Motion to Dismiss or Affirm — Vokes v. City of Chicago

Office-Supreme Court, U.S.

FILED

MAR 9 1964

JOHN F. DAVIS, CLERK

IN THE

Supreme Court of the United States

Ocrorer Term, 1962.

No. 855

ROBERT G. VOKES, er a.

Appellants,

vs.

CITY OF CHICAGO, a Mesicrpat Convonation,

Appellee.

———E—EEEE

ON APPEAL FROM THE SUPREME COURT OF ILLINOIS.

MOTION TO DISMISS OR AFFIRM.

Joun (C. MELANIPHY,

Corporation Counsel of the City of Chicago,

911 City Hall, Chieago 2, Illinois,

Attorney for Appellee.

Sypney R. Dresiy,

Ropert J. CoLiins,

Assistant Corporation Counsel.

Of Counsel.

INDEX.

PAGE

Motion to Dismiss or Affirm ...................... 1

EIS EI, ig A ell an eo Le | 2-8

SUI res caries oh ed gig poe can a g'ee bic on ak 8

AUTHORITIES CITED, »

Federal cases :

City of New Brunswick v. Zimmerman, 79 F. 2d

OR ee Re Se ea ee 6

Evanston Cab Co. vy. City of Chicago, 325. F. 2d

ee: SOI SUED oo eo aw ec Shen cc ven. 7

State cases:

City of Chicago v. Vokes, 28 Ul. 2d 475, 193 N. EB.

ON ooo oo ens hens sac chincsciwcsees. 3,5

City of Elgin v. Winchester, 300 IL. 214, 183 N. E.

- (| Teter eee ere eee FY |

Ex Parte Trish, 121 Kan. 72, 250 Pac. 1056, 61

ee Mes Me POR GMD once ce civnccsercccese 6

Hinebaagh v. James. 119 W. Va. 162, 192 8. E. 177

we tS een 6

Jewel Tea Co. v. Town of Bel Air, W2 Md. 536.

192 Atl. 417 (1937) . fr re eee i)

Larson v. City of Rock id 371 Til. 441, 21 N. E.

| a SE Ree an Aer 4,5

Mayor and City Council of Havre de Grace vy.

Johnson, 123 Atl. 65 (Md. 1923) .............. 6

People v. Bowen, 11 Mise. 2d 462, 175 N.Y. 8, 2d

125 (Court of Special Sessions of City of New

York, Appellate Part, Ist Dept.. 1958). 0... 5

People ex rel. Hater ©. Fiynn, 13 Ll. 2d 368, 150

N. E. 2d 183 (1957) ...;. ¥ oF pee

“

ii

Whipple vy. City of South Milwaukee, 218Wis. 395,

- Be Pe et errr Torre 5, 6

Yellow Cab Co. v. City of Chicago, 296 TL 38s,

307, 71 N. HB. 38 G5S (1967) .............0.. 7

Yellow Cab Co, v. City of Chicago, 23 I. 2d 453,

456, 178 N. E. 2d 330 (1961) .................. 7,8

Statutes:

Illinois Revised Statutes, chap. 24, pars. 11-42-6,

RPO, RAD HOOD oc ce sccesevnercuces 2

Municipal Code of Chicago, chapters 28, 28.1,

195A, 195A-1 (1939, as amended) .......... > s %

Miscellaneous :

Se CE cb oh ona eee nceee eens uraGn os 6

Fe EE hank caakauny os clean hewn ore 6

IN THE

Supreme Court of the United States

Ocroser Term, 1963.

No. 855.

ROBERT G. VOKES, er at..

Appellants,

vs.

CITY OF CHICAGO, «a MusictraL Corporation,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF ILLINOIS.

MOTION TO DISMISS OR AFFIRM.

Appellee, pursuant to Rule 16(1)(b)(c) of the Revised

Rules of the Supreme Court of the United States, moves

that the appeal be dismissed on the ground that it does

not present a substantial federal question and further be-

cause the judgment rests on an adequate non-federal basis ;

alternatively, appellee moves that the final judgment of

-the Supreme Court of Illinois be affirmed on the ground

that the question is so unsubstantial as not to warrant

rr?

further argument.

to

ARGUMENT.

In Illinois municipalities may license and regulate taxi-

cabs (Til. Rev. Siat. 1963, chap. 24, par. 11-42-6) and may

regulate the use of streets (Tll. Rev. Stat. 1963, chap. 24,

par. 11-80-2) and traffic thereon (Ill. Rev. Stat. 1963, chap.

24, par. 11-80-20).

Each city and village has adopted its own local ordi-

nance licensing and regulating the operation of taxicabs

within their own municipalities. Appellants are employees

of the Evanston and Skokie Cab Companies engaged in

the business of transporting passengers for profit over the

public streets. The Chicago ordinance prohibits appellants

from operating their taxicabs over Chicago streets without

a license (Municipal Code of Chicago, Section 28-2). How-

ever, appellants may enter Chicago with a passenger and

discharge such passenger in Chicago, after which appel-

lants may not solicit or aeeept passengers within Chicago

‘Municipal Code of Chicago, Section 28-3).

Appellants contend that their constitutional rights have

been violated hecause they were arrested in Chicago where

they were engaged in operating their taxicabs for profit

conveying fassengers from a point within Chicago to a

destination within Chicago. They were operating solely

within Chicago and had not entered the City for the pur-

pose of discharging passengers accepted for transporta-

tion outside the City.

Appellants are not chailenging those provisions of the

Chicago ordinance whith led to their arrest, i.¢., that they

were operating unlicensed taxicabs over the streets of

Chicago for profit. Rather, they are attacking an entirely

separate provision of the ordinance, riz.: the portion of

3

the ordinance relating to corporate applicants for a Chi-

cago license which provides, in part (Municipal Code of

Chicago, Section 28-5.1) :

‘*All corporate applicants * * * shall be organized

or qualified to do business under the laws of Illinois

and have their principal places of business in the city

of Chicago * * *.’’

Appellants argue that this requirement is discriminatory

against, Illinois corporatiofs which do not have a Chicago

address and that, therefore, appellants should not have

been found guilty of violating ordinance provisions which

prohibit them from operating unlicensed vehicles over

Chicago streets. Appellants contend that to require cor-

porate applicants to have their principal places of business

in the municipality which licenses them is a violation of

constitutional guarantees of due process and equal pro-

tection of the laws.

The court below answered appellants’ contentions and

reviewed the authorities, both pre and con, and concluded

that the ordinance provisions in question were a reasonable

exercise of the police power. (City of Chicago v. Vokes,

28 Til. 2d 475, 198 N. KE. 2d 40.) It would be repetitious

for us to employ the same arguments here and in the

interest of brevity we adopt the opinion of the court below

as our argument. -

With one exception (and the exception sustains our posi-

tion, not appellants’), none of the authorities relied upon

by appellants are relevant to the issme before the Court.

The courts have uniformly rejected as unconstitutional any

arbitrary discrimination against non-residents. On_ the

other hand, the courts have sustained legislation required

under the police power for the protection of local citizens.

The latter is the situation in the case at bar.

In City of Elain v. Winchester, 300 Il. 214, 133 N. E. 205

4

(1921), an ordinance was held to be unconstitutional as

unreasonable and arbitrary. In that case, Elgin adopted

an ordinance prohibiting the distribution of advertise-

ments in the city without first obtaining a license so to

do. A bond of $3800 was required of each applicant and

a fee of $2 per day for each person employed was charged.

However, residents of Elgin were not required to obtain

a license if the mayor issued them a permit. A traveling

salesman from New York distributed pamphlets advertis-

‘ing Jell-O products and solicited orders for such products.

The Illinois court held this to be an arbitrary diserimina-

tion without any redeeming features. Indeed, none were

advanced.

‘Larson vy. City of Rockford, 371 IN. 441, 21 N. E. 2d 396

(1939), involved an ordinance licensing automatic vending

machines for the sale of candy, peanuts, soft drinks, pop-

corn and gun. The ordinance provided forthe. issuance

of licenses upon evidence (p. 4438): es

“«* * * that the applicant,.if an individual, or the per-

son in charge of the business, if it is a firm or corpo-—

ration, is a responsible person of good character and

reputation having a residence or business address in

the city of Rockford.”’

Suit was brought by an individual and also by a corpora-

tion. In sustaining the ordinance the Illinois court distin-

guished the arbitrary discriminatory aspects condemned

in the City of Elain ease and said (pp. 445, 446) :

‘*The ordinance. was adopted by the city council * * *

for the protection of the public * * *. Where the

council reasonably exercises its legislative power over

subjects properly within its legitimate fieid, the re-

eyirement will be upheld. * * * {T]he city council

might reasonably have believed that public safety and

health would be promoted by requiring operators * * *

to maintain a place where inspectors * * * might com-

municate with them * * * and where customers might

register complaints and receive adjustments. * * *

Under such circumstances, we believe the council was

warranted in requiring every operator to establish

a * * * business address in the city for the protection

of customers and to facilitate enforcement of the

ordinance.’’

Thus, the test is whether the legislation under attack

is a reasonable exercise of legislative judgment for the

protection of the public or whether it is an arbitrary ex-

pression of legislative power enacted solely to diserimi-

nate in favor of residents. The court below reviewed in

patient detail the many cogent reasons why the ‘* place

of business*’ requirement was reasonable (28 TIl. 2d 475,

pp. 478-482) and concluded that there was no merit to

appellants’ constitutional objections—

Authorities other than Illinois décifions are equally in-

applicable to the facts in the case at bar. People v. Bowen,

175 N. Y. S. 2d 125, 11 Mise. 2d 462 (Court of Special

Sessions of City of New York, Appellate Part, Ist Dept.,

1958) held invalid an ordinance making two years resi-

dence in the city a prerequisite to application for a license

as a sightseeing guide as applied to persons conducting an

interstate tour. The court held thet the two-year require-

ment served fo purpose and was therefore unreasonable.

Jewel Tea Co. v. Town of Bel Air, 192 Ati. 417 (Md.

1937), involved an ordinance which made it unlawful for

any person not a resident to solicit orders frort residents

of the town without having a license so to do. Jewel Tea

sought an injunction réstraining the enforcement so that

its salesmen could solicit orders for articles to be shipped

in from Washington, D. C. No regulatory features were

contained in the ordinance and it was held to be arbitrary

and invalid.

Whipple v. City of South Miwaukec, 261 N. W. 235 (Wis.

1935), is another instance (like City of Elain v. Winchester,

6

300 Til. 214, discussed above) of the cases upon which de-

fendants rely. In W hipple (as in City of Elgin) the ordi-

nance complained of provided for a license fee, but its terms

were inapplicable to residents. Although defendants quote

extensively from Whipple, it is thus proved to be distin-

guishable from the case at bar.

City of New Brunswick v. Zimmerman, 79 F. 2d 428 (3rd

(ir, 1935), is similar to People v. Bowen, 175 N. Y.S, 2d

125, discussed above, where the ordinance requited a year’s

residence before a barber's license could be applied for.

It is completely foreign to the issues in the case at bar.

Mayor and City Council of Havre de Grace v, Johnson,

123 Atl. 65 (Md. 1922), is described by defendants as ‘the

closest case on the facts’’ and defendants quote at length

from the case. Again, however, defendants rely upon

an ordinance substantially different from the regulatory

ordinance in the case at bar. In the Havre de Grace ease

the ordinance prohibited entirely the operation of taxieabs

on certain streets of the municipality, but the ordinance

was inapplicable to ‘‘operators ov drivers of automobiles

who are actual and bona fide residents of the city * * * and

who have resided therein for a continuous period of six

months."’

The annotations agpon which appellants rely are similarly

vulnerable. 61 A. L. R. 30, is an annotation following

Ex Parte Trish, 121 Kan. 72, 250 Pac. 1056, 61 A. L. R. 232

(1926), another instance (like City of Elgin v. Winchester)

where a license fee was imposed upon non-residents, but

not upon residents: 112 A. L. RL 65 is an annotation follow-

ing Hinebaugh v. James, 119 W. Va. 162, 192 8S. -. 177,

112 A. L. R. 59 (CW. Va. Court of Appeals, 1927), a case in

which the court sustained the denial of a license to operate

as a distributor of non-intoxicating beer to anyone who had

not been a four-year resident. Neither set of facts is ap-

plicable to the case at bar.

Appellants are well aware of the provisions of the Chi-

cago ordinance. They are not seeking, as they would

have this Court believe, the right to be licensed. Such

would be anathema to them. They are already licensed

in their own municipalities, just as Chieago taxicab opera-

tors are licensed by Chicago. Appellants may come into

Chicago to discharge passengers aecepted outside of Chi-

cago, just as Chicago taxieah operators may enter their

municipalities to discharge passengers.

What appellants are seeking is the right to operate

unlicensed taxieabs within the territorial limits of the City

of Chicago, in competition with licensed taxicabs. Appel-

lants want to pick up fares in Chicago and take them to

destinations in Chicago. Provisions of the Chieago ordi-

nanees regulating taxicabs have been substantially the

same for many, many years. Presumably, similar ordi-

nances exist and are enforeed in the municipalities where

appellants are licensed to operate.

Appellant~" conduct was undoubtedly inspired by their

corporate emplovers who have filed a separate suit under

Federal antitrust Jaws, which suit) has been dismissed.

Branston Cah Co. vs. City of Chicago, 325 F.2d 907 (7th

Cir. 1963). In the Kvaustouw Cab Co. suit, identical eon

stitutional arguments were rejected, the eourt there ap

proving the decision of the [linois court in the case at bar.

Independent of the taxical licensing ordinance, the City

of Chicago has for many years limited the number of

tuxieabs that may operate on its streets. The eourts have

sustained the right of the City to limit or restrict the num

her of cabs which are to be operated on the streets and has

enjoined the issuance of additional licenses until hearing-

are conducted to determine the ueed for more taxicabs

(Vellow Cah Cov. City of Chicago, 396 TIL 388, 397). The

present ordinance ( Municipal Code of Chicago, chap. 195A)

was enacted subsequent to extensive public hearings (Ye/-

&

low Cab Co. v. City of Chicago, 23 Ul. 2d 453, 456) and

limits taxicab licenses in the city 10 4600. If appellants

are permitted to operate in the City of Chicago, then the

contract rights of those who now hold licenses are violated

and their business threatened. The validity of the limiting

ordinance has been sustained by the court and, conse-

quently, appeliants cannot operate m defiance of the ordi

nance thereby increasing the number of taxicabs on the

streets of Chicago and destroving the business of those

legally licensed under the ordinance.

In addition to upholdine the ordimance jimmiting the

number of taxicabs which may operate in Chicago, the

court has also held that Chicago residents may not com-

pel the issuance of licenses to them (People ex rel. Hates

v. Flynn, 15 Ul. 2d 368). Thas, resideats and non-resi-

dents are in the same position—uneither can obtain licenses

because the number of taxicabs which may operate in the

city has been restricted to a certain number. To permit

more would frustrate the limiting ordinance and expose

the city to litigation for not adhering to its own ordinance.

CONCLUSION

We respectfully submit that the appellants present no

substantial question for the decision of this Court. and

that the judgment of the Supreme Court of Ilinois should

be affirmed, or, alternatively, that the appeal should be

dismissed,

Respeettully submitted,

Jous (. Meranipay,

Corporation Counsel of the City of Chicag

Attorney for Appellee.

Sypnev R. Drea.

Ronert J. Couns.

Assisigr? Corporation Coumart!

Of Counsel,