dissenting:
The opinions of the court assume that in 1937 the appellants and other licensees were unwillingly induced by the city to give up licenses that they wanted to keep. As the opinion puts it — “it is readily apparent that the surrendering licensees gave up their licenses in an effort to alleviate an economic crisis in the taxicab business. To induce this sacrifice of legally valuable rights, the city, by ordinance, promised a preference in regaining the rights surrendered.”
The picture thus drawn is not accurate. It is true that there was an economic crisis in the taxicab business in 1937. The number of taxicabs exceeded the demand for them, at least at the rates fixed by the ordinance. But it was the licensees, and not the city, who were losing money because of this situation. The city’s interest was not an economic one. It was concerned only with the maintenance of public order in the face of a serious strike of the taxicab drivers, who- wanted a greater share of taxicab receipts than they were getting from the licensees.
The 1937 ordinance itself contradicts any notion that the city “induced” the surrender of licenses. Its preamble recites that “Certain licensees under the ordinance of May 18, 1934, have agreed to surrender a sufficient number of taxicab licenses to effect a reduction of the number of taxicabs within the City of Chicago to 3,000.” This preamble, which is not mentioned in either of the two- opinions, precedes the 1937 ordinance as it appears on page 374 ante. When it is read in connection with the ordinance, the mythical quality of the basic assumption that underlies the opinions is obvious. I know of no reason for disregarding the preamble of the ordinance. We have held, as other courts have held, that “the preamble is placed upon an equal footing with any particular clause of the act itself, and is within the rule that every particular clause of an act is to be considered in determining its meaning. (Lewis on Stat. Const. — 2d ed. — sec. 341.)” People ex rel. Howard v. Chicago and Eastern Illinois Railroad Co. 296 Ill. 246, 253.
The 1937 ordinance substantially improved the position of taxicab licensees. Under the 1934 ordinance a taxicab licensee could not withdraw a cab from service without running the risk of losing its license. That ordinance provided: “In the event that the service of any taxicab is discontinued excepting on account of strikes, acts of God or causes beyond the control of the licensee the Commission may give written notice to the licensee to restore such taxicab to service and, if the same is not restored within five days after such notice, the Commission, in its discretion, may recommend to the Mayor that the license for such taxicab be revoked and the Mayor, in his discretion, may revoke same.”
By the 1937 ordinance the licensees were given the right to withdraw cabs from service without losing the licenses for the cabs so withdrawn. No such right had theretofore existed. The licensees were to- have priority, based on the cabs withdrawn from service, in the event that the number of cabs operating under the 1934 ordinance was increased above 3000.
The 1937 ordinance gave taxicab licensees another new right that is not mentioned in the opinions. Licenses issued under the 1934 ordinance were not transferable, “except upon transfer to permit replacement of a taxicab.” The 1937 ordinance provided: “Each taxicab license or the right to apply for such license shall be assignable subject to the power of the City of Chicago to determine the qualifications of the assignee.” The limit upon licenses contained in the 1937 ordinance, coupled with the new attribute of assignability of licenses or the right to apply for them, gave the licenses an entirely new element of value. Theretofore the only value of a license was in the right it gave to operate a taxicab; thereafter, the license had a value whether the licensee operated the cab or not. If he did not want to operate the cab, he could sell his license.
One other additional right that the licensees received under the 1937 ordinance is overlooked or minimized in the opinions. When the new ordinance was adopted in December of 1937, all rights of the licensees to operate taxicabs were to expire on December 31, 1940. The 1937 ordinance extended those rights until December 31, 1945. Subsequent ordinances further extended them to 1951.
This enumeration of significant new rights that the licensees received under the 1937 ordinance is necessary-only because the opinion finds an absence of “beneficial consideration” for the surrender of “valuable rights” by the licensees. If normal standards of construction were used in reading the ordinance, lengthy discussion of the new privileges and rights that the ordinance gave to licensees would be unnecessary.
The opinions reach their result by an unnatural division of the 1937 ordinance into two offers, each of which “was separable and could stand alone.” The ordinance is a single piece of legislation, and there is no justification for breaking it into fragments in order to import into it what it does not say. It was based on the ordinance of May 18, 1934. Each of its six sections, except the section that makes licenses assignable, specifically refers to the “ordinance of May 18, 1934.” What the opinions call the “second offer,” (sec. 196A-2), by its specific terms is tied directly to the 1934 ordinance. It is dealing with “licensees under the ordinance of May 18, 1934,” and it says so. Indeed it must be dealing with those licensees, or it is meaningless, for there is no suggestion that there were any taxicab licensees except those who held licenses under that ordinance.
What seems to have caused the difficulty in this case is that the 1937 ordinance was to become effective upon the surrender of 616 licenses by one or more licensees. There is no justification, however, for attaching special significance to this fact. The conditions upon which the various taxicab ordinances were to become effective do not show a consistent pattern. The 1934 ordinance became effective upon acceptance by one licensee; the 1945 ordinance that extended the license term to 1949 became effective upon acceptance by “one or more licensees under the ordinance passed May 18, 1934;” the 1950 ordinance extending the license term until 1951 became effective upon the acceptance of “two or more licensees operating at least 2500 taxicabs.”
The 1937 ordinance became effective when it was accepted by the surrender of 616 licenses. The priority that it provided thereupon became operative. Those licensees who surrendered the first 616 licenses were not discriminated against. Section 196A-2 says that “licensees who shall have voluntarily surrendered any taxicab licenses or their right to renewal of any taxicab licenses on or before March 21, 1938, shall have the right to such number of taxicab licenses as were so surrendered, and such right shall be prior to the right of any persons, firms or corporations * * The provision that gave priority gave it to “any” surrendering licensee, and it does not so much as mention the surrender of enough licenses to reduce the total number to 3000. If the city had issued any priority licenses to surrendering licensees, the only licenses that could have been issued would have been licenses under the 1934 ordinance, and they would have expired with the expiration of that ordinance in 1951.
The supplemental opinion points to the fact that the regulatory ordinance of January 1, 1952, in dealing with the issuance of new taxicab licenses, refers to “any subsisting franchise or contract ordinance governing the subject.” This circumstance looks both ways, because as soon as the minority report directed the city council’s attention to the interpretation that might be given to the provision, the council eliminated it by amendment on January 30, 1952. In any case, the rights of licensees under the 1934 and 1937 ordinances must be determined in accordance with the provisions of those ordinances.
Since neither opinion discusses the right of the plaintiffs to a writ of mandamus to compel the issuance of licenses to them, it is unnecessary to discuss that matter.
Davis, C.J., and HershEy, J., join in this dissenting opinion.