City of Chicago v. Arbuckle Bros.

• Decision Date: 18 June 1931
• Docket Number: No. 20616.,20616.
• Citation: 344 Ill. 597,176 N.E. 761
• Parties: CITY OF CHICAGO v. ARBUCKLE BROS.
• Court: Illinois Supreme Court

344 Ill. 597

176 N.E. 761

CITY OF CHICAGO

v.ARBUCKLE BROS.

No. 20616.

Supreme Court of Illinois.

June. 18, 1931.

Error to Municipal Court of Chicago; Albert B. George, Judge.

Arbuckle Bros., a corporation, was convicted of conducting a wholesale food establishment without a license, and it brings error.

Affirmed.Thomas J. Hickey, of Chicago, for plaintiff in error.

Samuel A. Ettelson, Corporation Counsel, of Chicago (Leon Hornstein and Martin H. Foss, both of Chicago, of counsel), for defendant in error.

DUNN, J.

Arbuckle Bros., a corporation, was convicted in the municipal court of Chicago of conducting a wholesale food establishment without a license, in violation of section 2004 of the Chicago municipal code. The validity of a municipal ordinance was involved and a writ of error was sued out of this court, the trial judge having made the statutory certificate required for that purpose.

The sole question argued is the validity of section 2004 of the Chicago municipal code, which, so far as material in this case, is: ‘The term ‘wholesale food establishment,’ as used in this article, shall be construed to mean any building, room, stand, enclosure, premises, place or establishment used for the preparation, manufacture, canning, bottling, packing, distribution, selling or offering or keeping for sale at wholesale, any article of food, confection, condiment or drink used or intended for human consumption, or any such article which is an ingredient of or is used for or is mixed with or enters into the composition of any such food, confection, condiment or drink. * * * No person, firm or corporation shall establish, maintain or operate any wholesale food establishment without first having obtained a license as hereinafter required.' Section 2009 is as follows:

‘Sec. 2009. (Sanitary requirements.) It shall be the duty of every person, firm or corporation conducting, operating or maintaining a wholesale food establishment to keep the floors, walls, pillars, partitions, ceiling, receptacles, refrigerators, implements and machinery of every such establishment, and all cars, trucks, vehicles and containers used for the transportation of food products, in a clean and sanitary condition. For the purposes of the enforcement of this article, unclean and insanitary conditions shall be deemed to exist if the food in the process of production, preparation, manufacture, packing, storing, sale, distribution or transportation is not adequately protected from flies, vermin, dogs, cats, dust, dirt and from other foreign or injurious contamination; or if refuse, dirt, or waste products subject to decomposition and fermentation are not removed daily; or if the trucks, trays, boxes, buckets or other receptacles, or the chutes, platforms, racks, tables or shelves, or the knives, saws, cleavers, or other utensils, or the machinery used in handling, cutting, chopping, mixing, canning or other processes, are not clean, or if the clothing of operatives or other persons employed therein is unclean, or if no adequate toilet facilities, soap or clean towels are provided for employees handling foods.’

The plaintiff in error is engaged in the business of receiving, packing, and selling at wholesale, coffees, teas, spices, and flavoring extracts. The coffee is received in bulk and is then roasted and ground and packed in containers by machinery. Most of the teas are kept and sold in their original containers, though some teas are picked over and repacked. All spices are handled automatically, without the intervention of human hands, except that an original package of allspice will be broken when some one wants a smaller quantity, and whole spices are handled occasionally. The flavoring extracts are also manufactured without the intervention of human hands. The products of the plaintiff in error are distributed in all the states east of the Rocky Mountains. The business of the plaintiff in error subjects it to the provisions of the act ‘to prevent the preparation, manufacture, packing, storing, or distributing of food intended for sale, or sale of food, under insanitary, unhealthful or unclean conditions or surroundings, to create a sanitary inspection, to declare that such conditions shall constitute a nuisance, and to provide for the enforcement thereof,’ approved June 5, 1911. (Laws 1911, p. 528.)

A municipal corporation has no power to legislate upon any subject except by the express provision of a statute giving it the power, or by clear implication from such a statute as necessarily incident to the powers expressly granted. Section 1 of article 5 of the Cities and Villages Act (Smith-Hurd Rev. St. 1927, c. 24, § 65), contains an express enumeration of the powers of the city council, and in the various paragraphs of this section must be found the authority for the passage of the ordinance in question. This authority for the passage of the ordinance need not necessarily be derived from a single one of the enumerated powers; it may be derived from several. Arms v. City of Chicago, 314 Ill. 316, 145 N. E. 407;City of Rockford v. Nolan, 316 Ill. 60, 146 N. E. 564.

The defendant in error relies upon paragraphs 4, 50, 53, 66, 78, and 102 of section 1 of article 5 as authority for the adoption of this ordinance. Paragraph 4 declares only the power of the council to fix the amount, terms, and manner of issuing and revoking licenses, confers no authority to issue a license for any purpose, but only declares that the council may fix the amount, terms and manner of issuing licenses in all cases in which it has been expressly authorized to issue a license. Arms v. City of Chicago, supra. Paragraph 102, which gives the power to pass ordinances and make rules and regulations to carry into effect the powers granted to cities, and is limited by its terms to carrying into effect the powers granted, presupposes a grant of authority with reference to the particular subject or occupation, and merely authorizes the passage of ordinances and the making of rules and regulations to make such authority effective. Paragraph 66 is of a similar character, and does not delegate the entire police power of the state to the municipality, but limits its exercise to the making of the powers expressly granted effective. Arms v. City of Chicago, supra; City of Rockford v. Nolan, supra. Paragraphs 50, 53 and 78 are as follows:

‘50. 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.’

‘53. To provide for and regulate the inspection of meats, poultry, fish, butter, cheese, lard, vegetables, cotton, tobacco, flour, meal and other provisions.’

‘78. To do all acts, make all regulations, which may be necessary or expedient for the promotion of health or the suppression of disease.’

Under the provisions of paragraphs 50 and 53, the city council is authorized to regulate the sale of the articles mentioned, provide for and regulate the inspection of them and the place and manner of selling them, and to control the location of the places for their sale. Paragraph 53 contains, among the articles specifically mentioned, cotton, tobacco,flour and meal, which are not specifically mentioned in paragraph 50, but both paragraphs include ‘and other provisions.’ Webster's definition of ‘provision’ includes: ‘4. Specif. a store or stock of needed materials prepared beforehand; esp. a stock of food; hence any kind of eatables collected or stored; food; often in plural.’ Funk & Wagnalls: ‘3. Specif. a supply of food; victuals; in the grocery trade sometimes limited to farm products generally; usually in the plural.’ Bouvier: ‘Food for man; victuals.’ Cotton and tobacco can hardly be classified as ‘food,’ but all the other articles mentioned in these two paragraphs are food for man, and coffee, tea, spices, and...