KLEVER SHAMPAY KARPET KLEANERS, Appt.,

CITY OF CHICAGO et al.

Illinois Supreme Court — October 28, 1926.

(323 Ill. 368, 154 N. E. 131.)

1. Power conferred upon municipal corporations to prevent fires and regulate the construction of buildings and the handling and storage of inflammable materials authorizes the regulation and licensing of the business of dry cleaning, where the evidence shows that more fires occur in buildings used for such business than in any other business where large quantities of inflammable liquids are used.

[See annotation on this question beginning on page 110.] Municipal corporations, § 32 — extent

License, § 20 when justified.
4. To justify requiring licenses to
engage in any particular occupation
as a proper exercise of the police
power, it must appear that the re-
quirement of the license tends to pro-
mote the public health, safety, or wel-
fare.

[See 19 R. C. L. 818; 3 R. C. L. Supp. 976; 4 R. C. L. Supp. 1294; 5 R. C. L. Supp. 1048; 6 R. C. L. Supp. 1142.] Municipal corporations, § 117 - police power storage of combustibles. 5. The police power of a city extends to the regulation and prevention of the storage of combustible fluids or explosive material.

[See 11 R. C. L. 654, 655; 2 R. C. L. Supp. 1297.]

Municipal corporations, § 117 ordinances controlling inflammables.

6. The regulation of businesses using inflammable materials may include provision of methods for installation of equipment and handling of the product, the lighting, ventilation, and construction of buildings where they are used, the competency and examination of persons using them, and the inspection of places, instrumentalities, methods, and means of storing and using them.

[See 2 R. C. L. Supp. 1297; 4 R. C. L. Supp. 714.] Courts, 183

nance.

interference with ordi

7. The court cannot interfere with requirements of an ordinance regulating the construction and use of build

ings for the protection of the lives and safety of citizens and their property against fire if they are adapted to the purpose of securing such protection and are not manifestly unreasonable.

[See 19 R. C. L. 805; 3 R. C. L. Supp. 974; 4 R. C. L. Supp. 1291; 5 R. C. L. Supp. 1047.]

Courts, § 172 refusal to interfere with ordinance.

8. A court will not hold an ordinance void as unreasonable where there is room for a fair difference of opinion on the question, even though the correctness of the legislative judgment may be doubtful, and the court may regard the ordinance as not the best which might be adopted for the purpose.

[See 19 R. C. L. 809; 3 R. C. L. Supp. 975; 4 R. C. L. Supp. 1292; 5 R. C. L. Supp. 1047; 6 R. C. L. Supp. 1141.] Municipal corporations, § 117 — requiring detachment of buildings reasonableness.

9. Requiring a building in which inflammable materials are to be used in a dry cleaning business to be detached 50 feet from any other building, or possible building, is unreasonable. Injunction, § 137 — when denied.

10. Injunction will not lie against the enforcement of an ordinance providing for the licensing of dry cleaners, where only a portion of it is void, and the complainant, upon complying with the valid portion of the ordinance, may secure a license through a writ of mandamus.

APPEAL by plaintiff from a decree of the Superior Court for Cook County (Hebel, J.) dismissing a bill filed to enjoin the enforcement of an ordinance for licensing and regulating the business of dry cleaning and interference with the construction and maintenance of a building for carrying on such business. Affirmed.

The facts are stated in the opinion of the court. Messrs. Schuyler, Ettelson, & Weinfeld, for appellant:

A municipality has no inherent power to regulate any business, but such power must be specifically conferred by the legislature.

Barnard & Miller v. Chicago, 316 Ill. 519, 38 A.L.R. 1533, 147 N. E. 384; Aberdeen-Franklin Coal Co. v. Chicago, 315 Ill. 99, 145 N. E. 613; Arms v. Chicago, 314 Ill. 316, 145 N. E. 407; Chicago v. Murphy, 313 Ill. 98, 144 N. E. 802; Potson v. Chicago, 304 Ill. 222, 136 N. E. 594; Condon v. Forest Park,

278 Ill. 218, L.R.A.1917E, 314, 115 N. E. 825; People ex rel. Friend v. Chicago, 261 Ill. 16, 49 L.R.A. (N.S.) 438, 103 N. E. 609, Ann. Cas. 1915A, 292; Chicago v. Ross, 257 Ill. 76, 43 L.R.A. (N.S.) 205, 100 N. E. 159; Chicago V. M. & M. Hotel Co. 248 III, 264, 93 N. E. 753; Earlville v. Radley, 237 Ill. 242, 86 N. E. 624; Wilkie v. Chicago, 188 Ill. 444, 80 Am. St. Rep. 182, 58 N. E. 1004.

An ordinance which arbitrarily dis-, criminates between persons similarly situated is unreasonable and void.

(323 Ill. 368, 154 N. E. 131.)

Elgin v. Winchester, 300 Ill. 214, 22 A.L.R. 1481, 133 N. E. 205; Carrollton v. Bazzette, 159 Ill. 284, 31 L.R.A. 522, 42 N. E. 837; Zanone v. Mound City, 103 Ill. 552; Tugman v. Chicago, 78 Ill. 405; Chicago v. Rumpff, 45 Ill. 90, 92 Am. Dec. 196; Chicago v. Gunning System, 114 Ill. App. 377; Monmouth v. Popel, 183 Ill. 634, 56 N. E. 348; Cairo v. Feuchter, 159 Ill. 155, 42 N. E. 308; Kilbourne v. Blakely, 184 Ill. App. 370; Peoria v. Gugenheim, 61 Ill. App. 374. An ordinance which tends to foster a monopoly is unreasonable and void. People ex rel. Roos v. Kaul, 302 Ill. 317, 134 N. E. 740; Meyers v. Baker, 120 Ill. 567, 60 Am. Rep. 580, 12 N. E. 79; Tugman v. Chicago, 78 Ill. 405; Aurora v. Burns, 319 Ill. 84, 149 N. E. 784.

Injunction will lie to restrain the enforcement of an invalid ordinance.

Wilkie v. Chicago, supra; Chicago v. Collins, 175 Ill. 445, 49 L.R.A. 408, 67 Am. St. Rep. 224, 51 N. E. 907; Stevens v. St. Mary's Training School, 144 Ill. 336, 18 L.R.A. 832, 36 Am. St. Rep. 438, 33 N. E. 962; Spiegler v. Chicago, 216 III. 114, 74 N. E. 718; Rago v. Melrose Park, 161 Ill. App. 18; Chicago v. Banker, 112 Ill. App. 94.

Messrs. Francis X. Busch, Roy S. Gaskill, Albert H. Veeder, and W. Arnold Amberg, for appellees:

The Cities and Villages Act delegates full and complete power to the city to pass all reasonable fire prevention regulations, which delegation of power is sufficient to sustain any regulation which tends to lessen the damage and danger of fire and to prevent the spreading thereof in cities.

Chicago v. Mandel Bros. 264 Ill. 206, 106 N. E. 181; Williams v. Chicago, 266 Ill. 267, 107 N. E. 599, Ann. Cas. 1916B, 514; Hartman v. Chicago, 282 Ill. 511, 118 N. E. 731; Chicago v. Washingtonian Home, 289 Ill. 206, 6 A.L.R. 1584, 124 N. E. 416; Fishbain v. Chicago, 237 Ill. App. 631.

The city has full power to pass all reasonable fire prevention regulations pertaining to the storage and use of gasolene, oils, and similar inflammable liquids.

Standard Oil Co. v. Danville, 199 Ill. 50, 64 N. E. 1110, 101 Ill. App. 65; Wright v. Chicago & N. W. R. Co. 27 Ill. App. 200; Fishbain v. Chicago, su

pra.

The city having been delegated the power to enact fire prevention ordinances, all presumption and intend

ments favor the validity of the ordi

nance.

McCray v. Chicago, 292 Ill. 60, 126 N. E. 557; Chicago v. Mayer, 290 Ill. 142, 124 N. E. 842; Rock Island v. Wagner, 45 Ill. App. 444, affirmed in 146 Ill. 139, 21 L.R.A. 519, 34 N. E. 545; Plymouth v. McWherter, 152 Ill. App. 115; Springfield v. Postal Teleg. Cable Co. 164 Ill. App. 276, affirmed in 253 Ill. 346, 97 N. E. 672; People ex rel. Keller v. Oak Park, 266 Ill. 365, 107 N. E. 636; Biffer v. Chicago, 278 Ill. 562, 116 N. E. 182.

The burden of showing an ordinance unreasonable is upon the person attacking it.

People ex rel. Morrison v. Cregier, 138 Ill. 401, 28 N. E. 812; Swift v. Klein, 163 Ill. 269, 45 N. E. 219; Chicago v. Waldon W. Shaw Livery Co. 258 Ill. 409, 101 N. W. 588; Chicago v. Pittsburg, C. C. & St. L. R. Co. 146 Ill. App. 403; Plymouth v. McWherter, 152 Ill. App. 114; Consumers Co. v. Chicago, 208 Ill. App. 203.

In determining the reasonableness of an ordinance the court should take into consideration all surrounding conditions and contemporaneous circumstances.

Chicago v. Green Mill Gardens, 305 Ill. 87, 137 N. E. 126; McFarlane v. Chicago, 185 Ill. 242, 57 N. E. 12; Hawes v. Chicago, 158 Ill. 653, 30 L.R.A. 225, 42 N. E. 373; Lake View v. Tate, 130 Ill. 247, 6 L.R.A. 268, 22 N. E. 791; Endelman v. Bloomington, 137 Ill. App. 483.

Section 1416 of the Chicago Municipal Code of 1922 is valid.

Aurora v. Burns, 319 Ill. 84, 149 N. E. 784; Freund, Pol. Power, §§ 685, 687; Re Stoltenberg, 165 Cal. 789, 134 Pac. 971; Glucose Ref. Co. v. Chicago (C. C.) 138 Fed. 209; State v. Fraternal Knights & Ladies, 35 Wash. 338, 77 Pac. 500; Millville Improv. Co. v. Pitman, G. & C. Gas Co. 75 N. J. L. 410, 67 Atl. 1005; Schostag v. Cator, 151 Cal. 600, 91 Pac. 502; Osborn v. Charlevoix Circuit Judge, 114 Mich. 655, 72 N. W. 982; New York v. Kelsey, 158 App. Div. 183, 143 N. Y. Supp. 41, affirmed in 213 N. Y. 638, 107 N. E. 1074; Lea v. Louisville & N. R. Co. 135 Tenn. 560, 188 S. W. 215; Com. v. Alger, 7 Cush. 53; Inspector of Buildings v. Stoklosa, 250 Mass. 52, 145 N. E. 262; Spector v. Building Inspector, 250 Mass. 63, 145 N. E. 265; Brett v. Building Comr, 250 Mass. 73, 145 N. E. 269; Bamel v. Building Comr. 250 Mass. 82,

145 N. E. 272; Ex parte Fiske, 72 Cal. 125, 13 Pac. 310; Re Yick Wo, 68 Cal. 294, 58 Am. Rep. 12, 9 Pac. 139; Chicago v. Ripley, 249 Ill. 466, 34 L.R.A. (N.S.) 1186, 94 N. E. 931, Ann. Cas. 1912A, 160; Buffalo v. Chadeayne, 134 N. Y. 163, 31 N. E. 443; Morton v. Wessinger, 58 Or. 80, 113 Pac. 7; King v. Davenport, 98 Ill. 305, 38 Am. Rep. 89; Thomas Cusack Co. v. Chicago, 267 Ill. 344, 108 N. E. 340, Ann. Cas. 1916C, 488; Chicago v. Washingtonian Home, 289 Ill. 206, 6 A.L.R. 1584, 124 N. E. 416; Hartman v. Chicago, 282 Ill. 511, 118 N. E. 731; People ex rel. Busching v. Ericsson, 263 Ill. 368, L.R.A.1915D, 607, 105 N. E. 315, Ann. Cas. 1915C, 183.

Even if a part of § 1416 of the said Code be held invalid, the validity of the remaining portion of the ordinance is not affected, and the complaint must pursue the remedy of mandamus to obtain a permit under the valid portion of the ordinance.

Chicago Cold Storage Warehouse Co. v. People, 127 Ill. App. 179; People ex rel. Dwight v. Chicago R. Co. 270 Ill. 278, 110 N. E. 394; Depue v. Banschbach, 273 Ill. 574, 113 N. E. 156; Spring Valley v. Chicago, O. & P. R. Co. 200 Ill. App. 352; Consumers Co. v. Chicago, 208 Ill. App. 203; Pochco v. Illinois Terminal R. Co. 210 Ill. App. 598; Fishbain v. Chicago, 237 Ill. App. 631; Klever Shampay Karpet Kleaners v. Chicago, 238 Ill. App. 291.

Farmer, J., delivered the opinion of the court:

This is an appeal prosecuted by the Klever Shampay Karpet Kleaners, a corporation, from a decree of the superior court of Cook county dismissing for want of equity a bill filed by the appellant in behalf of itself and all others similarly situated, against the city of Chicago, its mayor and superintendent of police, for an injunction against the enforcement of an ordinance for licensing and regulating the business of dry cleaning, and against interference with the appellant in constructing and maintaining on its premises the building and equipment for carrying on the business of dry cleaning.

The ordinance, which is article 13 of chapter 31 of the Chicago Municipal Code of 1922, consisting of

§§ 1412 to 1421, inclusive, was enacted July 22, 1912. Section 1412 declares it unlawful for any person, firm, or corporation to carry on within the city of Chicago dry cleaning or spotting in which gasoline, naphtha, benzine, or other volatile oils are used to clean or renovate clothing or fabric of any kind, without obtaining a license for that purpose. Every person, firm, or corporation keeping or using more than two quarts of gasoline, naphtha, benzine, or other volatile oils for the purposes mentioned, for profit or reward, is defined as a dry cleaner, and every person, firm, or corporation keeping or using two quarts or less of such oils for the purposes mentioned, for profit or reward, is declared to be a spotter.

The amended bill alleged that the appellant had, since March 22, 1924, carried on a general cleaning and dyeing business otherwise than by the dry cleaning method; that it had made plans for the reconstruction and remodeling of its building, upon which it had a lease expiring in 1934, to be used in the dry cleaning process, and that the proposed reconstruction and remodeling were in accordance with the requirements of a general comprehensive city ordinance governing the storage of gasoline, benzine, naphtha, and other inflammable liquids; that the appellant had presented to the commissioner of buildings of the city plans for the alteration of its building and business, and applied for a permit to make the alteration and to conduct the dry cleaning business, but the permit was refused solely on the ground that the benzine building which the appellant proposed to construct according to its plan was not detached at least 50 feet from any other building or structure or the line of adjoining property which might be built upon, and the defendants threatened to arrest and imprison the appellant's employees, if the appellant proceeded to operate and maintain the dry cleaning business in its building without a compliance with the dry

(323 IU. 368, 154 N. E. 131.)

cleaning ordinance. The amended business prior to that date were ex

bill alleged the city council had never received authority from the Legislature to regulate the business of dry cleaning; that, while it had been given the power to regulate the storage of inflammable liquids, it could do so only by general ordinance applicable to all users thereof, and the ordinance complained of arbitrarily singles out dry cleaners for regulation, while other businesses using the same inflammable liquids in larger quantities and under more dangerous conditions are unregulated. It was further alleged that on November 22, 1922, the city enacted a comprehensive ordinance relative to the storage and use of inflammable liquids, based upon scientific principles, and applying equally to all users of such liquids; that the appellant has fully complied with that ordinance and all other valid ordinances of the city; that the only material provisions in the dry cleaning ordinance which are not contained in the general ordinance are those requiring that every building in which dry cleaning is carried on shall be detached at least 50 feet from any other building, or from the line of adjoining property which may be built upon. That provision is in paragraph (b) of 1416, which also provides that the use of any building not exceeding three stories in height, in which a dry cleaning business was carried on prior to July 22, 1912, may be continued, if such building complies in all other respects with the provisions of the ordinance, and that the use of any building in which a dry cleaning business was carried on prior to July 22, 1912, may be continued where such building is separated from all other buildings by a fire wall, with no openings into any adjoining building. The bill alleged that this provision is unreasonable and void, and tends to foster a monopoly, in that its essential provisions apply only reversed the order for an interlocu

empted from compliance with the ordinance. Other sections of the ordinance contain provisions regulating the conduct of the dry cleaning business, and the construction, maintenance, and inspection of the buildings in which such business is conducted. The bill alleged there were seventy-five or eighty dry cleaners in the city in a situation. similar to that of the appellant, and they are threatened with arrest and prosecution by the city, and some actions have been already instituted against some dry cleaners for violating said ordinance; that the city insists on enforcing the 50-foot requirement of paragraph (b) of § 1416, and a multiplicity of suits is threatened. It is also alleged that the appellant has invested a large sum of money in building up a valuable and permanent business, and, unless the city is enjoined from interference with it, the appellant will suffer irreparable damage to its business.

to persons who had gone into the dry cleaning business after July 22, 1912, while those engaged in the

A demurrer to the amended bill was overruled. The appellees answered the bill, and on April 6, 1925, a temporary injunction was granted for ten days, and the cause was referred to a master to take the proof and report his conclusions of law and fact. Orders were entered from time to time continuing the injunction in force until May 11, 1925, when it was ordered that the injunction remain in force until the further order of the court. The appellees appealed from the interlocutory injunction order to the Appellate Court. The master proceeded to hear and report the evidence with his finding that the dry cleaning ordinance was unconstitu

tional and void, and a recommendation that the temporary injunction be made permanent, and on October 13, 1925, a final decree was entered making the injunction permanent. On October 21st the Appellate Court

tory injunction, and on November 10, 1925, the superior court allowed. a motion previously made by the