City of Chicago v. Union Ice Cream Mfg. Co.

• Decision Date: 21 December 1911
• Citation: 252 Ill. 311,96 N.E. 872
• Parties: CITY OF CHICAGO v. UNION ICE CREAM MFG. CO.
• Court: Illinois Supreme Court

252 Ill. 311

96 N.E. 872

CITY OF CHICAGO

v.UNION ICE CREAM MFG. CO.

Supreme Court of Illinois.

Dec. 21, 1911.

Error to Municipal Court of Chicago; Judson F. Going, Judge.

Action by the City of Chicago against the Union Ice Cream Manufacturing Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

McMahon & Cheney, for plaintiff in error.

William H. Sexton, Corp. Counsel, and James S. McInerny, Pros. Atty. (Edwin J. Raber, of counsel), for defendant in error.

CARTER, C. J.

This is a quasi criminal action instituted by the city of Chicago against the Union Ice Cream Manufacturing Company, a corporation, to recover a fine for the violation of section 1160 of the Municipal Code of Chicago of 1905, which reads, in part, as follows: ‘Any person or corporation, or any agent or employé thereof, who shall keep for sale, offer for sale or exchange, or shall sell or deliver or expose for sale, any * * * food which shall be impure, unwholesome, adulterated, or to which any harmful or injurious foreign substance has been added, shall be fined not less than $5 nor more than $100 for each offense.’ On a hearing before the court the plaintiff in error was found guilty, and fined $100 and costs. This writ of error is based on a certificate of the trial court that the vadidity of a municipal ordinance was involved and the public interests required the case to be taken direct to this court.

The sole question involved here is whether the above section of the Municipal Code is in force since the so-called pure food act went into force, July 1, 1907. Hurd's Stat. 1909, p. 2118.

[1] It is first insisted by counsel for plaintiff in error that the pure food act, being the latest announcement of the Legislature, repeals, by implication, all laws and parts of laws repugnant to its provisions. If we understand the argument, it is to the effect that, while article 5 of the city and village act of 1872 (Hurd's Rev. St. 1877, c. 24) formerly gave the city council of Chicago authority to pass such an ordinance as here in question, under the general power therein conferred to regulate the sale of provisions, pass police ordinances, and do all acts necessary and expedient for the promotion of public health, yet the Legislature clearly, under our system of government, may resume the power so delegated and in that way deprive the municipalities of the right to exercise it (City of Chicago v. Burke, 226 Ill. 191, 80 N. E. 720, and cases cited); that the pure food law of 1907, covering the same subject, manifestly was intended to repeal, by implication, the authority granted to cities by said act of 1872 to regulate the sale of impure or adulterated food. Whatever force there may be in that argument, as presented here, it is nullified by the fact that said article 5 of the city and village act was amended and entirely re-enacted by the Legislature as an emergency act December 31, 1907 (Laws 1907-08, Adj. Sess. p. 36), so that the part of the city and village act as it stands at present on the statute book, authorizing cities and villages to make regulations for the promotion of health or suppression of disease, became a law six months after said pure food act.

[2] The laws of the state operate within the limits of municipal corporations the same as elsewhere, unless otherwise clearly provided by municipal charters or statute. Local laws and regulations are at all times subject to the paramount authority of the Legislature.

[3] Did the Legislature intend by the passage of the pure food act in 1907 to deprive municipal authorities of all power to legislate on subjects touched upon or regulated by said act? Clearly not. Said act has certain provisions with reference to milk and its measurement, but this court has held since its passage that a municipality could regulate by ordinance the size of the bottles or jars in which milk was sold. City of Chicago v. Bowman Dairy Co., 234 Ill. 294, 84 N. E. 913,17 L. R. A. (N. S.) 684, 123 Am. St. Rep. 100. There are also many provisions in said pure food act with reference to food. We recently held that a municipality could pass an ordinance regulating the sale and weight of bread. City of Chicago v. Schmidinger, 243 Ill. 167, 90 N. E. 369. The pure food act also has regulations with reference to liquors, but no one would claim that municipalities are deprived, since the passage of that act, of any of their former authority to regulate and control the sale of intoxicating liquors. See Gardner v. People, 20 Ill. 431;City of Pekin v. Smelzel, 21 Ill. 464, 74 Am. Dec. 105;Fant v. People, 45 Ill. 259.

We think it is clear that the pure food act was not intended to deprive cities and villages of the authority given by the provisions of article 5 of the city and village act to regulate and control, by ordinances not in conflict with said pure food law, the sale of foods, including such regulation as provided in said section 1160 of the revised Municipal Code of Chicago.

[4] Municipal ordinances must be in harmony with the general laws of the state and with the municipal charter. In case of a conflict the ordinance must give way.

[5] The great weight of authority is to the effect that the Legislature may...