City of Chicago v. R.&X. Rest., Inc.

• Citation: 15 N.E.2d 725,369 Ill. 65
• Decision Date: 15 June 1938
• Docket Number: No. 24493.,24493.
• Court: Supreme Court of Illinois
• Parties: CITY OF CHICAGO v. R. & X. RESTAURANT, Inc.

369 Ill. 65

15 N.E.2d 725

CITY OF CHICAGO

v.R. & X. RESTAURANT, Inc.

No. 24493.

Supreme Court of Illinois.

June 15, 1938.

Proceeding by the City of Chicago against the R. & X. Restaurant, Inc., for operating a food dispensing establishment without a license. From a judgment imposing a fine, the defendant appeals.

Affirmed.Appeal from Municipal Court of Chicago; Justin F. McCarthy, judge.

Benjamin E. Cohen and Samuel Berke, both of Chicago (Mayer Goldberg, of Chicago, of counsel), for appellant.

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

WILSON, Justice.

This is an appeal from a judgment of the municipal court of Chicago, imposing a fine upon the R. & X. Restaurant, Inc., for conducting a food-dispensing establishment in Chicago without having applied for and obtained a license, in violation of an ordinance regulating such establishments.

The ordinance charged to have been violated is article 3, sections 3013 to 3037, of chapter 61 of the Revised Chicago Code of 1931, pp. 1145 to 1153. The ordinance defines food dispensers and regulates the storage, handling and sale at retail of foods and drinks intended for human consumption. Regulations are provided as to dining rooms, kitchens, storerooms, pantries, refrigerators, plumbing, screens and employees; the manner of cleaning dishes and eating and drinking vessels; cleaning and polishing silverware, kitchenware and utensils; the protection of foods from rats, mice, vermin, insects, flies and dust; the wearing by employees of suitable, clean and washable clothing; the disposition of refuse and garbage and keeping receptacles therefor; the making of orange drinks and their protection from contamination. Regulations are provided for counter ice cream freezers and the manufacture and handling of ice cream. It is admitted that the ordinance covers the entire field of regulation of the business of selling to the public at retail foods and drinks for consumption on the premises.

Counsel for defendant contend that the city has no power to regulate the restaurant business or that of food dispensers. Counsel for the city contend that the ordinance is valid under express powers delegated by specific provisions of the Cities and Villages Act.

The authority of a municipality to adopt an ordinance may be derived from a single grant or a combination of enumerated powers. City of Rockford v. Hey, 366 Ill. 526, 9 N.E.2d 317;City of Chicago v. Arbuckle Bros., 344 Ill. 597, 176 N.E. 761;City of Rockford v. Nolan, 316 Ill. 60, 146 N.E. 564. Among the powers granted to municipalities under section 1 of article 5 of the Cities and Villages Act, Ill.Rev.Stat.1937, c. 24, pp. 347 to 354, are: (Section 65.3) authority ‘to fix the amount, terms and manner of issuing and revoking licenses.’ (Section 65.40) ‘To license, tax, regulate, suppress and prohibit * * * keepers of ordinaries * * * and to revoke such licenses at pleasure.’ (Section 65.49) ‘To regulate the sale of meats, poultry, fish, butter, cheese, lard, vegetables, and all other provisions, and to provide for place and manner of selling the same and to control the location thereof.’ (Section 65.52) ‘To provide for and regulate the inspection of meats, poultry, fish, butter, cheese, lard, vegetables, cotton, tobacco, flour, meal and other provisions.’ (Section 65.77) ‘To do all acts, make all regulations, which may be necessary or expedient for the promotion of health or the suppression of disease.’ (Section 65.90) ‘To tax, license and regulate * * * ice-cream parlors, coffee houses.’

The most general of the foregoing provisions are those relating to the licensing and regulation of the keepers of ordinaries, the regulation and inspection of food products ‘and all other provisions,’ and the one relating to the promotion of health and the suppression of disease. It is contended that the ordinance could not be based upon the statutory provision relating to licensing and regulating keepers of ordinaries, because while food dispensers include restaurants, ordinaries are not restaurants. The word ‘ordinary’ has been defined to mean a place of eating where the prices are settled. Webster's New Internat. Dict.; 6 Words and Phrases, First Series, page 5027; Werner v. Washington, 29 Fed.Cas. page 705, No. 17, 416a; Talbott v. Southern Seminary, 131 Va. 576, 109 S.E. 440, 19 A.L.R. 534. It is not necessary to decide whether the words ‘ordinary’ and ‘restaurant’ have exactly the same meaning, but they are both places where food is dispensed. The ordinance here was not designed to regulate an occupation as such, but the places where food is dispensed. It is contended that the foods or provisions specified in the paragraph relating to food products, are those of a raw or uncooked character, and that by the use of the words ‘other provisions' the same character of food is intended. There is nothing in any of the paragraphs mentioned which excludes from their operation the regulation of cooked foods. Markets and food establishments frequently have for sale cooked meats, poultry and fish. There is as much likelihood of contamination of cooked foods as uncooked foods, if they are not properly safeguarded, and since they come within the same designation, cooked or uncooked foods would be subject to regulation. ‘All other provisions' would include cooked as well as uncooked articles of food. The regulation of cooked food certainly tends to the promotion of health and assists in the suppression of disease. Regulations similar to those in the act here under consideration were contained in an ordinance applicable to wholesale food establishments, passed upon and held valid in City of Chicago v. Arbuckle Bros., supra. The regulation and inspection of food products and provisions immediately to be consumed in places where food is to be dispensed is no less important than the regulation and inspection of articles of food, such as coffee, in wholesale food establishments. If there is a reasonable connection between any business and the peril of employment therein, or to the public, a reasonable ground of regulation is presented.

We have held that if a business sought to be regulated does not tend to injure the public health, public morals or interfere with the general welfare it is not a subject for the exercise of the police power. Lowenthal v. City of Chicago, 313 Ill. 190, 144 N.E. 829. An ordinance providing for a license, without regulatory provisions of any kind, is solely a revenue measure and not within the police power. Herb Bros. v. City of Alton, 264 Ill. 628, 106 N.E. 434. The following cases illustrate the conditions which may call for the exercise of the police power in matters of regulation and license. The regulation and licensing of meat markets has been upheld. Kinsley v. City of Chicago, 124 Ill. 359, 16 N.E. 260. The regulation of the sale of milk and its products has been held essential to the preservation of the public health. Koy v. City of Chicago, 263 Ill. 122, 104 N.E. 1104, Ann.Cas.1915C, 67. A municipality is authorized to provide by ordinance against the sale of impure, unwholesome and adulterated food. City of Chicago v. Union Ice Cream Manf. Co., 252 Ill. 311, 96 N.E. 872, Ann.Cas.1912D, 675. The provisions of section 1 of article 5 of the Cities and Villages Act, Ill.Rev.Stat.1937, c. 24, § 65.51, authorize municipal corporations to regulate the sale of bread and to prescribe the weight and quality of bread in a loaf. City of Chicago v. Schmidinger, 243 Ill. 167, 90 N.E. 369, 44 L.R.A.,N.S., 632, 17 Ann.Cas. 614. The business of manufacturing candy and confections for the...