Mr. Justice Smith
delivered the opinion of the court.
When the sections of the ordinance were offered in evidence appellant objected on the grounds, first, that the ordinance is invalid; and second, that appellant is not amenable to the ordinance. The" objections were overruled by the court and" the appellant preserved its exceptions.
The contentions of appellant are that it is not a common carrier, and that the ordinance has no application to it, that the ordinance is invalid, and on these grounds the judgment should he reversed.
We have, examined with care the authorities cited by appellant upon the question as to who are common carriers, and without quoting at length from the authorities the definitions given or the essential characteristics of common carriers, our conclusion is that appellant, under the law and the facts shown by the record, is a common carrier of goods, wares and merchandise for hire in and throughout the city of Chicago.
The invalidity of the ordinance is urged upon the following grounds: First, the city of Chicago has no power under its charter to license or tax other than common carriers; second, the ordinance attempts to delegate the power to license to a board of inspectors, and this power cannot be delegated; and third, the ordinance operates unfairly and unequally upon the same class of persons, discriminating in favor of certain carriers and against others, and it is unreasonable and oppressive.
The first of these contentions as to the power of the city is conceded by counsel for appellee and is disposed of so far as this case is concerned by what we have said above in holding that appellant is a common carrier.
The second ground upon which the invalidity of the ordinance is urged is predicated upon the provisions of section 2330.
The evidence in this case clearly shows a violation by appellant of sections 2325, 2326 and 2332 of the Revised Municipal Code of Chicago of 1905. These sections are therefore primarily before the court in this case, and it may well be doubted whether appellant in this case can question the validity of section 2330, which under the evidence is not involved in the controversy. And yet, no inconsiderable portion of appellant’s argument on the validity of the ordinance is based upon the provisions of that section, which relate to the application for and the securing of a license as a driver of a public cart.
The evidence shows that appellant is a corporation and that it could not actually drive a public cart. The evidence does not show that .appellant ever made an application to anyone, or to any board or municipal authority, for a license to drive a public cart, nor does it show that appellant has been refused such a license or that it has been so licensed. The evidence does not show that .appellant has set forth its qualifications for a driver of a public cart in any manner provided for in said section. In our opinion, therefore, the provisions of that section are not material or relevant to the issue and question before the court.
In Gundling v. City of Chicago, 176 Ill., 340, there was a stipulation of facts showing that appellant was conducting a business requiring a license, but without a license. In that case the court held that one violating an ordinance imposing a license fee, who has never been refused a license, is not in a position to raise the question that the ordinance is invalid for delegating to the mayor the discretionary power of granting or refusing such license. At page 350 the court say:
“The appellant, however, is not in position to raise this question from the facts appearing in this record. He was not an applicant for a license, which had been refused him, but was before the court admitting that he had violated an ordinance of the city of Chicago, duly passed and published, and denying the right of the city to adopt such ordinance regulating the sale of cigarettes. He is not in a position to invoke the judgment of this court as to his right to a license, nor is that question before us.” See also Harbaugh v. City of Monmouth, 74 Ill., 367, 370.
To the extent, therefore, that appellant’s arguments and contentions are based on the provisions of section 2330 they must be regarded as attempting to raise for decision questions which are immaterial, and to invoke the judgment of this court thereon without the right so to do on this record. And the same may be said in regard to the contentions founded on sections 2335, 2339, 2340 and 2342, for the same principle of law is applicable to them, under the facts shown by the record.
The remaining question presented is, whether or not the ordinance operates unfairly and unequally upon the same class of persons, discriminating in favor of certain carriers and against others, and is therefore unreasonable and oppressive and void.
It is urged that the definition of a “public cart” contained in section 2325 is too broad and includes those who are not common carriers.
Ho evidence was adduced on the trial, apart from the ordinance itself, so far as the record shows, tending to prove any unreasonableness or discrimination in the ordinance. We must therefore pass upon the question as it is presented by the provisions of the section referred to.
After defining what shall he deemed public carts within the meaning of the .ordinance, section 2325 provides in substance that every such vehicle shall be deemed a public cart whether employed or hired from any public stand or public street or way, or from any private barn, office or other place in the city; that the place where any such cart shall be hired or employed shall not determine the character of the vehicle, but the business in which such cart is engaged while on the streets and public ways of the city shall determine its character. The section then provides that nothing therein contained shall be held to require a license for any vehicle rented to any person or corporation for the purpose of transacting the business of such person or corporation solely, but if any such vehicle he employed in and about the business of more than one person or corporation for the purpose of transporting or conveying any of the articles described in the section, such vehicle should be considered a public cart.
According to the abstract of record article 3 and one section of article 4 of the ordinance were offered in evidence. An examination of the provisions so offered, particularly of section 2325 under consideration, discloses clearly a purpose and intent of the city council to regulate common carriers of goods and merchandise for hire in the city. While the section under consideration enumerates the vehicles and attempts to define what shall be deemed public carts under the ordinance, it expressly provides that “the business in which such cart is engaged while on the streets and public ways of the city shall determine the character of such vehicle.” This, we think,' sets up the legal definition of common carriers as the criterion by which the character of all vehicles carrying goods in the city of Chicago for hire or reward is to be determined under the ordinance. In our opinion the objection to the ordinance that it is class legislation because it exempts certain common carriers from its operation, is not well taken.
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Mr. Justice Smith
delivered the opinion of the court.
When the sections of the ordinance were offered in evidence appellant objected on the grounds, first, that the ordinance is invalid; and second, that appellant is not amenable to the ordinance. The" objections were overruled by the court and" the appellant preserved its exceptions.
The contentions of appellant are that it is not a common carrier, and that the ordinance has no application to it, that the ordinance is invalid, and on these grounds the judgment should he reversed.
We have, examined with care the authorities cited by appellant upon the question as to who are common carriers, and without quoting at length from the authorities the definitions given or the essential characteristics of common carriers, our conclusion is that appellant, under the law and the facts shown by the record, is a common carrier of goods, wares and merchandise for hire in and throughout the city of Chicago.
The invalidity of the ordinance is urged upon the following grounds: First, the city of Chicago has no power under its charter to license or tax other than common carriers; second, the ordinance attempts to delegate the power to license to a board of inspectors, and this power cannot be delegated; and third, the ordinance operates unfairly and unequally upon the same class of persons, discriminating in favor of certain carriers and against others, and it is unreasonable and oppressive.
The first of these contentions as to the power of the city is conceded by counsel for appellee and is disposed of so far as this case is concerned by what we have said above in holding that appellant is a common carrier.
The second ground upon which the invalidity of the ordinance is urged is predicated upon the provisions of section 2330.
The evidence in this case clearly shows a violation by appellant of sections 2325, 2326 and 2332 of the Revised Municipal Code of Chicago of 1905. These sections are therefore primarily before the court in this case, and it may well be doubted whether appellant in this case can question the validity of section 2330, which under the evidence is not involved in the controversy. And yet, no inconsiderable portion of appellant’s argument on the validity of the ordinance is based upon the provisions of that section, which relate to the application for and the securing of a license as a driver of a public cart.
The evidence shows that appellant is a corporation and that it could not actually drive a public cart. The evidence does not show that .appellant ever made an application to anyone, or to any board or municipal authority, for a license to drive a public cart, nor does it show that appellant has been refused such a license or that it has been so licensed. The evidence does not show that .appellant has set forth its qualifications for a driver of a public cart in any manner provided for in said section. In our opinion, therefore, the provisions of that section are not material or relevant to the issue and question before the court.
In Gundling v. City of Chicago, 176 Ill., 340, there was a stipulation of facts showing that appellant was conducting a business requiring a license, but without a license. In that case the court held that one violating an ordinance imposing a license fee, who has never been refused a license, is not in a position to raise the question that the ordinance is invalid for delegating to the mayor the discretionary power of granting or refusing such license. At page 350 the court say:
“The appellant, however, is not in position to raise this question from the facts appearing in this record. He was not an applicant for a license, which had been refused him, but was before the court admitting that he had violated an ordinance of the city of Chicago, duly passed and published, and denying the right of the city to adopt such ordinance regulating the sale of cigarettes. He is not in a position to invoke the judgment of this court as to his right to a license, nor is that question before us.” See also Harbaugh v. City of Monmouth, 74 Ill., 367, 370.
To the extent, therefore, that appellant’s arguments and contentions are based on the provisions of section 2330 they must be regarded as attempting to raise for decision questions which are immaterial, and to invoke the judgment of this court thereon without the right so to do on this record. And the same may be said in regard to the contentions founded on sections 2335, 2339, 2340 and 2342, for the same principle of law is applicable to them, under the facts shown by the record.
The remaining question presented is, whether or not the ordinance operates unfairly and unequally upon the same class of persons, discriminating in favor of certain carriers and against others, and is therefore unreasonable and oppressive and void.
It is urged that the definition of a “public cart” contained in section 2325 is too broad and includes those who are not common carriers.
Ho evidence was adduced on the trial, apart from the ordinance itself, so far as the record shows, tending to prove any unreasonableness or discrimination in the ordinance. We must therefore pass upon the question as it is presented by the provisions of the section referred to.
After defining what shall he deemed public carts within the meaning of the .ordinance, section 2325 provides in substance that every such vehicle shall be deemed a public cart whether employed or hired from any public stand or public street or way, or from any private barn, office or other place in the city; that the place where any such cart shall be hired or employed shall not determine the character of the vehicle, but the business in which such cart is engaged while on the streets and public ways of the city shall determine its character. The section then provides that nothing therein contained shall be held to require a license for any vehicle rented to any person or corporation for the purpose of transacting the business of such person or corporation solely, but if any such vehicle he employed in and about the business of more than one person or corporation for the purpose of transporting or conveying any of the articles described in the section, such vehicle should be considered a public cart.
According to the abstract of record article 3 and one section of article 4 of the ordinance were offered in evidence. An examination of the provisions so offered, particularly of section 2325 under consideration, discloses clearly a purpose and intent of the city council to regulate common carriers of goods and merchandise for hire in the city. While the section under consideration enumerates the vehicles and attempts to define what shall be deemed public carts under the ordinance, it expressly provides that “the business in which such cart is engaged while on the streets and public ways of the city shall determine the character of such vehicle.” This, we think,' sets up the legal definition of common carriers as the criterion by which the character of all vehicles carrying goods in the city of Chicago for hire or reward is to be determined under the ordinance. In our opinion the objection to the ordinance that it is class legislation because it exempts certain common carriers from its operation, is not well taken. The difference between keeping vehicles for hire and the keeping and operating of vehicles to carry goods for hire is quite apparent. The ordinance does not discriminate in favor of or against any particular class of common carrier so as to make an act done by one penal, while no penalty is imposed on the same act done by another under like circumstances. We are unable to see wherein it does not apply equally to all persons of the same class without discrimination.
Express power is conferred upon the appellee “to license, tax and regulate hackmen, draymen, omnibus drivers, carters, cabmen, porters, expressmen and all others pursuing like occupations, and to prescribe their compensation.” Chapter 24, article 5, section 1, subdivision 42. The ordinance before us finds warrant in the above clause which is a part of the charter of appellee. The spirit of the ordinance is to bring the class of carriers therein named under the police regulations of the appellee. The ordinance is designed to operate upon those who hold themselves out as common carriers in the city for hire, and is a rightful exercise of the police power. Farwell et al. v. City of Chicago, 71 Ill., 269. “All presumptions are in favor of its reasonableness, and such presumptions must prevail, nothing to the contrary appearing on the face of the ordinance or from proofs.” Standard Oil Co. v. City of Danville, 199 Ill., 50, 54. “It is therefore incumbent upon anyone who seeks to have them set aside as unreasonable to point out or show affirmatively wherein such unreasonableness consists.” People ex rel. v. Cregier, 138 Ill., 401, 414.
The evidence of the violation of this ordinance is undisputed ; and finding no reversible error in the record the judgment of the Criminal Court is affirmed.
Affirmed.