City of Chicago v. Gorman

• Decision Date: 24 April 1936
• Docket Number: Nos. 23224-23226.,s. 23224-23226.
• Citation: 1 N.E.2d 396,363 Ill. 125
• Parties: CITY OF CHICAGO v. WATERS. SAME v. HAUGE. SAME v. GORMAN.
• Court: Illinois Supreme Court

363 Ill. 125

1 N.E.2d 396

CITY OF CHICAGO

v.WATERS.

SAME

v.HAUGE.

SAME

v.GORMAN.

Nos. 23224-23226.

Supreme Court of Illinois.

Feb. 14, 1936.

Rehearing Denied April 24, 1936.

Isaac Waters, Marcus Hauge, and Frank Gorman were convicted of the violation of an ordinance requiring commodities sold in lot loads by weight delivered by truck within the city to be weighed by a city public weighmaster, and they appeal.

Judgments affirmed.

SHAW, J., and STONE, C. J., dissenting.Appeals from the Municipal Court of Chicago; Frank M. Padden, judge.

Babcock, Gilruth, Beck & McConnell, of Chicago (Thomas C. McConnell, C. Graydon Megan, and Owen Rall, all of Chicago, of counsel), for appellants.

Barnet Hodes, Corp. Counsel, of Chicago (Martin H. Foss and David Lefkovits, both of Chicago, of counsel), for appellee.

HERRICK, Justice.

In the municipal court of Chicago separate proceedings were instituted by the city of Chicago against Isaac Waters, Marcus Hauge, and Frank Gorman for the violation of section 2947 of the Revised Code of Chicago of 1931. The cases were separately tried on the same day without a jury, each defendant was found guilty, and judgment was entered against him. In each case the trial judge certified that the validity of a municipal ordinance was involved and in his opinion the public interest required a direct appeal to this court. Each defendant perfected his appeal, and the three cases were consolidated in this court for hearing.

Section 2947 of the ordinance in question provides, in substance, that every commodity sold in lot loads by weight delivered by truck within the city should be weighed by a city public weighmaster, and that his certificate of weight for each such lot should be delivered by the driver or person in charge of the truck or other vehicle to the purchaser or consignee of the load at the time of delivery and before any of the commodity is removed from the vehicle. Section 3623 provides that the public weighmaster's weight certificate shall state, inter alia, the commodity weighed, the date, the name and address of the purchaser or consignee, the conveyance in which the commodity is loaded, and the tare weight and the net weight of the commodity contained in such vehicle. The section proceeds: ‘In no case is any public weighmaster to state in his certificate the tare weight of any vehicle until after he shall have weighed the vehicle in such manner as to secure the weight as specified herein,’ etc.

In addition to the attack made on the ordinance, the defendants contend that the coal severally trucked by them was appropriated to the contract of purchase in Morris, Ill., and then and there became the property of the buyer; that the ordinance has no application to the deliveries made by the defendants because the sale was made and completed without the corporate limits of the city of Chicago.

We will first take up the issue as to whether the sale was made and completed in Morris or Chicago. The evidence common to the three cases is that the appellants delivered coal in truckload lots to purchasers living in Chicago, none of which coal was weighed by a city of Chicago public weighmaster and no public weighmaster's certificate had been issued, as required by the provisions of the ordinance in question. The defendants are severally nonresidents of Chicago; Hauge and Waters living at Morris and Gorman at Blue Island. Each owns his own truck. The coal delivered was secured by each defendant from a coal company at Morris. The company has an independent coal dealer or broker residing in Chicago who sells the coal of the coal company. The company takes orders at times direct from the customer,but there is no evidence in any of the cases to show that situation applies to any sale here. The usual custom of the business is that a statement of the account is rendered by the coal company and delivered to the truck driver. No separate charge is entered thereon for the trucking service. The driver collects for the coal, deducts his charges for trucking, and either pays the remainder to the broker in Chicago or the coal company at Morris, whichever is the more convenient for the driver. If payment is made to the coal company, it in turn pays the Chicago broker for his services. The coal is sold delivered in the purchaser's bin by the company. The truck driver receives his orders to load his truck and where to make delivery from the coal company. None of the defendants ever had any transaction with the customer to whom delivery was made, was not employed by the customer to haul the coal, the customer gave no directions for the delivery of the coal and had no control over the vehicle in which the coal was transported. The details of the method of transportation and delivery were arranged by the coal company. The load trucked by Hauge was for three different customers. He received the statement of the account from the Chicago broker, with the names of the customers and the quantity of coal to be delivered to each one. The defendant Waters received a statement from the coal company for the load of coal delivered by him. The statement showed a flat price of $18, plus tax, for three tons, and showed the coal was purchased from a coal company which operated a mine at Morris. Gorman received his orders to deliver the coal from the mining company at Morris. He did not testify. The statement for the coal delivered by him was offered in evidence and showed that the customer paid a flat price of $11.50, plus tax, for three tons of coal.

It is the law that sales of personal property are regarded as made at the place where the vendor shows his assent to the sale by delivering the property sold to the vendee's carrier, in the absence of any agreement or any special circumstances showing a contrary situation. Smith-Hurd Ann.St. c. 121 1/2, § 46, Ill.Rev.Stat.1935, c. 121a, par. 49; City of Chicago v. DiSalvo, 302 Ill. 85, 134 N.E. 5;People ex rel. v. Hill Top Metals Mining Co., 300 Ill. 564, 133 N.E. 303. The evidence here clearly shows that the carrier was neither selected nor designated by the purchaser, and that the purchaser, so far as he knew, was not paying any separate charge for the carriage of the coal. The price to him was net, delivered to him by the seller. The defendants were clearly the agents of the coal company, and each sale was made within the city limits of Chicago.

There remains for decision the question of the validity of the ordinance. The defendants contend that the effect of the above two sections of the ordinance is to require that coal brought into the city of Chicago by truck direct from the mine to the consumer in Chicago, although weighed at the mine on state-tested scales, be unloaded within the city limits of Chicago, so that the truck can there first be weighed empty by a public weighmaster and then reloaded in order that both truck and coal can be reweighed by the same public weighmaster for the purpose of making the certificate described in section 3623 and required by section 2947, for the violation of which latter section the judgments rested. It is here urged that by reason of these requirements, as applied to the defendants, the ordinance is unreasonable, deprives the defendants of the equal protection of the law, and deprives them of liberty and due process of law, in violation of section 1 of the Fourteenth Amendment to the Federal Constitution and of section 2 of article 2 of the Illinois Constitution.

This issue is one of first impression in this court, and we are not referred by either side to any decision where the precise question presented has been decided. The problem must therefore be resolved by the application of sound, fundamental legal principles. It is immaterial to the issues here that the coal in question was weighed outside of the city of Chicago on statetested scales. The Weights and Measures Act (Smith-Hurd Ann.St. c. 147, § 1 et seq.) does not repeal, supersede, or to any extent modify the right of a municipality to adopt an ordinance regulating the method of ascertaining the correctness of weights and measures. The power of the city to adopt the particular ordinance before us, together with its reasonableness, and that it was not subject to attack as making a classification obnoxious to the constitutional provision, was definitely decided in City of Chicago v. Wisconsin Lime & Cement Co., 312 Ill. 520, 144 N.E. 3. The attack here made on the validity and constitutionality of the ordinance is not the same, however, as was decided in that case.

The defendants, among other cases, rely on City of Chicago v. Kautz, 313 Ill. 196, 144 N.E. 805, 35 A.L.R. 1050, as supporting their side of the issue as to the unreasonableness of the ordinance. In that case the provision of the ordinance authorizing a city inspector or his deputies, without reasonable grounds for suspecting a violation of the ordinance, to compel a vehicle driver en route to the place of delivery, after his load had been weighed in conformity with the provisions of the ordinance, to reweigh the load on scales selected by the inspector or his deputies, was held void as unreasonable. That provision did not affect the remainder of the ordinance. The case presented here does not grow out of an attempt to have any of the defendants here reweigh his coal after having it once weighed over a Chicago public weighmaster's scales. The case is not authority, either helpful or persuasive, of the correctness of the defendants' contention.

In the determination of whether the ordinance is unreasonable and contrary to the grain of the constitutional provisions supra, we must not be unmindful of those legal rules which have survived the test of many years for the determination of the reasonableness and constitutionality of statutes and ordinances. Where the ordinance is within the grant of power conferred by the Legislature, the presumption is in favor of the validity of the ordinance, and the burden is...