City of Rockford v. Hey
| Decision Date | 16 June 1937 |
| Docket Number | No. 24116.,24116. |
| Citation | 366 Ill. 526,9 N.E.2d 317 |
| Parties | CITY OF ROCKFORD v. HEY et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Clement Hey and others, doing business under the firm name and style of Hey Bros., were convicted of selling, and offering for sale, products manufactured in their ice cream factories in violation of an ordinance of the City of Rockford, and they appeal.
Reversed.Appeal from Circuit Court, Winnebago County; A. E. Fisher, judge.
J. J. Ludens, of Sterling, for appellants.
Charles S. Thomas, Corp. Counsel, and Alf O. Ahlstrand, City Atty., both of Rockford, for appellee.
By this appeal Clement, Henry M., and Abram Hey, doing business under the firm name and style of Hey Bros., seek a reversal of a judgment of the circuit court of Winnebago county fining them $100, and costs, for selling and offering for sale, in Rockford, products manufactured in their ice cream factories in Dixon and Sterling without a license, in violation of ‘An ordinance to amend an ordinance creating Board of Health and Health Department and providing health, sanitary, hygiene and quarantine regulations in the city of Rockford,’ effective June 1, 1935. The trial judge has certified that the validity of the ordinance is involved and that public interest requires a direct appeal to this court.
Section 248 of the ordinance in controversy defines an ice cream factory as any building, room, inclosure, premises, place, or establishment used for the purpose of manufacturing, making, or mixing ice cream, water ices, frozen puddings, or any other product made in part from milk and cream, and frozen. Section 249 declares it shall be unlawful for any person, firm, or corporation (1) to conduct, operate, manage, or carry on an ice cream factory in the City of Rockford, or (2) to sell or offer for sale in Rockford any product manufactured by an ice cream factory, as defined in the preceding section, without first having registered, with the commissioner of health of the city, the state license issued by the Department of Agriculture, and obtaining a certificate of registration upon the payment of an annual inspection fee of $50 to the city clerk. By section 249A it is provided that, if manufactured ice cream or ice cream products are sold at retail upon the premises where manufactured, the fee shall be $25. Section 250 provides that any person desirous of (1) conducting, operating, managing, or carrying on an ice cream factory in Rockford, or (2) selling or offering for sale in that city any products manufactured in an ice cream factory, shall first obtain a state ice cream factory license which he shall present to the commissioner of health, together with a written application for its registration, setting forth, among other things, the location and description of the premises where such business is to be conducted. This section further provides that the commissioner shall make, or cause to be made, an investigation of the premises described in the accompanying application for the purpose of determining its fitness and suitability for the conduct of such business from a sanitary standpoint, and whether the applicant has complied with the city ordinances regulating health and sanitation so as to properly safeguard and insure the purity of the product to be made or manufactured in such establishment; that, if the commissioner shall be satisfied that the establishment has been properly licensed and that all city ordinances relative to such establishment have been complied with, he shall recommend to the city clerk that on the payment of $50 a certificate of registration issue. Section 250A specifically provides that section 250 shall apply to persons who conduct a retail ice cream business in Rockford. Section 251 provides that every person (1) who conducts an ice cream factory in Rockford, or (2) who sells ice cream in that city, shall comply with sanitary requirements which are described in detail. The succeeding section prescribes provisions with reference to light, ventilation, and floors of ice cream factories hereafter established in Rockford, or factories operated or managed by persons who desire to sell or offer for sale in Rockford any product manufactured therein. Section 253 provides that any person, firm, or corporation conducting, operating, managing, or maintaining an ice cream factory contrary to the provisions of the amendatory ordinance shall be fined not less than five nor more than two hundred dollars for each offense, that every day a violation continues shall constitute a separate and distinct offense, and, further, that the mayor may revoke the certificate of registration for violation of any provisions of the ordinance, and that such revocation shall be in addition to the fine imposed. The penalty section, it is conceded, does not exclude persons conducting ice cream factories in other cities by restricting its application to persons conducting an ice cream factory in Rockford.
The stipulated facts upon which the judgment rests are: Defendants operate ice cream factories in the cities of Dixon and Sterling. Although they do not have an ice cream factory or make ice cream in Rockford, they do sell and offer for sale at wholesale to merchants in that city ice cream manufactured in the factories in the two cities first named. This ice cream is sold to numerous small retail stores in Rockford and by them sold to the consumer. The defendants also sell ice cream at wholesale to merchants, retailers, and dealers in other cities and villages throughout the northwestern part of Illinois within a radius of from 50 to 100 miles of their places of business. They have a license from the state (the license specified in section 249) to operate an ice cream factory which provides for an inspection of their factories by state officers. None of the defendants, however, registered this license with the commissioner of health of Rockford. Nor did they pay the prescribed fee.
Defendants make the contention, among others, that the ordinance infringes the due process clauses of the State and Federal Constitutions, by requiring an inspection of ice cream factories beyond the corporate limits of Rockford by municipal officers of that city. Plaintiff maintains, on the other hand, that the ordinance bears a real and substantial relation to the preservation of the public health, and that, in consequence, it is a valid exercise of the police power to promote the health of its inhabitants. In particular, plaintiff argues that it was impliedly authorized to protect the dealth of its citizens from the spread of disease by empowering inspectors of its health department to go beyond the corporate limits to inspect ice cream factories, and the products made by freezing milk and cream.
Municipal corporations are of statutory creation and have no inherent powers. In Illinois, a city organized under the Cities and Villages Act has such powers, only, as are therein expressly delegated by the General Assembly or necessarily implied to render the grant of specific powers effective. Elsenau v. City of Chicago, 334 Ill. 78, 165 N.E. 129;Barnard & Miller v. City of Chicago, 316 Ill. 519, 147 N.E. 384, 38 A.L.R. 1533;City of Rockford v. Nolan, 316 Ill. 60, 146 N.E. 564; City of Sullivan v. Cloe, 277 Ill. 56, 115 N.E. 135. Legislative powers of municipal corporations are strictly construed, and any rational doubt as to the existence of power must be resolved against the municipality. Lowenthal v. City of Chicago, 313 Ill. 190, 144 N.E. 829;Aberdeen-Franklin Coal Co. v. City of Chicago, 315 Ill. 99, 145 N.E. 613;People v. City of Chicago, 261 Ill. 16, 103 N.E. 609,49 L.R.A.(N.S.) 438, Ann.Cas.1915A, 292. Authority for the passage of a regulatory ordinance need not necessarily, however, be derived from a single enumerated power but may rest upon several sections or clauses of a statute. City of Rockford v. Nolan, supra. A review of the pertinent provisions of the applicable statute becomes necessary to determine, first, whether the ordinance assailed has a statutory basis.
Article 5 of the Cities and Villages Act (section 1, Smith-Hurd Stat.1935, c. 24, § 65, p. 363) enumerates the powers granted to city councils in cities and the presidents and boards of trustees in villages. Section 4 (Smith-Hurd Ill.Stats. c. 24, § 65.3) empowers the city council in cities to fix the amount, terms, and manner of issuing and revoking licenses. Section 50 (Smith-Hurd ...
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