dissenting:
If an examination of the provisions of this amendatory act raised only questions of the wisdom of its expressed social or economic policy, or of its choice of methods to implement such policy, I would concur with the court and defer to such legislative determination. However, the facts of record concerning the plaintiff’s business, and the impact of this enactment thereon, require that this court exercise its time-honored judicial function of reviewing legislative enactments to determine whether they are arbitrary, capricious and unreasonable. (Midland Electric Coal Corp. v. County of Knox, 1 Ill.2d 200; Giebelhausen v. Daley, 407 Ill. 25; McDougall v. Lueder, 389 Ill. 141; Marbury v. Madison, 1 Cranch 137.) Under our form of government, the legislative, executive, and judicial branches all serve as guardians of our liberties, and each branch has the duty to check and balance the unauthorized act of the other. Our constitution did not harness a three-horse team to work in unison, but rather, gave each branch a separate task with the expectation that where one branch errs, the other will, within constitutional limitations, repair such error.
A complete reading of the act before us reveals a singular purpose to deprive plaintiff of its present competitive position. The legislative finding and declaration of policy, in the amendment, boldly announces a plan to protect community currency exchanges from competition by ambulatory currency exchanges. But the legislature did not attempt to achieve this purpose by the regulation of fees or charges for the services rendered. Rather, it sought to burden the plaintiff by the imposition of multitudinous license fees, investigation fees, examination fees, surety bonds, armed guard, supervisory and report and record requirements. It is inescapable that these requirements are not designed to protect the public, but to increase plaintiff’s cost and facility of doing business. The ■ legislature is without authority to act as a handicapper in the race for commercial success, as it has here done.
The court grounded its opinion solely on the legislative determination that the operations of the plaintiff are dangerous to public safety. The record, in my opinion, reveals something quite different; it conclusively discloses that in seventeen years of operation, the general public has suffered neither physical injury, nor economic harm. But even assuming that the activity of plaintiff in using its own money to cash payroll checks is hazardous per se, a conclusion I believe unreasonable, the supervision of the Auditor of Public Accounts, the plethora of fees and charges, and the burdensome requirements of supervision, bonds, records and reports have no conceivable relation to this hazard. Nor does the requirement of an armed guard, without heed to whether plaintiff is cashing checks for $100 or $100,000, have such relation.
It is naive to regard this amendment as anything more than an ill-considered legislative attempt to place a millstone of regulation around the neck of a legitimate business, under the guise of the exercise of the police power. This court still gives lip service to its decision in People ex rel. Barrett v. Thillens, 400 Ill.c 224, as “obviously correct,” but the present decision reduces the statements of constitutional law there announced to pious and hollow generalities, which will fall before the art of any skillful legislative draftsman. I would here reaffirm the more salutory doctrine that “If it is claimed that the statute or ordinance is referable to the police power, the court must be able to see that it tends, in some degree, toward the prevention of offenses or the preservation of the public health, morals, safety or welfare. It must be apparent that some such end is the one actually intended and that there is some connection between the provisions of the law and such purpose. If it is manifest that the statute or ordinance has no such object, but, under the guise of a police regulation, is an invasion of the property rights of the individual, it is the duty of the court to declare it void.” (People ex rel. Barrett v. Thillens, 400 Ill. 224, 235; also see: Midland, Coal Corp. v. County of Knox, 1 Ill.2d 200; People v. Carolene Products Co. 345 Ill. 166; People v. Wilson, 249 Ill. 195.) The validity of the Community Currency Exchange Act as applied to community exchanges was based on various fiduciary activities in which the plaintiff does not engage, such as handling other people’s money, issuing drafts, selling money orders, acting as bailee in payment of bills, taking other people’s money and purchasing paper. (McDougall v. Lueder, 389 Ill. 141.) While extensive regulations of such activities may be warranted, the same regulation of the plaintiff, which merely cashes checks with its own funds, without any fiduciary relationship with the public, is clearly unreasonable. Cf. People ex rel. Barrett v. Thillens, 400 Ill. 224.
The amendatory act has the further vice of lack of uniformity in exempting express companies from like regulation. While such classification was justified in McDougall v. Lueder, 389 Ill. 141, it can have no rational basis in the amendatory act under consideration, the validity of which is sustained solely on the ground that the business is hazardous to public safety. If the plaintiff’s activities are hazardous to public safety, then similar activities of the express companies would have an equal element of hazard, and their exemption from the onerous provisions of the act would render it unconstitutional. (Berry v. City of Chicago, 320 Ill. 536, 542; Wedesweiler v. Brundage, 297 Ill. 228, 236; Millett v. People, 117 Ill. 294, 301 and 302.) The act discriminates against the plaintiff and excepts express companies performing similar services from its operation without the justification of genuinely different characteristics in the business involved, and in so doing violates the equal-protection clause of both the State and Federal constitutions. Morey v. Doud, 354 U.S. 457, 1 L. ed.2d 1485.
I therefore voice my dissent to an opinion which tends to vest in the legislature the unfettered power, by finding and declaration, to destroy harmless competition under the guise of police regulation.
Mr. Justice Hershey concurs in the foregoing dissenting opinion.