Marallis v. City of Chicago , 349 Ill. 422 ( 1932 )

The majority opinion holds void the act permitting former soldiers and sailors of the United States to peddle fruits and merchandise without paying a municipal license fee. The holding is based on the theory that the statute constitutes special or class legislation and is contrary to the provisions of section 22 of article 4 of the constitution of the State of Illinois, and also that it violates the provision for the equal protection of the laws contained in section 1 of amendment 14 of the constitution of the United States. The essential question in this case is whether or not there is a reasonable basis for extending to honorably discharged soldiers and sailors, as a separate class, the privilege of peddling and vending merchandise in municipalities without a license.

The majority of the court approves the doctrine announced inState v. Shedroi, 75 Vt. 277. The legislature of Vermont passed an act exempting veterans of the Civil War from payment of certain license fees. It was declared to be class legislation. The reasoning of the court is to be found in the following language: "The veterans were originally from no particular class, and when discharged from the army they returned to no particular class — they again became a part of the general mass of mankind, with the same constitutional rights, privileges, immunities, burdens and responsibilities as other citizens similarly circumstanced, in law, in the same jurisdiction." If it is true that the soldier or sailor after his discharge returned to civil life, became a part of the community in which he lived, enjoyed the same privileges and was subjected to burdens and handicaps to which other citizens of similar age and circumstances were subjected, there would manifestly be no reasonable basis for the classification made by the statute. A very great majority of the soldiers and sailors who served in the late war were between the ages of eighteen and thirty-one. They were in the formative period of their lives. It is at such a time that young men make their vital preparations for occupational and professional careers. But the war definitely interrupted their studies, vocations and businesses. The men of similar ages who remained at home enjoyed exceptional and unprecedented opportunities for gainful employment. The soldiers came home handicapped by absence from business and schools and burdened with the baneful effects of tremendous inflation of values which set in soon after their discharge. Under the circumstances it seems apparent that they constituted a distinct class quite competent to be distinguished from the rest of our citizenry in matters of legislation — a class created by their defense of country and the consequent deprivation of opportunity which had been open to others.

Notwithstanding a different view has been expressed by some courts, we believe the prevailing rule is that ex-soldiers may be segregated into a class for the purpose of extending bounty and reward. The right granted by the act is a privilege given former soldiers and sailors by the government in consideration of military services rendered in its behalf. That privilege has much the same basis as the granting of pensions. It is designed to assist the soldier or sailor in providing for his daily wants. It is not a matter of contract and is not founded upon any legal liability. It is in the nature of a reward given by the government in consideration and recognition of meritorious past services, and has been described as a bounty springing from the appreciation and graciousness of the sovereign and may be given or withheld at its pleasure. (People v. Retirement Board, 326 Ill. 579; Eddy v. Morgan, 216 id. 437.) According to the text in 21 R. C. L. 239, the granting of a reward to soldiers and sailors in this country had its origin in the Revolution, "and in the long span of time since the constitution was adopted, the National government has, in pensions granted and privileges extended, treated those who served her in her hour of peril with generosity." The power to grant bounty to former soldiers and sailors as a class is coeval with the organization of the government under the present constitution and has been continued without interruption to the present time. UnitedStates v. Hall, 98 U.S. 343, 25 L. ed. 180.

The defendants contend that the service of a soldier bears no relation to the business of a peddler, and therefore no basis exists for placing soldiers in a different class and discriminating in their favor against other citizens. Of course, there is no relation between the service of a soldier and the business of a peddler, but there is a relation between the duty of the sovereign growing out of the service of a soldier and the granting of privileges to him which will enable him to provide for his daily needs. That relation has been made the basis of a great deal of legislation of this character by both Federal and State governments.

Because of the above reasons we think the demurrer should have been overruled.