police power

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Disecting the Drivers License Law – in progress….

INTRODUCTION

I will try to make this as simple as possible, but you will have to pay very close attention and abandon everything you have previously believed regarding drivers licenses. Despite what you believe about what you “think” should be done to regulate others who use their vehicle for personal transportation, keep in mind that the government has not been endowed with general authority in requiring people to apply for, and possess, licenses for their private actions. There are words which you will need to pay close attention to, and not assume you know the meaning, since they have been specifically defined in the statutes. Words such as, “resident”, “natural person”, “State”, “licensee”, “drive, “motor vehicle”…etc. Do not automatically assume the words have the same meaning as your everyday usage. Do not automatically assume the definitions apply to you.

The Illinois Vehicle Code was enacted by P.A. 76-1586, effective July 1, 1970. The Code constitutes a consolidated recodification of various earlier laws and acts including the Illinois Motor Vehicle Law of 1957.‚ There has not always been licensing for drivers. As with any new thing, people were allowed to engage as they saw fit until government identified either a taxable nexus or some contrived intervention through public safety. Early automobiles were crude, and sometimes dangerous. They definitely did not afford the optimal protection for the occupants. Back in the day, the government used to intervene under what is called the police power, and generally for the regulation of businesses or occupations only. Of the states I researched, that seems to be the methodology for evolving driver licensing regulations. I am using Illinois as the example because it is where I have lived the longest and had access to state records and proceedings which chronicle the driver licensing legislation. The other states have the same constitutional limitations on licensing, and have also a similar history in implementing the driver license laws. This began with an individual state purpose for regulating commercial activities, and has evolved into a quasi-federal regulated use of the roads as a privilege for residents.

Besides the obvious questions in a discussion such as this, there are other questions as well. What is a State? What is a person? What is driving? Who were the first licensed drivers? Are traffic violations crimes? Is everyone required to have a license? Are licensing laws federal in nature, or state law? I’ll attempt to answer these questions without having to go into detail about the nature and types of law, as well as what is within the control of legislatures to license. Every law, must find its source in the constitution of the state or federal government. Constitutions do not give government unbridled authority except for what we say they “can’t do”, but they have limited authority by way of what we say then “can do”.

 

BACKGROUND ON INTERPRETING LAW AND WEBSTER’S DICTIONARY – “WHAT YOU TALKING ABOUT WILLIS”

When reading law, you can’t assume words mean the same as the common parlance of the day. There are complicated, and sometimes convoluted, ways if “interpreting” the law. I don’t know why legislators can’t write what they mean, but it seems apparent that there may be an intent to obfuscate in order to keep the real meaning and application of some laws out of the reach of the common man. There are doctrines such as “void for vagueness” which render some laws moot, but for the most part there are rules for interpreting law. This is called statutory interpretation.

Without belaboring this subject and further complicating the issue, I’ll summarize briefly and leave you to inquire further about the various canons and doctrines for interpretation. For the purpose of this article, below are the common canons of construction considered. To the left of the canon I will provide an abbreviation which will later be used to signify its application to the text. For example, Plain meaning will be represented with (PM), and appear at the end of a text indicating that is the canon used in interpreting the text. There may be multiple canons used in interpreting a text.

(PM) – Plain meaning
When writing statutes, the legislature intends to use ordinary English words in their ordinary senses. The United States Supreme Court discussed the plain meaning rule in Caminetti v. United States, 242 U.S. 470 (1917), reasoning “[i]t is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain… the sole function of the courts is to enforce it according to its terms.” And if a statute’s language is plain and clear, the Court further warned that “the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion.”

(EG) – 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).

(EU) – Expressio unius est exclusio alterius (“the express mention of one thing excludes all others”)
Items not on the list are assumed not to be covered by the statute. However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by a word such as “includes” or “such as”.

(IP) – In pari materia (“upon the same matter or subject”)
When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter.

(NS) – Noscitur a sociis (“a word is known by the company it keeps”)
When a word is ambiguous, its meaning may be determined by reference to the rest of the statute.

(RS) – Reddendo singula singulis (“refers only to the last”)
When a list of words has a modifying phrase at the end, the phrase refers only to the last, e.g., firemen, policemen, and doctors in a hospital.

(GS) – Generalia specialibus non derogant (“the general does not detract from the specific”)
Described in The Vera Cruz (1884) 10 App. Cas. 59 as: “Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any evidence of a particular intention to do so.” This means that if a later law and an earlier law are potentially‚”but not necessarily‚”in conflict, courts will adopt the reading that does not result in an implied repeal of the earlier statute. Lawmaking bodies usually need to be explicit if they intend to repeal an earlier law.

‚ LEGAL DEFINITIONS – A ROSE, BY ANY OTHER NAME, MAY BE A FIRM, COPARTNERSHIP, ASSOCIATION, OR CORPORATION

So, just what is a “license to drive”? Well, by definition a license is permission to do something that is otherwise illegal.

License:‚ http://legal-dictionary.thefreedictionary.com/license‚ -‚ The permission granted by competent authority to exercise a certain privilege that, without such authorization, would constitute an illegal act, a‚ Trespass‚ or a‚ tort.‚ The certificate or the document itself that confers permission to engage in otherwise proscribed conduct.

Notice the word “privilege”. It is used throughout the statutes as well. You will often hear that “driving is a privilege”. In a sense, that is true, since driving is a specific activity and not necessarily what many of you do with your automobile.‚  Let’s look at what a privilege is:

Privilege:‚ http://legal-dictionary.thefreedictionary.com/privilege‚ -‚ privilege n. a special benefit, exemption from a duty, or immunity from penalty, given to a particular person, a group or a class of people.

Look at it like this. Everyone has the right to use the roads for getting from one place to another. We can’t drive our cars across lawns and fields. The State, which is the people, have taken the land in common use and paved roads for convenience and safety in moving about. However, if someone would then attempt to use those roads which were provided by all, for the purpose of conducting business they would be profiting from something paid for, and maintained, by others. That is a privilege. I can set up a lemonade stand in my yard, but can’t just go to my neighbor’s yard and set one up. I have ‚ no right to use his yard without permission. That permission is a license. The same applies to using the roads. We have freedom of mobility. We cannot be denied the right to use what has been provided for all by requiring people to first apply for and be issued a license. You cannot license a right.

“Complete freedom of the highways is so old and well established a blessing that we have forgotten the days of the Robber Barons and toll roads, and yet, under an act like this, arbitrarily administered, the highways may be completely monopolized, if, through lack of interest, the people submit, then they may look to see the most sacred of their liberties taken from them one by one, by more or less rapid encroachment.” -Robertson vs. Department of Public Works, 180 Wash 133,147

“Personal liberty largely consists of the Right of locomotion — to go where and when one pleases — only so far restrained as the Rights of others may make it necessary for the welfare of all other citizens. The Right of the Citizen to travel upon the public highways and to transport his property thereon, by horsedrawn carriage, wagon, or automobile, is not a mere privilege which may be permitted or prohibited at will, but the common Right which he has under his Right to life, liberty, and the pursuit of happiness. Under this Constitutional guarantee one may, therefore, under normal conditions, travel at his inclination along the public highways or in public places, and while conducting himself in an orderly and decent manner, neither interfering with nor disturbing another’s Rights, he will be protected, not only in his person, but in his safe conduct.” [emphasis added] American Jurisprudence 1st. Constitutional Law, Sect.329, p 1135.

So, if privileges apply to a particular group or class of people, who are they? Well, first we have to look at just “who” can be regulated and what they are doing. This will fall under the state’s “police power“. What is the “police power”? It is the inherent power of the State to legislate for the healty, safety, welfare, and morals of its citizens.‚  It is primarily limited to businesses or professional occupations. Keep this in mind because I’ll refer back to it later.

There are essentially two types of “persons”, residents and non-residents. We will first look at residents. A resident is defined thusly:

(625 ILCS 5/1-173) (from Ch. 95 1/2, par. 1-173)
Sec. 1-173. Resident.
(a) Every natural person who resides in this state shall be deemed a resident of this State.
(b) In the case of a firm, copartnership or association, if the principal place of business of such firm, copartnership or association is located in the State of Illinois, then such firm, copartnership or association shall be deemed a resident of the State of Illinois.
(c) In the case of a corporation, if the corporation was incorporated under the laws of the State of Illinois or if the principal place of business of such corporation is in the State of Illinois, then such corporation shall be deemed a resident of the State of Illinois.
(Source: P.A. 76-1586.)

There are a couple of things to note. The use of the term “natural person” and “this State”. We know that corporations are considered persons under the law, and we assume that persons always includes people, but such is not the case. You must look at the object of the legislation and then at the definitions. A “person” may, in some cases depending on the legislation, mean only corporations. Likewise, “natural persons” do not mean only people. By the same token, “person” does not necessarily mean people. The Vehicle Code defines “person” as:

(625 ILCS 5/1-159) (from Ch. 95 1/2, par. 1-159)
Sec. 1-159. Person.
Every natural person, firm, copartnership, association or corporation. (EG) (EU)
(Source: P.A. 76-1586.)

So, regarding “persons”, we have reference to natural persons, and corporate entities. Seeing as how they are hanging their hat on “natural persons”, we need to investigate how that is used throughout other laws.

Here are a couple of examples:

Under former clause 5 of ‚¶1 of former chapter 1 (now this paragraph) providing that the word “person” or “persons,” as well as all words referring to or importing persons, might extend and be applied to bodies politic and corporate as well as individuals, a dram shop license might be issued to a corporation as well as an individual. People, on Inf. of Healy v. Heidelberg Garden Co., 1908, 84 N.E. 230, 233 Ill. 290. Intoxicating Liquors

The word “parties” in the Venue Act (see, now, ch. 110, ‚¶501 et seq.) refers to and imports persons and includes corporations. Commercial Ins. Co. v. Mehlman, 1868, 48 Ill. 313, 95 Am.Dec. 543.

Corporations are included in the word “person” in the attachment law. Mineral Point R. Co. v. Keep, 1859, 22 Ill. 9, 74 Am.Dec. 124.

The term “natural person” or “natural persons,” used in the Banking Act (ch. 16 1/2 , ‚¶101 et seq.), extends to and applies to “bodies politic” and “corporate.” Fidelity Inv. Assn. v. Emmerson, 1924, 235 Ill.App. 518, reversed on other grounds 318 Ill. 548, 149 N.E. 530.

The word “company” in an act relating to the right to operate a street railway could not, under ‚¶1 of former chapter 1 (now this paragraph) be construed to include a natural person. Goddard v. Chicago & N.W. Ry. Co., 1903, 104 Ill.App. 526, affirmed 202 Ill. 362, 66 N.E. 1066.

The word “person” authorizes a recovery upon the complaint of a body politic or corporate. Durbin v. People, 1894, 54 Ill.App. 101.

A city was a “person” within Workmen’s Compensation Act, ‚§ 3 (ch. 48, ‚¶136, repealed), in view of ‚¶1 of former chapter 1 (now this paragraph). Smith v. City of Hamilton, 1924, 231 Ill.App. 482.

So, based on the foregoing, we cannot assume that a “natural person” necessarily means people in-general. It is reasonable to conclude that a natural person is a human being, but a human being acting as a representative for a corporation or having a duty as an officer of a corporation. Since you cannot impose a duty or obligation upon a incorporeal entity, like a corporation, you can upon an individual who is charged with executing the by-laws of the corpration. There must be a flesh-and-blood individual responsible for carrying forth the operations of the corporation.

If “persons” and “natural persons” may mean people, cities, corporations, how do we determine who is bound by the law? Let’s look at the definition further. A resident is distinguished by two means, the “natural person” and the “un-natural person”, aka, corporation. This illustrates what I have just explained above. However, pay attention to the location of residency. Natural persons reside in “this State” and corporations reside in the State of Illinois.

Natural Persons – (a) Every natural person who resides in this state shall be deemed a resident of this State.

Corporations not incorporated in the State of Illinois – (b) In the case of a firm, copartnership or association, if the principal place of business of such firm, copartnership or association is located in the State of Illinois, then such firm, copartnership or association shall be deemed a resident of the State of Illinois.
Corporations Incorporated in the State of Illinois – (c) In the case of a corporation, if the corporation was incorporated under the laws of the State of Illinois or if the principal place of business of such corporation is in the State of Illinois, then such corporation shall be deemed a resident of the State of Illinois

There are two things to note. Notice how in (a), there are two spellings of “this state”, one being with a lower case (s) state, and the other with an upper case (S) State. This is no accident, and when read actually makes no apparent sense. Here are a few ways to possibly interpret that phrase:

(a) Every human being who resides in illinois shall be deemed to be a resident of Illinois

(a) Every human being having a duty or obligation as an officer or agent for a corporation who resides in illinois shall be deemed to be a resident of Illinois

(a) Every human being having a duty or obligation as an officer or agent for a corporation who resides in‚ this state shall be deemed to be a resident of Illinois

(a) Every human being‚ who resides in Illinois shall be deemed to be a resident of this State.

(a) Every human being who resides in this state shall be deemed to be a resident of Illinois

As you can see, it really makes no sense if “this state” and “this State” means the State of Illinois. So, what is “this (s)(S)tate”? In the case of natural persons, it is residency. In the case of corporations, it is their place of business or incorporation. If it applies to corporations, the phrase “State of Illinois” is used, and in the case of natural persons it is “this state”.

We must determine what exactly a “state”/”State” is. I will prove that there is a state, other than the State of Illinois, which is used for the Illinois Vehicle Code. The Illinois Statutes define “State” differently in certain statutes.

(5 ILCS 70/1.14) (from Ch. 1, par. 1015)
‚ Sec. 1.14. “State,” when applied to different parts of the United States, may be construed to include the District of Columbia and the several territories, and the words “United States” may be construed to include the said district and territories. (EG) (EU) (RS)
(Source: Laws 1945, p. 1717.)

1. District of Columbia – The District of Columbia is a “state” within the proviso of ch. 110 1/2 , ‚¶6 (see, now, ch. 111, ‚¶5506), permitting certified public accountants holding certificates issued under laws of another “state” to practice in Illinois. Gore v. National Ass’n of Certified Public Accountants, 1924, 231 Ill.App. 38., 5 I.L.C.S. 70/1.14, IL ST CH 5 ‚§ 70/1.14

There are parts of the Illinois Compiled Statutes which have gone to lenghts to actually define “State”, or “this State”.

AIR TRANSPORTATION
(620 ILCS 5/) Illinois Aeronautics Act.
(620 ILCS 5/7) (from Ch. 15 1/2, par. 22.7)
http://marcmkkoy.com/mark/ilcs/ilcs3d5c4.html?ActID=1803&ChapterID=48
Sec. 7. “State” or “this State” means the State of Illinois; and “Department” means the Division of Aeronautics of the Department of Transportation of this State. (PM)
(Source: P.A. 81-840.)

We can infer from the use of state in other statutes that there is a difference between Illinois, and parts of the Unites States; meaning that things other than the several 50 states can be States. So far, we have determined that persons can be people or legal entities. We have also determined that, as far as the Vehicle Code is concerned, when referring to persons, the definition specifies “natural persons”, and that “natural persons” can be both people and legal enties. As an example, let’s look at another part of the Transporation Statutes, in this case, Roads and Bridges, and see how they define a “person”:

ROADS AND BRIDGES
(605 ILCS 5/) Illinois Highway Code.
(605 ILCS 5/2-216) (from Ch. 121, par. 2-216)
http://marcmkkoy.com/mark/ilcs/ilcs41783.html?DocName=060500050HArt.+2+Div.+2&ActID=1745&ChapterID=45&SeqStart=1100000&SeqEnd=3200000
Sec. 2-216. Person-Any person, firm, partnership, association, public or private corporation, organization or business or charitable trust. (EG) (EU)
(Source: Laws 1959, p. 196.)

I fail to find the term “natural person” used for the Illinois Highway Code. So, to what does that code apply? Does it apply to “this State”, or “the State of Illinois”?

(605 ILCS 5/1-103) (from Ch. 121, par. 1-103)
Sec. 1-103.
This Code applies to all public highways in the State of Illinois, except highways under the exclusive jurisdiction (1) of any department, board, commission or agency of this State other than the Department of Transportation or (2) of any municipal corporation other than a city, village or incorporated town.
(Source: P.A. 77-173.)

 

ARE YOU LIVING IN A state OF CONFUSION OVER THE state OF THE state OF this State?

Now, this is telling in that the Code applies to all public highways in the State of Illinois, except highways under the exclusive jurisdiction of another agency of “this State” other than the Department of Transporation or of a municipal corporation other than a city, village, or incorporated town. It can also be worded to say, “This Code applies to all public highways in the State of Illinois except areas under the exclusive jurisdiction of something other than the Department of Transportation or a municipal corporation that is not a city, village, or town.” So, as far as the Illinois Highway Code is concerned, there are public highways in the State of Ilinois, and those under the exclusive jurisdiction of “this State”, or a municipal corporation other than a city, village, or incorporated town, which can include a municipal corporation of the Unites States which is also called a State, such as:

625 ILCS 5/1-195) (from Ch. 95 1/2, par. 1-195)
Sec. 1-195. State.
A state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico or a province of the Dominion of Canada.
(Source: P.A. 76-1586

To complicate matters further, but to illustrate a dual and overlapping jurisdiction of state and federal authority, we will look at Illinois in another light, that being, as a federal territory:

DIVISION 1. SYSTEMS OF HIGHWAYS
http://marcmkkoy.com/mark/ilcs/ilcs4367d.html?DocName=060500050HArt.+2&ActID=1745&ChapterID=45&SeqStart=500000&SeqEnd=3200000
(605 ILCS 5/2-202) (from Ch. 121, par. 2-202)
Sec. 2-202. Highway-any public way for vehicular travel which has been laid out in pursuance of any law of this State, or of the Territory of Illinois, or which has been established by dedication, or used by the public as a highway for 15 years, or which has been or may be laid out and connect a subdivision or platted land with a public highway and which has been dedicated for the use of the owners of the land included in the subdivision or platted land where there has been an acceptance and use under such dedication by such owners, and which has not been vacated in pursuance of law. The term “highway” includes rights of way, bridges, drainage structures, signs, guard rails, protective structures and all other structures and appurtenances necessary or convenient for vehicular traffic. A highway in a rural area may be called a “road”, while a highway in a municipal area may be called a “street”.
(Source: Laws 1959, p. 196.)

Now, notice how there is a “Territory of Illinois” distinguished from “this State”. Illinois ceased being a territory with the Ordinance of 1818 when it was allowed statehood. However, the federal government has exclusive jurisdiction over its territories. Notice the “Source” date on the statute. It is 1959. There was no Illinois Territory in 1959, or was there? What exactly do they mean by Territory of Illinois? Let’s look at the definition of a “territory”:

http://legal-dictionary.thefreedictionary.com/territory
TERRITORY. Apart of a country, separated from the rest, and subject to a particular jurisdiction. The word is derived from terreo, and is so called because the magistrate within his jurisdiction has the power of inspiring a salutary fear. Dictum cat ab eo quod magistratus intra fines ejus terrendi jus habet. Henrion de Pansy, Auth. Judiciare, 98. In speaking of the ecclesiastical jurisdictions, Francis Duaren observes, that the ecclesiastics are said not to have territory, nor the power of arrest or removal, and are not unlike the Roman magistrates of whom Gellius says vocationem habebant non prehensionem. De Sacris Eccl. Minist. lib. 1, cap. 4. In the sense it is used in the constitution of the United States, it signifies a portion of the country subject to and belonging to the United States, which is not within the boundary of any of them.
2. The constitution of the United States, art. 4, s. 3, provides, that “the congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property of the United States; and nothing in this constitution shall be construed, so as to preclude the claims of the United States or of any state.”
3. Congress possesses the power to erect territorial governments within the territory of the United States; the power of congress over such territory is exclusive and universal, and their legislation is subject to no control, unless in the case of ceded territory, as far as it may be affected by stipulations in the cessions, or by the ordinance of 1787, 3 Story’s L. U. S. 2073, under which any part of it has been settled. Story on the Const. Sec. 1322; Rawle on the Const: 237; 1 Kent’s Com. 243, 359; 1 Pet. S. C. Rep. 511, 542, 517.
4. The only organized territories of the United States are Oregon, Minnesota, New Mexico and Utah. Vide Courts of the United States.

This essentially says that a territory is separate from the rest of the country and subject to particular jurisdiction under the full control of Congress, including land ceded to the federal government and governed by stipulations. I posit, the stipulations are the accepting federal highway dollars for roads and other transportation uses, thereby subjecting the “highways” to the control of Congress, the area over which it legislates is referred to as, “this State”. I am speculating that when it comes to the drivers license, the State of Illinois does not have the right to license the use of roads under the jurisdiction of the United States, and any alleged violation for not possessing a license can be removed to federal court for lack of standing on the part of the state government.

Here is a sampling of how the federal monies are used over certain roads and the corresponding jurisdiction over those roads:

http://marcmkkoy.com/mark/ilcs/ilcs4c9b1.html?DocName=060500050HArt.+3&ActID=1745&ChapterID=45&SeqStart=3200000&SeqEnd=5200000
(605 ILCS 5/3-104.2) (from Ch. 121, par. 3-104.2)
Sec. 3-104.2. The Department, or the Department in cooperation with municipal corporate authorities or county authorities, is authorized to receive and expend, by agreement or otherwise, federal funds for the construction, reconstruction and improvement of public roads not on any Federal-aid system, being improved under the Federal Aid Road Act.
Any Federal-aid project as authorized in this Section may be undertaken jointly at the expense of the federal government and the State of Illinois, or jointly at the expense of the federal government, a municipality or municipalities, or a county or counties, or jointly at the expense of the federal government, the State of Illinois, a municipality or municipalities or a county or counties, or any of the above jointly with any other public or private entity or public utility.
The authority having jurisdiction over a public road not on any federal-aid system prior to its improvement as a federal-aid project shall continue to be responsible for maintenance, at its own expense.
For the purposes of this Section, “public road” means any road under the jurisdiction of and maintained by a public authority and open to public travel and which is not on a federal-aid system.
(Source: P.A. 84-298.) – (Notice how the term “State of Illinois” is used instead of “this State”)

I apologize if I have deviated from my original intent, but I feel that foundation is important in supporting my analysis. All of this will come together to help you realize that the drivers license laws, although initially under the control of the States as a valid exercise of their police power in licensing and regulating drivers (chaffeurs) who accept compensation for carrying on a business, has now, through federal encroachment, become a plenary object of congress and an agreement between the States and Federal Government to establish a murky jurisdiction. Remember, the Federal Government has no authority within the boundaries of a State without that sovereignty being waived or ceded to the Federal Government, and upon doing so, thereby creates an area of concurrent jurisdiction where a federal State is found within the boundaries of one of the several States. From this, grew the National Driver Register, mandatory seat-belt laws, sobriety checkpoints, and more.

I believe it can be further speculated, that the Governor of the State of Illinois violates his oath of office by acting as an ambassador/administrator for the Federal Government in binding the people to federal regulations without clear constitutional authority or mandate. The nail in the coffin is the Illinois Highway Safety Law. I will reference the law, the Governor’s role, and a telling phraseology of what “this State” is in relation to establishing a federal territory in the State of Illinois for the purpose of receiving federal highway funds, which then provide the nexus for federal regulations imposed upon the states.

(625 ILCS 5/Ch. 17 heading)
CHAPTER 17. ILLINOIS HIGHWAY SAFETY LAW
http://marcmkkoy.com/mark/ilcs/ilcs43c49.html?DocName=062500050HCh.+17&ActID=1815&ChapterID=49&SeqStart=153100000&SeqEnd=153300000
(625 ILCS 5/17-101) (from Ch. 95 1/2, par. 17-101)
Sec. 17-101. Powers and duties of governor. The Governor, in addition to other duties and responsibilities conferred upon him by the constitution and laws of this State is empowered to contract and to do all other things necessary in behalf of this State to secure the full benefits available to this State under the Federal Highway Safety Act of 1966, as amended, and in so doing, to cooperate with Federal and State agencies, agencies private and public, interested organizations, and with individuals, to effectuate the purposes of that enactment, and any and all subsequent amendments thereto. The Governor is the official of this State having the ultimate responsibility for dealing with the Federal Government with respect to programs and activities pursuant to the National Highway Safety Act of 1966 and any amendments thereto. To that end he shall coordinate the activities of the Secretary of State and the State Board of Education and of any and all departments and agencies of this State and its subdivisions, relating thereto.
(Source: P.A. 81-1508.)

‚ Let’s analyze this statute line-by-line.

1. The Governor, in addition to other duties and responsibilities conferred upon him by the constitution and laws of this State – The duties and responsibilities of the Governor of Illinois are conferred only by the Constitution of Illinois. The laws do not confer duties and responsibilities. His office is a Constitutional office and the duties and responsibilities are found in the Constitution of Illinois. I would argue that this statute is unconstitutional. The question is, what, exactly, are the duties and responsibilities conferred upon the Governor by “the laws of this State”, which is a federal territory or federal municipal corporation under the jurisdiction imposed by the Federal Highway Safety Act of 1966.

2. The Governor is the official of this State having the ultimate responsibility for dealing with the Federal Government with respect to programs and activities pursuant to the National Highway Safety Act of 1966 and any amendments thereto. – This wording is very suspect, as how did the Governor become the “official of this State”, and where to the responsibilities for dealing with the Federal Government arise in the Illinois Constitution? Since the Governor is a creature of the Constitution, and his duties and obligations are Constitutinal in-nature, let’s look to the Constitution for any “offical of this State” designation or responsibility to the Federal Government:

Illinois Constitution
Article 5, SECTION 8. GOVERNOR‚”SUPREME EXECUTIVE POWER
http://www.ilga.gov/commission/lru/Ilconstitution.pdf
The Governor shall have the supreme executive power, and shall be responsible for the faithful execution of the laws.
This is the first of several sections setting forth the powers of the Governor. This section states the powers that are most general. The Illinois Supreme Court has commented that this provision does not empower the Governor to establish new legal requirements by executive order or otherwise; as to persons not under his jurisdiction, he may only execute and enforce existing law.
The Governor does have control over agencies under him through his power to remove subordinates and his authority (recognized under Article 13, section 2) to establish ethical standards for agencies under him. – I see no obligation to the Federal Government imposed by the Illinois Constitution.‚ I see no designation for “official of this State”, or any other such‚ designation.

 

SKELETONS IN THE LEGISLATIVE CLOSET – CHRONOLOGY OF LICENSING LAWS

‚ What I think we have established, or have othewise made a very strong argument for or raised serious questions to, is the object and intent of the Drivers License laws, the proper jurisdiction involved, and whether this is a State law or Federal Law.

‚ As I said, this may have began with a proper exercise of the police power of the State in legislating for the health, safety, welfare, and morals of its Citizens, but has become something more invasive and encroaching. The issue is not whether we agree with the laws, or whether they serve any compelling state interest or protect public safety, it is by what authority do these laws exist? I’m going to go back to some of the earliest motor vehicle legislation and quote verbatim from that legislation, showing that in the beginning, the only objects of regulation were those using motor vehicles in the pursuit of a pecuniary benefit.

Smith’s Illinois Revised Statutes – 1921
Page 1720
MOTOR VEHICLES
AN ACT in relation to motor vehicles and to repeal a certain act therein named. [Approved June 30, 1919]
Page 1725
228. Chauffers – Regulations – License – Fees, etc.]
‚§27. An application for a license to operate motor vehicles as a chauffer, who is hereby defined to mean any person operating a motor vehicle as a mechanic or employee, and who directly or indirectly receives pay or any compensation whatsoever

Page 1726
for any work or services in connection with the operation of a motor vehicle or the transportation of passengers or merchendise with a motor vehicle for hire or for pecuniary profit, shall be made by mail or othewise to the Secretary of State, or his duly authorized agent, upon blanks prepared under his authority….
(Last paragraph on left column of page)
No person shall operate or drive a motor vehicle as a chauffer upon a public highway of this State, unless such person shall have complied in all respects with the requirements of this section: Provided, however, that a non-resident chauffeur who has registered under the provisions of the law in force in the city, state, foreign country or province, territory or Federal district, of his residence, substantially equivalent to the provisions of this section shall be exempt from license hereunder, while temporarily sojouring within this State, only to the extent that under the laws of the city, state, foreign country or province, territory or Federal district of his residence like privileges are granted to persons duly licensed and registered as chauffeurs under the laws of this State, and who are residents of this State.
230. Chauffeur or operator must be licensed.]
‚§29. No person or corporation shall employ, as a chauffeur or operator of a motor vehicle, any person not specially licensed as aforesaid.

Smith-Hurd
Illinois Revised Statutes
With cross references
1923
Essentially the save verbiage.

Smith-Hurd
Illinois Revised Statutes
With cross references
1925
Essentially the save verbiage.

Cahill Illinois Revised Statutes
Keyed to Annotated Statutes
1927
Essentially the save verbiage.

Smith-Hurd
Illinois Revised Statutes
With cross references
1929
Essentially the save verbiage.

Illinois Revised Statutes
With cross references
1925
State Bar Association Edition
Chap. 95 1/2 section 33 Page 2125
32b. Licenses of chauffeurs for 1938.]
‚§26b. All the provisions of law in force prior to the passage of this amendatory Act relating to the licensing and regulation of chauffeurs shall remain in full force and effect with respect to all chaiffeurs licensed for the year 1938. The provisions of this amendatory Act relating to the licensing and regulation of chauffeurs shall not apply to chauffeurs so licensed for the year 1938. Added by act filed July 12, 1938. L.1938, First Sp.Sess., p.39.
S.H.A. 95 1/2 Section 32b; J.A. 85.032(2).
33. Chauffeurs – License – Application – Examination – Fee – Age – Form of license-school bus and vehicle of common carrier- Record in office of Secretary of State-Non-resident chauffeurs-Renewal of licenses.]
‚§27. An application for a license to operate a motor vehicle as a chauffeur, who is hereby defined to mean any person whose principal occupation is that of operating a motor vehicle as a mechanic or employee, or who directly or indirectly receives pay or any compensation whatsoever for any work or services in connection with the operation of a motor vehicle for the transportation of passengers or merchendise for hire, shall be made by mail or othewise to the Secretary of State, or his duly authorized agent, upon blanks prepared under his authority. Provided, however, that no person shall be held to be a chauffeur, and subject to the provisions hereof, who operates a motor vehicle incidentally to some other and principal occupation and where such motor vehicle is so perated solely in furtherance of such other and principal occupation and is not used for the transportation of passengers or merchendise for hire; and, provided, further, that no person shall b eheld to be a chauffeur and subject to the provisions hereof who operates a motor vehicle in the service of the Army, Navy, or Marine Corps of the United States or who operates a road machine, farm tractor or implement of husbandry temporarily drawn, moved, or propelled on a highway; and, provided, further, that any garage which repairs or services motor vehicles and operates a service car shall have at least one licensed chauffeur who insofar as it is possible, shall take care of all testing and outside service work.

Chap. 95 1/2 section 33 Page 2126
34a. License as chauffeur or operator required – Exemptions.]
‚§28a. On and after May 1, 1939 in the case of operators and on and after January 1, 1939 in the case of chauffeurs, no person except those herinafter expressly exempted, shall drive any motor vehicle upon a highway in this State, unless such person has a valid license as an operator or chauffeur under the provisions of this Act, an operator being hereby defined to mean any person, other than a chauffeur, who is in actual physical control of a motor vechicle upon a highway. Any person holding a valid chauffeur’s license hereunder need not procure an operator’s license. Provided, however, that the following persons are exempt from the requirements of this section:
1. Any person while operating a motor vehicle in the service of the Army, Navy, or Marine Corps of the United States;
2. Any person while driving or operating a road machine, farm tractor or implement of husbandry temporarily drawn, moved, or propelled on a highway;
3. A non-resident of this State who is at least fifteen years of age and who has in his immediate possession a valid operator’s license issued to him in his home State or Country, may operate a motor vehicle in this State only as an operator;
4. A non-resident who is at least eighteen years of age and who has in his immediate possesion a valid chauffeur’s license issued to him in his State or Country may operate a motor vehicle in this State either as an operator or chauffeur except that any such person must be licensed as a chauffeur hereunder before accepting employment as a chauffeur from a resident of this State;
5. Any non-resident who is at least fifteen years of age, whose home State or Country does not require the licensing of operators, while operating a motor vehicle as an operator only, for a period of not more than 90 days in any calendar year, if in the home State or Country of such non-resident.
The provisions of this section granting exemptions to non-residents shall be operative only when under the laws of this State, foreign country or province, territory or federal district of such non-resident, like exemptions and privileges are granted to licensed resident operators and chauffeurs of this State. Added by act filed July 12, 1938. L.1938, First Sp. Sess., p.39

This is where “Operators” came to be and to require licenses. This is the beginning of the “drivers license”.

Given the foregoing, let’s look at the current law and see just “who” is required to have a driver’s license:

(625 ILCS 5/6-101) (from Ch. 95 1/2, par. 6-101)
Sec. 6-101. Drivers must have licenses or permits.
(a) No person, except those expressly exempted by Section 6-102, shall drive any motor vehicle upon a highway in this State unless such person has a valid license or permit, or a restricted driving permit, issued under the provisions of this Act.
(b) No person shall drive a motor vehicle unless he holds a valid license or permit, or a restricted driving permit issued under the provisions of Section 6-205, 6-206, or 6-113 of this Act. Any person to whom a license is issued under the provisions of this Act must surrender to the Secretary of State all valid licenses or permits. No drivers license or instruction permit shall be issued to any person who holds a valid Foreign State license, identification card, or permit unless such person first surrenders to the Secretary of State any such valid Foreign State license, identification card, or permit.
(b-5) Any person who commits a violation of subsection (a) or (b) of this Section is guilty of a Class A misdemeanor, if at the time of the violation the person’s driver’s license or permit was cancelled under clause (a)9 of Section 6-201 of this Code.

Who, is exempt?

http://marcmkkoy.com/mark/ilcs/ilcs47662.html?DocName=062500050HCh.+6&ActID=1815&ChapterID=49&SeqStart=72100000&SeqEnd=90800000
(625 ILCS 5/6-102) (from Ch. 95 1/2, par. 6-102)
Sec. 6-102. What persons are exempt. The following persons are exempt from the requirements of Section 6-101 and are not required to have an Illinois drivers license or permit if one or more of the following qualifying exemptions are met and apply:
1. Any employee of the United States Government or any member of the Armed Forces of the United States, while operating a motor vehicle owned by or leased to the United States Government and being operated on official business need not be licensed;
2. A nonresident who has in his immediate possession a valid license issued to him in his home state or country may operate a motor vehicle for which he is licensed for the period during which he is in this State;
3. A nonresident and his spouse and children living with him who is a student at a college or university in Illinois who have a valid license issued by their home State.
4. A person operating a road machine temporarily upon a highway or operating a farm tractor between the home farm buildings and any adjacent or nearby farm land for the exclusive purpose of conducting farm operations need not be licensed as a driver.
5. A resident of this State who has been serving as a member of the Armed Forces of the United States outside the Continental limits of the United States, for a period of 90 days following his return to the continental limits of the United States.
6. A nonresident on active duty in the Armed Forces of the United States who has a valid license issued by his home state and such nonresident’s spouse, and dependent children and living with parents, who have a valid license issued by their home state.
7. A nonresident who becomes a resident of this State, may for a period of the first 90 days of residence in Illinois operate any motor vehicle which he was qualified or licensed to drive by his home state or country so long as he has in his possession, a valid and current license issued to him by his home state or country. Upon expiration of such 90 day period, such new resident must comply with the provisions of this Act and apply for an Illinois license or permit.
8. An engineer, conductor, brakeman, or any other member of the crew of a locomotive or train being operated upon rails, including operation on a railroad crossing over a public street, road or highway. Such person is not required to display a driver’s license to any law enforcement officer in connection with the operation of a locomotive or train within this State.
The provisions of this Section granting exemption to any nonresident shall be operative to the same extent that the laws of the State or country of such nonresident grant like exemption to residents of this State.
The Secretary of State may implement the exemption provisions of this Section by inclusion thereof in a reciprocity agreement, arrangement or declaration issued pursuant to this Act.
(Source: P.A. 96-607, eff. 8-24-09.)

The power to license rests with the legislature, and their exercise of the police power. I believe the State of Illinois exceeds its police power authority in the current drivers license laws because it does not serve to protect the citizens from a threat to the health, safety, welfare, or morals; and is equally violative of the equal protection clause of the 14th Amendment in excluding some from complying with the licensing requirements. There can be no exclusion for some where the compelling state interest does not differentiate between classes of individuals in carrying forth the provisions of the law. In the case of Mahony v. Township of Hampton, 539 Pa. 193, 651 A.2d 525 (1994), Mahony argued that the government could not be exempt from one ordinance and he be obligated to it. By those under number 1. above being exempt with no rational basis in driver competency, I believe it is violative of the equal protection clause and an invalid exercise of the police power when causing some to be licensed and not others. In-fact, it can be said that the state fails in exercising its police powers because people now can renew their licenses without having to take a competency road test or exam every time their license expires. Theoretically, driver competency can diminish over this time and the state, thereby, places drivers “legally” upon the road who pose an articulable danger to other drivers.

…..More to come……….

 

TABLE OF AUTHORITIES/DEFINITIONS/CASES CITED

Illinois Vehicle Code Definitions:

(625 ILCS 5/1-154.1) (from Ch. 95 1/2, par. 1-154.1)
Sec. 1-154.1. Operate. To ride in or on, other than as a passenger, use or control in any manner the operation of any device or vehicle whether motorized or propelled by human power.
(Source: P.A. 85-830.)

(625 ILCS 5/1-154.2) (from Ch. 95 1/2, par. 1-154.2)
Sec. 1-154.2. Operator. Every person who operates or is in actual physical control of any device or vehicle whether motorized or propelled by human power.
(Source: P.A. 85-830.)

(625 ILCS 5/1-115.8)
Sec. 1-115.8. Drive. To drive, operate, or be in physical control of a motor vehicle.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-116) (from Ch. 95 1/2, par. 1-116)
Sec. 1-116. Driver.
Every person who drives or is in actual physical control of a vehicle.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-209.5)
Sec. 1-209.5. Transportation. The actual movement of property or passengers by motor vehicle, together with loading, unloading, and any other accessorial or ancillary service provided by the carrier in connection with movement by motor vehicle.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-133) (from Ch. 95 1/2, par. 1-133)
Sec. 1-133. Interstate or Interstate Commerce.
Transportation between 2 or more States or transportation originating in one State and passing into or through other States for delivery in another State, and which is not intrastate.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-133.05)
Sec. 1-133.05. Interstate carrier of property. Any person who is engaged in the transportation of property only by motor vehicle in whole or in part in interstate or foreign commerce in this State either with or without authority issued from the Interstate Commerce Commission.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-133.1) (from Ch. 95 1/2, par. 1-133.1)
Sec. 1-133.1. Interstate highway. Any highway which is now, or shall hereafter be, a part of the national system of interstate and defense highways within this State.
(Source: P.A. 85-830.)

(625 ILCS 5/1-134) (from Ch. 95 1/2, par. 1-134)
Sec. 1-134. Intrastate or Intrastate Commerce.
Transportation originating at any point or place within this State and destined to any other point or place within this State, irrespective of the route, highway or highways traversed, and including transportation which passes into or through another State before delivery is made within this State, and including any act of transportation which includes or completes a pickup within Illinois for delivery within Illinois.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-145) (from Ch. 95 1/2, par. 1-145)
Sec. 1-145. Motor carrier.
An operator of For-Hire vehicles pursuant to the Illinois Motor Carrier of Property Law.

(625 ILCS 5/1-122.5) (from Ch. 95 1/2, par. 1-124)
Sec. 1-122.5. For-hire. The operation of a vehicle for compensation and subject to federal regulation by the Interstate Commerce Commission or to state regulation by the Illinois Commerce Commission and those vehicles governed by Chapters 8 and 9 under this Code and regulated by the Secretary of State.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-153) (from Ch. 95 1/2, par. 1-153)
Sec. 1-153. Not-For-Hire.
Operation of a commercial vehicle in furtherance of any commercial or industrial enterprise but not For-Hire.
(Source: P.A. 76-1586.)

(625 ILCS 5/8-101) (from Ch. 95 1/2, par. 8-101)
Sec. 8-101. Proof of financial responsibility – Persons who operate motor vehicles in transportation of passengers for hire.
(a) It is unlawful for any person, firm or corporation to operate any motor vehicle along or upon any public street or highway in any incorporated city, town or village in this State for the carriage of passengers for hire, accepting and discharging all such persons as may offer themselves for transportation unless such person, firm or corporation has given, and there is in full force and effect and on file with the Secretary of State of Illinois, proof of financial responsibility provided in this Act. – (Source: P.A. 76-1586.)

(625 ILCS 5/1-207) (from Ch. 95 1/2, par. 1-207)
Sec. 1-207. Traffic.
Pedestrians, ridden or herded animals, vehicles, streetcars and other conveyances either singly or together while using any highway for purposes of travel.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-217) (from Ch. 95 1/2, par. 1-217)
Sec. 1-217. Vehicle. Every device, in, upon or by which any person or property is or may be transported or drawn upon a highway or requiring a certificate of title under Section 3-101(d) of this Code, except devices moved by human power, devices used exclusively upon stationary rails or tracks and snowmobiles as defined in the Snowmobile Registration and Safety Act.
For the purposes of this Code, unless otherwise prescribed, a device shall be considered to be a vehicle until such time it either comes within the definition of a junk vehicle, as defined under this Code, or a junking certificate is issued for it.
For this Code, vehicles are divided into 2 divisions:
First Division: Those motor vehicles which are designed for the carrying of not more than 10 persons.
Second Division: Those vehicles which are designed for carrying more than 10 persons, those designed or used for living quarters and those vehicles which are designed for pulling or carrying property, freight or cargo, those motor vehicles of the First Division remodelled for use and used as motor vehicles of the Second Division, and those motor vehicles of the First Division used and registered as school buses.
(Source: P.A. 92-812, eff. 8-21-02.)

(625 ILCS 5/1-146) (from Ch. 95 1/2, par. 1-146)
Sec. 1-146. Motor vehicle. Every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails, except for vehicles moved solely by human power, motorized wheelchairs, low-speed electric bicycles, and low-speed gas bicycles. For this Act, motor vehicles are divided into two divisions:
First Division: Those motor vehicles which are designed for the carrying of not more than 10 persons.
Second Division: Those motor vehicles which are designed for carrying more than 10 persons, those motor vehicles designed or used for living quarters, those motor vehicles which are designed for pulling or carrying freight, cargo or implements of husbandry, and those motor vehicles of the First Division remodelled for use and used as motor vehicles of the Second Division.
(Source: P.A. 96-125, eff. 1-1-10.)

(625 ILCS 5/1-157) (from Ch. 95 1/2, par. 1-157)
Sec. 1-157. Passenger car.
A motor vehicle of the First Division including a multipurpose passenger vehicle, that is designed for carrying not more than 10 persons.
(Source: P.A. 78-343.)

(625 ILCS 5/6-101) (from Ch. 95 1/2, par. 6-101)
Sec. 6-101. Drivers must have licenses or permits.
(a) No person, except those expressly exempted by Section 6-102, shall drive any motor vehicle upon a highway in this State unless such person has a valid license or permit, or a restricted driving permit, issued under the provisions of this Act.
(b) No person shall drive a motor vehicle unless he holds a valid license or permit, or a restricted driving permit issued under the provisions of Section 6-205, 6-206, or 6-113 of this Act. Any person to whom a license is issued under the provisions of this Act must surrender to the Secretary of State all valid licenses or permits. No drivers license or instruction permit shall be issued to any person who holds a valid Foreign State license, identification card, or permit unless such person first surrenders to the Secretary of State any such valid Foreign State license, identification card, or permit.
(b-5) Any person who commits a violation of subsection (a) or (b) of this Section is guilty of a Class A misdemeanor, if at the time of the violation the person’s driver’s license or permit was cancelled under clause (a)9 of Section 6-201 of this Code.

(625 ILCS 5/6-112) (from Ch. 95 1/2, par. 6-112)
Sec. 6-112. License and Permits to be carried and exhibited on demand. Every licensee or permittee shall have his drivers license or permit in his immediate possession at all times when operating a motor vehicle and, for the purpose of indicating compliance with this requirement, shall display such license or permit if it is in his possession upon demand made, when in uniform or displaying a badge or other sign of authority, by a member of the State Police, a sheriff or other police officer or designated agent of the Secretary of State. However, no person charged with violating this Section shall be convicted if he produces in court satisfactory evidence that a drivers license was theretofor issued to him and was valid at the time of his arrest.
For the purposes of this Section, “display” means the manual surrender of his license certificate into the hands of the demanding officer for his inspection thereof.
(Source: P.A. 76-1749.)

(625 ILCS 5/1-138) (from Ch. 95 1/2, par. 1-138)
Sec. 1-138. License to drive.
Any driver’s license or any other license or permit to operate a motor vehicle issued under the laws of this State including:
1. Any temporary license or instruction permit;
2. The privilege of any person to drive a motor vehicle whether or not such person holds a valid license or permit.
3. Any nonresident’s driving privilege as defined herein.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-138.1) (from Ch. 95 1/2, par. 1-138.1)
Sec. 1-138.1. Licensee. A person licensed or required to be licensed under Sections 5-101, 5-102, 5-201 and 5-301 of this Code.
(Source: P.A. 83-1473.)

(625 ILCS 5/5-101) (from Ch. 95 1/2, par. 5-101)
Sec. 5-101. New vehicle dealers must be licensed.
(625 ILCS 5/5-102) (from Ch. 95 1/2, par. 5-102)
Sec. 5-102. Used vehicle dealers must be licensed.
(625 ILCS 5/5-201) (from Ch. 95 1/2, par. 5-201)
Sec. 5-201. Transporters must apply for in-transit plates.
(625 ILCS 5/5-301) (from Ch. 95 1/2, par. 5-301)
Sec. 5-301. Automotive parts recyclers, scrap processors, repairers and rebuilders must be licensed.

(625 ILCS 5/1-110) (from Ch. 95 1/2, par. 1-110)
Sec. 1-110. Cancellation of driver’s license.
The annulment or termination by formal action of the Secretary of a person’s driver’s license because of some error or defect in the license or because the licensee is no longer entitled to such license, but, with the exception of Sections 6-107, 6-108 and 6-201, the cancellation of a license is without prejudice and application for a new license may be made at any time after such cancellation.
(Source: P.A. 86-1450.)
(625 ILCS 5/6-107) (from Ch. 95 1/2, par. 6-107)
Sec. 6-107. Graduated license.
(625 ILCS 5/6-108) (from Ch. 95 1/2, par. 6-108)
Sec. 6-108. Cancellation of license issued to minor.
(625 ILCS 5/6-201)
(Text of Section from P.A. 97-208)
Sec. 6-201. Authority to cancel licenses and permits.

ARTICLE II. CANCELLATION, SUSPENSION, OR
REVOCATION OF LICENSES AND PERMITS

(625 ILCS 5/6-201)
(Text of Section from P.A. 97-208)
Sec. 6-201. Authority to cancel licenses and permits.
(a) The Secretary of State is authorized to cancel any license or permit upon determining that the holder thereof:
(SEE FULL CITATION)

(625 ILCS 5/6-202) (from Ch. 95 1/2, par. 6-202)
Sec. 6-202. Non-residents and Unlicensed Persons-Revocation and Suspension-Reporting Convictions.
(a) The privilege of driving a motor vehicle on highways of this State given to a nonresident hereunder and the privilege which an unlicensed person might have to obtain a license under this Act shall be subject to suspension or revocation by the Secretary of State in like manner and for like cause as a drivers license issued hereunder may be suspended or revoked.
(b) The Secretary of State is authorized, upon receiving a report of the conviction in this State of a nonresident driver of a motor vehicle of any offense under the laws of this State relating to operation, custody or ownership of motor vehicles, to forward a copy or abstract of such report to the motor vehicle administrator of the State wherein the person so convicted is a resident.
(c) (Blank.)
(d) This section is subject to the provisions of the Driver License Compact.
(Source: P.A. 96-962, eff. 7-2-10.)

(625 ILCS 5/6-206)
(Text of Section from P.A. 96-1551)
Sec. 6-206. Discretionary authority to suspend or revoke license or permit; Right to a hearing.
(a) The Secretary of State is authorized to suspend or revoke the driving privileges of any person without preliminary hearing upon a showing of the person’s records or other sufficient evidence that the person:
(SEE FULL CITATION)

(625 ILCS 5/6-209) (from Ch. 95 1/2, par. 6-209)
Sec. 6-209. Notice of Cancellation, Suspension or Revocation – Surrender and Return of License. The Secretary of State upon cancelling, suspending or revoking a license or permit shall immediately notify the holder thereof in writing and shall require that such license or permit shall be surrendered to and retained by the Secretary of State. However, upon payment of the reinstatement fee set out in subsection (g) of Section 6-118 at the end of any period of suspension of a license the licensee, if not ineligible for some other reason, shall be entitled to reinstatement of driving privileges and the return of his license if it has not then expired; or, in case it has expired, to apply for a new license.
(Source: P.A. 81-462.)

(625 ILCS 5/6-212) (from Ch. 95 1/2, par. 6-212)
Sec. 6-212. Court Review. The provisions of the Administrative Review Law, and all amendments and modifications thereof, and the rules adopted pursuant thereto, shall apply to and govern all proceedings for the judicial review of final administrative decisions of the Secretary of State hereunder.
(Source: P.A. 82-783.)

(625 ILCS 5/1-159) (from Ch. 95 1/2, par. 1-159)
Sec. 1-159. Person.
Every natural person, firm, copartnership, association or corporation.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-173) (from Ch. 95 1/2, par. 1-173)
Sec. 1-173. Resident.
(a) Every natural person who resides in this state shall be deemed a resident of this State.
(b) In the case of a firm, copartnership or association, if the principal place of business of such firm, copartnership or association is located in the State of Illinois, then such firm, copartnership or association shall be deemed a resident of the State of Illinois.
(c) In the case of a corporation, if the corporation was incorporated under the laws of the State of Illinois or if the principal place of business of such corporation is in the State of Illinois, then such corporation shall be deemed a resident of the State of Illinois.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-115.6)
Sec. 1-115.6. Domiciliary. A person who is domiciled.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-195) (from Ch. 95 1/2, par. 1-195)
Sec. 1-195. State.
A state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico or a province of the Dominion of Canada.
(Source: P.A. 76-1586.)

 

ILLINOIS COMPILED STATUTES – ANNOTATED

ILCS Ch. 625, Act 5, Ch. 1, References and Annotations
Illinois Annotated Compiled Statutes

ENACTMENT
<The Illinois Vehicle Code was enacted by P.A. 76-1586, effective July 1, 1970. The Code constitutes a consolidated recodification of various earlier laws and acts including the Illinois Motor Vehicle Law of 1957.>

INTRODUCTORY COMMENT–1969
The definitions are primarily based upon those found in the old Illinois Vehicle Law (I.V.L.) and the Uniform Act Regulating Traffic (U.A.R.T.).
There were a number of duplicated definitions in those two acts, and the following standards were followed in drafting this bill:
Where a definition related primarily to registration, the I.V.L. definition was used. Where it related to traffic, the U.A.R.T. definition was used.
Since the 1967 amendments to the Uniform Act Regulating Traffic conformed a substantial number of traffic definitions to those in the Illinois Vehicle Law, the vast majority of the definitions in this bill (HB 195) are based on the Illinois Vehicle Law. However, the following definitions relating to traffic matters were based on the U.A.R.T. definitions:
1-106. Bicycle.
1-131. Improved highway.
1-132. Intersection.
1-135. Lane-control signal.
1-154. Official traffic-control devices.
1-155. Owner.
1-156. Park or Parking.
1-157. Passenger car.
1-167. Railroad signs or signal.
1-175. Reversible lane.
1-177. Right-of-way.
1-200. Stop or stopping.
1-219. Yield Right-of-Way.
The 1968 amendatory bills relating to various definitions of “recreational vehicles”, were relied upon for the following definitions:
1-109. Camper.
1-127. House Car.
1-128. House trailer.
1-165. Private living coach.
1-169. Recreational vehicle.
The definition of “Motor vehicle” in Section 1-146 combines the I.V.L. and U.A.R.T. definitions as amended in 1967 so that it is clear that vehicles of the First Division are passenger cars, and all other vehicles are vehicles of the Second Division. Also, see Section 1457 defining “Passenger car”.
There is a deletion in Section 1-111 defining “Chauffeur”. The old law had an additional paragraph relating to an exemption for farm operations. New Section 6-102(5) provides for driving without a license, of road machinery or a farm tractor between the home farm and nearby farm lands. This deletion resulted from HB 1951 which revised the driver license law in 1967 effective January 1, 1969.

CROSS REFERENCES
Abandoned mobile homes, transportation over public streets, registration plates, see 210 ILCS 117/40.
Appropriation for administration of Illinois Vehicle Code, see 30 ILCS 105/8.3. Arson, damage to vehicles, see 720 ILCS 5/20-1.
Automobile junkyards, control and location, see 415 ILCS 95/1 et seq.
Bail, traffic offenses, see 725 ILCS 5/110-15; S. Ct. Rule 501 et seq.
Child passenger protection, see 625 ILCS 25/1 et seq.
Cigarettes, vehicle as constituting place of business within tax act, see 35 ILCS 130/1. Consumer Fraud Act, retail sales of motor vehicles, see 815 ILCS 505/2L. Crimes, vehicles used in commission, see 720 ILCS 5/36-1 et seq.
Crimes, vehicular hijacking, see 720 ILCS 5/18-3.
Criminal trespass to vehicles, see 720 ILCS 5/21-2.
Deadly weapons, concealing in vehicle, see 720 ILCS 5/24-1.
Department of Public Safety, enforcement of motor vehicle laws, see 20 ILCS 2610/16. Driver Education Act, see 105 ILCS 5/7-24 et seq.
Enforcement of motor vehicle law, power of Department of Public Safety, see 20 ILCS
2610/16.
Enforcement of motor vehicle laws by state highway police, see 20 ILCS 2610/16. Enforcement of motor vehicle ordinances by sheriff as supervisor of safety, see 55 ILCS
5/3-6036.
Firearms, concealment in vehicle as unlawful use, see 720 ILCS 5/24-1.
Garbage hauling vehicles, license, see 55 ILCS 5/5-8002.
Group vehicle insurance, policy requirements and mandatory requirements under code, see 215 ILCS 5/388a.
Highways,
Depositing matter likely to cause punctures, see 605 ILCS 5/9-121.
Protection in general, see 605 ILCS 5/9-102 et seq.
Indemnification for injuries caused by police officer, see 65 ILCS 5/1-4-6. Installment contracts, see 815 ILCS 375/1 et seq.
Insurance, domestic surplus line insurer, restrictions, see 215 ILCS 5/445a.
Insurance against hazards resulting from ownership, maintenance or use of automobile, see 215 ILCS 5/4, 5/378 et seq.
Livestock auction sales, record of motor vehicles delivering livestock, see 225 ILCS
640/7.
Loss and restoration of rights, application of law, see 730 ILCS 5/5-5-5.
Motor fuel tax, see 35 ILCS 505/1 et seq.
Motor Vehicle Retail Installment Sales Act, see 815 ILCS 375/1 et seq.
Motor vehicles, financing affiliates, licensing, see 625 ILCS 5/5-101.1.
Municipalities,
Code hearing departments, adjudicatory authority, see 65 ILCS 5/1-2.2-10.
Licensing and control of commercial vehicles, see 65 ILCS 5/11-41-1, 5/11-41-2. Regulation of vehicles, see 65 ILCS 5/11-40-1 et seq.
Taxes on vehicles, see 65 ILCS 5/8-11-4.
Wrecked motor vehicles, dealer regulation, see 65 ILCS 5/11-42-3.
Notary’s fee for filling out automobile applications, see 5 ILCS 312/3-104.
Public utilities motor vehicle lines, terminable permits, see 65 ILCS 5/11- 89-1 et seq. Punctures, deposit in highway of matter likely to cause, see 605 ILCS 5/9- 121.
Races and stunt events, permit in counties of 500,000 or less, see 55 ILCS 5/5-9001, 5/5-
9002.
Railroads, operation of motor vehicles for transportation of persons and property, see 610 ILCS 60/1.
Reckless homicide in driving of a motor vehicle, see 720 ILCS 5/9-3. Retail installment sales of motor vehicles, see 815 ILCS 375/1 et seq. Sale and distribution of driver’s information, see 625 ILCS 5/2-123.
Sales tax, see 35 ILCS 120/3.
Schools,
Driver education courses, see 105 ILCS 5/27-24.2.
Safety education, see 105 ILCS 5/27-17.
Serial numbers, altering or destroying manufacturer’s motor vehicle serial numbers, see 720 ILCS 335/1.
State highway police, enforcement of motor vehicle laws, see 20 ILCS 2610/16. State owned motor vehicles, identification, see 30 ILCS 610/0.01 et seq.
Traffic offense defined, bail, see S. Ct. Rule 501.
Uniform Foreign Money–Judgments, personal jurisdiction based on operation of motor vehicle, see 735 ILCS 5/12-622.
Use tax, see 35 ILCS 105/9.
Vehicular endangerment, see 720 ILCS 5/12-2.5. Vehicular invasion, see 720 ILCS 5/12-111
Warrant to search, see 725 ILCS 5/108-3.
Weighing, state highway police, see 20 1LCS 2610/16.
LAW REVIEW AND JOURNAL COMMENTARIES
Manufacturer’s duty to design automobiles to be safe. 55 Ill.B.J. 238 (1966).
State and local tax changes in 1965, 54 Ill.B.J. 112 (1965).
I.L.C.S. Ch. 625, ACT 5, Ch. 1, Refs & Annos, IL ST Ch. 625, ACT 5, Ch. 1, Refs &‚ Anos
Current through P.A. 94-1054, P.A. 94-1056 to P.A. 94-1068 of the 2006 Reg. Sess.
END OF DOCUMENT
625 ILCS 5/1-116
Formerly cited as IL ST CH 95 1/2 1-116
Chapter 625. Vehicles
Act 5. Illinois Vehicle Code (Refs & Annos)

Chapter 1. Title and Definitions (Refs & Annos)

5/1-116. Driver
⤠1-116. Driver. Every person who drives or is in actual physical control of a vehicle.
CREDIT(S)
P.A. 76-1586, ⤠1-116, eff. July 1, 1970.
FORMER REVISED STATUTES CITATION
Formerly Ill.Rev.Stat.1991, ch. 95 1/2 , 1-116.
SOURCE COMMENT
Section 1-112 of the Motor Vehicle Law of 1957 was taken verbatim from a similar definition contained in the Uniform Vehicle Code prepared by the National Committee on Uniform Traffic Laws and Ordinances. Subsection (c) of former section 8 of the Uniform Act Regulating Traffic (Ill.Rev.Stat.1955, ⤠106(c) ) was also identical.
HISTORICAL AND STATUTORY NOTES
Prior Laws:
Laws 1935, p. 1247, art. I, ⤠9.
Laws 1957, p. 2706, ⤠1-112.
I11.Rev.Stat.1967, ch. 95 1/2 , ‚§‚§ 1-112, 106.
CROSS REFERENCES
Driver education, see 105 ILCS 5/27-24 et seq. Driver training schools, see 625 ILCS 5/6-401 et seq.
RESEARCH REFERENCES Treatises and Practice Aids
IL Pattern Jury Instructions – Criminal 23.67, Definition of Transportation of Alcoholic Liquor in a Motor Vehicle-Driver.
625 I.L.C.S. 5/1-116, IL ST CH 625 ⤠5/1-116
Current through P.A. 94-1054, P.A. 94-1056 to P.A. 94-1068 of the 2006
Reg. Sess.
END OF DOCUMENT

625 ILCS 5/1-126
Formerly cited as IL ST CH 95 1/2 11-126
Chapter 625. Vehicles
Act 5. Illinois Vehicle Code (Refs & Annos) ‘Chapter 1. Title and Definitions (Refs & Annos) 5/1-126. Highway
⤠1-126. Highway.
The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel or located on public school property.
CREDIT(S)

P.A. 76-1586, ⤠1-126, eff. July 1, 1970. Amended by P.A. 92-780, 5, eff. Aug. 6,2002.
FORMER REVISED STATUTES CITATION
Formerly Ill.Rev.Stat.1991, ch. 95 1/2 ,t1-126.
SOURCE COMMENT
The 1919 Motor Vehicle Law defined the term “Improved Highway” to include roads of concrete, brick, asphalt, macadam and gravel. The original Motor Vehicle Law enacted in 1907 defined the term “Public Highways” as follows:
“Public highways shall include any highway, county road, state road, public street, avenue, alley, park, parkway, driveway, or public place in any County, City, Village, Incorporated Town or Towns.”
The same definition was reenacted in Section 20 of the 1911 Motor Vehicle Law, with the exception of the word “park”, which was eliminated. The terms “street” or “highway” were again defined by the Illinois Legislature in the Uniform Act Regulating Traffic enacted in 1935. Streets or highways were defined:
“The entire width between property lines of every way or place of whatever nature when any part thereof is open to the use of the public as a matter of right, for purposes of vehicular traffic.” Ill.Rev.Stat.1955, ch. 95 1/2, ‚§ 109(a).
It is to be noted that the main difference between the definition of the term “highway” set out in the Uniform Traffic Act and that found in the Illinois Motor Vehicle Law lay in the addition of the phrase “as a matter of right”. Traffic safety officials preferred the definition in the Illinois Motor Vehicle Law since in their opinion traffic laws should apply if the public was using the highways regardless of whether or not they used the highway as a “matter of right”.
The term “highways” was again defined in 1953 by the Legislature in the Drivers License Act and such definition was identical with the definition found in the Motor Vehicle Law. The phrase “open to the use of the public as a matter of right” was interpreted by the Court in the case of Cihal v. Carver, 1948, 334 Ill.App. 234, 79 N.E.2d 82, to include any street or highway given to the public for public use and which every citizen had the right to use.
The Courts of Illinois stated, in the case of People v. Linde, 1930, 341 Ill. 269, 173 N.E. 361, 72 A.L.R. 997, that “the right to use public streets for purposes of travel is not absolute”. The Courts of Illinois have also stated that “no one has any inherent right to use the streets or highways as a place of business”. See People ex rel. Johns v. Thompson, 1930, 341 Ill. 166, 173 N.E. 137.
HISTORICAL AND STATUTORY NOTES
Prior Laws:
Laws 1919, p. 668, ‚§‚§ 1, 44.

Laws 1931, p. 780, ⤠1.

Laws 1935, p. 1247, Art. I, ⤠12.

Laws 1945, p. 1059, ⤠1.

Laws 1953, p. 476, ⤠6.

Laws 1953, p. 1578, ⤠1.

I11.Rev.Stat.1955, ch. 95 1/2, ‚§‚§ 1, 69, 73.6.

Laws 1957, p. 575, ⤠1.

Laws 1959, p. 177, ⤠1.

Laws 1959, p. 1772, ⤠1.

Laws 1959, p. 2209, ⤠1.

Laws 1961, p. 3627, ⤠1.

Laws 1963, p. 964, ⤠1.

Laws 1967, p. 3172, ⤠1.
I11.Rev.Stat.1969, ch. 95 1/2. ‚§‚§ 1-121, 109.
CROSS REFERENCES
Highways defined, size, weight and load, see 625 ILCS 5/15-100. Through highways, see 625 ILCS 5/1-205.
LIBRARY REFERENCES
Automobiles .13.
Westlaw Topic No. 48A. C.J.S. Motor Vehicles ⤠20.
RESEARCH REFERENCES
Encyclopedias
Illinois Law & Prac. Automobiles & Mtr. Vehicles ⤠3, Definitions.
Treatises and Practice Aids
IL Pattern Jury Instructions – Criminal 23.39, Definition of Driving While Driver’s License is Suspended or Revoked.
IL Pattern Jury Instructions – Criminal 23.65, Definition of Speeding.
IL Pattern Jury Instructions – Criminal 23.67, Definition of Transportation of Alcoholic Liquor in a Motor Vehicle-Driver.
IL Pattern Jury Instructions – Criminal 23.69, Definition of Possession of Alcoholic Liquor in a Motor Vehicle-Passenger.
IL Pattern Jury Instructions – Criminal 11.97B, Definition of Highway.
NOTES OF DECISIONS
Construction and application 2
Parking lots 5
Prior law 1
Public character of way 4 Regulation of use 3
1. Prior law
If public’s right to use drives, which were situated on state university campus, was not qualified or denied under proper grant of authority, roads were used by the public “as a matter of right,” within meaning of II 11-601 of former chapter 95 1/2 prohibiting speeding on a highway, defined in this paragraph as a way open to use of the public as a matter of right; in such case, speeding charge could properly be prosecuted under. People v. Tadd, App. 2 Dist.1973, 12 Ill.App.3d 391, 299 N.E.2d 8. Automobiles c.13
Driving of motor vehicle in privately owned parking lot by defendant, whose driver’s license had been suspended, did not constitute violation of Ill.Rev.Stat.1967, ch. 95 1/2,
6-303 (repealed. See ⤠6-303 former chapter 95 1/2 , prohibiting driving of motor vehicle on highway of state after suspension of license. People v. Kozak, App.1970, 130 Ill.App.2d 334, 264 N.E.2d 896. Automobiles c326
The phrase, “open to the use of the public as a matter of right,” in former ‚§ 109(a) of former chapter 95 1/2 defining street or highway, means street or highway given to public for public use and which every citizen has right to use. Cihal v. Carver, App.1948, 79 N.E.2d 82, 334 Ill.App. 234. Highways ‚£7,18; Municipal Corporations .c.–,703(1)
Former ‚§‚§ 98, 109, 111(a) and 187(a) of chapter 95 1/2 , having been a remedial statute relative to the parking of a motor vehicle, all general provisions, terms, phrases and expressions had to be liberally construed in order that the true intent and meaning of the Legislature could be fully carried out. Stine v. Union Elec. Co. of Ill., App.1940, 26 N.E.2d 433, 305 Ill.App. 37. Automobiles 12
2. Construction and application
Law relating to the movements of automobiles on a public highway, had regard to the traffic or use ordinarily made of such public highway, and contemplated the public use of every public highway for any lawful purpose. Fitzsimmons v. Snyder, 1913, 181 Ill.App. 70.
Chapter 11 of the Illinois Vehicle Code may not be enforced on privately maintained subdivision roads absent compliance with ⤠11-209.1, except that articles IV and V of the chapter may be enforced on private as well as public ways, as may other sections which specifically so provide. 1991 Op.Atty.Gen. No. 91-043.
3. Regulation of use
The State, in exercise of its police power, may regulate the use of its streets and highways in the public interest; thus, the State may empower one of its agencies, such as the board
of regents, to regulate the use of streets and roads located on a college campus in furtherance of particular needs and uses of the university; such regulation includes power to deny use of roads to the general public as a matter of right. People v. Tadd, App. 2 Dist.1973, 12 Ill.App.3d 391, 299 N.E.2d 8. Highways
No one has any inherent right to use streets or highways as a place of business. People ex rel. Johns v. Thompson, 1930, 173 N.E. 137, 341111. 166. Automobiles Municipal Corporations c669
4. Public character of way
Defendant who rode his motorcycle on streets located in village subdivision was riding on highways, as opposed to private roads, and thus, evidence was sufficient to support his conviction for operating motor vehicle on highway when his license was suspended; plat showed that streets in subdivision were dedicated to village, village expressly accepted the dedication, village’s role in ensuring maintenance of streets justified characterizing the streets as “publicly maintained,” and developer, in carrying out its contractual responsibility to maintain streets, acted under aegis of village and essentially performed public function. Village of Lake Villa v. Bransley, App. 2 Dist.2004, 284 Ill.Dec. 250, 348 IlLApp.3d 280, 809 N.E.2d 816. Automobiles c326
Even if maintenance was not physically undertaken by village employees or coordinated by department of the village government, streets which were located in subdivision in village were “publicly maintained” and, as such, constituted “highways” within meaning of statute defining “highway” as entire width between boundary lines of every way “publicly maintained” when any part thereof is open to use of public for purposes of vehicular travel and statute providing that any person who drives vehicle on “highway” when his license is suspended shall be guilty of a misdemeanor. Village of Lake Villa v. Bransley, App. 2 Dist.2004, 284 Ill.Dec. 250, 348 Ill.App.3d 280, 809 N.E.2d 816. Automobiles 326
Whether “street” or road is public highway may be proved by parol evidence. People v. Kyle, 1930, 173 N.E. 75, 341111. 31. Criminal Law c400(1)
A “public highway” includes public ways of every description which public have right to use for travel, such as city streets, footways, sidewalks, alleys, turnpikes, plank roads, and bridges. Manimina v. Alexander Auto Service Co., 1928, 164 N.E. 173, 333 Ill. 158.
Fact that a particular road is privately maintained does not necessarily make such a road a “private road”. 1975 Op.Atty.Gen. No. S-858.
5. Parking lots
Publicly maintained parking lot that was open to public use was public highway for purposes of summary driver’s license suspension statute, so that driver asleep in parking lot with his car engine running impliedly consented to blood alcohol test. People v. Culbertson, App. 2 Dist. 1994, 196 Ill.Dec. 554, 258 Ill.App.3d 294, 630 N.E.2d 489.
Automobiles 144.1(1.11)
Word “highway,” within this paragraph is broad enough to encompass publicly maintained parking lots. People v. Jensen, App. 1 Dist.1976, 37 Ill.App.3d 1010, 347 N.E.2d 371.
Defendant was driving on a “highway” and, therefore, was in violation of statutory proscription when he drove his vehicle in a parking lot of a forest preserve district while his driver’s license was under suspension. People v. Jensen, App. 1 Dist.1976, 37 Ill.App.3d 1010, 347 N.E.2d 371. Automobiles 4‚º.326
625 I.L.C.S. 5/1-126, IL ST CH 625 ⤠5/1-126
Current through P.A. 94-1054, P.A. 94-1056 to P.A. 94-1068 of the 2006 Reg. Sess.
END OF DOCUMENT

625 ILCS 5/1-173
Formerly cited as IL ST CH 95 1/2 1-173
West’s Smith-Hurd Illinois Compiled Statutes Annotated Currentness
Chapter 625. Vehicles
Act 5. Illinois Vehicle Code (Refs & Annos) ‘0-Chapter 1. Title and Definitions (Refs & Annos) 45/1-173. Resident
⤠1-173. Resident. (a) Every natural person who resides in this state shall be deemed a resident of this State.
(b) In the case of a firm, copartnership or association, if the principal place of business of such firm, copartnership or association is located in the State of Illinois, then such firm, copartnership or association shall be deemed a resident of the State of Illinois.
(c) In the case of a corporation, if the corporation was incorporated under the laws of the State of Illinois or if the principal place of business of such corporation is in the State of Illinois, then such corporation shall be deemed a resident of the State of Illinois.

CREDIT(S)
P.A. 76-1586, ⤠1-173, eff. July 1, 1970.
FORMER REVISED STATUTES CITATION
Formerly Ill.Rev.Stat.1991, ch. 95 1/2 , 1-173.
SOURCE COMMENT
This term was not defined in the 1919 Motor Vehicle Law nor was it defined in the Uniform Vehicle Code. The original 1907 Motor Vehicle Law provided an exemption for non-resident’s registration of their motor vehicles provided the owner thereof had complied with the law requiring the registration of motor vehicles in force in the State of his residence, and further provided that the registration number was conspicuously displayed on the motor vehicle. This exemption was continued in the 1911 Motor Vehicle Law and a “non-resident” was defined: “to mean a person residing in another State and temporarily sojourning within this State for a period of 60 days or less in any one year”. The exemption for non-residents was set out in Section 20 of the 1919 Motor Vehicle Law. The exemption was restricted however and “foreign corporations” owning or maintaining or operating places of business in Illinois and using motor vehicles or motor bicycles in connection with such places of business were required to register such motor vehicles or motor bicycles so used in connection with such places of business. Exemptions from registration for non-residents was further qualified by the addition of a requirement that “like exemptions and privileges” were granted to motor vehicles and motor bicycles duly registered under the laws of and owned by residents of Illinois by the State of residence of such non-resident. The definition of “non-resident” as set out in the 1911 Motor Vehicle Law was continued in Section 20 of the Motor Vehicle Law of 1919. The 1919 Motor Vehicle Law was amended in an Act of 1931 deleting this paragraph defining a non-resident.
There had been no determinations prior to adoption of the Motor Vehicle Law of 1957 by Illinois courts of whether or not the term resident was synonymous with the term domicile in regard to natural persons, but it had generally been regarded as having the same meaning as domicile by the enforcement authorities. “Residents” were defined to include partnerships, firms or associations if their principal place of business was located in the State of Illinois. The determination of “principal place of business” was a factual determination, however, in general it was the place where the partners transacted their principal business, kept their central file of records and maintained their principal executive offices.
A. corporation was deemed to be a resident of the State of Illinois if it was either incorporated in the State of Illinois, or if its principal place of business was in the State of Illinois. Prior to the effective date of Illinois Motor Vehicle Law on January 1, 1958, a corporation was deemed a resident of the State of Illinois if it were incorporated in the State of Illinois. (See Home Life Ins. Co. of New York v. State, 2 Ill.Ct.C1. 50 and Thornton v. Nome & Sinook Co., 260 Ill.App. 76). It was the purpose of the Illinois
Motor Vehicle Law, former section 1-155 of this chapter, to require the registration of vehicles using Illinois highways by foreign corporations, incorporated in other states such as Delaware, if their “principal place of business” was located in Illinois.
HISTORICAL AND STATUTORY NOTES
Prior Laws:
Laws 1957, p. 2706, ⤠1-155.

Ill. Rev.Stat.1967, ch. 95 1/2, ⤠1-155.
RESEARCH REFERENCES
Encyclopedias
Illinois Law & Prac. Automobiles & Mtr. Vehicles ‚§ 268, Process‚”Service on Secretary cf State for Nonresident Defendants–Persons Subject to Substituted Service.
NOTES OF DECISIONS
Prior law 1
1. Prior law
Term “resident” is synonymous with “domicile” for purposes of 10-301 of former diapter 95 1/2. Hatcher v. Anders, App. 2 Dist. 1983, 72 Ill.Dec. 769, 117 Ill.App.3d 236, 453 N.E.2d 74. Automobiles 235
6’25 I.L.C.S. 5/1-173, IL ST CH 625 ‚§ 5/1-173
Current through P.A. 94-1054, P.A. 94-1056 to P.A. 94-1068 of the 2006 Reg. Sess.
END OF DOCUMENT

625 ILCS 5/6-700
Formerly cited as IL ST CH 95 1/2 6-700
Chapter 625. Vehicles
Act 5. Illinois Vehicle Code (Refs & Annos)
10-Chapter 6. The Illinois Driver Licensing Law (Refs & Annos) Article VII. Driver License Compact (Refs & Annos) 4-700. Defm!tions
⤠6-700. Definitions. As used in this compact:
(a) “State” means a state, territory or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico.
(b) “Home state” means the state which has issued and has the power to suspend or revoke the use of the license or permit to operate a motor vehicle.
(c) “Conviction” means a conviction of any offense related to the use or operation of a motor vehicle which is prohibited by state law, municipal ordinance or administrative rule or regulation, or a forfeiture of bail, bond or other security deposited to secure appearance by a person charged with having committed any such offense, and which conviction or forfeiture is required to be reported to the licensing authority.
CREDIT(S)
P.A. 76-1586, ⤠6-700, added byP.A. 76-1615, ⤠1, eff. July 1, 1970. FORMER REVISED STATUTES CITATION
Formerly Ill.Rev.Stat.1991, ch. 95 1/2 , ⦠6-700.
HISTORICAL AND STATUTORY NOTES
Prior Laws:
Laws 1963,p.3161, 1.
I11.Rev.Stat.1967, ch. 95 1/2 , ⤠501.
Complementary Legislation:
Ala.‚”Code 1975, 32-6-30 to 32-6-36.
Ariz.–A.R.S. ‚§ 28-1851 to 28-1855.
ArL‚”A.C.A. 27-17-101 to 27-17-106.
Cal.‚”West’s Ann.Cal.Vehicle Code, 15000 to 15003, 15020 to 15028.
Colo..‚”West’s C.R.S.A. 24-60-1101 to 24-60-1107.
Dei.–21 Del.C. 8101.
D.C.‚”D.C. Official Code, 2001 Ed. 50-1001, 50-1002.
Fla.‚”West’s F.S.A. H 322.43 to 322.48.
Hawaii–HR S ‚§‚§ 286C-1, 286C-2.

Idaho–I.C. ‚§‚§ 49-2001 to 49-2003.

Illinois–S.H.A. 625 ILCS 5/6-700 to 5/6-708.
Ind.-West’s A.I.C. 9-28-1-1 to 9-28-1-6.

Iowa–I.C.A. ‚§‚§ 321C.1, 321C.2.

Kan.–K.S.A. 8-1212.
La.–LSA-R.S. 32:1420 to 32:1425.

Maine–29-A M.R.S.A. ‚§‚§ 1451 to 1475.

Md.-Code, Transportation, ‚§‚§ 16-701 to 16-708.
Mass.–M.G.L.A. c. 90, ‚§ 30B.

Minn.–M.S.A. ‚§‚§ 171.50 to 171.56.

Miss.–Code 1972, ‚§‚§ 63-1-101 to 63-1-113.

Mo.–V.A.M.S. ‚§‚§ 302.600, 302.605.

Mt.-M.C.A. 61-5-401 to 61-5-406.

Neb.–R.R.S. 1943, ‚§A1-113.

Nev.–N.R.S. 483.010 to 483.630.

N.H.–RSA 263.77.
N.J.–N.J.S.A. 39:5D-1 to 39:5D-14.
N.M.–NMSA 1978, ‚§‚§ 66-5-49 to 66-5-51.
N.Y.–McKinney’s Vehicle & Traffic Law, ‚§ 516.
N.C.–G.S. ‚§‚§ 20-4.21 to 20-4.30.
Ohio–R.C. ‚§‚§ 4507.60 to 4507.63.
Ok1.–47 Okl.St.Ann. ‚§‚§ 781 to 788.
Pa.–75 Pa.C.S.A. ‚§‚§ 1581 to 1585.
S.C.–Code 1976, ‚§‚§ 56-1-610 to 56-1-690.
Tex.–V.T.C.A., Transportation Code ‚§‚§ 523.001 to 523.011.

Utah–U.C.A. 1953, 53-3-601 to 53-3-607.
Vt.–23 V.S.A. ‚§‚§ 3901 to 3910.
Va.–Code 1950, ‚§‚§ 46.2-483 to 46.2-488.
Wash.–West’s RCWA 46.21.010 to 46.21.040.
W.Va.-Code, 17B-1A-1, 17B-1A-2.
Wyo.–Wyo.Stat.Ann. ‚§‚§ 31-7-201, 31-7-202.
LIBRARY REFERENCES
States
Westlaw Topic No. 360.
C.J.S. States ‚§‚§ 31 to 32, 143.
RESEARCH REFERENCES
Encyclopedias
Illinois Law & Prac. Automobiles & Mtr. Vehicles ⤠112, Out-Of-State Misconduct or Convictions.
NOTES OF DECISIONS
Conviction 1
1. Conviction
Georia judgment upon plea of nob o contendere to driving under influence charge constitutes “conviction” for purposes of driver license compact. Rigney v. Edgar, App. 1 Dist.1985, 90 Ill.Dec. 548, 135 I1l.App.3d 893, 482 N.E.2d 367. appeal denied. Automobiles .,( 144.1(3)
625 5/6-700, IL ST CH 625 ⤠5/6-700
Current through P.A. 94-1054, P.A. 94-1056 to P.A. 94-1068 of the 2006 Reg. Sess.
END OF DOCUMENT

 

CASE FROM MOBILE ALABAMA ILLUSTRATING THE COMMERCIAL NATURE OF LICENSING UNDER POLICE POWER

36 L.R.A. 615,112 Ala. 654,21 So. 344
Supreme Court of Alabama.
DAVIS V. PETRINOVICH, TAX COLLECTOR. E1 Rehearing denied February 4, 1897.
Nov. 24, 1896.
Appeal from chancery court, Mobile county; W. H. Tayloe, Chancellor.
Suit by Franklin P. Davis against Frank Petrinovich, tax collector. Bill dismissed, and complainant appeals. Reversed.
*344 The mayor and general council of the city of Mobile, on March 16, 1896, adopted a general license ordinance, levying a license tax against all trades and occupations carried on in said city, and included therein a license tax on bicycles. The appellant in this case, Franklin P. Davis, a citizen and taxpayer of the city of Mobile, filed the present bill against the appellee, Frank Petrinovich, tax collector of the city of Mobile, under the provisions of section 45 of the act granting a charter to the city of Mobile (Acts 1886-87, p. 223), to enjoin the collection of said license tax. The complainant owned and used a bicycle, solely and exclusively for his pleasure and convenience, and his bicycle was not used in any way for the transportation of goods or merchandise, and was not kept for hire at any place in the city of Mobile. The other facts of the case are sufficiently stated in the opinion. The defendant moved to dissolve the temporary injunction which was issued, and to dismiss the bill for want of equity. This motion was considered on the final hearing. Upon the final submission of the cause, on the pleadings and proof, the chancellor decreed that the motions were well taken; and ordered that the cause be dismissed, and that the injunction theretofore issued be dissolved.

HARALSON, J.
1. The fact of the pendency of another suit by one Rolston against the defendant in this case, in the same court with this suit, and in reference to the same subject-matter, is not well taken. It was admitted on the trial of this case, that the case of Rolston was instituted in the Mobile chancery court, on the 24th March, 1896; that it “was substantially the same in object and almost identical in language with that of Davis v. Petrinovich, Tax Collector [this case], and that it was brought in behalf of all parties in interest by Hugh Rolston, but was amended on the hearing, so as to be only on his own account,” and that the “said Rolston bill was answered, evidence taken and case submitted and argued on the pleadings and testimony, at the same time with this, the Davis case.” What disposition, if any, has been made of the Rolston case,-whether or not it has been decided,-is not shown, nor is it shown, that said cause was submitted on the same evidence even, as that on which this cause was submitted and tried. That cause, then, confessedly, is not between the same parties as those to this case, though relating to the same subject-matter; is between different parties; is not shown to be on the same evidence on which this cause was tried, and is still pending undetermined in said court. All that is shown is, that in said suit, the plaintiff in this cause contributed one dollar towards paying the expenses of conducting it. These facts furnished no ground for abating the present suit. Foster v. Napier, 73 Ala. 595.
2. That a bicycle comes properly within the definition of a carriage or vehicle, we apprehend can no longer admit of dispute. A vehicle is defined to be, “any carriage moving on land, either on wheels or on runners; a conveyance; that which is used as an instrument of conveyance, transmission, or communication.” Cent. Dict. And a carriage in the same lexicon is defined as, “that which is used for carrying or transporting, especially on or over a solid surface. A wheeled vehicle for the conveyance of persons.” In Taylor v. Goodwin, 4 Q. B. Div. 228, it was held, that a person riding a bicycle on a highway at such a place as to be dangerous to passers-by, may be convicted under an act to prevent any person riding any horse or beast, or driving any sort of carriage furiously, so as to endanger the life or limb of any passenger. The court said: “It may be that bicycles were unknown at the time when the act passed, but the legislature clearly desired to prohibit the use of any sort of carriage in any manner dangerous to the life or limb of any passenger. The question is, whether a bicycle is a carriage within the meaning of the act. I think the word ‘carriage’ is large enough to include a machine such as a bicycle which carries the person who gets upon it, and I think such person may be said to drive it.” In Williams v. Ellis, 5 Q. B. Div. 175, it was held, in construction of the act allowing tolls to be collected at a gate on a turnpike road, that a bicycle was not embraced within the purview of the act imposing a toll of 6 pence, “for every *** sociable, chariot, berlin, landau, &c., or other such carriage,” for the reason, that the act imposed a toll on particular carriages which were described as, “or other such carriages,” which latter must be ejusdem generis with the carriages previously specified. The case of Taylor v. Goodwin was referred to in this later decision with approval. It is a *345 matter of common knowledge, that the bicycle is now used for the purpose of the conveyance of parties owning or hiring the wheels, largely for the purpose of pleasure and exercise, and that in cities and towns, especially, they are coming to be used for the transportation, from point to point, of packages of goods and merchandise such as they are fitted to carry. What further possibilities await the bicycle as a means of the transportation of persons, goods and merchandise, it is not important now to consider or predict. They remain to be developed. On principle and authority, however, it may be said, that it has taken its place safely with the vehicles and carriages of the time, entitled to the rights of the road and street equally with them, and is subject in its use to the same liabilities. Its use upon the highways of the country and upon the streets and sidewalks of towns and cities may be regulated under legislative and delegated municipal authority. Potter’s Law of Road & Roadside, 157; Elliott, Roads & S. pp. 331, 635; Horr & B. Mun. Ord. ‚§ 247; Clemenston, Road Rights, ‚§‚§ 99, 106-109; Mercer v. Corbin, 117 Ind. 450,20 N. E. 132; Holland v. Bartch, 120 Ind. 46,22 N. E. 83, and authorities supra; Thompson v. Dodge, 58 Minn. 555, 60 N. W. 545.
3. Section 26 of the charter of Mobile (Acts 1886-87, p. 240), provides, that “the general council is authorized and empowered to levy and collect for each year of its existence, upon all real and personal property, and all subjects of state taxation within said city of Mobile, except the tax levied on polls, a tax of not exceeding six-tenths of one per cent. of the value of such property, or subjects of taxation during the year preceding that for which the general council may assess and levy the tax above provided for.” By section 21 of the amended charter (Acts 1894-95, p. 387), the regulation of “hackney-coaches, carriages, wagons, carts and drays,” was conferred upon the general council, and section 40 of said amended charter provides, “that the said general council shall, besides the tax heretofore authorized (section 26), have the authority to assess and collect from all persons and corporations, trading and carrying on any business, trade or profession, by an agent or otherwise, within the limits of said corporation, a tax license which shall be fixed and declared each year by an ordinance of said corporation, and the license so said shall be issued and the amount imposed shall be collected as may be provided by ordinance of said corporation *** A vehicle license may be imposed in addition to business license, provided that said license shall only apply to vehicles used in the transportation of goods and merchandise, and vehicles used for hire at the public stands; *** that in addition to the license tax imposed on livery stables, there shall be an additional license tax not exceeding one dollar for every carriage, and fifty cents for every buggy owned and used for hire by such livery stable.”
4. On the 16th March, 1896, the general council of Mobile adopted a general license ordinance, providing, “That a license-tax for the fiscal year, beginning on the 16th March, 1896, and ending on the 14th March, 1897, is hereby imposed and assessed on each person, firm, association, or corporation trading, or carrying on any business, trade or profession, by agent or otherwise within the limits of the city of Mobile,” followed by a schedule of special licenses required in each instance, among others, specifying bicycles,-“including tags furnished for same,-$1.00.” The imposition of such a license tax, it has been well said, is such as may be referred to the taxing power, or to the police power,-to the latter, when its object is merely to regulate, and the amount levied is merely to pay the expenses of enforcing the regulation; including reasonable compensation for the additional expense of municipal supervision over the particular business or vocation; and to the taxing power, if its main object is revenue. If, however, it appears that the legislature has not bestowed the right to tax under either of these delegated powers, but has omitted it, the imposition of the tax is without legislative sanction and void. City of St. Louis v. Green, 7 Mo. App. 468; Id., 70 Mo. 562; 1 Dill. Mun. Corp. ‚§ 357; Burroughs, Tax’n, ‚§ 77; Van Hook v. City of Selma, 70 Ala. 361.
5. The only authority, then, appearing in the charter of said city, for levying a distinctive license tax on vehicles of any description, apart from the general police power to regulate them, is confined by the terms of the act (section 21) to “hackney coaches, carriages, wagons, hacks and drays,” and to such only of these, as are used in the transportation of goods and merchandise; to vehicles used for hire at the public stands, and on carriages and buggies owned and used for hire by livery stables. If a business man in Mobile pays a business license tax, as he may be required under the charter to do, he may be also required, under the charter, to pay an additional license tax on any vehicle he uses in his business, in the transportation of goods and merchandise, and he is relieved from such a tax on other vehicles he may own. It was not within the contemplation of the legislature, as is evident from the text, that an inhabitant of that city should be required to pay such a tax on his pleasure carriage or vehicle, of whatever description, if not used in the business of transportation of goods and merchandise. The policy of the legislature seems to have been to confine the license tax on vehicles, whether imposed under the police or taxing power, to such of them as are used in the transportation of goods and merchandise, and those kept for hire, and to relieve all other carriages from such a tax. City of St. Louis v. Green, 46 Mo. 574; City of Hannibal v. Price, 29 Mo. App. 280.
6. In the charter (Acts 1886-87, p. 223), in section 45, after limiting the rate of taxation, *346 it is provided: “Nor shall said general council levy any tax for any other purpose than those specially stated in this act, and any tax or license charges other than those authorized by said sections 26 and 40 (of the charter) which said general council may levy or attempt to levy, shall be null and void and not collectible, and any tax-payer may enjoin by bill in chancery, and restraining without bond, the tax-collector of the city of Mobile from collecting any tax which said general council may levy or attempt to impose beyond the aforesaid tax and license charges. The provisions of this act shall not be enlarged, or extended so as to be made applicable to or for any other purposes than those stated in this act.” It is manifest, therefore, that the levy of said bicycle tax was outside of the powers of the general council to levy, and was illegally levied. It is provided again, that the taxes levied shall have the force and effect of a judgment against the person assessed therewith, to which a preference is given over all other securities and incumbrances, and for the collection of which a lien is given on all the real and personal property of the tax payer; that the mayor shall certify on the tax book, that said taxes have been fixed and levied, and append his warrant, directed to the tax collector, authorizing and commanding him to collect the taxes so levied, and shall deliver said tax book and warrant to the tax collector, whose duty it is made forthwith to notify the public by advertisement for 30 days in some newspaper published in the city, that he is ready to receive payment of the taxes so levied; that the tax collector shall be charged with the whole amount of the assessed taxes for the year; that he shall issue garnishment process for the collection of taxes and licenses as on judgment returnable to any court having jurisdiction of the amount; that after the expiration of 90 days from the first publication of the tax collector’s notice, as aforesaid, he may levy upon and seize any personal property, if any there be, or if there be none, or not sufficient personal property, then upon the real estate of the delinquent tax payer; and that he shall be charged with and accountable for the whole amount of the assessed taxes for the year, and shall only discharge himself from such accountability by showing that the amounts unpaid could not have been collected by the exercise of the means given him. Sections 31, 32, 36, 39 of original charter (Acts 1886-87, pp. 242,243; Amendatory Acts 1894-95, p. 387, ‚§ 6). Without these provisions, it may be, that the tax being illegal, there would be an adequate remedy at law against its collection, and chancery would not enjoin (High, Inj. ‚§ 543, 545); and that, $20 being the fixed minimum of chancery jurisdiction, the court would not entertain a bill to enjoin the collection of a tax of $1. Hall v. Cannte, 22 Ala. 650; Campbell v. Conner, 78 Ala. 211. But, the statute takes the case from the influence of any such rules as are applicable to the general exercise of the jurisdiction of equity courts; and any taxpayer is authorized by the charter, as we have seen, to enjoin the levy and collection of any illegal tax levied and assessed by the general council. The act in terms bestows the right of injunction without bond, in favor of the taxpayer, whenever the general council “may levy or attempt to impose (any tax or license) beyond the aforesaid tax and license charges,” which may not be rightfully levied and collected. It is idle to say, that the general council have not levied and attempted to impose this illegal tax, or that the collector has no intention of collecting the same, because it is illegal. It has been levied, and the collector is charged with it, and by the terms of the charter, must account for and pay it himself unless he has been unable to do so after he has used all means conferred on him for its collection, and the collector in this suit is seeking to maintain the legality of said levy. The wrong done the appellant was in the imposition of said illegal tax, and it was not incumbent on him to delay filing his bill until the further wrong of a levy on his property had occurred or his creditors were garnished. If so, the very purpose of the legislature in granting relief against such unlawful menaces of the taxpayer’s rights would thereby be defeated. 1 High, Inj. ‚§ 18.
7. The proofs showed that appellant was a taxpayer of the city; that this illegal tax had been levied, and there was an attempt to impose it on his property; that the collector had made the publication as required by the statute; that the bicycle was his private carriage, used alone for the purposes of pleasure, and not for the transportation of goods and merchandise. The bill should not have been dismissed for want of equity, but the motion to dismiss it on that account should have been overruled, and the injunction perpetuated. Reversed, and a decree will be here rendered, restoring the injunction that had been granted, and making it perpetual. Reversed and rendered.

Ala. 1896.
Davis v. Petrinovich
36 L.R.A. 615, 112 Ala. 654, 21 So. 344
END OF DOCUMENT

 

OTHER NOTES AND SOURCES

S.H.A. ch. 95‚½, ‚§‚§ 6-101 et seq.
Driver’s license as privilege or property right see 11 De Paul L.Rev. 125 (1961).
11 De Paul L.Rev. 125 (1961)

References

⤠97. Nature and Effect of License; Transfer

Legal Encyclopedias

C.J.S., Motor Vehicles ⤠159
A license to operate a motor vehicle is a mere privilege.
A license to operate a motor vehicle on the public highways is a mere privilege and is not a property right. [Foot Note 38]

While the Illinois Driver Licensing Law no longer provides for chauffeur’s licenses, as discussed supra ‚§ 93, the licensing of chauffeurs was a grant, personal to the applicant, did not extend to anyone else, [Foot Note 39] and a chauffeur’s license was not transferable. [Foot Note 40]
[Foot Note 38] See 1947 Op.Atty.Gen. 115.

[Foot Note 39] Use by son of father’s license

Boy under age of eighteen years, ineligible to obtain a chauffeur’s license, has no legal right to operate father’s taxicab, although father has a chauffeur’s license.‚”See 1926 Op.Atty.Gen. 507.

[Foot Note 40] See 1916 Op.Atty.Gen. 910.
END OF SECTION
Illinois Law & Practice
Automobiles and Motor Vehicles
Chapter 9. Crimes and Prosecutions
B. Particular Offenses

Correlation Table  References

‚§ 425. Driving without Driver’s License

Legal Encyclopedias

C.J.S., Motor Vehicles ⤠639(1)
It is a punishable offense for any person to drive a motor vehicle unless such person has a valid license or permit.
Under the Illinois Vehicle Code, [Foot Note 97] and under some municipal ordinances, [Foot Note 98] it is a punishable offense for any person to drive a motor vehicle unless such person has a valid license or permit. [Foot Note 99]

It is essential for a conviction of failure to have a driver’s license when operating a motor vehicle that there be proof beyond a reasonable doubt that the defendant was driving the automobile at the time in question. [Foot Note 1]
CUMULATIVE SUPPLEMENT

Cases:

Driver’s arrest outside jurisdiction of arresting officer was within officers statutory authority to arrest, where officer observed driver commit traffic infraction forming sufficient basis for stop while within officer’s jurisdiction and formed initial suspicion that driver was driving with suspended license while driver was within officer’s jurisdiction. People v. Schaefer, 343 Ill. App. 3d 159, 277 Ill. Dec. 600, 796 N.E.2d 686 (2d Dist. 2003).
[END]
4 Ill. Law and Prac. Automobiles and Motor Vehicles ⤠91

Illinois Law & Practice
Automobiles and Motor Vehicles
Chapter 4. Licensing and Regulation of Drivers
A. In General

References

⤠91. General Considerations
AutomobilesKey Symbol130, 136, 145

Legal Encyclopedias

C.J.S., Motor Vehicles ‚§‚§ 146 et seq.

Forms

Modern Legal Forms, Automobiles
No person except those expressly exempted may drive a motor vehicle on an Illinois highway unless he has a valid license or permit.
Under the Illinois Driver Licensing Law, which is part of the Illinois Vehicle Code of 1969, effective July 1, 1970, and which regulates the privilege of operating motor vehicles on the highways, no person except those expressly exempted shall drive any motor vehicle on a highway in the State of Illinois unless he has a valid license or permit, or a restricted license or permit, issued under the Act. [Foot Note 1]

The Secretary of State is charged with the administration of the Act and may make and enforce rules and regulations relating to its administration. [Foot Note 2]

The failure of a driver to have a license has no logical relevance to the issues of negligence or contributory negligence. [Foot Note 3]

Local regulations. Within constitutional limitations, municipalities may regulate and license drivers of motor vehicles to the extent that authority has been delegated by the General Assembly; [Foot Note 4] but any person licensed as a driver under the Driver Licensing Law may not be required by any city, village, incorporated town or other municipal corporation to obtain any other license to exercise the privilege thereby granted. [Foot Note 5]

Under the Cities and Villages Act, municipalities have the power to license, tax, and regulate hackmen, draymen, omnibus drivers, carters, cabmen, porters, expressmen, and all others pursuing like occupations, and to prescribe their compensation; [Foot Note 6] and motor trucks, motor driven commercial vehicles, and motor vehicles which are used for public hire are excepted from the prohibition of a municipal tax or license fee. [Foot Note 7]

The City of Chicago has the right to enact ordinances restricting the use of its streets as a place of business by taxicab drivers unless they are properly licensed. [Foot Note 8] It has been held that an ordinance which compels a person who uses his automobile for his private business and pleasure only to submit to an examination and to take out a license imposes a burden on one class of citizens in the use of the streets not imposed on the others, and that it is beyond the power of a municipality and void. [Foot Note 9]

In any event an ordinance which is unreasonable and arbitrary is invalid. [Foot Note 10]

Driver’s license medical review. A Driver’s License Medical Advisory Board has been established within the Office of Secretary of State, to establish standards for determining the degree to which a person’s medical condition constitutes a limitation to the person’s ability to operate a motor vehicle or causes the person to be a driving hazard. Cases shall be referred to the Board by the Secretary, for medical evaluation of the person under review, and to determine what medical conditions exist that may impair the individual’s ability to operate a motor vehicle safely. [Foot Note 10.5]

Driver’s duty to report medical condition. Every driver shall report to the Secretary any medical condition that is likely to cause loss of consciousness or any loss of ability to safely operate a motor vehicle within 10 days of the driver becoming aware of the condition. [Foot Note 10.10]
[Foot Note 1] S.H.A. ch. 95‚½, ‚§‚§ 6-101 et seq.

S.H.A. ch. 95‚½, ‚¶‚¶6-101 et seq., is now 625 ILCS 5/6-101 et seq., recodified effective January 1, 1993.

See 1958 Op.Atty.Gen. 218; 1961 Op.Atty.Gen. 16.

Driver’s license as privilege or property right see 11 De Paul L.Rev. 125 (1961).

People v. Frye, 1983, 4 Dist., 447 N.E.2d 1065, 69 Ill.Dec. 630, 113 Ill.App.3d 853 (possession of valid license at any time is prima facie proof that holder must have driven upon highways of state as predicate for application of implied consent statute).

[Foot Note 2] S.H.A. ch. 95‚½, ‚§ 6-211.

S.H.A. ch. 95‚½, ‚¶6-211, is now 625 ILCS 5/6-211, recodified effective January 1, 1993.

Revocation of driving school license

Perez v. Edgar, 1982, 436 N.E.2d 639, 62 Ill.Dec. 613, 106 Ill.App.3d 981.

[Foot Note 3] Perry v. Richerson, 1954, 122 N.E.2d 75, 3 Ill.App.2d 338.

[Foot Note 4] Power conferred by charter

City of Chicago Charter, ‚§ 1, cls. 7, 9, 66, delegating police power to the city, and giving power over its streets, authorized it to pass Code Ordinances 1911, ‚§ 2696, prohibiting the use of automobiles in the transportation of passengers or merchandise by a person not competent who has not been examined and licensed.‚”City of Chicago v. Kluever, 1913, 100 N.E. 917, 257 Ill. 317.

[Foot Note 5] S.H.A. ch. 95‚½, ‚§ 6-101(c).

S.H.A. ch. 95‚½, ‚¶6-101(c), is now 625 ILCS 5/6-101(c), recodified effective January 1, 1993.

[Foot Note 6] S.H.A. ch. 24, ⤠11-42-6.

S.H.A. ch. 24, ‚¶11-42-6, is now 65 ILCS 5/11-42-6, recodified effective January 1, 1993.

[Foot Note 7] S.H.A. ch. 24, ⤠8-11-4.

S.H.A. ch. 24, ‚¶8-11-4, was amended in 1983 (provision deleted).

Ordinance requiring license

Cities and villages may adopt ordinances not inconsistent with Motor Vehicle Law requiring all persons operating cars for public hire or commercial purposes to secure a license so to do.‚”See 1914 Op.Atty.Gen. 1131.

[Foot Note 8] City of Chicago v. Dorband, 1939, 18 N.E.2d 107, 297 Ill.App. 617.

People v. Thompson, 1922, 225 Ill.App. 567.

[Foot Note 9] City of Chicago v. Banker, 1904, 112 Ill.App. 94 (Chicago ordinance of June 30, 1902).

[Foot Note 10] Ambulance driver

Portion of ordinance prohibiting issuance of ambulance attendant-driver’s license to any person at any time after conviction of crime involving use of deadly weapon, traffic in narcotic drugs, infamous crime against nature, incest or rape did not bear any relationship to public health or safety, was unreasonable and arbitrary and was invalid as to ambulance attendant-driver who owned ambulance service and had been convicted of armed robbery 17 years prior to application for license.‚”Roth v. Daley, 1970, 256 N.E.2d 166, 119 Ill.App.2d 462.

[Foot Note 10.5] S.H.A. ch. 95‚½ ‚¶‚¶6900 et seq. is now 625 ILCS 5/6-900 et seq., recodified in 1993.

S.H.A. ch. 95‚½, ‚¶‚¶6-900 et seq., added in 1992.

[Foot Note 10.10] 625 ILCS 5/6-116.5, added in 1996.
IL-LP AUTOS ⤠91

END OF SECTION

C.J.S., Motor Vehicles ‚§‚§ 146 et seq.

60 C.J.S. Motor Vehicles ⤠262

Corpus Juris Secundum
Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
3. Persons Subject to License Regulations
a. In General

Topic Summary‚  Correlation Table

⤠262. Generally

License regulations apply to the driver of a motor vehicle, and must be complied with by all coming within the terms of such regulations.
Generally, by virtue of statutory provisions or regulations, only persons who hold licenses as chauffeurs or operators may lawfully operate or drive motor vehicles upon the public highways.[Foot Note 1] Where the operator of a private commercial carrier is obligated by law to obtain a commercial driver’s license, this requirement applies to all persons regularly engaged as operators of such carriers.[Foot Note 2] In some jurisdictions, a person who operates a motor vehicle for hire must obtain a special license,[Foot Note 3] but if a vehicle is operated for purposes other than furnishing transportation for hire no special license is required.[Foot Note 4]

Where every operator is required to obtain a license, the license is personal to the particular person who operates the motor vehicle and must be obtained by, and issued to, him or her.[Foot Note 5] Therefore, a corporation or partnership which owns or controls a motor vehicle is not entitled to a license to operate it.[Foot Note 6]

Where statutorily provided that no person may operate a motor vehicle for hire or as a chauffeur unless specially licensed so to do, an owner who is licensed merely as an operator, and not as a chauffeur, is not authorized to operate his or her automobile for hire.[Foot Note 7] However, a person holding a license as a commercial operator or chauffeur is not required to have an ordinary operator’s license.[Foot Note 8]

Unless expressly exempted, state officers and employees come within the requirements of licensing provisions broad enough in their terms to include such persons.[Foot Note 9] A municipality operating busses running through another city is required to comply with reasonable regulations concerning the qualifications of drivers of such busses.[Foot Note 10]
Steering towed car.

A person steering a disabled motor vehicle which is being towed by another car is not operating or driving a motor vehicle within the meaning of a statutory provision requiring an operator or driver to be licensed.[Foot Note 11]
[Foot Note 1] Tex.‚”Leatherman v. Starkey, 356 S.W.2d 151 (Tex. Civ. App. Amarillo 1962), writ refused n.r.e., (Oct. 6, 1962).

Intent to change residence as affecting residence, see C.J.S., Domicile ‚§‚§ 14 to 17.

License not required for driver on unfinished road

W.Va.‚”State v. Boyles, 112 W. Va. 125, 163 S.E. 814 (1932).
No operating or driving where vehicle not started

N.Y.‚”Ricciardi v. McMahon, 163 Misc. 659, 299 N.Y.S. 440 (City Ct. 1937).
Intention to change residence

D.C.‚”Bush v. District of Columbia, 78 A.2d 234 (Mun. Ct. App. D.C. 1951).

[Foot Note 2] Driver employed by railroad

Miss.‚”Lumpkin v. Birdsong, 212 Miss. 616, 55 So. 2d 230 (1951).

[Foot Note 3] Operation for hire construed

R.I.‚”State v. Brown, 97 R.I. 95, 196 A.2d 138 (1963).

[Foot Note 4] R.I.‚”State v. Brown, 97 R.I. 95, 196 A.2d 138 (1963).

[Foot Note 5] N.H.‚”Emerson Troy Granite Co. v. Pearson, 74 N.H. 22, 64 A. 582 (1906).

Legal name requirement valid

U.S.‚”Forbush v. Wallace, 341 F. Supp. 217 (M.D. Ala. 1971), judgment aff’d, 405 U.S. 970, 92 S. Ct. 1197, 31 L. Ed. 2d 246 (1972).

[Foot Note 6] N.H.‚”Emerson Troy Granite Co. v. Pearson, 74 N.H. 22, 64 A. 582 (1906).

Registration of the vehicle in corporate or partnership name, see ⤠168.

[Foot Note 7] Mass.‚”Griffin v. Hustis, 234 Mass. 95, 125 N.E. 387 (1919).

[Foot Note 8] Cal.‚”Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

[Foot Note 9] Mo.‚”City of St. Louis v. Carpenter, 341 S.W.2d 786, 87 A.L.R.2d 1219 (Mo. 1961).

[Foot Note 10] Ohio‚”Cleveland Ry. Co. v. Village of North Olmsted, 130 Ohio St. 144, 4 Ohio Op. 31, 198 N.E. 41, 101 A.L.R. 426 (1935).

[Foot Note 11] Ohio‚”City of Toledo v. Burks, 100 Ohio App. 127, 60 Ohio Op. 104, 136 N.E.2d 150 (6th Dist. Lucas County 1955).
END OF SECTION
60 C.J.S. Motor Vehicles ⤠256

Corpus Juris Secundum
Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
1. In General

Topic Summary‚  Correlation Table

⤠256. Purpose

Motor vehicle operators and chauffeurs are generally licensed by the state in the interest of public safety.
Generally, the purposes of requiring chauffeurs and operators to be licensed are to insure the competency of the operators of motor vehicles and to regulate the use of this means of rapid transit on the public highways, in the interest of public safety.[Foot Note 1] It is also the purpose of such licensing to furnish a further guaranty that proper use of the vehicle will be made,[Foot Note 2] and that it will be operated in compliance with applicable statutory provisions.[Foot Note 3] The purpose of requiring the operator of a motor vehicle to report changes of address to the commissioner of motor vehicles is identification of drivers and the facilitation of communication with them.[Foot Note 4]
[Foot Note 1] Nev.‚”State, Dept. of Motor Vehicles and Public Safety v. Miles, 111 Nev. 681, 895 P.2d 1316 (1995).

[Foot Note 2] State may make and enforce regulations reasonably calculated to promote care

Neb.‚”Russell v. State, Dept. of Motor Vehicles, 247 Neb. 885, 531 N.W.2d 212 (1995).

[Foot Note 3] N.H.‚”Emerson Troy Granite Co. v. Pearson, 74 N.H. 22, 64 A. 582 (1906).

Purpose of requirement that epilepsy patients be disclosed to licensing authority

U.S.‚”Harden v. Allstate Ins. Co., 883 F. Supp. 963 (D. Del. 1995).

[Foot Note 4] Conn.‚”State v. Baltromitis, 5 Conn. Cir. Ct. 72, 242 A.2d 99 (App. Div. 1967).
END OF SECTION
60 C.J.S. Motor Vehicles ⤠257

Corpus Juris Secundum

Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
1. In General

Topic Summary‚  Correlation Table

⤠257. Right to operate as privilege
AutomobilesKey Symbol130, 132 to 136, 143
The right to operate a motor vehicle is, generally, a privilege, not a right.
A license is, generally, merely a personal privilege,[Foot Note 1] which may be revoked.[Foot Note 2] Where a license is deemed a personal privilege, it is not a vested right,[Foot Note 3] nor is it considered a natural right[Foot Note 4] or a civil right.[Foot Note 5] A driver’s license is also not a contract or property right[Foot Note 6] in any legal or constitutional sense.[Foot Note 7] Neither is it a right of such a nature that it may be sold or assigned.[Foot Note 8] The payment by the licensee of the required fees upon the issuance to him or her of the operator’s license does not convert the privilege granted into a property right.[Foot Note 9]

In some jurisdictions, however, while still recognizing that a license is a personal privilege, a license is deemed in the nature of a right.[Foot Note 10] In other jurisdictions, a license is both a personal privilege and a property right.[Foot Note 11] In still other jurisdictions, a license to operate a motor vehicle is more of a property interest.[Foot Note 12] A license may also be determined to be a vested property right in the individual.[Foot Note 13]
[Foot Note 1] La.‚”State v. Jackson, 764 So. 2d 64 (La. 2000).

Highway driving a privilege, not a right

Ill.‚”People v. Jung, 192 Ill. 2d 1, 248 Ill. Dec. 258, 733 N.E.2d 1256 (2000).
Privilege not constitutionally guaranteed

N.D.‚”North Dakota Dept. of Transp. v. DuPaul, 487 N.W.2d 593 (N.D. 1992).
Conditional privilege

Va.‚”Walton v. Com., 255 Va. 422, 497 S.E.2d 869 (1998).
Important and valued privilege

Vt.‚”Bolio v. Malloy, 126 Vt. 424, 234 A.2d 336 (1967).
Limited right

Pa.‚”Com. v. Vivio, 209 Pa. Super. 90, 224 A.2d 777 (1966).
Qualified right

Mo.‚”Blydenburg v. David, 413 S.W.2d 284 (Mo. 1967).

[Foot Note 2] Mont.‚”Nelson v. Driscoll, 1999 MT 193, 295 Mont. 363, 983 P.2d 972 (1999).

Revocation or suspension of license, generally, see ‚§‚§ 290to 293.

[Foot Note 3] Cal.‚”O’Connor v. Superior Court, 90 Cal. App. 3d 107, 153 Cal. Rptr. 306 (1st Dist. 1979).

Not right entitled to protection against governmental interference or restriction

Colo.‚”People v. Zinn, 843 P.2d 1351 (Colo. 1993).

[Foot Note 4] Kan.‚”State v. Bowie, 268 Kan. 794, 999 P.2d 947 (2000).

Not absolute right

Ohio‚”Dobbins v. Ohio Bur. of Motor Vehicles, 75 Ohio St. 3d 533, 664 N.E.2d 908 (1996).

[Foot Note 5] Tex.‚”Allen v. State, 410 S.W.2d 52 (Tex. Civ. App. Houston 1966).

[Foot Note 6] Ohio‚”Dobbins v. Ohio Bur. of Motor Vehicles, 75 Ohio St. 3d 533, 664 N.E.2d 908 (1996).

[Foot Note 7] Cal.‚”Department of Motor Vehicles v. Superior Court, 58 Cal. App. 3d 936, 130 Cal. Rptr. 311 (1st Dist. 1976).

[Foot Note 8] N.Y.‚”City of Rochester v. Falk, 170 Misc. 238, 9 N.Y.S.2d 343 (City Ct. 1939).

[Foot Note 9] Kan.‚”State v. Finley, 198 Kan. 585, 426 P.2d 251 (1967), opinion withdrawn on other grounds on reh’g, 199 Kan. 615, 433 P.2d 414 (1967).

License fees, see ‚§‚§ 281to 283.

[Foot Note 10] N.D.‚”State ex rel. Hjelle v. A Motor Vehicle Described as a 1973 Brockway Tractor License No. 237342, Serial No. 79629, Trailer SN No. 75-2531-LB-150, 299 N.W.2d 557 (N.D. 1980).

Nonfundamental right

Va.‚”Walton v. Com., 255 Va. 422, 497 S.E.2d 869 (1998).

[Foot Note 11] Pa.‚”Com., Dept. of Transp., Bureau of Traffic Safety v. Quinlan, 47 Pa. Commw. 214, 408 A.2d 173 (1979).

[Foot Note 12] W.Va.‚”Abshire v. Cline, 193 W. Va. 180, 455 S.E.2d 549 (1995).

Substantial right

N.Y.‚”Pringle v. Wolfe, 88 N.Y.2d 426, 646 N.Y.S.2d 82, 668 N.E.2d 1376 (1996).
Real value

N.Y.‚”Schutt v. MacDuff, 205 Misc. 43, 127 N.Y.S.2d 116 (Sup 1954).

[Foot Note 13] N.Y.‚”People v. Emmanuel, 82 Misc. 2d 298, 368 N.Y.S.2d 773 (City Crim. Ct. 1975).

Substantial property interest that may not be deprived without due process of law

N.Y.‚”Pringle v. Wolfe, 88 N.Y.2d 426, 646 N.Y.S.2d 82, 668 N.E.2d 1376 (1996).
Basis of change in view from privilege to vested property right

N.Y.‚”People v. McAnarney, 28 Misc. 2d 778, 210 N.Y.S.2d 340 (County Ct. 1961).
END OF SECTION

60 C.J.S. Motor Vehicles ⤠260

Corpus Juris Secundum
Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
2. Power to License

Topic Summary‚  Correlation Table

⤠260. State

Within constitutional limits, a state legislature may require drivers of motor vehicles on the public highways to be licensed and may impose reasonable conditions under which the license is to be issued.
The granting or withholding of licenses to operators of motor vehicles is a method of exercise of the state’s regulatory power over public highways.[Foot Note 1] The state legislature, under this power, has control of the licensing of those who, as chauffeurs or operators, drive such vehicles.[Foot Note 2] In the absence of constitutional restrictions, it may require that, before a person is entitled to operate or drive a motor vehicle upon the public highways, he or she must obtain a license as a chauffeur or operator and pay a prescribed license fee.[Foot Note 3]

In the exercise of this power, the legislature may classify the persons to whom the prescribed regulations will apply, provided such classification is not unreasonable and arbitrary.[Foot Note 4] Thus, the legislature may reasonably distinguish between individuals on the basis of maturity and judgment, physical capacity or ability, and similar matters which would affect the competency of a person to safely operate a motor vehicle upon the highway.[Foot Note 5] The state may prescribe the conditions under which the privilege of operating such vehicles may be granted[Foot Note 6] and exercised.[Foot Note 7] The legislature may reserve this power exclusively to the state[Foot Note 8] in order to establish, throughout the state, a uniform system regarding the licensing of chauffeurs and operators.[Foot Note 9] The legislature may also vest exclusive authority to issue licenses in a state board or commission.[Foot Note 10] Additionally, a legislature may be authorized to enact a statutory provision granting state courts the right to issue judicial driving permits.[Foot Note 11]
[Foot Note 1] N.C.‚”Smith v. Walsh, 34 N.C. App. 287, 238 S.E.2d 157 (1977).

Purpose

Ohio‚”City of Kettering v. Baker, 42 Ohio St. 2d 351, 71 Ohio Op. 2d 322, 328 N.E.2d 805 (1975).

[Foot Note 2] Mich.‚”Nicholas v. Secretary of State, 74 Mich. App. 64, 253 N.W.2d 662 (1977).

[Foot Note 3] U.S.‚”Wood v. Wm. B. Reilly & Co., 40 F. Supp. 507 (N.D. Ga. 1941).

Persons subject to license regulations, generally, see ‚§‚§ 262to 264.

License fees, generally, see ‚§‚§ 281to 283.

[Foot Note 4] Cal.‚”Ex parte Stork, 167 Cal. 294, 139 P. 684 (1914).

Taxicab license

Wash.‚”Tarver v. City Commission In and For City of Bremerton, 72 Wash. 2d 726, 435 P.2d 531 (1967).

[Foot Note 5] Wash.‚”State v. Scheffel, 82 Wash. 2d 872, 514 P.2d 1052 (1973).

Qualifications or eligibility for license, generally, see ‚§‚§ 268to 271.

[Foot Note 6] S.D.‚”Blow v. Commissioner of Motor Vehicles, 83 S.D. 628, 164 N.W.2d 351 (1969).

Reasonable regulation

U.S.‚”Quetawki v. Prentice, 303 F. Supp. 737 (D.N.M. 1968).

[Foot Note 7] N.Y.‚”People v. Frank, 61 Misc. 2d 450, 305 N.Y.S.2d 940 (Sup 1969).

[Foot Note 8] Tex.‚”Ball v. City of McKinney, 286 S.W. 341 (Tex. Civ. App. Dallas 1926), writ refused, (Nov. 10, 1926).

[Foot Note 9] N.Y.‚”Boord v. Wallander, 195 Misc. 557, 89 N.Y.S.2d 796 (Sup 1949), judgment modified on other grounds, 277 A.D. 253, 98 N.Y.S.2d 1 (1st Dep’t 1950), judgment aff’d on other grounds, 302 N.Y. 890, 100 N.E.2d 177 (1951).

[Foot Note 10] Neb.‚”Johnston v. Department of Motor Vehicles, 190 Neb. 606, 212 N.W.2d 342 (1973).

Duty as to medically suspect drivers

La.‚”Fowler v. Roberts, 526 So. 2d 266 (La. Ct. App. 2d Cir. 1988), writ denied, 531 So. 2d 278 (La. 1988) and writ granted, 531 So. 2d 257 (La. 1988) and judgment aff’d, 556 So. 2d 1 (La. 1989).
Control over other governmental agencies

Cal.‚”Yeoman v. Department of Motor Vehicles, 273 Cal. App. 2d 71, 78 Cal. Rptr. 251 (4th Dist. 1969).

[Foot Note 11] Ill.‚”People v. Inghram, 118 Ill. 2d 140, 113 Ill. Dec. 65, 514 N.E.2d 977 (1987).
END OF SECTION
60 C.J.S. Motor Vehicles V Refs.

Corpus Juris Secundum

Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs

Topic Summary‚  Correlation Table

Research References
Drinking/Driving Litigation Criminal and Civil (2d ed.) (DRNKDRIVING)

A.L.R. Library

West’s A.L.R. Digest, AutomobilesKey Symbol129 to 145
A.L.R. Index: Automobiles and Highway Traffic; Certificates of Title; Driver’s Licenses; Driving While Under the Influence of Drugs; Guest Statute; Passengers; Pedestrians; Reckless Driving; Speed and Speeding; Traffic Offenses and Violations
Denial Of Accused’s Request For Initial Contact With Attorney‚”Drunk Driving Cases, 109 A.L.R. 5th 611
Admissibility, In Motor Vehicle License Suspension Proceedings, Of Evidence Obtained By Unlawful Search And Seizure, 23 A.L.R. 5th 108
Validity And Application Of Statute Or Regulation Authorizing Revocation Or Suspension Of Driver’s License For Reason Unrelated To Use Of, Or Ability To Operate, Motor Vehicle, 18 A.L.R. 5th 542
Automobiles: Necessity Or Emergency As Defense In Prosecution For Driving Without Operator’s License Or While License Is Suspended, 7 A.L.R. 5th 73
Validity, Construction, Application, And Effect Of Statute Requiring Conditions, In Addition To Expiration Of Time, For Reinstatement Of Suspended Or Revoked Driver’s License, 2 A.L.R. 5th 725
Automobiles: Validity And Construction Of Legislation Authorizing Revocation Or Suspension Of Operator’s License For ‚“Habitual‚, ‚“Persistent‚, Or ‚“Frequent‚ Violations Of Traffic Regulations, 48 A.L.R. 4th 367
Construction And Effect Of Statutes Which Make Parent, Custodian, Or Other Person Signing Minor’s Application For Vehicle Operator’s License Liable For Licensee’s Negligence Or Willful Misconduct, 45 A.L.R. 4th 87

Treatises and Practice Aids

Nichols Drinking/Driving Litigation: Criminal and Civil (2d ed.) ‚§‚§ 7:1 to 7:25, 8:1 to 8:5, 9:14, 9:27, 11:1, 11:16 to 11:19, 11:30, 11:37

END OF SECTION
60 C.J.S. Motor Vehicles ⤠263

Corpus Juris Secundum
Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
3. Persons Subject to License Regulations
a. In General

Topic Summary‚  Correlation Table

⤠263. Chauffeur or operator
AutomobilesKey Symbol129, 130, 132 to 137
A distinction is sometimes recognized between an operator and a chauffeur, as “chauffeur” often refers to one who is paid for driving an automobile.
In some jurisdictions, a distinction is made between a chauffeur and an operator. An operator is any person, other than a chauffeur, who operates or drives a motor vehicle.[Foot Note 1] A person need not be a chauffeur in order to secure a chauffeur’s license.[Foot Note 2] The fact that a driver holds such a license does not necessarily make such driver a chauffeur, unless he or she receives pay for the services.[Foot Note 3] Therefore, one who holds a chauffeur’s license, but is not a chauffeur, and who drives upon the highway may be just an operator.[Foot Note 4]

The term chauffeur has a general meaning, as well as a restrictive meaning.[Foot Note 5] In the general sense, a chauffeur is one who operates and propels,[Foot Note 6] or drives and operates,[Foot Note 7] or manages the running of,[Foot Note 8] an automobile. In a more restricted sense, a chauffeur is a person who drives an automobile for hire.[Foot Note 9] Chauffeur may also have different meanings, dependent on the terms of the statutory provision in which it appears.[Foot Note 10] As used in regulations requiring a person who desires to operate a motor vehicle as a chauffeur, or as a paid operator, first to obtain a chauffeur’s or driver’s license, it means a paid operator or employee, that is, a person who is employed and paid by the owner of a motor vehicle to drive and attend to the car.[Foot Note 11] In such case, the term chauffeur does not include operators who are not employed and paid for operating the motor vehicle.[Foot Note 12] Moreover, it does not include an employee who receives his or her compensation for services rendered, other than the operation of motor vehicles, although in performing such services he or she may incidentally operate a motor vehicle.[Foot Note 13] An employee of a public utility, who incidentally uses a motor vehicle in his or her business of repair, is not a chauffeur, and is not required to obtain a chauffeur’s license.[Foot Note 14] There is, however, authority to the contrary.[Foot Note 15]

Owner as driver.

An owner of a motor vehicle who has obtained an operator’s license may not, unless otherwise permitted, drive his or her vehicle as a public service vehicle for hire without a chauffeur’s license.[Foot Note 16] An owner who acts as an independent contractor in the operation of his or her vehicle is not, however, required to take out a chauffeur’s license.[Foot Note 17] This includes a person who, in delivering goods for one person, drives a motor vehicle which he or she has borrowed from a third person.[Foot Note 18]
[Foot Note 1] Cal.‚”Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

[Foot Note 2] Cal.‚”Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

[Foot Note 3] Cal.‚”Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

Whether driver is chauffeur dependent on terms of applicable statutory provision, see ⤠263.

[Foot Note 4] Cal.‚”Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

[Foot Note 5] La.‚”Day v. Bush, 18 La. App. 682, 139 So. 42 (2d Cir. 1932).

[Foot Note 6] Mo.‚”State v. Swagerty, 203 Mo. 517, 102 S.W. 483 (1907).

[Foot Note 7] Ill.‚”Christy v. Elliott, 216 Ill. 31, 74 N.E. 1035 (1905).

[Foot Note 8] Neb.‚”Woodring v. Commercial Cas. Ins. Co. of Newark, N.J., 122 Neb. 734, 241 N.W. 285 (1932).

[Foot Note 9] Neb.‚”Woodring v. Commercial Cas. Ins. Co. of Newark, N.J., 122 Neb. 734, 241 N.W. 285 (1932).

[Foot Note 10] Ala.‚”Turner v. State, 226 Ala. 269, 146 So. 601 (1933).

Uniformed patrolmen not chauffeurs

Mo.‚”State ex rel. Beach v. Beach, 325 Mo. 175, 28 S.W.2d 105 (1930).
American soldier not chauffeur

Tex.‚”American Automobile Ins. Co. v. Struwe, 218 S.W. 534 (Tex. Civ. App. San Antonio 1920), writ refused, (Apr. 6, 1921).

[Foot Note 11] U.S.‚”State of Md. for Use of Weaver v. O’Brien, 140 F. Supp. 306 (D. Md. 1956).

Test

U.S.‚”Maryland Cas. Co. v. Cronholm, 32 F. Supp. 375 (S.D. Tex. 1940), judgment aff’d on other grounds, 116 F.2d 494 (C.C.A. 5th Cir. 1940).

[Foot Note 12] Ky.‚”Winslow v. Everson, 221 Ky. 430, 298 S.W. 1084 (1927).

[Foot Note 13] W.Va.‚”State v. Wimmer, 117 W. Va. 498, 186 S.E. 133, 105 A.L.R. 67 (1936).

Services of son

Cal.‚”Hunton v. California Portland Cement Co., 50 Cal. App. 2d 684, 123 P.2d 947 (4th Dist. 1942).

[Foot Note 14] N.Y.‚”People v. Dennis, 166 N.Y.S. 318 (County Ct. 1915).

[Foot Note 15] N.Y.‚”People v. Fulton, 96 Misc. 663, 162 N.Y.S. 125 (County Ct. 1916).

[Foot Note 16] Mo.‚”Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89 (1920).

Chauffeur defined

Tex.‚”Peniche v. Aeromexico, 580 S.W.2d 152 (Tex. Civ. App. Houston 1st Dist. 1979).

[Foot Note 17] N.Y.‚”People v. Ritter, 120 Misc. 852, 200 N.Y.S. 816 (County Ct. 1922).

[Foot Note 18] Ind.‚”A. E. Norris Coal Co. v. Jackson, 80 Ind. App. 423, 141 N.E. 227 (Div. 1 1923).

CJS MOTORVEH ⤠263

END OF SECTION

 

NOTES ON POLICE POWER

Corpus Juris Secundum

Constitutional Law
by Francis Amendola, J.D.; John Bourdeau, J.D.; Paul M. Coltoff, J.D.; John Dvorske, J.D.; John Glenn, J.D.; Glenda K. Harnad, J.D., of the staff of the National Legal Research Group, Inc.; John Kennel, J. D., of the staff of the National Legal Research Group, Inc.; Sonja Larsen, J.D.; Stephen Lease, J.D.; Jack K. Levin, J.D.; Richard J. Link, J.D.; Lucas Martin, J.D.; Thomas Muskus, J.D.; Karl Oakes, J.D.; Kimberly Simmons, J.D.; Eric C. Surette, J.D.; Carmela Pellegrino, J.D.; Barbara Van Arsdale, J.D.; Elizabeth Williams, J. D.; Lisa Zakolski, J.D.
VIII. Police Power
A. In General

Topic Summary‚  References

‚§‚ ‚  610. Nature of power

Constitutional Law‚ ‚  81

The police power is a governmental function, an inherent attribute of sovereignty, which exists without any reservation in the constitution as an essential element in all orderly governments.

The police power is a governmental function,[FN1] an inherent attribute of sovereignty,[FN2] and the greatest and most powerful attribute of government.[FN3] Although the basis of the police power lies in the constitution which regards the public welfare, safety, and health of the citizens of the state,[FN4] and although it may be given to the people of the state by the constitution,[FN5] the power exists without any reservation in the constitution,[FN6] being founded on the duty of the state to protect the health, safety, and welfare of its citizens.[FN7]

The police power, in its nature, is very broad and comprehensive,[FN8] and the laws enacted for the purpose of regulation thereunder may be impolitic, harsh, and oppressive.[FN9] It corresponds to the right of self-preservation in the individual,[FN10] and is an essential element in all orderly governments,[FN11] because it is necessary to the proper maintenance of the government and the general welfare of the community.[FN12]

The power comprehends reasonable preventative measures no less than the punishment of perpetrated offenses,[FN13] and it may act to prevent apprehended dangers as well as to control those already existing.[FN14] The police power depends on the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property, and it has been said to be the very foundation on which our social system rests.[FN15] It has for its object the improvement of economic[FN16] and social conditions affecting the community at large and collectively with a view of bringing about “the greatest good of the greatest number.”[FN17]

The constitution presupposes the existence of the police power and is to be construed with reference to that fact,[FN18] and police regulations presuppose conditions which, unless controlled, will operate to a public disadvantage.[FN19]

[FN1] U.S.‚”Aldens, Inc. v. LaFollette, 552 F.2d 745 (7th Cir. 1977).

Ala.‚”City of Decatur v. Robinson, 251 Ala. 99, 36 So. 2d 673 (1948).

[FN2] U.S.‚”City of El Paso v. Simmons, 379 U.S. 497, 85 S. Ct. 577, 13 L. Ed. 2d 446 (1965).

Cal.‚”Pleasant Hill Bayshore Disposal, Inc. v. Chip-It Recycling, Inc., 91 Cal. App. 4th 678, 110 Cal. Rptr. 2d 708 (1st Dist. 2001), as modified on denial of reh’g, (Sept. 13, 2001).

Colo.‚”CF & I Steel, L.P. v. United Steel Workers of America (USWA), 74 P.3d 513 (Colo. Ct. App. 2003).

Okla.‚”Fine Airport Parking, Inc. v. City of Tulsa, 2003 OK 27, 71 P.3d 5 (Okla. 2003).

Exercise not dependent on emergency

Police power is permanent right of sovereignty, and its exercise is not dependent on emergency.

N.J.‚”In re North Jersey Title Ins. Co., 120 N.J. Eq. 148, 184 A. 420 (Ch. 1936), aff’d, 120 N.J. Eq. 608, 187 A. 146 (Ct. Err. & App. 1936).

[FN3] Pa.‚”Com. v. Widovich, 295 Pa. 311, 145 A. 295 (1929).

[FN4] U.S.‚”Ziffrin, Inc. v. Martin, 24 F. Supp. 924 (E.D. Ky. 1938), aff’d, 308 U.S. 132, 60 S. Ct. 163, 84 L. Ed. 128 (1939) (abrogated on other grounds by, Granholm v. Heald, 125 S. Ct. 1885, 161 L. Ed. 2d 796 (U.S. 2005)).

[FN5] Vt.‚”Sowma v. Parker, 112 Vt. 241, 22 A.2d 513 (1941).

[FN6] Ohio‚”Vincent v. Elyria Bd. of Ed., 7 Ohio App. 2d 58, 36 Ohio Op. 2d 151, 218 N.E.2d 764 (9th Dist. Lorain County 1966).

Tex.‚”Martin v. Wholesome Dairy, Inc., 437 S.W.2d 586 (Tex. Civ. App. Austin 1969), writ refused n.r.e., (June 25, 1969).

Wash.‚”Reesman v. State, 74 Wash. 2d 646, 445 P.2d 1004 (1968).

Not referable to any single provision

Md.‚”Smith v. Higinbothom, 187 Md. 115, 48 A.2d 754 (1946).

[FN7] Md.‚”Linkus v. Maryland State Bd. of Heating Ventilation, Air-Conditioning and Refrigeration Contractors, 114 Md. App. 262, 689 A.2d 1254 (1997).

N.M.‚”In re McCain, 84 N.M. 657, 506 P.2d 1204 (1973).

Tex.‚”Jefco, Inc. v. Lewis, 520 S.W.2d 915 (Tex. Civ. App. Austin 1975), writ refused n.r.e., (July 23, 1975).

Duty to act

(1) Legislature has a duty to enact laws providing for general welfare and safety of people within state.

Ind.‚”State ex rel. Mavity v. Tyndall, 225 Ind. 360, 74 N.E.2d 914 (1947).

(2) There is no constitutional provision which imposes a duty on a state to provide services to its citizens.

U.S.‚”New York State Ass’n for Retarded Children, Inc. v. Rockefeller, 357 F. Supp. 752 (E.D. N.Y. 1973).

Public necessity

Police power is founded in public necessity, which justifies its exercise.

Conn.‚”State v. Heller, 123 Conn. 492, 196 A. 337 (1937).

[FN8] N.Y.‚”Dobrzenski v. Village of Hamburg, 277 A.D.2d 1005, 715 N.Y.S.2d 819 (4th Dep’t 2000).

Okla.‚”State v. Nevins, 1980 OK CR 30, 611 P.2d 251 (Okla. Crim. App. 1980).

W. Va.‚”State ex rel. Barker v. Manchin, 167 W. Va. 155, 279 S.E.2d 622 (1981).

Almost infinite variety of subjects embraced

U.S.‚”Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Commission, 393 U.S. 186, 89 S. Ct. 354, 21 L. Ed. 2d 334 (1968).

[FN9] Cal.‚”D’Amico v. Brock, 122 Cal. App. 2d 63, 264 P.2d 120 (3d Dist. 1953).

Iowa‚”Jacobs v. City of Chariton, 245 Iowa 1378, 65 N.W.2d 561 (1954).

W.Va.‚”State ex rel. Morris v. West Virginia Racing Commission, 133 W. Va. 179, 55 S.E.2d 263 (1949).

Strict liability

In exercise of power, state may impose liability without fault.

Ala.‚”Walker v. State, 356 So. 2d 672 (Ala. 1977).

[FN10] U.S.‚”Panhandle Eastern Pipe Line Co. v. State Highway Commission of Kansas, 294 U.S. 613, 55 S. Ct. 563, 79 L. Ed. 1090 (1935).

Ala.‚”Jones v. State, 56 Ala. App. 280, 321 So. 2d 247 (Crim. App. 1975).

N.Y.‚”DeLury v. City of New York, 51 A.D.2d 288, 381 N.Y.S.2d 236 (1st Dep’t 1976).

[FN11] U.S.‚”Comtronics, Inc. v. Puerto Rico Telephone Co., 409 F. Supp. 800 (D.P.R. 1975), judgment aff’d, 553 F.2d 701 (1st Cir. 1977).

Ky.‚”Roe v. Com., 405 S.W.2d 25 (Ky. 1966).

Wash.‚”Spokane County v. Valu-Mart, Inc., 69 Wash. 2d 712, 419 P.2d 993 (1966).

Law of necessity

Police power is law of necessity.

N.J.‚”Jamouneau v. Harner, 16 N.J. 500, 109 A.2d 640 (1954).

[FN12] Ariz.‚”Transamerica Title Ins. Co. v. City of Tucson, 23 Ariz. App. 385, 533 P.2d 693 (Div. 2 1975).

Tenn.‚”H & L Messengers, Inc. v. City of Brentwood, 577 S.W.2d 444, 12 A.L.R.4th 835 (Tenn. 1979).

Tex.‚”Texas State Bd. of Pharmacy v. Gibson’s Discount Center, Inc., 541 S.W.2d 884 (Tex. Civ. App. Austin 1976), writ refused n.r.e., (Mar. 9, 1977).

[FN13] U.S.‚”Jung v. City of Winona, 71 F. Supp. 558 (D. Minn. 1947).

N.J.‚”State v. Gaynor, 119 N.J.L. 582, 197 A. 360 (N.J. Ct. Err. & App. 1938).

Assumptions unprovable or unproved

(1) Unprovable assumption may be acted on by states in areas of public control.

U.S.‚”Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973).

(2) Legislatures properly may rely on scientifically unproven assumptions both in regulation of commercial and business transactions and for protection of broad social interests in order and morality.

D.C.‚”U. S. v. Moses, 339 A.2d 46 (D.C. 1975).

Blocking evasive techniques

In area of regulation, statute may push beyond debatable limits in order to block evasive techniques.

Cal.‚”Sacramento Newspaper Guild v. Sacramento County Bd. of Sup’rs, 263 Cal. App. 2d 41, 69 Cal. Rptr. 480 (3d Dist. 1968).

[FN14] U.S.‚”Gitlow v. People of State of New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925).

Colo.‚”People v. Hoehl, 193 Colo. 557, 568 P.2d 484 (1977).

N.Y.‚”McCallin v. Walsh, 64 A.D.2d 46, 407 N.Y.S.2d 852 (1st Dep’t 1978), order aff’d, 46 N.Y.2d 808, 413 N.Y.S.2d 922, 386 N.E.2d 833 (1978).

Delayed impact

Authority of state to control activities of its citizens is not limited to activities which have a present and immediate impact on public health or welfare.

Alaska‚”Ravin v. State, 537 P.2d 494 (Alaska 1975).

Possession of devices or products

Mere possession of dangerous or deleterious devices or products may be forbidden by state under its police powers.

D.C.‚”Smith v. District of Columbia, 436 A.2d 53 (D.C. 1981).

[FN15] Ga.‚”De Berry v. City of La Grange, 62 Ga. App. 74, 8 S.E.2d 146 (1940).

N.C.‚”State v. McGee, 237 N.C. 633, 75 S.E.2d 783 (1953).

Va.‚”Mumpower v. Housing Authority of City of Bristol, 176 Va. 426, 11 S.E.2d 732 (1940).

Giving up rights for public benefit

Power to pass laws regulating persons and property stems from theory that when persons choose to live in groups they must give up some individual freedom for good of group.

La.‚”City of Shreveport v. Curry, 357 So. 2d 1078 (La. 1978).

[FN16] Wis.‚”Gross v. Woodman’s Food Market, Inc., 259 Wis. 2d 181, 2002 WI App 295, 655 N.W.2d 718 (Ct. App. 2002), review denied, 2003 WI 32, 260 Wis. 2d 752, 661 N.W.2d 100 (2003).

[FN17] Md.‚”Maryland Coal & Realty Co. v. Bureau of Mines of State, 193 Md. 627, 69 A.2d 471 (1949).

Mich.‚”People v. Sell, 310 Mich. 305, 17 N.W.2d 193 (1945).

N.C.‚”Morris v. Holshouser, 220 N.C. 293, 17 S.E.2d 115, 137 A.L.R. 733 (1941).

Interest of public paramount

Fla.‚”Egan v. City of Miami, 130 Fla. 465, 178 So. 132 (1938).

[FN18] Fla.‚”McInerney v. Ervin, 46 So. 2d 458 (Fla. 1950).

La.‚”City of Baton Rouge v. Ross, 654 So. 2d 1311 (La. 1995).

N.D.‚”State ex rel. City of Minot v. Gronna, 79 N.D. 673, 59 N.W.2d 514 (1953).

[FN19] Ky.‚”Commonwealth for Use and Ben. of City of Wilmore v. McCray, 250 Ky. 182, 61 S.W.2d 1043 (1933).

Utah‚”State v. Packer Corporation, 77 Utah 500, 297 P. 1013 (1931).

END OF SECTION

CJS CONSTLAW ‚§‚  610

Corpus Juris Secundum

Constitutional Law
by Francis Amendola, J.D.; John Bourdeau, J.D.; Paul M. Coltoff, J.D.; John Dvorske, J.D.; John Glenn, J.D.; Glenda K. Harnad, J.D., of the staff of the National Legal Research Group, Inc.; John Kennel, J. D., of the staff of the National Legal Research Group, Inc.; Sonja Larsen, J.D.; Stephen Lease, J.D.; Jack K. Levin, J.D.; Richard J. Link, J.D.; Lucas Martin, J.D.; Thomas Muskus, J.D.; Karl Oakes, J.D.; Kimberly Simmons, J.D.; Eric C. Surette, J.D.; Carmela Pellegrino, J.D.; Barbara Van Arsdale, J.D.; Elizabeth Williams, J. D.; Lisa Zakolski, J.D.
XV. Privileges and Immunities of Citizens and Related Matters
C. Denial of Privileges and Immunities
2. Police Power and Regulation

Topic Summary‚  References

‚§‚ ‚  1067. State’s exercise of police power

Constitutional Law‚ ‚  206(1), 207(1), 207(6)

While a state, in the exercise of its police power, may pass laws for the health, morals, safety, and general welfare of persons within its jurisdiction, such exercise of power must not discriminate arbitrarily between citizens.

Neither the guaranty contained in the original United States Constitution of the privileges and immunities of citizens of the several states, nor that contained in the Fourteenth Amendment, takes away or impairs the police power of the several states to pass reasonable laws for the promotion of the health, morals, safety, and general welfare of persons subject to their jurisdiction.[FN1] The privileges and immunities clause applies only to protect citizens of one state from discriminatory treatment in another state, and does not limit the state’s police power over its own citizens.[FN2]

It has been held that the privileges and immunities clauses have no application to statutes enacted in the exercise of that power.[FN3] On the other hand, it has been held that the police power is subject to the constitutional guaranty of equality of privilege,[FN4] and an exercise of the police power must not arbitrarily discriminate between citizens.[FN5] Nevertheless, the protections afforded by constitutional clauses protecting privileges and immunities of citizens are not absolute and will yield to reasonable exercise of state police powers.[FN6]

While in the matter of police regulation, the powers of the state are very broad, it cannot single out a corporation, any more than a natural person, and subject it to burdens which are not cast on others similarly situated, without contravening the limitations of the Fourteenth Amendment of the Federal Constitution.[FN7]

[FN1] U.S.‚”Sullivan v. Shaw, 6 F. Supp. 112 (S.D. Cal. 1934).

Fla.‚”Stephens v. Stickel, 146 Fla. 104, 200 So. 396 (1941).

Mo.‚”State ex rel. Becker v. Wellston Sewer Dist. of St. Louis County, 332 Mo. 547, 58 S.W.2d 988 (1933).

N.Y.‚”People ex rel. Bryant v. Zimmerman, 213 A.D. 414, 210 N.Y.S. 269 (4th Dep’t 1925), aff’d, 241 N.Y. 405, 150 N.E. 497, 43 A.L.R. 909 (1926), aff’d, 278 U.S. 63, 49 S. Ct. 61, 73 L. Ed. 184, 62 A.L.R. 785 (1928).

Or.‚”Daniels v. City of Portland, 124 Or. 677, 265 P. 790, 59 A.L.R. 512 (1928).

Tenn.‚”Mensi v. Walker, 160 Tenn. 468, 26 S.W.2d 132 (1930).

W.Va.‚”Tweel v. West Virginia Racing Commission, 138 W. Va. 531, 76 S.E.2d 874 (1953).

[FN2] Me.‚”State v. Hayes, 603 A.2d 869 (Me. 1992).

[FN3] Wash.‚”Frach v. Schoettler, 46 Wash. 2d 281, 280 P.2d 1038 (1955).

[FN4] N.C.‚”State v. Scoggin, 236 N.C. 1, 72 S.E.2d 97 (1952).

[FN5] Ind.‚”City of Richmond v. Dudley, 129 Ind. 112, 28 N.E. 312 (1891).

S.C.‚”Schloss Poster Advertising Co. v. City of Rock Hill, 190 S.C. 92, 2 S.E.2d 392 (1939).

[FN6] Mont.‚”State v. Barnes, 232 Mont. 405, 758 P.2d 264 (1988).

[FN7] U.S.‚”Southern Bell Tel. & Tel. Co. v. Town of Calhoun, 287 F. 381 (W.D. S.C. 1923).

END OF SECTION

CJS CONSTLAW ‚§‚  1067

Corpus Juris Secundum

Constitutional Law
by Francis Amendola, J.D.; John Bourdeau, J.D.; Paul M. Coltoff, J.D.; John Dvorske, J.D.; John Glenn, J.D.; Glenda K. Harnad, J.D., of the staff of the National Legal Research Group, Inc.; John Kennel, J. D., of the staff of the National Legal Research Group, Inc.; Sonja Larsen, J.D.; Stephen Lease, J.D.; Jack K. Levin, J.D.; Richard J. Link, J.D.; Lucas Martin, J.D.; Thomas Muskus, J.D.; Karl Oakes, J.D.; Kimberly Simmons, J.D.; Eric C. Surette, J.D.; Carmela Pellegrino, J.D.; Barbara Van Arsdale, J.D.; Elizabeth Williams, J. D.; Lisa Zakolski, J.D.
XVI. Equal Protection of the Laws
B. Nature and Scope of Prohibitions

Topic Summary‚  References

‚§‚ ‚  1115. Exercise of police power

Constitutional Law‚ ‚  212

The prohibition of the Fourteenth Amendment against denial of equal protection of the laws does not deprive the states, or the political subdivisions thereof, of their power, commonly called the police power, to pass laws for the protection of the public health, safety, welfare, or morals.

The prohibition of the Fourteenth Amendment against denial of equal protection of the laws does not deprive the states, or the political subdivisions thereof, of their power, commonly called the police power,[FN1] to pass laws for the protection of the public health, safety, welfare, or morals,[FN2] and indeed, the state has wide discretion to do so under the equal protection clause.[FN3] Furthermore, it does not interfere with the proper exercise of that power.[FN4]

However, according to the weight of authority, an exercise of the police power is subject to the constitutional limitation that no state shall deny the equal protection of the laws to any person within its jurisdiction;[FN5] and the Fourteenth Amendment invalidates enactments that are arbitrary, unreasonable, and unrelated to the public purpose sought to be attained.[FN6] In other words, equal protection requires that the exercise of police power be wholly free of unreason and arbitrariness.[FN7] It is necessary that a police regulation shall apply equally or uniformly to all persons similarly situated or within a class.[FN8] Thus, the lawmaking authority may, under its police power, enact regulations that are not all-embracing, and it may legislate with reference to degrees of evil and to situations in which the evil is demonstrably more harmful, without denying equal protection of the law;[FN9] but an exercise of the police power must not be discriminatory in operation.[FN10]

The equal protection clause of the Fourteenth Amendment to the Federal Constitution does not take from a state or municipal corporation the power to classify in the adoption of police laws or regulations,[FN11] but admits of the exercise of a wide or broad scope of discretion in that regard.[FN12]

[FN1] Del.‚”In re Auditorium, Inc., 46 Del. 430, 84 A.2d 598 (Super. Ct. 1951).

[FN2] Fla.‚”Florida League of Cities, Inc. v. Department of Environmental Regulation, 603 So. 2d 1363 (Fla. Dist. Ct. App. 1st Dist. 1992).

Ohio‚”St. Ann’s Hosp. v. Arnold, 109 Ohio App. 3d 562, 672 N.E.2d 743 (10th Dist. Franklin County 1996).

Pa.‚”Pennsylvania Turnpike Com’n v. Com., 855 A.2d 923 (Pa. Commw. Ct. 2004), as amended, (Aug. 4, 2004).

[FN3] U.S.‚”Lee v. State, 869 F. Supp. 1491 (D. Or. 1994).

Colo.‚”Buckley Powder Co. v. State, 70 P.3d 547 (Colo. Ct. App. 2002), cert. denied, 2003 WL 21222805 (Colo. 2003) and cert. denied, (May 27, 2003).

[FN4] U.S.‚”Lacoste v. Department of Conservation of State of Louisiana, 263 U.S. 545, 44 S. Ct. 186, 68 L. Ed. 437 (1924); Chambers v. Bachtel, 55 F.2d 851 (C.C.A. 5th Cir. 1932).

Kan.‚”Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291 (1974).

[FN5] U.S.‚”Oyama v. California, 332 U.S. 633, 68 S. Ct. 269, 92 L. Ed. 249 (1948); Szeto v. Louisiana State Bd. of Dentistry, 508 F. Supp. 268 (E.D. La. 1981).

Fla.‚”Junco v. State Bd. of Accountancy, 390 So. 2d 329 (Fla. 1980).

[FN6] Ill.‚”Rawlings v. Illinois Dept. of Law Enforcement, 73 Ill. App. 3d 267, 29 Ill. Dec. 333, 391 N.E.2d 758 (3d Dist. 1979).

[FN7] N.J.‚”515 Associates v. City of Newark, 132 N.J. 180, 623 A.2d 1366 (1993).

[FN8] U.S.‚”Alabama State Federation of Labor, Local Union No. 103, United Broth. of Carpenters and Joiners of America v. McAdory, 325 U.S. 450, 65 S. Ct. 1384, 89 L. Ed. 1725 (1945); Berry v. Arapahoe and Shoshone Tribes, 420 F. Supp. 934 (D. Wyo. 1976).

Cal.‚”Elysium Institute, Inc. v. County of Los Angeles, 232 Cal. App. 3d 408, 283 Cal. Rptr. 688 (2d Dist. 1991).

Neb.‚”Distinctive Printing and Packaging Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989).

[FN9] Fla.‚”Pacheco v. Pacheco, 246 So. 2d 778 (Fla. 1971).

[FN10] U.S.‚”Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161, 3 A.L.R.2d 441 (1948).

Ariz.‚”State v. Norcross, 26 Ariz. App. 115, 546 P.2d 840 (Div. 1 1976).

[FN11] U.S.‚”Morey v. Doud, 354 U.S. 457, 77 S. Ct. 1344, 1 L. Ed. 2d 1485 (1957) (overruled on other grounds by, City of New Orleans v. Dukes, 427 U.S. 297, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976)); Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 66 S. Ct. 850, 90 L. Ed. 1096 (1946).

Tenn.‚”Wyatt v. A-Best Products Co., 924 S.W.2d 98 (Tenn. Ct. App. 1995), as modified on reh’g, (Dec. 28, 1995).

As to legislative classifications, generally, see ‚§‚  1110.

[FN12] U.S.‚”City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985); Morey v. Doud, 354 U.S. 457, 77 S. Ct. 1344, 1 L. Ed. 2d 1485 (1957) (overruled on other grounds by, City of New Orleans v. Dukes, 427 U.S. 297, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976)); Alamo Rent-A-Car, Inc. v. Sarasota-Manatee Airport Authority, 825 F.2d 367 (11th Cir. 1987).

Ill.‚”People v. Toliver, 251 Ill. App. 3d 1092, 191 Ill. Dec. 290, 623 N.E.2d 880 (2d Dist. 1993).

Tenn.‚”Wyatt v. A-Best Products Co., 924 S.W.2d 98 (Tenn. Ct. App. 1995), as modified on reh’g, (Dec. 28, 1995).

END OF SECTION

CJS CONSTLAW ‚§‚  1115

Illinois Municipal Law – Police Power

MAIN INDEX

Police Power

I. {7.1} Scope of Chapter

II. {7.2} Municipal Police Power in General

III. Types of Police Power

A. {7.3} Statutory Grants of Power
B. {7.4} Powers Necessarily Implied from Those Expressly Granted
C. {7.5} Special Power Concerning Health Regulation
D. {7.6} Power To Prohibit
E. Power over State Agencies and Other Municipal Corporations and Units of LocalGovernment Within Municipalities’Territorial Jurisdictions
1. {7.7} The State
2. {7.8} Other Units of Government and Regional Agencies
3. {7.9} School District Building Projects
F. {7.10} Power Concerning Intergovernmental Cooperation

IV. {7.11} Municipal Police Power Exercised Concurrently or in Conflict with State Power

A. {7.12} Environmental Regulation
B. {7.13} Penalties for Ordinance Violation

V. {7.14} Territory Encompassed by Power

VI. {7.15} Delegating or Relinquishing Police Power

VII. {7.16} Nuisances

VIII. {7.17} Police Power as It Relates to Permits and Licenses

IX. {7.18} Method of Exercising Police Power

X. {7.19} Constitutional Limitation of Exercising Police Power

XI. {7.20} Reasonableness of Ordinances

A. {7.21} Reasonableness Required When Grant of Power To Regulate Is in General Terms
B. {7.22} Tests of Reasonableness

XII. {7.23} Discrimination

XIII. {7.24} Use of Police Power To Solve Contemporary Problems

A. {7.25} Massage Parlors
B. {7.26} Tattoo Parlors ‚” AIDS and Hepatitis B
C. {7.27} The Use of Search Warrants
D. {7.28} Parental Responsibility for Juvenile Vandalism
E. {7.29} Video Games and Arcades
F. {7.30} Disorderly Conduct
G. {7.31} Juvenile Street Gangs ‚” Curfews

I. {7.1} SCOPE OF CHAPTER

This chapter covers the police power of an
Illinois non-home rule municipality. It describes,
among other things, the source of police power,
limitations on the power, territory affected by the
power granted, delegation of the power, and use of
police power to solve contemporary problems.

II. {7.2} MUNICIPAL POLICE POWER IN GENERAL

The state possesses the entire police power,
defined as the attribute of sovereignty in every
government by which that government may protect
lives, health, morals, and general welfare.
Chicago National League Ball Club, Inc. v.
Thompson, 108 Ill.2d 357, 483 N.E.2d 1245, 91 Ill.Dec.
610 (1985); Sherman-Reynolds, Inc. v. Mahin, 47
Ill.2d 323, 265 N.E.2d 640 (1970).

When discussing the police power of an Illinois
non-home rule municipality, however, the
definition of the state’s police power does not
apply. An Illinois non-home rule municipality has only
that police power given to it by the state through
the General Assembly and possesses, therefore, no
inherent power. Pesticide Public Policy Foundation
v. Village of Wauconda, 117 Ill.2d 107, 510
N.E.2d 858, 109 Ill.Dec. 790 (1987); People ex
rel. Skokie Town House Builders, Inc. v. Village of
Morton Grove, 16 Ill.2d 183, 157 N.E.2d 33 (1959);
Trust Company of Chicago v. City of Chicago,
408 Ill. 91, 96 N.E.2d 499 (1951); Inland Land
Appreciation Fund, L.P. v. County of Kane, 344
Ill.App.3d 720, 800 N.E.2d 1232, 279 Ill.Dec. 649
(2d Dist. 2003); Village of Forrest v. Norfolk &
Western Ry., 146 Ill.App.3d 20, 496 N.E.2d 257, 99
Ill.Dec. 682 (4th Dist. 1986).

III. TYPES OF POLICE POWER

A. {7.3} Statutory Grants of Power

Since a municipality does not have the entire
police power of the state but only what is
specifically delegated to it, it is imperative
that the practitioner carefully examine the statutes to
determine whether a particular power exists. Most
police-type powers are listed in Article 11 of the
Illinois Municipal Code (Code), 65 ILCS 5/1-1-1,
et seq. Other powers may be found in other
portions of the Code and in other statutes. A
careful examination of the index to the Illinois Compiled
Statutes will help locate powers in the Code and
other statutes.

Specific types of common police powers granted by
statute and found in the Code include the
powers to

1. establish a system of administrative
adjudication for violations of ordinances other than
building code and moving motor vehicle violations
(Code ‚§1-2.2-10);

2. declare a curfew (Code ‚§11-1-5);

3. grant emergency powers to the mayor (Code
‚§11-1-6);
4. conduct juvenile delinquency prevention
programs (Code ‚§11-1-8);

5. suppress bawdy and disorderly houses, houses of
ill fame, gambling houses, lotteries, and the
sale of obscene materials (Code ‚§11-5-1);

6. prevent or suppress riots, disturbances,
noises, trespasses, and disorderly assemblies in public
or private places (Code ‚§11-5-2);

7. prevent intoxication, fighting, quarreling, dog
fights, cock fights, and all other disorderly
conduct (Code ‚§11-5-3);

8. prevent vagrancy, begging, and prostitution
(Code ‚§11-5-4);

9. prohibit the parking of motor vehicles on
private property without consent of the property’s
owner (Code ‚§11-5-5);

10. prohibit cruelty to animals (Code ‚§11-5-6);

11. regulate mobile homes, house trailers, and
similar portable dwelling structures (Code ‚§11-5-
8);

12. provide youth and senior funding and services
(Code ‚§‚§11-5.2-2 through 11-5.2-4);

13. provide fire departments (Code ‚§11-6-1) and
regulate for fire safety (Code ‚§‚§11-8-1 through
11-8-6; see Code ‚§10-3-3.1, which prohibits
assigning police officers and firefighters the
others’ duties);

14. regulate conditions causing and the abatement
of air pollution (Code ‚§11-19.1-11; see 410
ILCS 80/11 concerning municipal authority
regarding smoking regulations);

15. regulate and establish markets and market
houses (Code ‚§11-20-1);

16. regulate the sale of all beverages and food
for human consumption (Code ‚§11-20-2; see also
410 ILCS 635/4 and 635/19 for state minimum
standards and preemption regarding Grade A
milk and milk products);

17. regulate and inspect all food for human
consumption and tobacco (Code ‚§11-20-3; see also
410 ILCS 635/4 and 635/19 for state minimum
standards and preemption regarding Grade A
milk and milk products);

18. provide for the cleansing and purification of
water and, when necessary to prevent or abate a
nuisance, provide for the draining and filling of
ponds on private property (Code ‚§11-20-4);

19. do acts and make regulations that are
necessary or expedient for promotion of health and
suppression of disease (Code ‚§11-20-5);

20. provide for the destruction of weeds on
private property at the expense of the owners of the
premises and impose a lien for the cost of removal
(Code ‚§‚§11-20-6, 11-20-7);
21. provide for the extermination of rats and
impose a lien on the owners of private property for
the cost of extermination (Code ‚§11-20-8);

22. regulate and prohibit the running at large of
horses, asses, mules, cattle, swine, sheep, goats,
geese, and dogs (Code ‚§11-20-9);

23. regulate the construction, repair, and use of
cisterns, cesspools, hydrants, pumps, culverts,
drains, and sewers and the covering or sealing of
wells and cisterns (Code ‚§11-20-10);

24. provide for the removal of garbage and debris
from private property and impose a lien for the
cost of removal (Code ‚§11-20-13) (see Code
‚§9-2-4.5 regarding a special assessment for
collection of debt);

25. regulate fences and party walls (Code
‚§11-30-1);

26. regulate the construction of buildings in
areas that flood (Code ‚§11-30-2);

27. regulate the use and construction of rooming
houses (Code ‚§11-30-3);

28. regulate the strength and manner of
construction of buildings and fire escapes (Code ‚§11-30-
4; see 20 ILCS 3125/20 and 3125/45 for state
minimum standards and preemption
concerning energy-efficient commercial building
standards and Code ‚§1-2-3.1 for the
requirement that 30 days before adopting or
amending a building code the municipality must
provide an identification of the code, by title
and edition, or the amendment to the Illinois
Building Commission for identification on the
Internet);

29. regulate the grading and draining of lots and
construction of paving for driveways and
parking areas, terraces, and retaining walls (Code
‚§11-30-8);

30. regulate private swimming pools (Code
‚§11-30-9); see 210 ILCS 125/1, et seq., for
preemption concerning certain private pools;

31. demolish and repair unsafe buildings and
impose a lien for the cost (Code ‚§‚§11-31-1 through
11-31-2.3);

32. provide for building code hearings and
procedures (Code ‚§‚§11-31.1-1 through 11-31.1-14);

33. regulate the installation and maintenance of
heating, air-conditioning, and refrigeration
systems and contractors (Code ‚§11-32-1);

34. provide for registration of electrical
contractors (Code ‚§11-33-1);

35. regulate steam boilers and elevators and the
licensing of persons having charge of them
(Code ‚§11-34-1);

36. regulate electrical equipment installation,
use, and alteration (Code ‚§11-37-1);

37. regulate motor vehicles on city streets (Code
‚§11-40-1; see 625 ILCS 5/11-207, 5/11-208,
5/11-208.1, 5/11-209, and 5/11-209.1 for
preemption);

38. declare junk cars to be nuisances (Code
‚§11-40-3);

39. regulate certain enumerated businesses and
activities (Code ‚§‚§11-42-1 through 11-42-14);

40. establish and regulate cemeteries (Code
‚§11-49-1);

41. regulate the weighing and measuring of certain
enumerated items (Code ‚§11-53-1);

42. provide for inspection and sealing of weights
and measurements (Code ‚§11-53-2);

43. regulate athletic contests (Code ‚§11-54-1);

44. grant permits for carnivals (Code ‚§11-54.1-1);

45. define, prevent, and abate nuisances (Code
‚§11-60-2);

46. regulate streets and public ways (Code
‚§11-80-2; see 625 ILCS 5/11-207, 5/11-208, 5/11-
208.1, and 5/11-209 as to preemption);

47. license and regulate street advertising and
adult entertainment advertising (Code ‚§11-80-15);

48. regulate boats and harbors (Code ‚§‚§11-92-3 and
11-104-1 through 11-104-3); and

49. regulate conditions causing and the abatement
of water pollution (Code ‚§‚§11-125-2, 11-125-
3, 11-129-1).

Code ‚§11-1-1 provides that ‚“{t}he corporate
authorities of each municipality may pass and
enforce all necessary police ordinances.‚ While it
may appear that this section of the Code gives the
municipality broad police powers, the cases have
repeatedly held that it gives municipalities no
additional powers and cannot be invoked as an
independent source of power. Code ‚§11-1-1 confers
only the power to pass and enforce police
ordinances necessary to carry out the powers delegated
under other provisions of the statutes. Chicago
Real Estate Board v. City of Chicago, 36 Ill.2d 530,
224 N.E.2d 793 (1967); Ambassador East, Inc. v.
City of Chicago, 399 Ill. 359, 77 N.E.2d 803
(1948); City of Kewanee v. Swanson, 144 Ill.App.3d
1, 493 N.E.2d 1213, 98 Ill.Dec. 192 (3d Dist.
1986). A possible exception to this otherwise
universal rule may be Sunday closing ordinances.
Humphrey Chevrolet, Inc. v. City of Evanston, 7
Ill.2d 402, 131 N.E.2d 70 (1955); Opyt’s Amoco,
Inc. v. Village of South Holland, 149 Ill.2d 265,
595 N.E.2d 1060, 172 Ill.Dec. 390 (1992). One
might argue that Sunday closing ordinances are
really part of health powers or are related to public
peace as intimated in Opyt’s Amoco.

It should be remembered that an ordinance’s
validity does not necessarily depend on a single
clause or section of a statute but may derive its
validity from several different statutory sections.
Village of Algonquin v. Tiedel, 345 Ill.App.3d
229, 802 N.E.2d 418, 280 Ill.Dec. 493 (2d Dist. 2003);
Mister Softee of Illinois, Inc. v. City of
Chicago, 42 Ill.App.2d 414, 192 N.E.2d 424 (1st Dist. 1963).
In Alarm Detection Systems, Inc. v. Village of
Hinsdale, 326 Ill.App.3d 372, 761 N.E.2d 782, 260
Ill.Dec. 599 (2d Dist. 2001), the court looked to
Code ‚§‚§11-8-2 and 11-30-4 to determine that the
village had authority to enact its own code that
required fire alarm systems in commercial buildings
to be connected to the village’s fire alarm board.
However, it still is necessary that the various
sections relied on contain a sufficient grant of
power. In Two Hundred Nine Lake Shore Drive
Building Corp. v. City of Chicago, 3 Ill.App.3d
46, 278 N.E.2d 216 (1st Dist. 1971), the court held
that the power to abate nuisances or to regulate
food, water, and disease control could not be read
together so as to allow the City of Chicago to
regulate private owners who engage in unfair housing
practices. Accord City of Chicago v. Santor, 30
Ill.App.3d 792, 334 N.E.2d 176 (1st Dist. 1975)
(power to regulate use and construction of garages
does not allow regulation of private garages).

B. {7.4} Powers Necessarily Implied from Those
Expressly Granted

Powers that are said to be ‚“implied‚ are strictly
those powers that are necessarily implied or
incident from those specifically granted. As
stated in ‚§7.2 above, a municipality possesses no
inherent power. People ex rel. Skokie Town House
Builders, Inc. v. Village of Morton Grove, 16
Ill.2d 183, 157 N.E.2d 33, 36 (1959). Accord
Exchange National Bank of Chicago v. Village of
Skokie, 86 Ill.App.2d 12, 229 N.E.2d 552 (1st
Dist. 1967). Examples of powers implied from those
specifically granted are the necessarily implied
power to impose reasonable conditions for the use of
streets from the express grant of power to
regulate streets, such as an ordinance establishing parking
meters to promote the orderly flow of traffic
(City of Bloomington v. Wirrick, 381 Ill. 347, 45 N.E.2d
852 (1942), cert. denied, 63 S.Ct. 1175 (1943))
and the implied authority to procure and execute
search warrants as part of the express grant of
power concerning zoning and administrative
enforcement of such ordinances (People ex rel.
Foreman v. Sojourners Motorcycle Club, Ltd., 134
Ill.App.3d 448, 480 N.E.2d 840, 89 Ill.Dec. 358
(2d Dist. 1985)). But see Op. Att’y Gen. (Ill.) No.
94-024, concluding that non-home rule
municipalities have no implied powers to require building
code inspections and fees in connection with
transfers of ownership of real estate since they have no
express authority to limit alienability of
property or to tax real estate transfers.

Examples of powers necessarily implied from those
expressly granted are the powers to guard
against fire and to regulate the storage of
combustible materials resulting in the necessarily implied
powers of licensing and regulation of

1. dry cleaners (Klever Shampay Karpet Kleaners,
Inc. v. City of Chicago, 323 Ill. 368, 154
N.E. 131 (1926));

2. manufacturers of cosmetics (Chicago Cosmetic
Co. v. City of Chicago, 374 Ill. 384, 29
N.E.2d 495 (1940));

3. gas stations operators (Fligelman v. City of
Chicago, 348 Ill. 294, 180 N.E. 797 (1932)); and

4. installers of heating plants (City of Chicago
v. Wonder Heating & Ventilating Systems, Inc.,
345 Ill. 496, 178 N.E. 192 (1931)).

Regarding necessarily implied power to license in
order to regulate, it has been held in Father Basil’s
Lodge, Inc. v. City of Chicago, 393 Ill. 246, 65
N.E.2d 805, 812 (1946):

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.

C. {7.5} Special Power Concerning Health
Regulation

The state has granted to municipalities broad
power to regulate in the area of health. See Code
‚§11-20-5.

The courts appear to construe health ordinances
more liberally than other police ordinances.
Thus, communicable or epidemic diseases need not
be involved. Schuringa v. City of Chicago, 30
Ill.2d 504, 198 N.E.2d 326 (1964) (fluoridation of
water supply within city’s police power); Biffer v.
City of Chicago, 278 Ill. 562, 116 N.E. 182
(1917). In Greyhound Lines, Inc. v. City of Chicago, 24
Ill.App.3d 718, 321 N.E.2d 293 (1st Dist. 1974),
the court upheld a Chicago ordinance banning pay
toilets in municipal buildings or buildings open
to accommodate the public. The court reasoned that
the city was regulating plumbing and waste
disposal systems, which is implicit in its express power to
protect public health.

Contrary to the general rule stated in ‚§‚§7.2 and
7.4 above, it appears that in the area of a
municipality’s power over health, the courts have
found inherent power in a municipality. It has been
stated that the preservation of the public health
is indispensable to the existence of municipal
corporations, and the policy of the law is to
favor such legislation since caring for the health and
safety of the community is the most important of
the police powers. Village of Spillertown v. Prewitt,
21 Ill.2d 228, 171 N.E.2d 582 (1961). See the home
rule cases Village of Glenview v. Ramaker, 282
Ill.App.3d 368, 668 N.E.2d 106, 217 Ill.Dec. 921
(1st Dist. 1996), and People ex rel. Slutzkin v.
Village of Lincolnwood, 346 Ill.App. 469, 105
N.E.2d 331 (1st Dist. 1952) (abst.).

It is not necessary for a municipal government to
wait until the public health is actually put in
jeopardy. To protect the public health and promote
public safety, it may adopt the most conservative
course available. City of Nokomis v. Sullivan, 14
Ill.2d 417, 153 N.E.2d 48 (1958).

The use of estoppel as a defense has been denied
when it would defeat the operation of a policy
adopted to protect the public’s right to a healthy
environment. Dean Foods Co. v. Illinois Pollution
Control Board, 143 Ill.App.3d 322, 492 N.E.2d
1344, 97 Ill.Dec. 471 (2d Dist. 1986).

The state’s preemption, such as in the field of
environmental protection, however, may limit the
municipality’s power in regulating health as
described in ‚§‚§7.11 ‚”œ 7.13 below.

D. {7.6} Power To Prohibit

The power to prohibit a business or activity must
be expressly granted to a municipality or
necessarily implied from those powers expressly
granted. Illinois Cigarette Service Co. v. City of
Chicago, 89 F.2d 610 (7th Cir. 1937); Greyhound
Lines, Inc. v. City of Chicago, 24 Ill.App.3d 718,
321 N.E.2d 293 (1st Dist. 1974); Village of Fox
River Grove v. Aluminum Coil Anodizing Corp., 114
Ill.App.2d 226, 252 N.E.2d 225 (2d Dist. 1969).
Thus, the power to regulate does not carry with it,
inherently, the power to prohibit. City of Sparta
v. Brenning, 45 Ill.2d 359, 259 N.E.2d 30 (1970);
City of Chicago v. Chicago & Oak Park Elevated
R.R., 250 Ill. 486, 95 N.E. 456 (1911).

The power to restrict or prohibit a business or
activity also must be exercised in a reasonable
manner. Lou Owen, Inc. v. Village of Schaumburg,
279 Ill.App.3d 976, 665 N.E.2d 456, 216 Ill.Dec.
396 (1st Dist. 1996). In that case, the Village of
Schaumburg (a home rule unit), responding to a
shooting death outside a commercial teenage dance
club, enacted an ordinance prohibiting all teenage
dances held or conducted by for-profit
organizations but permitting teenage dances held by certain
not-for-profit organizations on premises having no
liquor licenses or at hotels with ballrooms separate
from areas where liquor was served. The appellate
court upheld the trial court’s ruling that the
ordinance was unconstitutional, concluding that
there was no rational basis for either the distinction
between hotels and other facilities or the
distinction between commercial and noncommercial
sponsorship in light of the evidence presented.
See also Illinois Sporting Goods Ass’n v. County of
Cook, 845 F.Supp. 582 (N.D.Ill. 1994), granting a
preliminary injunction against enforcement of an
ordinance prohibiting gun shops located within
one-half mile of a park or school but unreasonably
exempting gun dealers who owned their own shops
and retailers whose primary business was not gun
sales. (The case against the amended ordinance was
dismissed on other grounds in Illinois Sporting
Goods Ass’n v. County of Cook, 884 F.Supp. 275
(N.D.Ill. 1995).) See ‚§‚§7.20 ‚”œ 7.22 below for a
discussion of the requirement of reasonableness of
ordinances.

E. Power over State Agencies and Other Municipal
Corporations and Units of Local
Government Within Municipalities’ Territorial
Jurisdictions

1. {7.7} The State

A municipal corporation generally has no power
over state agencies or state institutions located
within its territorial jurisdiction. City of
Joliet v. Snyder, 317 Ill.App.3d 940, 741 N.E.2d 1051, 251
Ill.Dec. 873 (3d Dist. 2000). For example, in
Board of Trustees of University of Illinois v. City of
Chicago, 317 Ill.App.3d 569, 740 N.E.2d 515, 251
Ill.Dec. 434 (1st Dist. 2000), the court found that
the City of Chicago could not impose its building
and safety ordinances on the state’s university.

2. {7.8} Other Units of Government and Regional
Agencies

Municipal corporations or units of local
government within the boundaries of municipalities have
been found susceptible to the power of the
municipalities. County of Cook v. City of Chicago, 311 Ill.
234, 142 N.E. 512 (1924) (buildings belonging to
county and located within city are subject to city’s
power to make them safe); Board of Education of
Community Consolidated School District No. 15,
McHenry & Lake Counties v. City of McHenry, 71
Ill.App.3d 904, 390 N.E.2d 551, 28 Ill.Dec. 384
(2d Dist. 1979) (school district liable for city
motor vehicle license fee pursuant to city’s power to
tax).

In Village of Swansea v. County of St. Clair, 45
Ill.App.3d 184, 359 N.E.2d 866, 4 Ill.Dec. 33
(5th Dist. 1977), the court found that the
municipality’s zoning ordinance could not be enforced
against the county in carrying out a statutory
mandate to build a dog pound but also found that the
county had to abide by the municipality’s
building, sewer, electrical, and plumbing ordinances. A
county public building commission, which pursuant
to ‚§14 of the Public Building Commission Act,
50 ILCS 20/1, et seq., is a separate municipal
corporation, is not exempt from building permit fees
and regulations imposed by a host municipality
absent specific language exempting the agency from
complying with the ordinances of its host
municipality or evidence that the regulation would frustrate
the agency’s statutory purpose. Lake County Public
Building Commission v. City of Waukegan, 273
Ill.App.3d 15, 652 N.E.2d 370, 209 Ill.Dec. 830
(2d Dist. 1995). In City of Waukegan v. Illinois
Environmental Protection Agency, 339 Ill.App.3d
963, 791 N.E.2d 635, 274 Ill.Dec. 543 (2d Dist.
2003), the appellate court discussed whether the
city’s moratorium and building regulation frustrated
the purpose of a sanitary district but left the
issue for the trial court to consider on remand. See also
Op. Att’y Gen. (Ill.) No. 86-004 (concluding that
Peoria County’s Health Department could impose
health regulations on school district’s
cafeterias); County of Winnebago v. Davis, 156 Ill.App.3d 535,
509 N.E.2d 143, 108 Ill.Dec. 717 (2d Dist. 1987).

In County of Lake v. Fox Waterway Agency, 326
Ill.App.3d 100, 759 N.E.2d 970, 259 Ill.Dec.
909 (2d Dist. 2001), the court focused on the
nature of the power of the county versus a regional
agency and determined that a specific power in one
would trump the general power in the other. The
Fox Waterway Agency had a specific grant of
authority under the Fox Waterway Agency Act, 615
ILCS 90/1, et seq., to improve and maintain the
Fox River waterway in a two-county area. The Lake
County Stormwater Management Commission was given
power to develop a management plan under
the county code and regulate structures and
buildings within the affected area. The Commission,
pursuant to an agreement with the Illinois
Department of Transportation, had authority to grant
permits for construction within the floodway. The
Agency was found to be exempt from the
Commission’s permit requirement since the Agency
had a particular or specific power, while the
Commission had a general or less particular power.
Thus the county was found to be either equal
with or subordinate to the regional agency.

In Wilmette Park District v. Village of Wilmette,
112 Ill.2d 6, 490 N.E.2d 1282, 96 Ill.Dec. 77
(1986), the court found that (a) both home rule
and non-home rule municipalities possess zoning
powers and park districts possess the power to
install lights to illuminate athletic fields; (b) no statute
exempts park districts from the zoning ordinances
of their host municipalities; (c) park districts do
not have exclusive authority to operate parks; and
(d) intergovernmental cooperation between
independent units of local government having
competing interests cannot be reduced to a rigid
mathematical formula. The court then concluded
that in the narrow issue presented (whether the park
district was exempt from a zoning ordinance that
did not prohibit the use of the land for park
purposes but required a special use permit for the
use of the lights), the park district had to participate
in the special use process. The court admonished
the litigants that the municipality was required to be
reasonable.

3. {7.9} School District Building Projects

The State Board of Education regulates the
construction of school buildings through its
Health/Life Safety Code for Public Schools, 23
Ill.Admin. Code pt. 23, which is the governing code
for all facilities that house public school
students or are otherwise used for public school purposes
under ‚§2-3.12 of the School Code, 105 ILCS 5/1-1,
et seq. Facilities not used to house public school
students or not used for public school purposes
are governed by separate provisions contained within
the Health/Life Safety Code. Id.

Any agency (such as a municipality) having
jurisdiction beyond the scope of the Health/Life
Safety Code may issue a lawful order to a school
board to effectuate recommendations, and the
school board receiving the order must certify to
the regional superintendent (who enforces the
Health/Life Safety Code) and the State
Superintendent when it has complied with the order. Id.

Thus, construction of school buildings under the
school code within a municipality is excepted
from the municipality’s building code. Board of
Education, School District 33, DuPage County,
Illinois v. City of West Chicago, 55 Ill.App.2d
401, 205 N.E.2d 63 (2d Dist. 1965). The court in City
of West Chicago reasoned that ‚§2-3.12 of the
School Code provided the method for approving plans
and specifications for schools, while the
legislature gave only a general power to regulate buildings to
municipalities. A municipality may, however,
register with the regional superintendent of schools and
be entitled to receive, within ten days after the
superintendent receives school plans within the
municipality’s jurisdiction and prior to the
bidding process, written notification that the plans have
been received. If the municipality requests a
review, then the school board shall submit a copy of the
plans and specifications with the right of the
municipality to comment on them to the regional
superintendent concerning discrepancies from the
Health/Life Safety Code. 105 ILCS 5/3-14.20.

School buildings that are no longer used for
school purposes have raised issues of whether local
building regulations become applicable. It appears
that as long as a minimal use is for school
purposes, local regulation will not become
applicable. County of Lake v. Board of Education of Lake
Bluff School District No. 65, Lake County, 325
Ill.App.3d 694, 761 N.E.2d 163, 260 Ill.Dec. 319 (2d
Dist. 2001).

F. {7.10} Power Concerning Intergovernmental
Cooperation

Article VII, ‚§10, of the Illinois Constitution
confers broad powers on all municipalities regarding
intergovernmental agreements:

(a) Units of local government and school districts
may contract or otherwise
associate among themselves, with the State, with
other states and their units of local
government and school districts, and with the
United States to obtain or share services
and to exercise, combine, or transfer any power or
function, in any manner not
prohibited by law or by ordinance. Units of local
government and school districts may
contract and otherwise associate with individuals,
associations, and corporations in any
manner not prohibited by law or by ordinance.
Participating units of government may
use their credit, revenues, and other resources to
pay costs and to service debt related
to intergovernmental activities.

(b) Officers and employees of units of local
government and school districts may
participate in intergovernmental activities
authorized by their units of government
without relinquishing their offices or positions.

(c) The State shall encourage intergovernmental
cooperation and use its technical
and financial resources to assist
intergovernmental activities.

The Intergovernmental Cooperation Act, 5 ILCS
220/1, et seq., provides encouragement from the
General Assembly in this area.
Although the above constitutional grant of power
eliminates the requirement that the power to
enter into such agreements be expressly granted by
the legislature or necessarily implied from those
powers expressly granted (County of Wabash v.
Partee, 241 Ill.App.3d 59, 608 N.E.2d 674, 181
Ill.Dec. 601 (5th Dist. 1993); Village of Sherman
v. Village of Williamsville, 106 Ill.App.3d 174, 435
N.E.2d 548, 61 Ill.Dec. 851 (4th Dist. 1982)),
Illinois courts require that the exercised power or
function be otherwise authorized and not
contravene statutory or common law prohibitions (People v.
Claar, 293 Ill.App.3d 211, 687 N.E.2d 557, 227
Ill.Dec. 307 (3d Dist. 1997); Village of Lisle v.
Village of Woodridge, 192 Ill.App.3d 568, 548
N.E.2d 1337, 139 Ill.Dec. 623 (2d Dist. 1989)).

As to the first issue, the unit of government must
possess the power in order to exercise, combine,
or transfer it. So, for example, when a unit of
government did not possess the power to enter into a
boundary line agreement prohibiting annexation by
another municipality, the constitutional provision
did not independently grant such power. Village of
Lisle, supra. See also Connelly v. County of
Clark, 16 Ill.App.3d 947, 307 N.E.2d 128 (4th
Dist. 1973).

As to the second issue, the agreement must be
accomplished in a manner not prohibited by law.
Article VII, ‚§10, of the Illinois Constitution
cannot validate agreements contrary to other
constitutional provisions such as the doctrine of
separation of powers or the ‚“inherent powers‚ of the
court system. Orenic v. Illinois State Labor
Relations Board, 127 Ill.2d 453, 537 N.E.2d 784, 130
Ill.Dec. 455 (1989). A contract that delegates
power to another that is specifically vested in a school
district or county board is invalid. Board of
Education of School District No. 189 v. Cahokia District
Council No. 58 of Brotherhood of Painters & Allied
Trades, 93 Ill.App.3d 376, 417 N.E.2d 151, 48
Ill.Dec. 749 (5th Dist. 1981); E & E Hauling, Inc.
v. Pollution Control Board, 116 Ill.App.3d 586,
451 N.E.2d 555, 71 Ill.Dec. 587 (2d Dist. 1983),
aff’d, 107 Ill.2d 33 (1985). Even if the subject
matter of the agreement is generally permissible,
a material portion that is otherwise unlawful may
frustrate the entire agreement. Thus, an agreement
that provided that for ten years one taxing district
would levy the maximum tax rate allowed by law and
turn substantially all the money over to another
taxing district was unlawful because it violated
budgeting and appropriation requirements and
rendered the agreement void ab initio and not
subject to estoppel. Elk Grove Township Rural Fire
Protection District v. Village of Mount Prospect,
228 Ill.App.3d 228, 592 N.E.2d 549, 170 Ill.Dec.
113 (1st Dist. 1992).

Relying on Article VII, ‚§10, of the Constitution,
the courts have approved

1. self-insurance pooling by public entities so
that they could combine their resources and
know-how to perform more efficiently governmental
operations that they were too small to
conduct individually (Antiporek v. Village of
Hillside, 114 Ill.2d 246, 499 N.E.2d 1307, 102
Ill.Dec. 294 (1986));

2. authority of a city and a county to enter into
an agreement in which they exchanged
jurisdiction of property to enable the county to
complete a county highway, including the
right to proceed with condemnation (Partee,
supra);

3. board of education collaboration with a city to
revitalize an airport (Hall v. Board of
Education of City of Chicago, 48 Ill.App.3d 834,
363 N.E.2d 116, 6 Ill.Dec. 587 (1st Dist.
1977)); and

4. two villages entering into an agreement under
which a commission was to be the exclusive
supplier of water to one village and that village
was to be the exclusive supplier of water to
the other village (Village of Sherman, supra).

Finally, Article VII, ‚§10(b), authorizing officers
of local government to participate in cooperative
activities with other units of local government
without relinquishing their offices, may not, however,
contravene the common law
incompatibility-of-offices doctrine. Claar, supra.

Article VII, ‚§10, of the Illinois Constitution,
may not be used to compel units of local
government to enter into intergovernmental
agreements or to compel them to cooperate. Village of
Elmwood Park v. Forest Preserve District of Cook
County, 21 Ill.App.3d 597, 316 N.E.2d 140 (1st
Dist. 1974). If the law imposes a duty on one
party to perform a specific act (such as the duty of the
county treasurer to collect tax), that party may
not argue that it should be able to charge other units of
government a fee for the performance of that duty
under the letter and spirit of Article VII, ‚§10,
concerning cooperation. City of Joliet v.
Bosworth, 64 Ill.2d 516, 356 N.E.2d 543, 1 Ill.Dec. 355
(1976).

Recently, the Attorney General has opined in a
comprehensive opinion that an agency created by
an intergovernmental agreement among several home
rule and non-home rule municipalities is bound
by the statutory limitations governing its
non-home rule members. The opinion goes on to state that
home rule members cannot authorize the agency to
exercise home rule powers on behalf of other
contracting members if doing so would contravene
statutory limitations applicable to the non-home
rule members. Op. Att’y Gen. (Ill.) No. 05-010.

Interestingly, agreements, for example, affecting
disconnection and annexation of territory from
one or more units of government to another or
others not in compliance with statutory law have been
entered into by units of government without proper
procedures or requisite power. Such an
agreement, which had been in effect for 14 years,
was found on a quo warranto suit not to be void ab
initio, and the suit was successfully defended
based on the statute of limitations, laches, and estoppel.
People ex rel. Northfield Park District v.
Glenview Park District, 222 Ill.App.3d 35, 582 N.E.2d
1272, 164 Ill.Dec. 328 (1st Dist. 1991).

IV. {7.11} MUNICIPAL POLICE POWER EXERCISED
CONCURRENTLY OR
IN CONFLICT WITH STATE POWER

A municipality and the state may exercise police
power on the same subject if the state has given
the power over the subject matter to the
municipality. Concrete Contractors’ Association of Greater
Chicago v. Village of La Grange Park, 14 Ill.2d
65, 150 N.E.2d 783 (1958); Village of Sugar Grove
v. Rich, 347 Ill.App.3d 689, 808 N.E.2d 525, 283
Ill.Dec. 559 (2d Dist. 2004). The municipality’s
power may be different from the state’s power as
long as it is not inconsistent, and hence it may,
under a proper case, impose even higher standards
than the state. Treadway v. City of Rockford, 24
Ill.2d 488, 182 N.E.2d 219 (1962). If the
municipal exercise of a given power is inconsistent or in
conflict with a state statute, the state statute
prevails. Arrington v. City of Chicago, 45 Ill.2d 316, 259
N.E.2d 22 (1970); Village of Wauconda v. Hutton,
291 Ill.App.3d 1058, 684 N.E.2d 1364, 226
Ill.Dec. 161 (2d Dist. 1997); Village of Oakwood
Hills v. Diamond, 125 Ill.App.3d 58, 465 N.E.2d
662, 80 Ill.Dec. 550 (2d Dist. 1984).
In determining an inconsistency or conflict, the
question may depend on whether the state has
indicated preemption of the field completely, has
provided a comprehensive regulation of an area that
is of statewide concern, or has rescinded a power
that had been given to a municipality. Hawthorne v.
Village of Olympia Fields, 204 Ill.2d 243, 790
N.E.2d 832, 274 Ill.Dec. 59 (2003); McClaughry v.
Village of Antioch, 296 Ill.App.3d 636, 695 N.E.2d
492, 230 Ill.Dec. 1002 (2d Dist. 1998) (train horn
blowing case); City of Rockford, Illinois v.
Floyd, 104 Ill.App.2d 161, 243 N.E.2d 837 (2d Dist.
1968), cert. denied, 90 S.Ct. 480 (1969); Village
of Mundelein v. Hartnett, 117 Ill.App.3d 1011, 454
N.E.2d 29, 73 Ill.Dec. 285 (2d Dist. 1983);
Hutchcraft Van Service, Inc. v. City of Urbana Human
Relations Commission, 104 Ill.App.3d 817, 433
N.E.2d 329, 60 Ill.Dec. 532 (4th Dist. 1982).

The appellate court in People ex rel. Ryan v.
Village of Hanover Park, 311 Ill.App.3d 515, 724
N.E.2d 132, 243 Ill.Dec. 823 (1st Dist. 1999),
struck down the ‚“P-ticket‚ system used by many
suburban communities as an alternative program in
charging violators under the Illinois Vehicle
Code, 625 ILCS 5/1-100, et seq. The court found
that the alternative system that allowed traffic
offenders to pay a settlement fee in lieu of court
adjudication was inconsistent with the Vehicle
Code’s uniform enforcement scheme. Also, a
municipal zoning ordinance that regulated or affected
construction projects concerning the transmission
of electrical service conflicted with the Public
Utilities Act, 220 ILCS 5/1-101, et seq., when the
Illinois Commerce Commission had issued its
certificate to construct the transmission line.
Commonwealth Edison Co. v. City of Warrenville, 288
Ill.App.3d 373, 680 N.E.2d 465, 223 Ill.Dec. 732
(2d Dist. 1997). The City of Warrenville court held
that the Public Utilities Act sets forth a
comprehensive scheme and regulation of public utilities that
is of statewide concern. Further, in Hawthorne,
supra, the village was preempted by implication from
regulating a day care home under its zoning
ordinance due to a comprehensive state system of
regulation and licensing found in the Child Care
Act of 1969, 225 ILCS 10/1, et seq.

Conversely, the City of Chicago’s gun registration
ordinance was not preempted by nor did it
conflict with the state’s registration by
identification cards of gun owners. Brown v. City of Chicago,
42 Ill.2d 501, 250 N.E.2d 129 (1969), cited with
approval in Kalodimos v. Village of Morton Grove,
103 Ill.2d 483, 470 N.E.2d 266, 277, 83 Ill.Dec.
308 (1984). A home rule ordinance of the City of
Chicago requiring firearm registration and
authorizing destruction of a seized firearm when no longer
needed as evidence was not preempted by state
regulation. City of Chicago v. Taylor, 332 Ill.App.3d
583, 774 N.E.2d 22, 266 Ill.Dec. 244 (1st Dist.
2002). The legislature requires all municipalities to
submit to the Department of State Police a copy of
every ordinance adopted by the municipality that
regulates the acquisition, possession, sale, or
transfer of firearms within the municipality. 430 ILCS
65/13.3. The Department compiles the ordinances
and publishes them. Id.

There was no preemption on the part of the state
or conflict between a state statute regulating
trailer camps and an ordinance regulating the same
subject matter. Town of Cicero v. Weilander, 35
Ill.App.2d 456, 183 N.E.2d 40 (1st Dist. 1962).

There was no preemption of municipalities’
ordinances providing for licensing and inspecting of
food delivery vehicles by the state’s meat and
poultry inspection statute. Chicago-Midwest Meat
Ass’n v. City of Evanston, 96 Ill.App.3d 966, 422
N.E.2d 205, 52 Ill.Dec. 524 (1st Dist. 1981).

There was no conflict between a statewide curfew
and a village’s more restrictive curfew
ordinance. Village of Deerfield v. Greenberg, 193
Ill.App.3d 215, 550 N.E.2d 12, 140 Ill.Dec. 530
(2d Dist. 1990).
In Alarm Detection Systems, Inc. v. Village of
Hinsdale, 326 Ill.App.3d 372, 761 N.E.2d 782, 260
Ill.Dec. 599 (2d Dist. 2001), the court held that
there was no preemption of an ordinance requiring
fire alarm systems in commercial buildings to be
connected to the village’s fire board since the state’s
preemption provision in the former Private
Detective, Private Alarm, Private Security, and Locksmith
Act of 1993, 225 ILCS 446/1, et seq., related to
licensing and regulation of alarm businesses, not
requirements on owners of buildings to connect as
part of a building code. Note that P.A. 93-438 (eff.
Aug. 5, 2003) replaced the 1993 Act with the
Private Detective, Private Alarm, Private Security, and
Locksmith Act of 2004, 225 ILCS 447/5-5, et seq.
Further, the 1993 Act preempted a registration
ordinance as it applied to private detectives.
City of Chicago v. Haworth, 303 Ill.App.3d 451, 708
N.E.2d 425, 236 Ill.Dec. 839 (1st Dist. 1999).

A village noise ordinance was in concert with and
did not contradict the Illinois Environmental
Protection Act (IEPA), 415 ILCS 5/1, et seq., and
the regulations promulgated thereunder regulating
noise, so no preemption was found in Village of
Sugar Grove, supra. For more on conflict concerning
environmental matters, see ‚§7.12 below.

The Department of Transportation’s granting of two
access points on a state highway did not
preempt a city’s authority to enact, through its
zoning regulations, further access limitation as long as
the local regulation was more stringent. State
Bank of Waterloo v. City of Waterloo, Illinois, 339
Ill.App.3d 767, 792 N.E.2d 329, 275 Ill.Dec. 98
(5th Dist. 2003).

Finally, no conflict was found in T & S Signs,
Inc. v. Village of Wadsworth, 261 Ill.App.3d 1080,
634 N.E.2d 306, 199 Ill.Dec. 467 (2d Dist. 1994),
in which the court ruled that the village, a nonhome
rule municipality, could enact and enforce more
stringent regulations in the area of outdoor
advertising than those provided by the Highway
Advertising Control Act of 1971, 225 ILCS 440/1, et
seq.

The issue of concurrent or conflicting
jurisdiction may also arise concerning subjects regulated
by federal law. As an example, see Op. Att’y Gen.
(Ill.) No. 94-017, in which the Attorney General
concluded that non-home rule municipalities may
not impose standards other than those set forth by
the National Manufactured Housing Construction and
Safety Standards Act of 1974, 42 U.S.C.
‚§5401, et seq., for manufactured homes produced
after June 15, 1976. Although municipalities may
restrict, but not prohibit, the placement within
their jurisdiction of manufactured homes as an exercise
of their zoning powers, their authority under
state law to enact and enforce reasonable building and
construction standards for manufactured homes is
limited to the extent it is expressly preempted by
federal law. Id. The state recognized the
preemption and enacted the Illinois Manufactured Housing
and Mobile Home Safety Act, 430 ILCS 115/1, et
seq.

Two specific areas in which issues of conflict
have been adjudicated are environmental regulation
and penalties under ordinances. See ‚§‚§7.12 and
7.13 below.

A. {7.12} Environmental Regulation

There are numerous examples of municipalities
being preempted from exercising their police
power in the environmental realm. The Supreme
Court has ruled that non-home rule units are
excluded by the Illinois Environmental Protection
Act from exercising concurrent power with the
state in the area of regulating landfills.
O’Connor v. City of Rockford, 52 Ill.2d 360, 288 N.E.2d 432
(1972); Carlson v. Village of Worth, 62 Ill.2d
406, 343 N.E.2d 493 (1975); County of Cook v. John
Sexton Contractors Co., 75 Ill.2d 494, 389 N.E.2d
553, 27 Ill.Dec. 489 (1979); Concerned Boone
Citizens, Inc. v. M.I.G. Investments, Inc., 144
Ill.App.3d 334, 494 N.E.2d 180, 98 Ill.Dec. 253 (2d
Dist. 1986). This preemption for non-home rule
units includes the use of zoning ordinances to
regulate landfills. Village of Hillside v. John
Sexton Sand & Gravel Corp., 105 Ill.App.3d 533, 434
N.E.2d 382, 61 Ill.Dec. 229 (1st Dist. 1982);
County of Kendall v. Avery Gravel Co., 101 Ill.2d 428,
463 N.E.2d 723, 79 Ill.Dec. 169 (1984).

The above decisions imply that non-home rule units
are excluded from exercising their power
over the environment when the legislature
indicates a need for a unified state or regional program.
See Pesticide Public Policy Foundation v. Village
of Wauconda, 117 Ill.2d 107, 510 N.E.2d 858, 109
Ill.Dec. 790 (1987); 415 ILCS 60/3(4). However,
compare City of Des Plaines v. Chicago & North
Western Ry., 65 Ill.2d 1, 357 N.E.2d 433, 2
Ill.Dec. 266 (1976), with Village of Sugar Grove v. Rich,
347 Ill.App.3d 689, 808 N.E.2d 525, 283 Ill.Dec.
559 (2d Dist. 2004), and Village of Caseyville v.
Cunningham, 137 Ill.App.3d 186, 484 N.E.2d 499, 91
Ill.Dec. 940 (5th Dist. 1985). In both Sugar
Grove and Caseyville, the appellate courts
distinguished City of Des Plaines and found no preemption
by the IEPA concerning local regulation of noise
pollution within the confines of the city since the
municipal regulations were in concert with and did
not contradict state standards.

The court in Village of Carpentersville v.
Pollution Control Board, 135 Ill.2d 463, 553 N.E.2d
362, 364 ‚”œ 365, 142 Ill.Dec. 848 (1990), reviewed
415 ILCS 5/39(c), which had been amended to
provide as follows:

Except for those facilities owned or operated by
sanitary districts . . ., and except for
new regional pollution control facilities . . .,
and except for fossil fuel mining facilities,
the granting of a permit under this Act shall not
relieve the applicant from meeting and
securing all necessary zoning approvals from the
unit of government having zoning
jurisdiction over the proposed facility. {Emphasis
added by Village of Carpentersville
court}.

The court concluded that the plain language of
this amendment clearly indicated that permits
issued by the IEPA no longer preempted local
zoning ordinances. Accord City of Elgin v. County of
Cook, 169 Ill.2d 53, 660 N.E.2d 875, 214 Ill.Dec.
168 (1995), in which the court stated that the
amendment to the IEPA limited the scope of the
court’s prior decision in John Sexton Contractors,
supra, and gave home rule and non-home rule units
concurrent jurisdiction with the IEPA in
approving the siting of pollution control
facilities.

The court in Village of Carpentersville also found
that the legislature’s amendment to the IEPA
did not violate ‚§1 of Article XI of the Illinois
Constitution, which provides:

The public policy of the State and the duty of
each person is to provide and maintain a
healthful environment for the benefit of this and
future generations. The General
Assembly shall provide by law for the
implementation and enforcement of this public
policy. 553 N.E.2d at 366.

The court specifically found that the General
Assembly does not have a constitutional duty to
adopt uniform, statewide standards for
environmental protection but rather has the duty ‚“to provide
by law for the implementation and enforcement of‚
the state’s public policy ‚“to provide and maintain
a healthful environment.‚ Id. Thus, the General
Assembly can enlist local zoning ordinances in its
pollution plan even if they conflict with uniform,
statewide standards.

See also Lily Lake Road Defenders v. County of
McHenry, 156 Ill.2d 1, 619 N.E.2d 137, 188
Ill.Dec. 773 (1993), in which the Illinois Supreme
Court upheld a non-home rule county’s ordinance
requiring a reclamation plan and bond for
restoring land from gravel pit operations when such
restoration was not required under either the IEPA
or the Surface-Mined Land Conservation and
Reclamation Act (Reclamation Act), now codified at
225 ILCS 715/1, et seq. The court first
determined that the county’s powers under the
County Zoning Act of 1935, which has since been
replaced by Division 5-12 of the Counties Code, 55
ILCS 5/5-12001, et seq., had not been repealed
by implication by either the IEPA or the
Reclamation Act and then decided that even if the IEPA or
the Reclamation Act had originally preempted the
power of municipalities to regulate surface mining
facilities, such preemption was lifted by later
amendments to those Acts specifically permitting local
regulation of such operations. The court therefore
held that the county’s ordinance was valid and
enforceable at least from the time the legislature
amended the statutes.

Preemption does not appear to be a defense,
however, to a common law action for nuisance. In
Village of Wilsonville v. SCA Services, Inc., 86
Ill.2d 1, 426 N.E.2d 824, 55 Ill.Dec. 499 (1981), the
Supreme Court permitted a court of equity to
enjoin the operation of a landfill for which permits had
been issued by the IEPA, which had relied on
erroneous information. But see City of Elgin, supra, in
which the court held that felling trees and
drilling monitoring wells preliminary to the development
and construction of a bale fill could not be
enjoined as a nuisance even though the U.S. Army Corps
of Engineers had twice refused to issue a permit
required under the federal Clean Water Act, 33
U.S.C. ‚§1251, et seq., and as a condition of the
IEPA’s permit for development of the bale fill. That
part of the case, however, involved municipalities
and private citizens from Kane County seeking to
enjoin construction of a bale fill in Cook County
that previously had been approved by both the Cook
County Board and the IEPA. Thus, the underlying
issue was whether third-party municipalities could
challenge siting decisions concerning territory
outside their jurisdictions.

B. {7.13} Penalties for Ordinance Violation

Similar conduct on the part of a defendant may be
punishable by both a state law and a city
ordinance. Village of Winnetka v. Sinnett, 272
Ill.App. 143 (1st Dist. 1933). Double jeopardy issues
arise, however, when a defendant is tried under
both based on the same facts. People v. Stefan, 146
Ill.2d 324, 586 N.E.2d 1239, 166 Ill.Dec. 910
(1992). Generally, a lesser penalty provided by a local
ordinance does not create an inconsistency or
conflict when a statute provides a greater penalty
(Village of Mount Prospect v. Malouf, 103
Ill.App.2d 88, 243 N.E.2d 434 (1st Dist. 1968)), unless, as
in Village of Mundelein v. Hartnett, 117
Ill.App.3d 1011, 454 N.E.2d 29, 73 Ill.Dec. 285 (2d Dist.
1983), a village ordinance is held invalid for
failing to comply with the mandatory sentencing
provision of a state statute. See also Village of
Park Forest v. Thomason, 145 Ill.App.3d 327, 495
N.E.2d 1036, 99 Ill.Dec. 301 (1st Dist. 1986); Op.
Att’y Gen. (Ill.) No. 85-002. If no infringement on
the spirit of the state law exists or if the local
ordinance is not repugnant to the policy of the state, a
higher fine than is provided by the state may also
be imposed. City of De Kalb v. White, 227
Ill.App.3d 328, 591 N.E.2d 522, 169 Ill.Dec. 349
(2d Dist. 1992).

V. {7.14} TERRITORY ENCOMPASSED BY POWER

A municipality’s police power extends throughout
its corporate limits or boundaries. A
municipality does not have any extraterritorial
jurisdiction unless expressly granted by the General
Assembly. City of Rockford v. Hey, 366 Ill. 526, 9
N.E.2d 317 (1937); Harris Bank of Roselle v.
Village of Mettawa, 243 Ill.App.3d 103, 611 N.E.2d
550, 183 Ill.Dec. 287 (2d Dist. 1993); Village of
Sauget v. Cohn, 241 Ill.App.3d 640, 610 N.E.2d
104, 182 Ill.Dec. 680 (5th Dist. 1993); Village of
Lisle v. Action Outdoor Advertising Co., 188
Ill.App.3d 751, 544 N.E.2d 836, 136 Ill.Dec. 150 (2d
Dist. 1989); Village of Round Lake Park v. Anest,
4 Ill.App.3d 307, 280 N.E.2d 502 (2d Dist. 1972)
(abst.). Some grants of extraterritorial power
with their geographical limitations are found in the
following sections of the Illinois Municipal Code:

a. health and quarantine ordinances, one-half mile
beyond the corporate limits (Code ‚§7-4-1);

b. all property owned by a municipality that lies
outside the municipality’s limits and does not
lie within the corporate limits of another
municipality (Code ‚§7-4-2);

c. all waters bordering on the municipality, three
miles beyond the corporate limits but not
beyond the limits of the state (Code ‚§7-4-4);

d. police power in two or more adjoining
municipalities (referred to in the statute as a ‚“police
district‚) (Code ‚§‚§7-4-7, 7-4-8);

e. suppression of bawdy or disorderly houses or
houses of prostitution, three miles beyond the
corporate limits (Code ‚§11-5-1);

f. provide firefighting and emergency medical
services outside corporate limits and collect
service fees (Code ‚§11-6-1.1, 11-5-7.2);

g. subdivision and planning jurisdiction when an
official plan is adopted, one and one-half
miles beyond the corporate limits but not within
another city (Code ‚§‚§11-12-4 through 11-
12-12; see also Code ‚§11-13-1, granting
extraterritorial zoning jurisdiction one and one-half
miles beyond the corporate limits but not within
another city and not over land covered by
another municipality’s extraterritorial zoning
ordinance or by a county zoning ordinance);

h. annexation agreements and land capable of being
annexed concerning territory outside
corporate limits (Code ‚§11-15.1-1);

i. acquiring property outside corporate limits for
disposing of garbage, refuse, and ashes (Code
‚§11-19-10); and

j. water pollution (if it affects waterworks), 20
miles beyond the corporate limits and even
within another municipality (Code ‚§‚§11-125-1,
11-125-3, 11-129-1; in City of Springfield,
Illinois v. Hashman, 332 Ill.App.3d 748, 774
N.E.2d 427, 266 Ill.Dec. 321 (4th Dist. 2002),
the appellate court found that the city had the
authority pursuant to Code ‚§11-125-2
(providing for jurisdiction 20 miles beyond
corporate limits) to regulate property outside its
corporate limits to prevent septic systems that
potentially could pollute the city’s water
supply)
In Village of Goodfield v. Jamison, 188 Ill.App.3d
851, 544 N.E.2d 1229, 136 Ill.Dec. 454 (4th
Dist. 1989), the court held, without discussing
any previous cases concerning deriving power from
different statutory sections, that municipalities’
authority to declare a nuisance pursuant to Code ‚§11-
60-2 ends at the corporate limits. The court did
not examine Code ‚§11-42-9, authorizing
municipalities to prohibit offensive or
unwholesome businesses ‚“within the distance of one mile
beyond the municipal limits.‚ 544 N.E.2d at 1233.
Compare Higgins v. City of Galesburg, 401 Ill.
87, 81 N.E.2d 520 (1948).

In People v. Vargas, 277 Ill.App.3d 289, 660
N.E.2d 82, 213 Ill.Dec. 825 (1st Dist. 1995), the
court held that the Schaumburg police had the
authority to arrest the defendant in Hoffman Estates
under Code ‚§11-1-2.1 (granting power to enter into
intergovernmental agreements to furnish police
assistance upon request) but not under Code ‚§7-4-8
(extending police power to adjacent
municipalities) since the officers were not
responding to an emergency situation. Code ‚§7-4-8 was
subsequently amended and later reenacted to give
police ‚“full authority and power as peace officers
{to} go into any part of the district to exercise
that authority and power.‚

VI. {7.15} DELEGATING OR RELINQUISHING POLICE
POWER

A city cannot enter into agreements by which it
contracts away its police power. Village of Lake
Bluff v. Dalitsch, 415 Ill. 476, 114 N.E.2d 654
(1953). The legislative power is in the corporate
authorities (city council or board of trustees)
and is not to be delegated. Dean Milk Co. v. City of
Aurora, 404 Ill. 331, 88 N.E.2d 827 (1949);
Drovers Trust & Savings Bank v. City of Chicago, 18
Ill.2d 476, 165 N.E.2d 314 (1960); Lakin v. City
of Peoria, 129 Ill.App.3d 651, 472 N.E.2d 1233, 84
Ill.Dec. 837 (3d Dist. 1984).

A police ordinance may delegate to other
authorities those duties that are too cumbersome
(although not impossible) for the corporate
authorities to perform. City of Chicago v. Marriotto, 332
Ill. 44, 163 N.E. 369 (1928).

In drafting an ordinance delegating power, it is
necessary to define the power delegated and to
establish standards for the exercise of any
delegated power. See City of Chicago v. Pennsylvania
R.R., 41 Ill.2d 245, 242 N.E.2d 152 (1968);
International Union of Operating Engineers, Local 150
v. Village of Orland Park, 139 F.Supp.2d 950
(N.D.Ill. 2001). An ordinance that allows another to
define what is to be done when the definition is
not commonly known is an unlawful delegation.
Village of Itasca v. Luehring, 4 Ill.2d 426, 123
N.E.2d 312 (1954). The failure to impose standards
under which discretion could be exercised is also
an unlawful delegation. City of Kankakee v. New
York Central R.R., 387 Ill. 109, 55 N.E.2d 87
(1944); Waterfront Estate Development, Inc. v. City of
Palos Hills, 232 Ill.App.3d 367, 597 N.E.2d 641,
173 Ill.Dec. 667 (1st Dist. 1992); Village of
Arlington Heights v. Schroeder, 28 Ill.App.3d 1,
328 N.E.2d 74 (1st Dist. 1975).

When the terms of the ordinance are so broad that
they give enforcement officials no direction as
to when a violation occurs, the delegation of
power may violate due process as well. City of Aurora v.
Navar, 210 Ill.App.3d 126, 568 N.E.2d 978, 982,
154 Ill.Dec. 757 (2d Dist. 1991) (noise ordinance
prohibiting any ‚“audible‚ commercial activity
after 9:00 p.m. held unconstitutionally broad).
Compare Kromeich v. City of Chicago, 258
Ill.App.3d 606, 630 N.E.2d 913, 196 Ill.Dec. 748 (1st
Dist.) (no unlawful delegation when superintendent
of police given power to determine whether
seized unregistered firearms would be needed as
evidence or should be destroyed), appeal denied,
156 Ill.2d 558 (1994).

It is not necessary, however, to set forth every
minute detail when delegating power. In Brown v.
City of Chicago, 42 Ill.2d 501, 250 N.E.2d 129,
132 (1969), the Illinois Supreme Court said:

Absolute criteria whereby every detail necessary
in the enforcement of a law is
anticipated need not be set forth in the ordinance
itself. While a legislative body cannot
delegate its general power to determine what the
law shall be, it may delegate to others
the authority to do those things which it might
properly do itself but cannot do as
understandingly or advantageously. (Hill v.
Relyea, 34 Ill.2d 552{, 216 N.E.2d 795
(1966)}.)

Quoting this statement from Brown, the Supreme
Court approved the delegation to the City
Comptroller of the City of Chicago of the limited
discretion to pay up to a five-percent commission to
agents for the purpose of affixing city cigarette
stamps. S. Bloom, Inc. v. Korshak, 52 Ill.2d 56, 284
N.E.2d 257, 265 (1972). Likewise, when ample
detail was provided in an ordinance regulating adult
uses and discretion was limited to specific
criteria, delegation of licensing authority to the decision
maker was authorized. XLP Corp. v. County of Lake,
359 Ill.App.3d 239, 832 N.E.2d 480, 295
Ill.Dec. 329 (2d Dist. 2005).

If reasonable doubt exists as to the discretion
that a city official exercises, the courts will hesitate
to interfere as long as the discretion is
exercised within limits relevant to the purpose of the ordinance
and as long as it is exercised within well-defined
limits. City of Chicago v. Town Underground
Theatre, Inc., 9 Ill.App.3d 930, 293 N.E.2d 367
(1st Dist. 1973), citing MacGregor v. Miller, 324 Ill.
113, 154 N.E. 707 (1926); Brown, supra; and R.G.
Lydy, Inc. v. City of Chicago, 356 Ill. 230, 190
N.E. 273 (1934).

VII. {7.16} NUISANCES

The corporate authorities of each municipality are
granted by statute the power to ‚“define,
prevent, and abate nuisances.‚ Illinois Municipal
Code ‚§11-60-2.

Generally, according to common law, a nuisance is
that which unlawfully annoys or does damage
to another. City of Chicago v. Reuter Brothers
Iron Works, 398 Ill. 202, 75 N.E.2d 355 (1947). In
City of Chicago v. Beretta U.S.A. Corp., 213
Ill.2d 351, 821 N.E.2d 1099, 1111, 290 Ill.Dec. 525
(2004), the court said that the concept of public
nuisance eludes precise definition but acknowledged
that Illinois Courts have adopted the definition
of ‚“public nuisance‚ in RESTATEMENT (SECOND)
OF TORTS ‚§821B (1979): ‚“A public nuisance is an
unreasonable interference with a right common
to the general public.‚

The power of a municipality under Code ‚§11-60-2 is
broad although not unrestricted. Village of
Riverwoods v. Untermyer, 54 Ill.App.3d 816, 369
N.E.2d 1385, 12 Ill.Dec. 371 (2d Dist. 1977);
Village of Caseyville v. Cunningham, 137
Ill.App.3d 186, 484 N.E.2d 499, 91 Ill.Dec. 940 (5th Dist.
1985). Municipalities may prevent and abate
nuisances under both the statute and common law. City
of Chicago v. Festival Theatre Corp., 91 Ill.2d
295, 438 N.E.2d 159, 63 Ill.Dec. 421 (1982); Gilmore
v. Stanmar, Inc., 261 Ill.App.3d 651, 633 N.E.2d
985, 199 Ill.Dec. 189 (1st Dist. 1994); Turpen v.
City of St. Francisville, 145 Ill.App.3d 891, 495
N.E.2d 1351, 99 Ill.Dec. 616 (5th Dist. 1986).
Historically, the Illinois Supreme Court has set
forth three classifications in determining the power of
a municipality to conclusively determine what is a
nuisance:

a. those that in their nature are nuisances per se
or are so denounced by the common law or by
statute (a municipality may conclusively denounce
these as nuisances);

b. those that in their nature are not nuisances
but may become so by reason of their locality,
their surroundings, or the manner in which they
may be conducted, managed, etc. (a
municipality may declare such of them to be
nuisances as are in fact so); and

c. those that in their nature may be nuisances but
as to which there maybe honest differences of
opinion in impartial minds (a municipality may
conclusively denounce these as nuisances).
Laugel v. City of Bushnell, 197 Ill. 20, 63 N.E.
1086, 1088 (1902).

Included in the first classification of per se
nuisances are those that are denounced by the
common law and by statute. Examples of some
Illinois common law nuisances are

a. keeping of diseased animals (Durand v. Dyson,
271 Ill. 382, 111 N.E. 143 (1915));

b. houses of prostitution (People ex rel. Dyer v.
Clark, 268 Ill. 156, 108 N.E. 994 (1915));

c. indecent exhibition (City of Chicago v.
Shaynin, 258 Ill. 69, 101 N.E. 224 (1913); Festival
Theatre Corp., supra);

d. masturbatory massage parlors (City of Chicago
v. Geraci, 30 Ill.App.3d 699, 332 N.E.2d 487
(1st Dist. 1975); Village of Bensenville v. Botu,
Inc., 39 Ill.App.3d 634, 350 N.E.2d 239 (2d
Dist. 1976)); and

e. obstruction or encroachment of highways
(Gilmore, supra).

Statutory nuisances may be found at

a. 740 ILCS 105/1 and 40/2, which provide that
real estate and the contents thereof used for
lewdness, assignation, or prostitution and for the
use or sale of controlled substances and
cannabis as further defined by statute are
nuisances;

b. 720 ILCS 5/47-10 and 5/47-15, which make it
unlawful to dump or place garbage on private
or public property under certain conditions; and

c. 720 ILCS 5/47-5, which provides:

It is a public nuisance:

(1) To cause or allow the carcass of an animal or
offal, filth, or a noisome
substance to be collected, deposited, or to remain
in any place to the prejudice
of others.

(2) To throw or deposit offal or other offensive
matter or the carcass of a
dead animal in a water course, lake, pond, spring,
well, or common sewer,
street, or public highway.

(3) To corrupt or render unwholesome or impure the
water of a spring,
river, stream, pond, or lake to the injury or
prejudice of others.

(4) To obstruct or impede, without legal
authority, the passage of a
navigable river or waters.

(5) To obstruct or encroach upon public highways,
private ways, streets,
alleys, commons, landing places, and ways to
burying places.

(6) To carry on the business of manufacturing
gunpowder, nitroglycerine,
or other highly explosive substances, or mixing or
grinding the materials for
those substances, in a building within 20 rods of
a valuable building erected at
the time the business is commenced.

(7) To establish powder magazines near
incorporated towns, at a point
different from that appointed according to law by
the corporate authorities of
the town, or within 50 rods of an occupied
dwelling house.

(8) To erect, continue, or use a building or other
place for the exercise of a
trade, employment, or manufacture that, by
occasioning noxious exhalations,
offensive smells, or otherwise, is offensive or
dangerous to the health of
individuals or of the public.

(9) To advertise wares or occupation by painting
notices of the wares or
occupation on or affixing them to fences or other
private property, or on rocks
or other natural objects, without the consent of
the owner, or if in the highway
or other public place, without permission of the
proper authorities.

(10) To permit a well drilled for oil, gas, salt
water disposal, or any other
purpose in connection with the production of oil
and gas to remain unplugged
after the well is no longer used for the purpose
for which it was drilled.

(11) To construct or operate a salt water pit or
oil field refuse pit,
commonly called a ‚“burn out pit‚, so that salt
water, brine, or oil field refuse or
other waste liquids may escape from the pit in a
manner except by the
evaporation of the salt water or brine or by the
burning of the oil field waste or
refuse.

(12) To permit concrete bases, discarded
machinery, and materials to
remain around an oil or gas well, or to fail to
fill holes, cellars, slush pits, and
other excavations made in connection with the well
or to restore the surface of
the lands surrounding the well to its condition
before the drilling of the well,
upon abandonment of the oil or gas well.

(13) To permit salt water, oil, gas, or other
wastes from a well drilled for
oil, gas, or exploratory purposes to escape to the
surface, or into a mine or coal
seam, or into an underground fresh water supply,
or from one underground
stratum to another.

(14) To harass, intimidate, or threaten a person
who is about to sell or lease
or has sold or leased a residence or other real
property or is about to buy or
lease or has bought or leased a residence or other
real property, when the
harassment, intimidation, or threat relates to a
person’s attempt to sell, buy, or
lease a residence, or other real property, or
refers to a person’s sale, purchase,
or lease of a residence or other real property.

(15) To store, dump, or permit the accumulation of
debris, refuse, garbage,
trash, tires, buckets, cans, wheelbarrows, garbage
cans, or other containers in a
manner that may harbor mosquitoes, flies, insects,
rodents, nuisance birds, or
other animal pests that are offensive, injurious,
or dangerous to the health of
individuals or the public.

(16) To create a condition, through the improper
maintenance of a
swimming pool or wading pool, or by causing an
action that alters the condition
of a natural body of water, so that it harbors
mosquitoes, flies, or other animal
pests that are offensive, injurious, or dangerous
to the health of individuals or
the public.

(17) To operate a tanning facility without a valid
permit under the Tanning
Facility Permit Act.

Nothing in this Section shall be construed to
prevent the corporate
authorities of a city, village, or incorporated
town, or the county board of a
county, from declaring what are nuisances and
abating them within their
limits. Counties have that authority only outside
the corporate limits of a city,
village, or incorporated town.

For other statutory nuisances, see the ILCS index.

An example of the second classification is a
building. In Sings v. City of Joliet, 237 Ill. 300, 86
N.E. 663 (1908), the Supreme Court found that
although a building is not in its nature a nuisance, it
may become so by reason of its locality, its
surroundings, or the manner in which it is managed or
used. The determination that something is a
nuisance in this classification is not conclusive but open
to review as to whether it is a nuisance. People
ex rel. Younger v. City of Chicago, 280 Ill. 576, 117
N.E. 779 (1917); City of Bushnell v. Chicago,
Burlington & Quincy R.R., 259 Ill. 391, 102 N.E. 785
(1913); Turpen, supra; City of Streator v.
Davenport Packing Co., 347 Ill.App. 492, 107 N.E.2d 270
(2d Dist. 1952).

Finally, examples of those falling into the third
classification are the use of billiards and pool
tables (Village of Atwood v. Otter, 296 Ill. 70,
129 N.E. 573 (1920)), slaughterhouses (Harmison v.
City of Lewistown, 153 Ill. 313, 38 N.E. 628
(1894)), noise (Dube v. City of Chicago, 7 Ill.2d 313,
131 N.E.2d 9 (1955), cert. denied, 76 S.Ct. 658
(1956)), and septic tanks and fields (Untermyer,
supra). An example of how the court deals with
this classification is found in Otter, supra. The court,
although not satisfied that pool tables were
necessarily a nuisance, determined that they could be a
nuisance depending on circumstances and that the
decision was for the municipal authorities, whose
decision would be binding on the court. See also
Village of Glenview v. Ramaker, 282 Ill.App.3d
368, 668 N.E.2d 106, 109, 217 Ill.Dec. 921 (1st
Dist. 1996) (holding that ordinance against keeping
swine could be applied to keeping pet Vietnamese
pig), in which the court likewise deferred to the
judgment of local authorities: ‚“{R}esolution of
such honest differences of taste and opinion ‚” of
what we hold amiable and what we find annoying ‚”
is best left to the threshing floor of the local
elected body.‚

Ordinances need not necessarily define the
physical condition that shall constitute a nuisance.
City of Chicago v. Atwood, 269 Ill. 624, 110 N.E.
127 (1915). However, in City of Aurora v. Navar,
210 Ill.App.3d 126, 568 N.E.2d 978, 982, 154
Ill.Dec. 757 (2d Dist. 1991), the term ‚“audible‚ as
used in a noise ordinance was so vague as to
violate due process.

The legal remedies that are available to abate
nuisances are the imposition of a monetary penalty
(Otter, supra), enjoining the continuation of a
nuisance in extreme cases in which redress therefor
cannot be obtained in a court of law (City of
Kankakee v. New York Central R.R., 387 Ill. 109, 55
N.E.2d 87 (1944); City of Highland v. Auer, 235
Ill.App. 327 (4th Dist. 1925)), and, in certain cases,
the seizure and confiscation of property on legal
process after notice and hearing. Sings, supra; King
v. Davenport, 98 Ill. 305 (1881). But see the
emergency cases cited below in this section.

Although the power has been denied a city to
recover the cost of abating a nuisance from the
owner of the property (Village of Forrest v.
Norfolk & Western Ry., 146 Ill.App.3d 20, 496 N.E.2d
257, 99 Ill.Dec. 682 (4th Dist. 1986); Village of
Palmyra v. Warren, 114 Ill.App. 562 (3d Dist.
1904)), certain statutory provisions provide for
recovery of the cost together with a lien on the
property on which the nuisance is found to secure
the payment of abatement. Code ‚§‚§11-20-13
(removal of garbage, debris, and graffiti),
11-31-1 (demolition, repair, enclosure, or removal of
unsafe buildings), 11-20-7 (cutting of weeds).

In a case of emergency, a city may declare a
specific thing or piece of property a nuisance and
provide for its summary abatement provided the
conditions are such that the method ordained is the
only one that could in reason be used and would be
effective. Sings, supra; Turpen supra; Pierce v.
Village of Divernon, Illinois, 17 F.3d 1074 (7th
Cir. 1994). In Pierce, the court dismissed a federal
due process challenge to an ex parte court order
for the demolition of a building that was severely
damaged by water and fire and posed a danger to
neighborhood children. This emergency action met
due process standards only under these
circumstances in which, prior to obtaining the ex parte order,
the village had passed an ordinance declaring the
house a nuisance, had given notice as required
under Code ‚§11-31-1(a) that the owners had to
either repair or demolish the building, gave further
notice almost a month later to the owners’
attorney of the village’s intent to demolish if the owners
failed to act, and received no request from the
owners for additional time or for reconsideration in
response to any of those notices. See also
McCullough v. City of Chicago, 971 F.Supp. 1247 (1997);
McKenzie v. City of Chicago, 118 F.3d 552 (7th
Cir. 1997); McKenzie v. City of Chicago, 973
F.Supp. 815 (N.D.Ill. 1997) (cases concerning
Chicago’s ‚“fast track‚ program to demolish or repair
one or two-story dangerous buildings under Code
‚§11-31-1(e)).

In Sings, supra, the owner of the property (a
building believed to be impregnated with smallpox
germs) argued that the city could not summarily
destroy his building without a hearing. The court
held that the building could be summarily
destroyed if, in fact, a delay would cause serious injury to
the public health and other public interests. The
court used the example of summarily pulling down
buildings to prevent the spread of conflagration
or the impending fall of the buildings themselves. In
Turpen, supra, the court recognized the right of
the municipality to take appropriate emergency
measures when a dilapidated building possesses an
immediate danger.

It must be remembered that a city would be liable
for damages if the thing summarily destroyed
was not a nuisance or if the nuisance (if one
existed) could have been obviated by reasonable
measures less drastic than the absolute
destruction of the property. Code ‚§1-4-7 provides liability for
wrongful destruction of unsafe buildings. See
Turpen, supra.

VIII. {7.17} POLICE POWER AS IT RELATES TO PERMITS
AND LICENSES

The power to regulate granted to a municipality
carries with it the power to require permits or
licenses. Father Basil’s Lodge, Inc. v. City of
Chicago, 393 Ill. 246, 65 N.E.2d 805, 812 (1946); City
of Chicago v. Wonder Heating & Ventilating
Systems, Inc., 345 Ill. 496, 178 N.E. 192 (1931). The
power also includes authority to exact a fee for
the purpose of defraying all or a part of the cost of
regulation and inspection. Larson v. City of
Rockford, 371 Ill. 441, 21 N.E.2d 396 (1939).

IX. {7.18} METHOD OF EXERCISING POLICE POWER

The corporate authorities (boards of trustees in
villages and city councils in cities) are the proper
parties to enact police regulations. See also
Illinois Municipal Code ‚§1-2-1. Although the corporate
authorities may act by ordinance, resolution, or
motion, it appears that when a city prescribes a
general rule of permanence as a law, it should be
done with the formalities and requisites of an
ordinance. City of Tuscola v. D & B Refuse
Service, Inc., 131 Ill.App.3d 168, 475 N.E.2d 633, 86
Ill.Dec. 419 (4th Dist. 1985); Nazworthy v. City
of Sullivan, 55 Ill.App. 48 (3d Dist. 1893). If a
statute requires that the municipality act by
ordinance, a resolution or motion is not sufficient. Village
of Gulfport, Henderson County, Illinois v.
Buettner, 114 Ill.App.2d 1, 251 N.E.2d 905 (1969).

X. {7.19} CONSTITUTIONAL LIMITATION OF EXERCISING
POLICE POWER

As with statutes, all ordinances enacted by
municipalities must not infringe on the numerous
limitations imposed in the federal or state
Constitutions. City of Blue Island v. Kozul, 379 Ill. 511, 41
N.E.2d 515 (1942).

If the regulation is within the power granted and
if it has a reasonable relation to the subjects that
the legislature has delegated to the municipality,
the ordinance should not be held invalid unless it
violates the federal or state Constitutions.

XI. {7.20} REASONABLENESS OF ORDINANCES

In determining the validity of a police ordinance,
the process should be (a) to examine whether
the power to enact it existed, (b) to determine
whether it infringes on a constitutional (federal or state)
limitation, and (c) to determine whether the
ordinance is reasonable.

A. {7.21} Reasonableness Required When Grant of
Power To Regulate Is in General Terms

An ordinance must satisfy the same requirements of
reasonableness applicable to statutes enacted
by the General Assembly. Village of Lake Villa v.
Stokovich, 211 Ill.2d 106, 810 N.E.2d 13, 284
Ill.Dec. 360 (2004); Chicago National League Ball
Club, Inc. v. Thompson, 108 Ill.2d 357, 483
N.E.2d 1245, 91 Ill.Dec. 610 (1985); City of
Carbondale v. Brewster, 78 Ill.2d 111, 398 N.E.2d 829,
831, 34 Ill.Dec. 838 (1979). Illinois courts have
long required that when legislative power is
delegated to municipal corporations, that power
must be reasonably exercised. First National Bank &
Trust Co. v. City of Evanston, 30 Ill.2d 479, 197
N.E.2d 705 (1964); Catholic Bishop of Chicago v.
Village of Palos Park, 286 Ill. 400, 121 N.E. 561,
562 (1918). When the legislature has granted
power to a municipality to enact ordinances on any
subject with discretion left to the municipality as
to their provisions, the ordinances must be
reasonable. Dean Milk Co. v. City of Chicago, 385 Ill.
565, 53 N.E.2d 612 (1944).

B. {7.22} Tests of Reasonableness

Although there are no precise tests of
reasonableness of ordinances, the following are some tests
applied by the courts:

1. The discretion of the corporate authorities to
create legislative classifications includes
authority to set permissible boundaries. The
creation of classifications is for the judgment of the
legislature, and its amending or modifying is not
for the courts. Classifications are not required to be
precise, accurate, or harmonious as long as they
accomplish the legislative purpose. Chicago
National League Ball Club, Inc. v. Thompson, 108
Ill.2d 357, 483 N.E.2d 1245, 91 Ill.Dec. 610
(1985).

2. The validity of an ordinance depends on the
surrounding circumstances and its purpose and
operation. People ex rel. Russell v. Andrews, 339
Ill. 157, 171 N.E. 137 (1930).

3. Reasonableness is what is fairly appropriate in
view of the conditions and not necessarily
what is best. People ex rel. Johns v. Thompson,
341 Ill. 166, 173 N.E. 137 (1930).
4. An ordinance is not reasonable if the same
result might be accomplished by the enactment of
a different type of ordinance or by a less
burdensome ordinance. Jones v. City of Chicago, 348
Ill.App. 310, 108 N.E.2d 802 (1st Dist. 1952).

5. Courts must regard the condition prevailing in
the city or town bearing directly on the subject
matter, the object sought to be attained, and the
need, priority, or desirability of the legislation. City
of Chicago v. Rhine, 363 Ill. 619, 2 N.E.2d 905
(1936).

6. The ordinance must have a reasonable
relationship to the public health, morals, safety, or
general welfare. Village of Algonquin v. Tiedel,
345 Ill.App.3d 229, 802 N.E.2d 418, 280 Ill.Dec. 493
(2d Dist. 2003); Village of Western Springs v.
Bernhagen, 326 Ill. 100, 156 N.E. 753 (1927).

7. The courts will further determine whether the
means employed by the ordinance to
accomplish the exercise of a power are reasonable.
City of Carbondale v. Brewster, 78 Ill.2d 111, 398
N.E.2d 829, 34 Ill.Dec. 838 (1979); Dunlap v. City
of Woodstock, 405 Ill. 410, 91 N.E.2d 434 (1950).

8. An ordinance must bear a reasonable
relationship to the public interest sought to be
protected, and the means adopted must be a
reasonable method of accomplishing the chosen
objective. Opyt’s Amoco, Inc. v. Village of South
Holland, 149 Ill.2d 265, 595 N.E.2d 1060, 172
Ill.Dec. 390 (1992).

9. An ordinance is not reasonable if it prohibits
activities or businesses that would have no
effect on the relevant object of the police power.
Lou Owen, Inc. v. Village of Schaumburg, 279
Ill.App.3d 976, 665 N.E.2d 456, 216 Ill.Dec. 396
(1st Dist. 1996).

These tests of reasonableness, as well as other
tests and illustrations of reasonableness, may be
found in 5 Eugene McQuillin, THE LAW OF MUNICIPAL
CORPORATIONS, Ch. 18 (3d ed. rev.
2004).

The wisdom of a political ordinance is not of
concern to the courts. Chicago Cosmetic Co. v. City
of Chicago, 374 Ill. 384, 29 N.E.2d 495 (1940).
The courts will presume an ordinance is valid and
place the burden on the person attacking an
ordinance if the regulation is within the grant of power.
Keig Stevens Baking Co. v. City of Savanna, 380
Ill. 303, 44 N.E.2d 23 (1942). Compare City of
Evanston v. City of Chicago, 279 Ill.App.3d 255,
664 N.E.2d 291, 215 Ill.Dec. 894 (1st Dist. 1996),
in which the City of Evanston successfully
attacked the City of Chicago’s resolution to erect a traffic
barrier on the boundary street between the two
cities by demonstrating that it was unreasonable and
would not promote the safety and welfare of the
public, with Village of Algonquin v. Village of
Barrington Hills, 254 Ill.App.3d 324, 626 N.E.2d
329, 193 Ill.Dec. 296 (2d Dist. 1993), appeal
denied, 155 Ill.2d 561 (1994), in which the court
held that Algonquin failed to sustain its burden of
showing that Barrington Hills’ resolution closing
a street at their border was unreasonable and
unrelated to public safety and welfare.

XII. {7.23} DISCRIMINATION

Ordinances that regulate must not unlawfully
discriminate; they must be uniform, general, fair,
and impartial in their operation. Thus, although
there may be reasonable discrimination, there can be
no discrimination against those of the same class.
One of the more instructive cases in the area of
discrimination in ordinances is Father Basil’s
Lodge, Inc. v. City of Chicago, 393 Ill. 246, 65 N.E.2d
805, 813 (1946), in which the court synthesized
the then-existing law:

{A}n ordinance is not void because it
discriminates against an individual or group, or
because it affects one class and not another.
(Hansen v. Raleigh, 391 Ill. 536{, 63 N.E.2d
851 (1945)}.). Every legislative act is
discriminatory in the sense that it is inclusive as to
some class or group or as to some human
relationships, transactions or functions, and
exclusive as to the remainder. A classification
contained in a statute or ordinance is
never unreasonable or arbitrary when there is some
basis for the differentiation
between the classes or subject matters included as
compared to those excluded from its
operation, provided such differentiation bears a
reasonable relation to the purposes to
be accomplished by the act. It is only where some
persons or transactions excluded
from the operation of the law are, as to the
subject matter thereof, in no differentiable
class from those included in its operation or
where there is no fair reason for the law
which would not require with equal force its
extension to others whom it leaves
untouched, that a law can be declared
discriminatory in the sense of being arbitrary
and unconstitutional. (Hansen v. Raleigh, 391 Ill.
536.) A legislative classification may
rest on narrow distinctions. (German Alliance Ins.
Co. v. Lewis, 233 U.S. 389{, 58 L.Ed.
1011, 34 S.Ct. 612 (1914)}.) It is not required to
be scientific, logical or consistent.
(Hansen v. Raleigh, 391 Ill. 536.) But the
distinction must always have a reasonable
basis when considered with reference to the
purposes of the legislation. (Marallis v. City
of Chicago, 349 Ill. 422{, 182 N.E. 394 (1932)}.)
The differences upon which
classification may be exercised depend necessarily
upon the object in view; and what
would serve for a classification for some purposes
may furnish no reason whatever for
a classification for other purposes. (12 Am.Jur.
157, sec. 482.) A city, under its police
power to provide for the protection of the health,
lives and safety of its inhabitants, may
enact legislation affecting only one particular
class of inhabitants, and such
classification is not discriminatory if there is
some fair reason for the application of the
law to the class affected which does not also
require with equal force its application to
others whom it leaves untouched.

The court went on to sustain an ordinance
affecting only a particular class of inhabitants as it
complied with the rules set forth above.

Ordinances must operate equally on all persons of
the same class. Chicago Title & Trust Co. v.
Village of Lombard, 19 Ill.2d 98, 166 N.E.2d 41
(1960). In Chicago Title, the court struck down an
ordinance requiring filling stations to be at
least 650 feet apart while requiring an intervening
distance of only 150 feet between filling stations
and a hospital, church, or school. In McHenry State
Bank v. City of McHenry, 113 Ill.App.3d 82, 446
N.E.2d 521, 68 Ill.Dec. 615 (2d Dist. 1983), the
court found no real difference between condominium
owners and apartment owners when the
condominium owners were discriminated against
because under the ordinance they could build only
in condominium-zoned areas and could not convert
existing apartment buildings not in those zones.
The court could find no basis for the distinction
since the use of the property would remain the same.

XIII. {7.24} USE OF POLICE POWER TO SOLVE
CONTEMPORARY
PROBLEMS

Although ‚§‚§7.2 ‚”œ 7.23 above are primarily
concerned with offering the reader general principles
of law relative to municipal police power, ‚§‚§7.25
‚”œ 7.31 below demonstrate some practical methods
municipalities have used (or may consider) in
dealing with contemporary problems, namely massage
parlors, tattoo parlors, use of searches to gather
evidence and determine compliance with regulations,
parental responsibility for juvenile vandalism,
video arcades, and juvenile street gangs. Also, more
traditional disorderly conduct provisions are
examined.

A. {7.25} Massage Parlors

The Massage Licensing Act, 225 ILCS 57/1, et seq.,
which became effective June 1, 2003,
requires persons engaged in massage for
compensation to be licensed by the Illinois Department of
Financial and Professional Regulation. 225 ILCS
57/15. The Act preempts local authorities,
including home rule units, from regulating or
licensing massage therapists effective January 1, 2005.
225 ILCS 57/55.

Prior to the passage of the Act, however, various
municipalities’ methods of dealing with
massage parlors had been litigated.

In City of Chicago v. Cecola, 75 Ill.2d 423, 389
N.E.2d 526, 27 Ill.Dec. 462 (1979), the City of
Chicago successfully enjoined the operation of a
‚“spa‚ in which nude women committed acts of
masturbation on customers of the spa. The court
found that a masturbatory massage parlor was a
house of prostitution not necessarily under the
criminal law but the common law, and since houses of
prostitution were common law nuisances, they could
be enjoined as such. See also City of Chicago v.
Geraci, 30 Ill.App.3d 699, 332 N.E.2d 487 (1st
Dist. 1975); Village of Bensenville v. Botu, Inc., 39
Ill.App.3d 634, 350 N.E.2d 239 (2d Dist. 1976).

In Wes Ward Enterprises, Ltd. v. Andrews, 42
Ill.App.3d 458, 355 N.E.2d 131 (3d Dist. 1976),
the City of Peoria successfully regulated massage
parlors by licensing them under its police power.
The court in Wes Ward approved the following
provisions of the Peoria ordinance: an annual fee of
$100 plus $25 per masseur; a prohibition of nudity
in the presence of an employee; and a prohibition
of touching or massaging a sexual or genital area
of any other person.

The Illinois appellate court held that an
ordinance that prohibited persons of one sex from giving
a massage to persons of the other sex violated the
equal protection clause since there was not a
compelling state interest in such a regulation
when there were less intrusive means available under
existing law. Wheeler v. City of Rockford, 69
Ill.App.3d 220, 387 N.E.2d 358, 25 Ill.Dec. 702 (2d
Dist. 1979). But see Oriental Health Spa v. City
of Fort Wayne, 864 F.2d 486 (7th Cir. 1988), and
Gora v. City of Ferndale, 456 Mich. 704, 576
N.W.2d 141 (1998), for a different result. The court in
Wheeler did approve a portion of the ordinance
that regulated false or misleading advertisements but
struck down as violative of the Fourth Amendment a
provision requiring that at least twice per year
the police inspect without a warrant each massage
parlor’s nonpublic areas. The issue of warrantless
searches in such establishments has been approved,
however, in other jurisdictions. See Clampitt v.
City of Fort Wayne, 682 F.Supp. 401 (N.D.Ind.
1988); Gora, supra.
Finally, in Oriental Health Spa, supra, the U.S.
Court of Appeals for the Seventh Circuit found
that the Fort Wayne ordinance regulating massage
and nude modeling establishments rationally
related to curtailing illegal sexual conduct so as
to satisfy the equal protection clause. The court also
approved a $500 annual licensing fee, a
prohibition on locks for studio doors, limitation on operating
hours, mandatory employee information, and
cleanliness standards.

B. {7.26} Tattoo Parlors ‚” AIDS and Hepatitis B

The appeal of tattooing was once limited to a
small number of people, but now it apparently
appeals to a broader group. Because tattooing
involves punctures of the skin and exposure to blood
and because infectious diseases such as hepatitis
B and human immunodeficiency virus (which
develops into AIDS) are transmitted through
contaminated needles or syringes or exposure to
contaminated blood, some municipalities are
concerned with the risk tattooing carries of transmitting
such diseases. It is a Class A misdemeanor to
pierce a minor’s body or oral cavity without parental
consent (720 ILCS 5/12-10.1) and for anyone not
licensed to practice medicine to tattoo or offer to
tattoo a person under the age of 21 (720 ILCS
5/12-10), but beyond that, tattoo operations are
unregulated by the state. The question arises
whether municipalities may regulate or prohibit them.

The powers to regulate in the area of public
health and to define, prevent, and abate nuisances
discussed in ‚§‚§7.5 and 7.16 above give a
municipality the means to regulate tattoo operations for
public health purposes or to prohibit them. The
Illinois Supreme Court has found a compelling
interest in protecting and promoting public health
and in adopting measures reasonably designed to
prevent the spread of AIDS. People v. Adams, 149
Ill.2d 331, 597 N.E.2d 574, 173 Ill.Dec. 600
(1992).

Effective regulation of tattoo operations by a
municipality would be quite extensive, requiring,
among other things, training and testing of
operators and frequent onsite inspections. It would thus
tax the resources of a municipality
disproportionately to the benefit of a small percentage of the
population. A more cost-effective means of
regulation is to limit tattoo operations to physicians,
osteopaths, or dentists operating for medical
purposes. The legislatures of the states of Connecticut,
Florida, Massachusetts, Oklahoma, and South
Carolina have followed this course. When such
restrictions have been subject to judicial
scrutiny, they have been found reasonable. Golden v.
McCarty, 337 So.2d 388 (Fla. 1976); Grossman v.
Baumgartner, 17 N.Y.2d 345, 218 N.E.2d 259,
271 N.Y.S.2d 195 (1966); Kennedy v. Hughes, 596
F.Supp. 1487 (D.Del. 1984); State ex rel. Medical
Licensing Board of Indiana v. Brady, 492 N.E.2d 34
(Ind.App. 1986). See also Yurkew v. Sinclair,
495 F.Supp. 1248 (D.Minn. 1980) (upholding
Minnesota State Fair Board of Managers’ total ban of
tattooing booths at state fairs).

The distinction between lay tattoo operators and
physicians, osteopaths, or dentists has withstood
equal protection challenge. Golden, supra, 337
So.2d at 391; Kennedy, supra, 596 F.Supp. at 1493.
Restrictions of tattooing to medical professionals
have not been found to be due process violations.
Golden, supra, 337 So.2d at 390; Kennedy, supra.
Neither have other courts found First Amendment
violations in restrictions on tattoo operations.
Yurkew, supra, 495 F.Supp. at 1253; Brady, supra, 492
N.E.2d at 39; People v. O’Sullivan, 96 Misc.2d 52,
409 N.Y.S.2d 332 (1978).

C. {7.27} The Use of Search Warrants

Searching or inspecting premises has been
considered by municipalities as a means of solving
certain police problems. Wheeler v. City of
Rockford, 69 Ill.App.3d 220, 387 N.E.2d 358, 25 Ill.Dec.
702 (2d Dist. 1979). Properly used, a search with
or without a warrant (as a particular case may
require) can be an effective tool in gathering
evidence of an ordinance violation or in determining
compliance with municipal regulations, for
example, in the area of code enforcement. Since there
does not usually appear to be an express
authorization for the use of a search warrant, the power can
be implied if necessary and essential to
accomplish the power granted. Such implied power derives
from the power to enforce certain ordinances, such
as zoning ordinances. People ex rel. Foreman v.
Sojourners Motorcycle Club, Ltd., 134 Ill.App.3d
448, 480 N.E.2d 840, 89 Ill.Dec. 358 (2d Dist.
1985).

The Fourth Amendment protects persons and owners
of property from unreasonable searches.
Ordinances that allow searches of buildings
without a warrant have generally found disfavor among
the courts. Camara v. Municipal Court of City &
County of San Francisco, 387 U.S. 523, 18 L.Ed.2d
930, 87 S.Ct. 1727 (1967); See v. City of Seattle,
387 U.S. 541, 18 L.Ed.2d 943, 87 S.Ct. 1737
(1967).

Although there are cases in which warrants may not
be necessary, they require dividing property
into private areas (in which a warrant is
required) and public areas (in which a warrant is not
required) (see People v. Janis, 139 Ill.2d 300,
565 N.E.2d 633, 152 Ill.Dec. 100 (1990)) or examining
whether certain private commercial properties
(such as a mine) may be entered without a warrant
because of some regulatory scheme and inspection
schedule (Donovan v. Dewey, 452 U.S. 594, 69
L.Ed.2d 262, 101 S.Ct. 2534 (1981)). Other areas
in which warrants have been found unnecessary are
(1) on business premises but not within a building
(Air Pollution Variance Board of Colorado v.
Western Alfalfa Corp., 416 U.S. 861, 40 L.Ed.2d
607, 94 S.Ct. 2114 (1974)); (2) in a business that
has been subject to extremely close government
supervision such as firearms dealers (United States v.
Biswell, 406 U.S. 311, 32 L.Ed.2d 87, 92 S.Ct.
1593 (1972)) or even junkyard dealers (New York v.
Burger, 482 U.S. 691, 96 L.Ed.2d 601, 107 S.Ct.
2636 (1987)) and secondhand dealers (Second
Hand Tunes v. City of Chicago, 231 F.Supp.2d 784
(N.D.Ill. 2002)); (3) liquor stores (Colonnade
Catering Corp. v. United States, 397 U.S. 72, 25
L.Ed.2d 60, 90 S.Ct. 774 (1970)) and convenience
stores that sell liquor (Aida Food & Liquor, Inc.
v. City of Chicago, No. 03 C 4341, 2005 U.S.Dist.
LEXIS 6277 (N.D.Ill. Mar. 29, 2005)); (4)
intrusions serving governmental needs that exist beyond
ordinary law enforcement needs (National Treasury
Employees Union v. Von Raab, 489 U.S. 656,
103 L.Ed.2d 685, 109 S.Ct. 1384 (1989); see also
Taylor v. O’Grady, 888 F.2d 1189 (7th Cir. 1989));
and (5) searches of residential property for the
purpose of protecting and preserving life and property
and to avoid serious injury when enforcement
officers reasonably believe, in light of the totality of
circumstances, that an emergency exists (People v.
Thornton, 286 Ill.App.3d 624, 676 N.E.2d 1024,
222 Ill.Dec. 60 (2d Dist. 1997) (warrantless
search of apartment by police officers responding to
reports that dog had been left alone in apartment
for several days without food or water)).

Whether a warrantless inspection of a closely
regulated business will be reasonable usually
depends on meeting three criteria: there must be a
substantial government interest, the inspection
must be necessary to further the regulating
scheme, and the owner must be advised that the search is
being made pursuant to law and within a defined
scope with limited discretion by the inspector.
Burger, supra; Hansen v. Illinois Racing Board,
179 Ill.App.3d 353, 534 N.E.2d 658, 128 Ill.Dec.
476 (1st Dist. 1989).
In Camara, supra, the Supreme Court recognized
that a code enforcement search of property
differs from a typical criminal search. Probable
cause for the latter requires knowledge of a specific
violation; probable cause to inspect exists when
‚“reasonable legislative or administrative standards
for conducting an area inspection are satisfied
with respect to a particular dwelling.‚ 87 S.Ct. at 1736.
Accordingly, the City of Hometown enacted an
ordinance describing what a court must consider in
determining probable cause for warrants for
inspections for municipal building code violations.
Hometown Co-operative Apartments v. City of
Hometown, 515 F.Supp. 502, 503 (N.D.Ill. 1981).

An earlier version of the Hometown ordinance,
having no warrant procedure, was held
unconstitutional under the Fourth Amendment
(Hometown Co-operative Apartments v. City of
Hometown, 495 F.Supp. 55 (N.D.Ill. 1980));
however, the amended ordinance withstood facial
challenge to its constitutionality. A similar
Peoria ordinance was also held constitutional on its face.
Tobin v. City of Peoria, Illinois, 939 F.Supp. 628
(C.D.Ill. 1996). In both the second Hometown
decision and Tobin, however, the courts reserved
ruling on whether application of those ordinances
would be unconstitutional in the event city
officials would or could not obtain either a warrant or
consent for inspection but nevertheless proceeded
to impose penalties on property owners for failure
to obtain certificates of inspection.

The court in Black v. Village of Park Forest, 20
F.Supp.2d 1218 (N.D.Ill. 1998), had before it the
village’s annual inspections of rented
single-family homes as part of its housing code. The court held
that (1) the renter’s (as opposed to the owner’s)
consent was required absent a search warrant for an
administrative search of the home; (2) traditional
probable cause principles were not applicable to the
issuance of administrative search warrants but the
passage of time and/or the nature of the building
were to be considered; (3) reasonable legislative
or administrative standards were needed concerning
the search (a) to protect against properties being
unfairly targeted for searches, thus requiring some
‚“neutral criteria,‚ and (b) to limit the scope of
the search to what is necessary to achieve the lawful
goals of the program; (4) rented single-family
home annual inspections without similar inspections
for multifamily rentals were not justified; and
(5) an additional fee when the village was forced to
obtain a warrant was an unconstitutional burden on
the exercise of Fourth Amendment rights. 20
F.Supp.2d at 1222 ‚”œ 1231.

Although Hometown and Tobin suggest and Black
requires that either a warrant or consent is
ordinarily required for inspection of residential
property for building code violations, the Seventh
Circuit declined to rule that a warrantless
inspection for code violations was clearly unlawful when
the contractor working on the premises consented
to the inspection without the owner’s knowledge or
consent. Montville v. Lewis, 87 F.3d 900 (7th Cir.
1996), cert. denied, 117 S.Ct. 961 (1997). The
issue in that case was whether the defendant city
officials were entitled to qualified immunity. The
court held that they had such immunity on the
basis that the inspectors’ duty to inquire further as to a
third party’s authority to consent to an
inspection was not clearly established under the relevant case
law. Citing the distinction made by the Supreme
Court in Camara, supra, between administrative
searches and searches in furtherance of a criminal
investigation, the Seventh Circuit concluded it was
reasonable for the inspectors to believe that they
were not subject to the same requirements for thirdparty
consent as they would have been had the search
been part of a criminal investigation.

Clearly, an officer would be required in most
cases to obtain a warrant to search when consent is
not forthcoming. Therefore, a municipality must be
prepared in this area of law to have appropriate
ordinances that courts can rely on when asked to
issue a search warrant. But see Brower v. Village of
Bolingbrook, 735 F.Supp. 768 (N.D.Ill. 1990),
setting forth criteria that an ordinance must meet to
provide for a warrantless inspection of commercial
property.

In Illinois, a verified complaint for a search
warrant is drafted stating facts sufficient to show
probable cause and particularly describing the
place or person or both to be searched and seized. See
725 ILCS 5/108-3 through 5/108-5.

D. {7.28} Parental Responsibility for Juvenile
Vandalism

Many Illinois municipalities have experienced
ever-increasing evidence of juvenile vandalism
resulting in property loss or damage. The Illinois
Parental Responsibility Law, 740 ILCS 115/1, et
seq., provides a civil remedy to injured parties
against the parents of unemancipated minors who
reside with their parents for the willful and
malicious acts of the minors in an amount not to exceed
$20,000. 740 ILCS 115/5. The Law was approved in
Vanthournout v. Burge, 69 Ill.App.3d 193, 387
N.E.2d 341, 25 Ill.Dec. 685 (2d Dist. 1979), and
Robison v. First State Bank of Pekin, 144 Ill.App.3d
991, 495 N.E.2d 637, 99 Ill.Dec. 190 (3d Dist.
1986). Section 4 of the Law specifically authorizes
municipalities and others specified to enforce the
liability imposed by the Law. Further, 720 ILCS
5/21-1.2 and 5/21-1.3 make institutional vandalism
and defacement of property crimes for which
parents may be liable for damages under the Law.
Also, 430 ILCS 65/4(c) makes parents of
applicants under 21 years of age who give required
written consent for a Firearm Owner’s
Identification Card liable for the applicants’ use
of the firearm or ammunition.

The Parental Responsibility Law requires that the
unemancipated minor reside with his or her
parent before the parent can be liable. A
discussion of disputed ‚“residency‚ in an effort to add the
parents as party defendants in a suit under the
Law from defendants in discovery can be found in
McGee v. Heimburger, 287 Ill.App.3d 242, 678
N.E.2d 364, 222 Ill.Dec. 752 (4th Dist. 1997).

Many Illinois municipalities have adopted both
civil and quasi-criminal ordinances that impute
fault to the parent and require, among other
things, (1) parental liability for criminal damages
occasioned by the juvenile, i.e., restitution; (2)
quasi-criminal penalties against the parent; and (3)
participation of the juvenile (and perhaps the
parent) in social adjustment programs.

It should be noted that many of the communities
that have adopted such parental responsibility
ordinances are home rule units. Further, there
are, to this author’s knowledge, no reported Illinois
cases dealing with such ordinances.

Other states have had varying degrees of success
with parental responsibility statutes or
ordinances. New Jersey struck down as
unconstitutional a criminal presumption that a parent is
responsible for the misbehavior of a child who
twice within one year is adjudged guilty of acts
defined as violations of the public peace. Doe v.
City of Trenton, 143 N.J.Super. 128, 362 A.2d 1200
(1976). In another case, the New Jersey Supreme
Court held constitutional a statute that imposed
vicarious civil liability requiring parents of
pupils to respond in money damages for their children’s
willful and malicious destruction of school
property. Board of Education of Piscataway Township v.
Caffiero, 86 N.J. 308, 431 A.2d 799 (1981). In
Piscataway, the statute had no limits on monetary
liability. The court limited the liability to
parents who have custody and control of a child and
thereby are charged with responsibility for the
child’s conduct.
Cases from other jurisdictions upholding
constitutionality are General Insurance Company of
America v. Faulkner, 259 N.C. 317, 130 S.E.2d 645
(1963); Kelly v. Williams, 346 S.W.2d 434
(Tex.Civ.App. 1961); Mahaney v. Hunter
Enterprises, Inc., 426 P.2d 442 (Wyo. 1967); In re William
George T., 89 Md.App. 762, 599 A.2d 886 (1992); In
re Sorrell, 20 Md.App. 179, 315 A.2d 110
(1974); Rudnay v. Corbett, 53 Ohio App.2d 311, 374
N.E.2d 171 (1977); Payless Drug Stores
Northwest, Inc. v. Brown, 80 Or.App. 255, 722 P.2d
31 (1986); Fortune v. Wong, 68 Haw. 1, 702
P.2d 299 (1985); Stang v. Waller, 415 So.2d 123
(Fla.App. 1982); Distinctive Printing & Packaging
Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989);
and In re B.D., 720 So.2d 476 (Miss. 1998).
Georgia held such a law unconstitutional, citing
the policy of the state against imposing liability
without fault and distinguishing cases from other
jurisdictions on the basis that they had limits of
liability and were thus more akin to a penalty.
Corley v. Lewless, 227 Ga. 745, 182 S.E.2d 766
(1971).

It has been held in Maryland that if parents do
not have actual custody and control of a child,
they cannot be made liable. In re James D., 295
Md. 314, 455 A.2d 966 (1983). Liability may attach
to the custodial parent of a child who damages
property while a patient in a hospital. William George
T., supra. Further, if deterrence is directed
toward individuals who have no means of avoiding the
child’s conduct or who cannot affect the offending
conduct, it may be contrary to basic justice and
therefore violative of due process. See Plyler v.
Doe, 457 U.S. 202, 72 L.Ed.2d 786, 102 S.Ct. 2382
(1982).

Non-home rule Illinois municipalities will have to
point to grants of power from the legislature to
operate effectively in the area of juvenile
vandalism. The municipality may rely on Illinois Municipal
Code ‚§‚§11-1-8, concerning programs and activities
for the prevention or control of juvenile crime,
and 11-5.2-2, for the use of youth service
bureaus. It would appear that the municipality would have
to argue that vandalism is a part of disorderly
conduct under Code ‚§11-5-3 and perhaps a disturbance
under Code ‚§11-5-2. Since there is no express
power to shift the responsibility to the parent, the
municipality may argue that shifting the
responsibility is a power implied necessarily from those
specifically granted.

It should be remembered that prosecution of minors
for municipal ordinance violations
punishable by fine only is permitted without
referral to juvenile court. Village of Glen Ellyn v.
Fujinaga, 190 Ill.App.3d 584, 546 N.E.2d 816, 137
Ill.Dec. 871 (2d Dist. 1989). If the juvenile is
placed on court supervision and then violates the
supervision, contempt proceedings with the
possibility of incarceration are inappropriate.
The Illinois Supreme Court, using its supervisory
powers, has determined that a petition to revoke
court supervision against a minor begins the
prosecution anew with the available fine-only
penalty. The court said the alternative is not a contempt
proceeding for incarceration but rather a referral
to the state’s attorney to file a delinquency petition
under the Juvenile Court Act. City of Urbana v.
Andrew N.B., 211 Ill.2d 456, 813 N.E.2d 132, 286
Ill.Dec. 75 (2004).

E. {7.29} Video Games and Arcades

In recent years, coin-operated and/or
card-operated video game arcades have attracted large
numbers of juveniles who have freely emptied their
pockets in their pursuit of beating the machines.
Many municipalities believe that such arcades also
are breeding grounds for juvenile crime. Under
Illinois Municipal Code ‚§‚§11-42-2 and 11-42-5,
municipalities have the power to ‚“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 to ‚“license, tax,
regulate, or prohibit . . . theatricals and other
exhibitions, shows, and amusements and may license,
tax, and regulate all places for eating or
amusement.‚

The Illinois appellate court has approved
licensing regulations that prohibit minors from playing
such games. 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). In a
challenge to a Des Plaines ordinance prohibiting
electronic games and automatic amusement devices
in all but liquor establishments and prohibiting
persons under 21 from operating such games without
a parent or guardian present, the court found
that (1) Illinois municipalities possess the power
to pass such ordinances and (2) the Des Plaines
ordinance would withstand a facial challenge to
its constitutionality. Rothner v. City of Des Plaines,
554 F.Supp. 465 (N.D.Ill. 1981).

The City of Chicago’s ordinance prohibiting minors
(age 17 and under) from playing video
games on days in which school was in session was
found to be a legitimate time, place, and manner
restriction of First Amendment expression. Rothner
v. City of Chicago, 929 F.2d 297 (7th Cir. 1991).

Other jurisdictions that have examined similar
ordinances concur they are not unconstitutional.
People of City of Warren v. Walker, 135 Mich.App.
267, 354 N.W.2d 312 (1984), appeal dismissed,
106 S.Ct. 32 (1985); Marshfield Family Skateland,
Inc. v. Town of Marshfield, 389 Mass. 436, 450
N.E.2d 605, appeal dismissed, 104 S.Ct. 475
(1983). Compare City of Mesquite v. Aladdin’s Castle,
Inc., 455 U.S. 283, 71 L.Ed.2d 152, 102 S.Ct. 1070
(1982), on remand, 713 F.2d 137 (1983), in
which a prohibition of a licensee allowing
children under 17 years of age to operate the machines
unless accompanied by their parents violated the
Texas Constitution’s ‚“substantive‚ due process as
lacking social necessity.

F. {7.30} Disorderly Conduct

Traditional powers continue to be helpful in
solving current problems. The State of Illinois
provides a disorderly conduct statute. 720 ILCS
5/26-1. Municipalities are also authorized to enact
ordinances prohibiting disorderly conduct under
Illinois Municipal Code ‚§11-5-3, which states: ‚“The
corporate authorities of each municipality may
prevent intoxication, fighting, quarreling, dog fights,
cock fights, and all other disorderly conduct.‚
This provision permits municipalities to expand on the
conduct that can be proscribed beyond that
provided for in the state’s disorderly conduct statute. In so
doing, a municipality may better tailor its
ordinance to cover specialized local problems. The
examples below are taken from the ordinances of
various Illinois municipalities and illustrate the
success or failure of the ordinances in the
courts. The ordinances provide that a person commits
disorderly conduct when he or she

1. knowingly does any act in such an unreasonable
manner as to provoke, make, or aid in
making a breach of peace (similar to 720 ILCS
5/26-1(a)(1)) (Failure to define
‚“unreasonable‚ does not render the section
unconstitutionally vague. United States v.
Woodard, 376 F.2d 136 (7th Cir. 1967). See People
v. Jackson, 132 Ill.App.2d 1059, 271
N.E.2d 673 (4th Dist. 1971). See also People v.
Justus, 57 Ill.App.3d 164, 372 N.E.2d 1115,
14 Ill.Dec. 836 (1st Dist. 1978); Lester v. City
of Chicago, 830 F.2d 706 (7th Cir. 1987).);

2. knowingly does or makes any unreasonable or
offensive act, utterance, gesture, or display
that under the circumstances creates a clear and
present danger of a breach of peace or
imminent threat of violence (The provision was
upheld in City of Chicago v. Ikin, 12
Ill.App.3d 489, 299 N.E.2d 513 (1st Dist. 1973).
See also People v. Gentry, 48 Ill.App.3d
900, 363 N.E.2d 146, 6 Ill.Dec. 617 (1st Dist.
1977). As to profane language, see City of
Chicago v. Lowy, 40 Ill.App.3d 950, 353 N.E.2d 208
(1st Dist. 1976).);

3. knowingly fails to obey a lawful order of
dispersal by a person known to be a peace officer
under circumstances under which three or more
persons are committing acts of disorderly
conduct in the immediate vicinity that are likely
to cause substantial harm or serious
inconvenience, annoyance, or alarm (The provision
was upheld in City of Chicago v. Weiss,
51 Ill.2d 113, 281 N.E.2d 310, cert. denied, 93
S.Ct. 122 (1972), and City of Chicago v.
Greene, 47 Ill.2d 30, 264 N.E.2d 163 (1970), cert.
denied, 91 S.Ct. 2180 (1971).);

4. knowingly assembles with three or more persons
for the purpose of using force or violence
to disturb the public peace (The provision was
upheld in Weiss, supra.);

5. knowingly carries in a threatening or menacing
manner without authority of law any pistol,
revolver, dagger, razor, dangerous knife,
stiletto, knuckles, slingshot, an object containing
noxious or deleterious liquid, gas, or substance,
or other dangerous weapon or conceals such
a weapon on or about the person or a vehicle (See
City of Chicago v. Roma, 58 Ill.App.3d
686, 374 N.E.2d 1097, 16 Ill.Dec. 322 (1st Dist.
1978) (weapon must be concealed within
accused’s convenient control so weapon is
immediately accessible).);

6. knowingly pickets or demonstrates on a public
way within 150 feet of any primary or
secondary school building while the school is in
session and one-half hour before the school
is in session and one-half hour after the school
session has been concluded (however,
peaceful picketing of any school involved in a
labor dispute not prohibited) (The provision
was held unconstitutional in Grayned v. City of
Rockford, 408 U.S. 104, 33 L.Ed.2d 222, 92
S.Ct. 2294 (1972).);

7. willfully makes or assists in the making of any
noise or diversion that disturbs or tends to
disturb the peace or good order of a school
session or class while on public or private
grounds adjacent to any building in which a school
or any class is in session (The provision
was upheld in Grayned, supra. See also Police
Department of City of Chicago v. Mosley,
408 U.S. 92, 33 L.Ed.2d 212, 92 S.Ct. 2286
(1972).);

8. knowingly pickets or demonstrates on a public
way within 150 feet of any church, temple,
synagogue, or other place of worship while
services are being conducted and one-half hour
before services are to be conducted and one-half
hour after services have been concluded
(however, peaceful picketing of any church, temple
synagogue, or other place of worship
involved in a labor dispute not prohibited) (The
provision was held unconstitutional in
Grayned, supra. See also Mosley, supra.);

9. knowingly engages in any violent, tumultuous,
offensive, or disorderly conduct by
threatening, traducing, quarreling, challenging to
fight, or fighting, or uses obscene,
offensive, profane, or unseemly language to the
annoyance, disturbance, or vexation of
another, or is guilty of any conduct calculated to
breach the peace (The provision was upheld
in City of East Peoria v. Moushon, 45 Ill.App.3d
719, 359 N.E.2d 1205, 1208, 4 Ill.Dec. 253
(3d Dist. 1977), but the court also noted that
vulgar or profane words are not alone sufficient
to permit criminal prosecution unless they are
‚“fighting words.‚); or

10. knowingly fails to obey a lawful order to
disperse by a police officer, when known to be
such an official, when one or more persons are
committing acts of disorderly conduct in the
immediate vicinity and the public health and
safety are imminently threatened (The provision
was upheld in City of Park Ridge v. Larsen, 166
Ill.App.3d 545, 519 N.E.2d 1177, 117
Ill.Dec. 10 (1st Dist. 1988).).

Of course, not all conduct can simply be called
disorderly conduct and be prohibited by an
ordinance. Therefore, the conduct of retail theft
has been held not to fall within the range of
disorderly conduct nor any other grant of power.
City of Kewanee v. Swanson, 144 Ill.App.3d 1, 493
N.E.2d 1213, 98 Ill.Dec. 192 (3d Dist. 1986).

G. {7.31} Juvenile Street Gangs ‚” Curfews

In recent years, municipalities across the country
have been experimenting with new laws and
enforcement policies in an attempt to respond to
problems associated with juvenile street gangs. In
some areas, new ordinances have been adopted that
specifically define and prohibit gang-related
conduct; in others, officials have employed
existing laws and ordinances for curfew, loitering,
disorderly conduct, etc., to curb gang activities.
Both kinds of responses, however, have been
vulnerable to constitutional challenges to the
extent they impinge on First Amendment rights of
association, speech, and assembly or violate due
process standards for defining unlawful conduct or
limiting discretion in enforcement.

The Illinois Supreme Court struck down a Chicago
city ordinance prohibiting loitering by and
with street gang members. City of Chicago v.
Morales, 177 Ill.2d 440, 687 N.E.2d 53, 227 Ill.Dec.
130 (1997). The city adopted the ordinance after
conducting hearings and finding that the presence of
gang members in public places not only intimidated
others but was part of the means by which gangs
created and controlled their territories.

Nevertheless, the Supreme Court found that the
ordinance violated the freedoms of association
and travel under the federal and state
Constitutions, violated due process rights on vagueness
grounds, and unconstitutionally criminalized
gang-member status. On appeal, the U.S. Supreme
Court affirmed. City of Chicago v. Morales, 527
U.S. 41, 144 L.Ed.2d 67, 119 S.Ct. 1849 (1999).
The Court held that uncertainty about the scope of
the ordinance made it too vague. The Court
determined that the standard authorized by the
ordinance and used by a police officer when observing
a street gang member of ‚“remaining in any one
place with no apparent purpose‚ with one or more
other persons was ‚“inherently subjective.‚ 119
S.Ct. at 1854, 1862. The ordinance violated the due
process liberty interest in loitering for innocent
purposes and did not provide fair notice to the
offender of what conduct was prohibited. Recently,
the City of Joliet’s anti-loitering for the purpose
of engaging in drug-related activity ordinance was
held unconstitutional for vagueness and failure to
provide adequate enforcement standards by the
appellate court. People v. Lee, 345 Ill.App.3d 782,
803 N.E.2d 640, 281 Ill.Dec. 236 (3d Dist. 2004).
The decision, however, was vacated by the
Supreme Court as being unnecessary to decide the
case. People v. Lee, 214 Ill.2d 476, 828 N.E.2d
237, 293 Ill.Dec. 267 (2005).

In contrast, the California Supreme Court upheld a
preliminary injunction prohibiting gangmember
defendants from ‚“{s}tanding, sitting, walking,
driving, gathering or appearing anywhere in
public view with any other defendant . . . or with
any other known . . . member {of local gangs}.‚
People ex rel. Gallo v. Acuna, 14 Cal.4th 1090,
929 P.2d 596, 608, 60 Cal.Rptr.2d 277, cert. denied,
117 S.Ct. 2513 (1997). The case, brought under
state nuisance law, sought only to enjoin the conduct
of the named defendants in a four-block area.
Under those circumstances, the California court found
that the San Jose defendants had no protected
associational rights on the basis that their collective
public activities were mainly directed at drug
trafficking and securing control of territory through
intimidation and violence rather than the exercise
of rights to personal associations with others. Id.
The Morales line of cases and In re M.P., 297
Ill.App.3d 972, 697 N.E.2d 1153, 1160 ‚”œ 1161, 232
Ill.Dec. 223 (1st Dist. 1998), may limit the
effect of Acuna on the issue of freedom of association.

The underlying issue in these and other cases is
the extent to which laws and enforcement
policies may reach conduct that is gang related
but either is unrelated to criminal conduct or cannot,
as a practical matter, be linked to the commission
of any crimes. On one end of the spectrum, laws
that merely prohibit wearing street gang colors or
symbols or using gang gestures and signs are
unlikely to survive constitutional challenge since
they raise substantial issues concerning not only
First Amendment rights to free expression but also
due process rights to adequate notice of what
conduct is prohibited. See City of Harvard v.
Gaut, 277 Ill.App.3d 1, 660 N.E.2d 259, 260, 214
Ill.Dec. 68 (2d Dist. 1996), striking down a
Harvard ordinance making it unlawful for any person ‚“to
wear known gang colors, emblems, or other
insignia, or appear to be engaged in communicating
gang-related messages.‚ {Emphasis added by Gaut
court.} See also Stephenson v. Davenport
Community School District, 110 F.3d 1303 (8th Cir.
1997), holding unconstitutional a school district
regulation against the display of gang colors,
signs, signals, etc., on school grounds, and People ex
rel. Gallo v. Acuna, 48 Cal.App.4th 641, 40
Cal.Rptr.2d 589 (1995), rev’d, 14 Cal.4th 1090 (1997),
holding unconstitutional injunction provisions
concerning gang communications, gestures, signals,
and clothing. (The appellate court ruling on these
provisions was not appealed to the California
Supreme Court.)

On the other hand, laws that prohibit other kinds
of conduct with elements of intimidation,
harassment, or coercion may pass constitutional
muster if they require something more than loitering
for ‚“no apparent purpose‚ as in the Morales line
of cases or more than mere gang-member status. See
Jackson v. State of Indiana, 634 N.E.2d 532
(Ind.App. 1994) (upholding conviction under state gang
statute when evidence showed active participation
in gang as officer but no part in commission of any
other crime). See also Helton v. State of Indiana,
624 N.E.2d 499 (Ind.App. 1993) (holding gang
statute constitutional). However, to the extent
that such laws single out gang members based on their
status or expression, they would have difficulty
surviving constitutional challenge. See the Morales
line of cases, supra; R.A.V. v. City of St. Paul,
Minnesota, 505 U.S. 377, 120 L.Ed.2d 305, 112 S.Ct.
2538, 2541 (1992) (invalidating bias-motivated
crime ordinance on grounds that even conduct
equivalent to ‚“fighting words‚ may not be
selectively prohibited on basis of content or point of
view).

Another approach to gang-related crime has been to
target the instruments of gang violence and
vandalism. Although provisions in an injunction
prohibiting the use or possession of various objects
commonly used by gang members for unlawful
purposes were held unconstitutionally overbroad by
the California appellate court in Acuna, supra, 40
Cal.Rptr.2d at 598, the Seventh Circuit upheld a
Chicago home rule ordinance prohibiting the sale
of spray paint and jumbo indelible markers within
the city limits. National Paint & Coatings Ass’n
v. City of Chicago, 45 F.3d 1124 (7th Cir. 1995). An
Illinois non-home rule municipality, however,
would have no power to enact such an ordinance
unless a ban on sales could be supported by
specific statutory grants of power.

Municipalities may by ordinance declare a curfew
throughout all or any part of the municipality
and establish conditions therefor. Illinois
Municipal Code ‚§11-1-5. The Child Curfew Act, 720 ILCS
555/0.01, et seq., establishes times and days on
which children of specified ages may not be present
at specified locations. A municipality’s curfew
ordinance is valid even if it conflicts with the state’s
curfew statute by being more restrictive. Village
of Deerfield v. Greenberg, 193 Ill.App.3d 215, 550
N.E.2d 12, 140 Ill.Dec. 530 (2d Dist. 1990).

A recent decision of the Seventh Circuit
challenging Indiana’s curfew law, Hodgkins v. Peterson,
355 F.3d 1048 (7th Cir. 2004), has caused both the
State of Illinois and most municipalities to redraft
their curfew regulations. The court, in striking
down the Indiana curfew statute, found that it was not
sufficiently narrowly tailored to serve a
significant government interest and failed to allow sufficient
exceptions to permit children the exercise of
their constitutional rights under the First Amendment’s
freedom of expression clause during the hours when
the children were not permitted to be in a public
forum.

In order to be in accordance with Hodgkins, it is
necessary that a curfew ordinance provide
specific defenses to the violation related to
exercising First Amendment rights and provide a
procedure whereby the officer enforcing the
ordinance, prior to taking any action such as an arrest,
makes inquiry concerning the suspected violation
such as to the person’s age and reason for being out
in public during the prohibited hours. After the
inquiry, enforcement should ensue only if there is a
reason to believe that a violation has occurred
and none of the First Amendment defenses are
available.