City of Chicago v. Bowman Dairy Co.

• Decision Date: 04 June 1908
• Citation: 84 N.E. 913,234 Ill. 294
• Parties: CITY OF CHICAGO v. BOWMAN DAIRY CO.
• Court: Illinois Supreme Court

234 Ill. 294

84 N.E. 913

CITY OF CHICAGO

v.BOWMAN DAIRY CO.

Supreme Court of Illinois.

April 23, 1908.

Rehearing Denied June 4, 1908.

Error to the Municipal Court of Chicago; John C. Scovel, Judge.

Action by the city of Chicago against the Bowman Dairy Company to recover the penalty imposed by Rev. Mun. Code Chicago 1905, § 2479, as amended, for having in its possession milk bottles of less than their purported capacity. Judgment for plaintiff, and defendant brings error. Affirmed.Ritsher, Montgomery, Hart & Abbott, for plaintiff in error.

George H. White (Henry M. Seligman, of counsel), for defendant in error.

This was an action of debt commenced in the municipal court of the city of Chicago against the Bowman Dairy Company to recover the penalty imposed by section 2479, Rev. Mun. Code Chicago 1905, as amended June 11, 1906, and September 3, 1907, for having in its possession bottles for the purpose of containing milk or cream to be sold, or offered for sale, of less capacity than said bottles purported to contain, which section of said ordinance provides (1) no person or corporation shall, after October 1, 1907, sell or offer for sale within the city of Chicago any milk or cream in bottles or in glass jars unless each of said bottles or glass jars in which said milk or cream is sold or offered for sale shall have blown into it, or otherwise indelibly and permanently indicated thereon, in a legible and conspicuous manner, the capacity thereof; (2) the inspector of weights and measures of the city of Chicago shall have the right, at any time, to examine any bottle or glass jar in which milk or cream is sold or offered for sale in the city of Chicago, or which is used by any person or corporation for the purpose of containing milk or cream to be sold or offered for sale, in order to ascertain whether such bottle or jar is of a capacity less than that which it purports to be; (3) and if any such bottle or jar is of a less capacity than that which it purports to be, or if any such bottle or jar shall not have blown into it or otherwise indelibly and permanently indicated thereon, in a legible and conspicuous manner, its capacity, as aforesaid, the person or corporation selling or offering for sale milk or cream in any such bottle or jar, or having in his or its possession any such bottle or jar to be used, or which has been used, for the purpose of containing milk or cream to be sold or offered for sale in said city of Chicago, shall be fined not less than $5 nor more than $100 for each offense; (4) each and every bottle or glass jar found in the possession of any person or corporation used or to be used, or which has been used, by such person or corporation for the purpose of containing milk or cream to be sold or offered for sale in the city of Chicago, which shall be found to be of a less capacity than that blown into the same, or otherwise so indelibly and permanently indicated thereon, or which shall not have blown into it, or otherwise indelibly and permanently indicated thereon, in a legible and conspicuous manner, the capacity, as aforesaid, shall constitute a separate and distinct offense on the part of such person or corporation.

The defendant was charged with having in its possession, in the city of Chicago, on the 25th day of November, 1907, one glass bottle which purported to contain one quart, but the capacity of which was less than one quart, and at the same time and place with having in its possession two glass bottles which purported to contain one pint each, but the capacity of each of which bottles was less than one pint, and that the defendant, at said time and place, was using each of said bottles, and intended to use each of said bottles, for the purpose of holding or containing milk or cream which defendant had sold, or was offering for sale, or intending to sell in the city of Chicago. The defendant, on being served with process, appeared and pleaded not guilty.

It appeared from the evidence that the defendant was engaged in the business of handling milk and cream in the city of Chicago; that two deputy city inspectors of weights and measures, on the 25th day of November, 1907, called at the business place of the defendant in the city of Chicago and stated to its manager that they were from the city sealer's office and that they wanted to test some of the bottles that were in use by the defendant; that the manager sent an assistant for bottles, who returned with a number of pint and quart bottles; that the inspectors tested said bottles in the presence of the manager and found several of them to hold less in amount than was indicated upon the outside of the bottles.

The defendant, at the close of all the evidence, moved the court to find the defendant not guilty, and to dismiss the case, which motion the court overruled, and without the intervention of a jury rendered a judgment against the defendant on the three charges for $150 and costs of suit, and the defendant has sued out this writ of error.

HAND, C. J. (after stating the facts as above).

It is contended by the defendant that the ordinance for a violation of which it was convicted is unconstitutional in this: that it deprives it of its property without due process of law, and is special legislation.

We think the ordinance can be sustained as an exercise of the police power of the city of Chicago. The police power is said to be an attribute of sovereignty, and to existwithout any reservation in the Constitution, and to be founded upon the duty of the state to protect its citizens and to provide for the safety and good order of society. 22 Am. & Eng. Ency. of Law (2d Ed.) p. 918. In Hawthorn v. People, 109 Ill. 302, 50 Am. Rep. 610, it was held that the statute requiring the operaters of butter and cheese factories on the co-operative plan to give bonds to protect their patrons was valid, as a proper exercise of the oplice power of the state; and in McPherson v. Village of Chebanse, 114 Ill. 46, 28 N. E. 454,55 Am. Rep. 857, that an ordinance prohibiting persons from keeping open their places of business in a city or village for the purpose of vending goods, wares, and merchandise on Sunday was a proper exercise of the police power of such city or village; and in Booth v. People, 186 Ill. 43, 57 N. E. 798,50 L. R. A. 762, 78 Am. St. Rep. 229, that section 130, c. 38, Cr. Code, which declares grain option contracts to be gambling contracts, was a valid police regulation and sustainable as such; and in City of Chicago v. Gunning System, 214 Ill. 628, on page 635, 73 N. E. 1035, on page 1038 (70 L. R. A. 230), it was said: ‘The police power of the state is that inherent or plenary power which enables the state to prohibit all things hurtful to the comfort, safety,...