Cohen v. City of Danville

Mr. Justice Waggoner delivered the opinion of the court. The City of Danville, appellee, passed an ordinance to regulate the location of junk stores and junk yards and the licensing thereof outside of certain limits. Section one, of the ordinance, provided that “on and after January 1, 1919, it shall be unlawful to locate, build, construct, keep, conduct, operate or maintain a junk store or junk yard, either at wholesale or retail within one hundred feet of any church, public or parochial school or hospital in the city or in the following described territory,” and then describes the territory. Section two declares it to be .unlawful, after January 1, 1919, to locate, build, construct, keep, conduct, operate or maintain any junk store or junk yard in any other territory in said city than such as it described in section one of such ordinance, without first having obtained a license therefor. The two remaining sections of the ordinance are in reference to the contents of an application for a license and the penalty for violations of the provisions of the ordinance. At the time the ordinance was passed four of the appellants, in the name of one of them, and the remaining appellant, under a firm name, were operating two junk stores and junk yards within the. limits prohibited by the first section of the ordinance. Appellants filed a bill" in equity seeking to enjoin the enforcement of the provisions of the ordinance asking that it be decreed, by the court, to be invalid, null, void and of no force or effect. A demurrer was interposed to the bill on the ground that appellants had a complete and adequate remedy at law. The demurrer was sustained. The bill was dismissed for want of equity. Appellants assign as error the action of the court in dismissing the bill; deny that they have a complete and adequate remedy at law and insist that a court of equity should take, jurisdiction for the purpose of preventing a multiplicity of suits and irreparable injury, and determine whether or not the ordinance is constitutional and reasonable. So the question of the constitutionality of the ordinance and whether or not it is reasonable is presented for determination. If there is a question of the constitutionality of the ordinance to be determined, that would be a matter for the Supreme Court and was waived by,the appeal to this court. Pittsburg, C., C. & St. L. Ry. Co. v. City of Chicago, 242 Ill. 178, 185. The presumption is in favor of the validity of the ordinance and it is incumbent upon appellants, who are attacking it as being unreasonable, to show affirmatively and clearly that it is so. (People v. Village of Oak Park, 266 Ill. 365, 370.) The allegations of the bill, filed in this case, to show wherein the unreasonableness of the ordinance consists are, “that the boundaries fixed in section one within which it is declared to be unlawful to operate a junk yard on and after January 1, 1919, is unreasonable in this that it includes territory within said ■ boundaries which is suitable and proper for conducting said business and at the same time makes the residential portion of said city practically the only territory in which a junk store can be legally located.” Appellee has a right, under power conferred by clause ninety-five, of section sixty-two, chapter twenty-four of Hurd’s Revised Statutes (J. & A. ¶ 1334) to direct the location of junk stores and junk yards and it would be a difficult matter to establish a boundary in which such stores and yards might not be located that did not include some territory suitable and proper for said business. The fact alone that some of such territory is so included within the prohibitory boundary would not render the ordinance unreasonable nor could it be said, as a matter of law, that the ordinance was unreasonable in making the residential portion of the city practically the only territory in which such business could be conducted. Proof of the facts as they exist might result in a different conclusion. The legality of illegality of an ordinance is purely a question of law, which the common-law court is competent to decide. (Poyer v. Village of Des Plaines, 123 Ill. 111, 115.) Appellants recognize the rule that courts of equity will not interfere to restrain a prosecution for the violation of a municipal ordinance except to prevent irreparable injury or a multiplicity of suits and to bring themselves within the first exception the bill, after setting out the ordinance in full, alleges that “under and by virtue of the terms of said ordinance it is provided that the complainants must move their business so established * * * fr0m their present respective locations to some point outside the boundaries prescribed in said ordinance on or before January 1, 1919, or be subject to a fine”; that the business of complainants is such that it would require buildings with certain appliances and equipment to be erected at a cost of not less than $15,000; that there existed an embargo by the U. S. Government, on the construction of business buildings and the shipping of building materials of all kinds from the date of the passage of the ordinance to the first day of December following; that there is a shortage of building materials and of labor both skilled and common making it physically impossible to remove their business to some location outside the limits prescribed within the required time. The ordinance does not contain the above quoted provision. While the existence of such an embargo and difficulty in procuring labor and materials would seriously affect persons desiring to construct buildings, it certainly would have no effect on any one not intending to do so, and we take it, from the allegations in the bill, that complainants are in the latter class, as they not only allege no disposition on their part to remove their places of business, if the same could be done, but do allege that they intend to con-, tinue in their present locations after January 1, 1919, for the reason that the ordinance is null and void. The question that confronts appellants, as a result of the passage of the ordinance, is not the difficulties and expense of the removal of theii; places of business to another part of the city but whether or not they can continue in their present locations. Appellee with power so to do has ordained that they cannot do it. Appellants to bring themselves within the second exception, above noted, allege that there are other firms, corporations and property owners affected by the purported ordinance, and that this suit is brought for and on behalf of the complainants as well as all other persons, firms or corporations similarly situated and doing business in the City of Danville and the owners of property included in the district described in the first section of the ordinance. There is no allegation as to the business in which the other firms, corporations or property owners are engaged, nor how they are affected by the ordinance in question, or any claim that they are being prosecuted or threatened with a prosecution for its violation, or liable to any prosecution. The allegations of the bill in reference to irreparable injury or multiplicity of suits would not justify a court of equity in enjoining appellee from enforcing the provisions of the ordinance, nor in declaring it to be invalid and of no force or effect. There is no reason apparent to us why the validity of the ordinance may not properly be determined by a court of law. Decree affirmed.