An analysis of the proposed Occupancy Code for Collinsville, Illinois

Collinsville_Proposed_Occupancy_Codes -

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.

Word trick­ery

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.…..

Mark McCoy

UPDATE:

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
authority.

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.