Naegle v. City of Centralia

Mr. Justice Worthington delivered the opinion of the court. Plaintiff in error urges error in the admission of Sec. 2 and Sec. 3 of Chap. 21 of the ordinances of Centralia, upon the ground that no proof was made of the passage of the ordinance. The objection to its introduction was general, stating no reasons whatever. It is too late now to raise a specific objection, that might have been removed if made at the trial. As both cases were consolidated and but one judgment rendered, if plaintiff in error was rightfully convicted of violating either Sec. 2 or Sec. 3 of Chap. 21, the judgment must be affirmed. If not rightfully convicted of violating one or both of said sections, it must be reversed. The issues in this case involve a question of the validity of the ordinances; and also whether or not the business as conducted by plaintiff in error was a violation of the sections cited, or either of them, if valid. It is clear that under the evidence there is no violation of Sec. 3 of Chap. 21. The.embracing clause of this section is: “ Whoever shall temporarily establish or open up a place of business in this city for the purpose of selling, bartering,” etc. The only testimony introduced is that of plaintiff in error, and he testifies: “ The goods were shipped in the original packages from St. Louis to Centralia in boxes and barrels, to the house we had permanently rented, then loaded into wagons and delivered to the customer.” As this statement is uncontradicted, and there is no testimony to indicate that the business as carried on by defendant was a transient and not a permanent business, this section need not be further considered. This leaves, then, the inquiry only as to the validity of Sec. 2 of Chap. 21, taken in connection with Sec. 3 of Chap. 25; and if valid, as to whether the evidence shows it to'have been violated. Sec. 2 fixes the license at from two dollars to ten dollars per day, thereby giving a discretionary power to some one to determine the amount to be paid; but names no one who shall fix it. Sec. 3 of Chap. 25 names the person in the following terms: “ All applications for license shall be made to the mayor, who shall determine upon and collect the fee for the same. Upon granting the license, the mayor shall certify the same to the city clerk, stating the amount received for such license, etc. * * * And the city clerk shall issue such license,” etc. By this section the mayor, and not the council, determines the sum to be paid for a license, subject only to the limitations that it shall be not less than $2 nor more than $10 per day. The authority of cities and villages to issue licenses is found in Sec. 62 of Article 5, Hurd’s Statutes, p. 265: “ The city council in cities * * * shall have the following powers : * * * To fix the amount, terms and manner of issuing and revoking licenses.” The city council consists of the mayor and aldermen. “ The general legislative power residing in a State government may delegate to a municipal corporation some portion of its own powers. But these delegated powers given for local objects are regarded as trusts confided to the hands in which they are placed, and are not subject to be delegated by the representatives of them.” Am. & Eng. Ency. of Law, Vol. 15, p. 1043; Dillon on Municipal Corp., Vol. 1, Sec. 96. This doctrine is fully sustained by decisions of our Supreme Court too numerous to be cited. “ When a municipal corporation is authorized to issue a license, such authority can not be delegated to others. Thus, the board of aldermen of a city can not delegate to a mayor the general authority of the city to grant a license.” Am. & Eng. Ency. of Law, Vol. 13, p. 531; Kinmundy v. Mahan, 72 Ill. 462; Darling v. City of St. Paul, 19 Minn. 392. Neither can a municipal corporation delegate to the city treasurer a discretionary power to fix the amount of license. City of East St. Louis v. Wehrung, 46 Ill. 393, 50 Ill. 29, cited in Gillette v. Logan Co., 67 Ill. 258; McRoberts v. City of Sullivan, 67 Ill. App. 436. If this discretionary power can not be delegated to the city treasurer, by the same reasoning it can not be delegated to the mayor. He is not the city council, and that body alone is authorized “ to fix the amount, terms and manner of issuing licenses.” • The selling of goods, wares and merchandise from house to house in the city of Centralia, without license, is not an illegitimate business unless made so by a valid ordinance of that city. Under the ordinance in question, the mayor can by license permit one man to sell sugar, coffee, etc., for $2 a day, and require another man selling the same article, at the same prices and at the same places, to pay $10 a day for the same privilege. A license of. $10 a day for the conduct of business of the character specified in the ordinance, without regard to the amount of sales, is prohibitory and not permissive. For the reasons, then, that the council has no power to delegate to the mayor discretion to fix the amount of license; that in the exercise of this discretion gross favoritism and injustice might be practiced; and that a limit of $10 a day allows a prohibitory license to be exacted, the ordinance in quesfcion is unreasonable and void. Carrolton v. Bazzette, 159 Ill. 284; Village of Braceville v. Doherty, 30 Ill. App. 650; City of East St. Louis v. Wehrung, 46 Ill. 393; Tugman v. City of Chicago, 78 Ill. 405; City of Peoria v. Gugenheim, 61 Ill. App. 378; City of Chicago v. Hardy, 66 Ill. App. 524. The testimony of plaintiff in error is to the effect that the business engaged in was canvassing for orders for sugar, coffee, baking powder, spices, etc.,-to be delivered in thirty days; that the orders were filled at the branch house of the Great Atlantic & Pacific Tea Co. in St. Louis, and shipped to plaintiff in error, as agent, for delivery; that if not delivered they were stored in the warehouse, and if not disposed of were sent back to the Great Atlantic & Pacific Tea Co. in St. Louis. How long this business- had continued, or how long it was intended to be continued, does not expressly appear. For all that the evidence discloses, it may be inferred that the Great Atlantic & Pacific Tea Company proposes to continue business in Centralia, keeping a warehouse there “ permanently rented,” and by him selling and delivering its goods and making its collections. Under this evidence, plaintiff in error is an agent of a company doing business in Hew York, St. Louis, Centralia, and other cities. The fact that the base of supplies is in St. Louis, where the packages are made up, does not bring the defendant within the scope of the ordinance. If orders were taken and the packages made up by plaintiff in error from supplies kept in a warehouse in Centralia, plaintiff in error, so far as the ordinance is concerned, would stand in the same relation as any grocer in that city taking orders and delivering goods. The fact that the packages are made up in St. Louis by the Great Atlantic & Pacific Tea Co., and shipped to the agent at Centralia, does not make him or it an itinerant merchant or a transient vender, and these only are required by the ordinance to take out a license when they sell from house to house. The propositions numbered one, two and five, asked by plaintiff in error to be held by the court, should not have been refused. The propositions numbered three and four, not being necessary to be considered for the decision of this case, are not passed upon. Judgment reversed. The following statement will be incorporated in the final order: The city council of Centraba, without authority, delegated to the mayor the discretion of fixing the amount of .license at a sum not less than $2 a day and not more than $10 a day. Plaintiff in error, under the evidence, was not an itinerant merchant, nor a transient vender of merchandise.