City of Chicago v. Chicago Great Western R. Co.

• Decision Date: 23 April 1932
• Docket Number: No. 21270.,21270.
• Citation: 348 Ill. 193,180 N.E. 835
• Parties: CITY OF CHICAGO v. CHICAGO GREAT WESTERN R. CO.
• Court: Illinois Supreme Court

348 Ill. 193

180 N.E. 835

CITY OF CHICAGO

v.CHICAGO GREAT WESTERN R. CO.

No. 21270.

Supreme Court of Illinois.

April 23, 1932.

Proceedings by the City of Chicago against the Chicago Great Western Railroad Company. The city recovered judgment in the municipal court, and defendant appeals directly to the Supreme Court.

Reversed.

Appeal from Municipal Court of Chicago; John A. Sbarbaro, judge.

Winston, Strawn & Shaw, of Chicago (Ralph M. Shaw, Walter H. Jacobs, Guy A. Gladson, and Bryce L. Hamilton, all of Chicago, of counsel), for appellant.

William H. Sexton, Corporation Counsel, of Chicago (Leon Hornstein and Martin H. Foss, both of Chicago, of counsel), for appellee.

DUNN, J.

The city of Chicago recovered a judgment of $25 in the municipal court against the ChicagoGreat Western Railroad Company, from which the company appealed directlyto this court, the validity of a municipal ordinance being involved and the trial judge having certified that in his opinion the public interest required an appeal to this court.

The statement of the claim, as amended, was for a penalty for a violation of sections 535 and 2941 of an ordinance of the city by using and operating scales for the purpose of weighing without having obtained the certificate required by the ordinance.

Section 2941 of the ordinance is as follows: ‘Any person who shall, in weighing or measuring any article for purchase or sale, or for weighing in or weighing out, within the city, use any weight, measure, scale-beam, patent balance, steelyard or other instrument, or who shall maintain or operate any weight, measure, scale-beam, patent balance, steelvard or other instrument, whether automatic or otherwise, used for the purpose of weighing or measuring any person or animal for hire or reward, which has not been sealed or for which the aforesaid certificate has not been obtained from the inspector, as required by this article, shall be fined not less than five dollars nor more than twenty-five dollars for each offense.’ Section 535 fixed the amount of the inspection fees required before the delivery of the certificate required by section 2941.

The trial by the court without a jury was upon a stipulation of facts, from which it appeared that the appellant is a common carrier engaged in both interstate and intrastate commerce, owning and operating in the city of Chicago a railroad track scale with a maximum capacity of 200,000 pounds, a wagon scale with a maximum capacity of 41,000 pounds, and three five-ton less than carload, and two three-ton less than carload, scales, all of which it used in weighing freight received by it for transportation in order to ascertain the freight charges thereon and for no other purpose, except that the wagon scale, though its primary use was for that purpose, was incidentally used to weigh freight unloaded from cars at Chicago, such weighing being at the request of the shipper or owner of the freight and a charge of 12 1/2 cents a wagonload being made against the shipper or owner; and, in all instances where freight was weighed on the wagon scale at the request of shipper or owner, the weight so ascertained was used as a check on previous weighing of such freight, either at point of origin or en route, for the purpose of ascertaining the freight charges, and, the weights obtained on the wagon scale being out-turn weights, when in conflict with the result of any previous weighing were given preference in the assessment of freight charges. The charge of 12 1/2 cents a wagonload was assessed in accordance with a tariff rule contained in a tariff schedule of the appellant which was at all times here involved duly published and filed with the Interstate Commerce Commission and the Illinois Commerce Commission and was in full force and effect. Freight charges are usually based upon weight of the commodity to be transported, though there are some exceptions not necessary to mention.

The appellant contends that the Utilities Act of 1921 (Laws 1921, p. 729, § 52) gave the Commerce Commission exclusive jurisdiction of the testing and inspection of railroad scales; that the powers of municipalities over railroad scales granted by the Cities and Villages Act were impliedly repealed by the Utilities Acts of 1913 and 1921 (Laws 1913, p. 459; Laws 1921, p. 702); that the Weights and Measures Act of 1921 (Laws 1921, p. 849) did not restore those powers to the municipalities, and that section 2941 of the ordinance is so vague and indefinite as to be void. Cities have no inherent powers, but, when any of their acts are called in question, must show a statute authorizing their exercise of power, and such statutes are strictly construed, so that any fair doubt of the existence of the power must be resolved against the municipality. Subsections 54 and 55 of section 1 of article 5 of the Cities and Villages Act (Smith-Hurd Rev. St. 1927, c. 24, § 65, subsecs. 54, 55) conferred upon cities and villages the power to regulate the inspection, weighing, and measuring of brick, lumber, firewood, coal, hay, and any article of merchandise, and to provide for the inspection and sealing of weights and measures. This has been the law since 1871, and still is unless it has been repealed or modified by subsequent legislation. The Weights and Measures Act was passed in 1921, and provided for the appointment of an inspector of weights and measures in each city in the state having a population of 25,000 inhabitants or more. Laws 1921, p. 853, § 12. It empowered the city council to pass such ordinances relative to the duties to be performed by such inspector as it might deem proper not in conflict with the provisions of the statute, provided that nothing in the section of the statute authorizing the appointment of an inspector should be construed to minimize the powers or curtail the duties of any city inspector of weights and measures in any city of more than $200,000 inhabitants, as provided by ordinances of such city, nor to modify or repeal any such ordinances.

Subsections 54 and 55 of section 1 of article 5 of the Cities and Villages Act were sufficiently comprehensive to authorize the city council to provide for the weighing of freight for shipment over the railroad of a common carrier and for the inspection and sealing of scales used for that purpose and to require a certificate of such inspection and sealing before the weighing. The Utilities Act of 1913 (Laws 1913, p. 459) created a State PublicUtilities Commission with general supervision of all public utilities, and, among other things, provided by section 52 (page 486) that the commission should ‘have power to enforce reasonable regulations for the weighing of cars, and of freight offered for shipment over any line of railroad, and to test the weights made by any railroad and scales used in weighing freight on cars.’ Other provisions provided very specifically for the supervision by the commission of the conduct of the business of railroad companies and the operation of their railroads. Every public utility was required by section 32 (page 476) to furnish and maintain such service, instrumentalities, equipment, and facilities as should promote the convenience of its patrons, employees, and the public, and be in all respects adequate, efficient, just, and reasonable, and if the commission, upon a hearing (section 49 [page 484]), found that the rules, regulations, practices, equipment, appliances, facilities, or service of any public utility were unjust, unreasonable, unsafe, improper, inadequate, or insufficient, the commission was required to determine the just, reasonable, safe, proper, adequate, or sufficient rules, regulations, practices, equipment, appliances, facilities, service, or method to be observed, furnished, constructed, enforced, or employed and fix the same by its order, decision, rule, or regulation. Section 50 (page 485). Whenever the commission found that additions, extensions, repairs, or improvements to or changes in the existing plant, equipment, apparatus, facilities, or other physical property of any public utility ought reasonably to be made, it was required to make and serve an order directing that such additions, extensions, repairs, improvements, or changes be made. The commission was given power (section 54 [page 487]) to ascertain, determine, and fix for each kind of public utility suitable and convenient standard commercial units of service, product, or commodity, and to prescribe reasonable regulations for examining, measuring, and testing such service, product, or commodity, and to establish reasonable rules, regulations, specifications, and standards to secure the accuracy of all meters and appliances for examining, measuring, or testing such service, product, or commodity. The commission was authorized and required (section 54) to provide for the inspection of the manner in which every public utility conformed to the reasonable regulations prescribed by the commission for examining, measuring, and testing its service, produce, or commodity, and was authorized to supplement such inspections by examining, measuring, and testing the service, produce, or commodity of any public utility. It was authorized to enter upon any premises occupied by any public utility for the purpose of making the examinations and tests provided in the act and to set up and use on such premises any apparatus and appliances and occupy reasonable space therefor, and it was given power (section 57 [page 488]) to establish uniform or other standards of equipment. These provisions were sufficiently comprehensive to subject to the supervision and regulation of the commission all the service, instrumentalities, equipment, and facilities of the appellant, all its rules, regulations, practices, appliances, and apparatus, and to give to the commission power to examine, measure, and test its service, product, or commodity, to establish rules, regulations, specifications, and standards to...