and, claim not having been filed against such agent within period limited in act, Industrial Commission was without jurisdiction to enter an award.

way Company. The Director General was not made a party, but thereafter from time to time made payments of amounts due under the Compensation Act. This continued until August 1, 1921, when payments were stopped. The amount due up to August 1 was paid on September 23, 1921. The total payments amounted to $1,489.85. Further paydefendant in error on the 15th day of Febru ment being refused by the Director General, ary, 1922, filed a petition in the original cause then pending before the Industrial Commission against the Southern Railway Company for a hearing on the original petition. Such hearing was had on March 8, 1922, at which time a motion was made to substitute as respondent "James C. Davis, Director Gen. eral of Railroads, as Agent, under section 206 of the Transportation Act of February 28, . 1920, in control of Southern Railroad." Objection was made to this order, and a motion was filed to dismiss the cause on the ground that the original petition filed with the In

dustrial Commission on October 13, 1919, was

against the Southern Railway Company, while at the time of the injury that railroad was operated by the Director General of Rail roads of the United States Railroad Administration; that the cause was not brought against him, nor was it brought against the designated Agent provided by the Transportation Act, within two years after February 28, 1920, as required by paragraph (a) of section 206 of that act (U. S. Comp. St. Ann. Supp. 1923, § 100714 cc). The arbitrator

Error to Circuit Court, St. Clair County; denied the motion, and substituted plaintiff George A. Crow, Judge.

Proceeding under the Workmen's Compensation Law by Christ Schaefer, claimant for personal injuries, as against Southern Railway Company, opposed by James C. Davis, Director General of Railroads, substituted. An award of the Industrial Commission for claimant was affirmed, and the Director General brings error. Reversed.

Edward C. Kramer, Rudolph J. Kramer, Bruce A. Campbell, and Roland H. Wiechert, all of East St. Louis, for plaintiff in error. Silas Cook, of East St. Louis, for defendant in error.

in error as defendant to the original petition, and on April 14 entered an award in the sum of $13.26 per week for a period of 53 weeks for temporary total incapacity and the sum of $13.26 per week for a period of 1222 weeks, as provided by paragraph (e) of section 8 of the Compensation Act (SmithHurd Rev. St. 1923, c. 48, § 145), for the reason that the injury sustained caused permanent loss of 70 per cent. of the use of the left leg. The total amount of this award was $2,327.13, of which $1,489.85 had been paid, leaving an unpaid balance of $837.28. The arbitrator's award was confirmed by the Industrial Commission and the circuit court of St. Clair county, and the cause comes here on writ of error.

STONE, J. On May 27, 1919, defendant in error, while in the line of his employment, Plaintiff in error urges that the motion to was injured by the Southern Railway Com- dismiss made before the arbitrator should pany while it was under the control of the have been allowed, for the reason that the federal government as provided by the Fed- cause of action was commenced against the eral Control Act of August 29, 1916 (U. S. Southern Railway Company and not against Comp. St. § 1974a). The road was at that time the Director General of Railroads of the operated by the Director General of Railroads United States Railroad Administration unof the United States Railroad Administration. der the Federal Control Act of 1916, or Compensation not having been paid, defendant against plaintiff in error, as Agent, under the in error, on October 13, 1919, filed with the In- Transportation Act, within the time required For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes