Harmon v. Chicago

Action in the circuit court of Cook county, Ill., by William Harmon against the city of Chicago, to recover moneys paid to it, under protest, as license fees for the use of tugs in navigating the Chicago river. In the trial court judgment was rendered for defendant, which was affirmed by the appellate court of the state for the proper district. 37 Ill. App. 496. An appeal being then taken to the supreme court of the state, the judgment was at first reversed, (see 26 N. E. Rep. 697,) but a rehearing was subsequently granted, and after reargument the judgment of the appellate court was affirmed, (see 29 N. E. Rep. 732.) From this judgment a writ of error was taken to this court. Reversed.

Statement by Mr. Justice FIELD:

This was an action against the city of Chicago, Ill., to recover the sum of $300 paid by the plaintiff on compulsion, and under protest, for licenses for 12 steam tugs, of which he was the manager and owner. The action was commenced in the circuit court of Cook county, Ill., and was tried by the court without the intervention of a jury, by stipulation of parties. At the trial the plaintiffs put in evidence the following agreed statement of facts: 'It is hereby stipulated and agreed that for the purposes of determining the right of the defendant to require of the plaintiff a license, and to impose and collect a fine or license fee therefor, under an ordinance of the said defendant hereinafter set forth, the following are the ultimate facts under which the said license was required, and the fine or license fee imposed and collected, viz.: That on the 26th day of September, 1888, the said plaintiff was the owner and manager of the following steam tugs, viz.: Tom Brown, F. S. Butler, J. H. Hackley, C. W. Parker, Bob Teed, A. B. Ward, W. H. Wolf, Crawford, G. B. McClellan, Mary McLane, Success, and Wahbun. That said tugs, and each of them, were of twenty tons burden, and upwards, and were on the said date, and for long time prior thereto had been, enrolled and licensed for the coasting trade, in pursuance of, and under the provisions of, title 50 of the Revised Statutes of the United States, to which reference is hereby made, and which are made a part hereof. That prior to the date aforesaid, and on the 5th day of March, 1883, the common council of said city of Chicago, acting under the power supposed to be vested in it by chapter 24 of the Revised Statutes of the State of Illinois, and under which the said city was at said time incorporated, passed and enacted an ordinance regulating the navigation of steam tugs and other vessels on Chicago river and Lake Michigan, and the waters tributary thereto, requiring that the owner thereof take out a license therefor, and imposing upon him a fine or penalty for failing so to do, which said ordinance is in the words and figures following:

"Be it ordanied by the city council of the city of Chicago:

"Section 1. No person or persons shall keep, use, or let for hire any tug or steam barge or towboat, for towing vessels or craft in the Chicago river, its branches or slips connecting therewith, without first obtaining a license therefor in the manner and way hereinafter mentioned.

"Sec. 2. All applications for such license shall be made to the mayor, and upon payment of twenty-five ($25) dollars to the city collector a license shall be issued for the period of one year by the city clerk for such tug or steam barge or towboat, and it shall be the duty of the city clerk to keep a register of the name of the person to whom such license is granted or transferred, the day when issued or transferred, the number of the license, and the name and description of the tug so licensed.

"Sec. 3. Every tug or steam barge or towboat shall have the number of the license and the name of the owner marked on both sides of such tug or steam barge or towboat, in plain, legible figures and letters.

"Sec. 4. Any individual or person violating any provisions of this ordinance shall be subject to a fine of not less than five dollars ($5) nor more than fifty dollars ($50) for each offense.

"Sec. 5. This ordinance shall be in force from and after its passage.'

'That said steam tugs were enrolled and licensed in the manner and for the purpose aforesaid by the United States authorities in and at the northern district of Illinois, in which the said defendant, the said city of Chicago, is situated, and were on the 26th day of September, 1888, and for a long time prior thereto had been engaged, in the coasting and foreign trade, and in commerce and navigation, namely, in towing vessels engaged in interstate commerce into and out of the Chicago river and harbor from and to said Lake Michigan, and, in pursuance of the conduct of the said trade, were navigating the said Chicago river and the waters of Lake Michigan, and the tributaries thereto, which said river is from time to time deepened for navigation purposes by dredging, under the direction and at the expense of said city of Chicago.

'That on the said day the said city collector of the said city of Chicago, the defendant herein, notified the said plaintiff to apply for and take out a license in pursuance of the requirements of the said ordinance for each of said steam tugs, and to pay therefor the sum of twenty-five dollars for each of said tugs, or the sum of three hundred dollars in the aggregate. That the said plaintiff thereupon notified the said collector that the said steam tugs, and each of them, were licensed for the coasting trade, in pursuance, of, and in accordance with, the requirements of the laws of the said United States, and were engaged in said trade on the said Chicago river and said Lake Michigan, and the waters tributary thereto, in the manner as aforesaid, and thereupon claimed to the said collector that the said ordinance was invalid, and that the said city of Chicago had no power or authority to require the said plaintiff to take out a license in pursuance of the requirements of the said ordinance, or to pay the said fee, whereupon the said collector of the said defendant caused the said plaintiff to be arrested upon a warrant issued for that purpose, and that while the said plaintiff was under arrest he paid the said license fee, under protest, and took out the license, as required by the said ordinance, and as demanded of him by the said collector, which said license was thereupon issued to him.

'That the amount of the fees so as aforesaid paid to the said collector for the said defendant was the sum of three hundred dollars. That the said sum was paid by the said collector into the treasury of the said defendant, the said city of Chicago; and that the questions which arise on the foregoing state of facts are as follows, viz.:

'(1) Whether or not the said defendant can require the plaintiff to take out the license, and collect therefor the fees provided for in the ordinance aforesaid.

'(2) Whether there was vested in the defendant the power to require of the plaintiff the license and fee provided for in the ordinance aforesaid, and in the manner shown by the foregoing state of facts.

'(3) Whether the said ordinance under which was license was required, and the said fee was imposed and collected, is legal and binding upon the plaintiff.

'(4) Whether the plaintiff is not entitled to judgment for the amount of fees so paid by him as aforesaid.

'It is hereby further stipulated that the said facts may be presented to the court and tried under the pleadings as they now stand, and that an order may be entered in said suit submitting the same to the Honorable Richard S. Tuthill for trial without the intervention of a jury, and that either party shall have the right to appeal from the decision and final judgment of the court herein in the same manner and to the same extent as they would have if the same case had been tried in the usual and ordinary way.'

And there was also introduced in evidence on behalf of the defendant in error an ordinance of the city council of the city of Chicago, in the words and figures as follows:

'Section 1. The inhabitants of all that district of country in the county of Cook and state of Illinois contained within the limits and boundaries hereinafter prescribed shall be a body politic, under the name and style of the city of Chicago; and by that name sue and be sued, complain and defend, in any court; make and use a common seal, and alter at pleasure; and take and hold, purchase, lease, and convey such real and personal or mixed estate as the purposes of the corporation may require, within or without the limits aforesaid.

'Sec. 2. The corporate limits and jurisdiction of the city of Chicago shall embrace and include within the same all of township thirty-nine north, range fourteen east of the third principal meridian, and all of sections thirty-one, thirty-two, thrity-three, and fractional section thirty-four, in township forth north, range fourteen east of the third principal meridian, together with so much of the waters and bed of Lake Michigan as lies within one mile of the shore thereof, and east of the territory aforesaid.

'Sec. 3. All that portion of the aforesaid territory lying north of the center of the main Chicago river, and east of the center of the north branch of said river, shall constitute the north division of said city; all that portion of the aforesaid territory lying south of the center of the main Chicago river, and south and east of the center of the south branch of said river and of the Illinois & Michigan canal, shall constitute the south division of said city; and all that portion of the aforesaid territory lying west of the center of the north and south branches of said river and of the Illinois & Michigan Canal shall constitute the west division of said city.'

On the trial of the case the issues were found for the defendant. Thereupon an appeal was taken to the appellate court for the first district of the state of Illinois; and there, without argument, the judgment was affirmed, (37 Ill. App. 496,) and then an appeal was taken by the plaintiff to the supreme court of the state. Upon a hearing before that court the judgment of the court below was reversed, (26 N. E. Rep. 697,) and the ordinance of the city declared to be invalid; but upon a petition a rehearing was granted, and the case was reargued. After such reargument the judgment previously rendered by the court was set aside, and the judgment of the appellate court was affirmed. 29 N. E. Rep. 732. The plaintiff thereupon brought the case to this court upon a writ of error.

D. J. Schuyler and C. E. Kremer, for plaintiff in error.

John S. Miller, for defendant in error.

[Argument of Counsel from pages 401-403 intentionally omitted]

Mr. Justice FIELD, after stating the facts, delivered the opinion of the court.