Crackerjack Co. v. City of Chicago

• Decision Date: 07 June 1928
• Docket Number: No. 17293.,17293.
• Citation: 161 N.E. 479,330 Ill. 320
• Parties: CRACKERJACK CO. et al. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

330 Ill. 320

161 N.E. 479

CRACKERJACK CO. et al.

v.CITY OF CHICAGO.

No. 17293.

Supreme Court of Illinois.

April 21, 1928.

Rehearing Denied June 7, 1928.

Commissioners' Opinion.

Suit by the Crackerjack Company and others against the City of Chicago. From a decree of dismissal, complainants appeal.

Affirmed.

Appeal from Circuit Court, Cook County; Hugo M. Friend, judge.

David R. Clarke and John Harrington, both of Chicago, for appellants.

Francis X. Busch, Corp. Counsel, of Chicago (Leon Hornstein and Ruth C. Nelson, both of Chicago, of counsel), for appellee.

CROW, C.

The circuit court of Cook county dismissed the bill of complainants for want of equity. It sought to enjoin the enforcement of an ordinance of the city of Chicago licensing and regulating the business of manufacturing confectioners. Complainants prosecute this appeal.

The bill avers substantially that the four complainants are engaged in business as manufacturing confectioners and sets out the number of square feet contained in their respective factories. It alleges that there are about 150 other individuals, firms, and corporations engaged in the same business; that there are also from 500 to 1,000 individuals and firms engaged in manufacture in connection with the sale, at retail, of confectionery, and alleges that all those persons, firms, and corporations are claimed by the city to come within the terms of the ordinance set out in the bill. It sets out sections 1997 and 2003 of the Municipal Code. The first section referred to defines a manufacturing confectioner as any person, firm, or corporation that carries on or engages in the business of manufacturing, for the purpose of sale to the wholesale or retail trade, any candies, confections, sugar ornaments, taffy apples, candied nuts, shelled nuts or peanuts, marzipan, chewing gum, lozenges, cough drops, fruit or flavored tablets, popcorn or popcorn candy, or any other candies, confectionery, or similar products, and provides that no person shall conduct such business without first obtaining a license. Section 1998 requires an application for a license and requires inspection of the premises of a proposed licensee by the commissioner of health. Section 1999 classifies manufacturing confectioners according to the floor area devoted to manufacturing and storage purposes and provides for a graded license fee based on the floor area. Section 2000 fixes the license period. Section 2001 provides for the revocation of a license by the mayor, upon recommendation by the commissioner of health, whenever it shall appear that the licensee has violated the provisions of any law of the state of Illinois or of any ordinance of the city relating to the carrying on of his business. Section 2002 provides for the sanitary requirements of such establishment. The last section fixes a penalty for failure to comply with the ordinance. Prosecutions were begun and others threatened against complainants and others to recover the penalties. The bill charged that the business of complainants is not a business requiring regulation for the sake of the public health, and that said sections of the Code are invalid, unconstitutional, and void. They prayed for an injunction restrainingthe city from enforcing the ordinance.

The city answered the bill, averring, among other things, that the business conducted by complainants is of such a nature that it affects the health of the people at large by reason of the process of manufacture and by reason of the fact that the product of such concerns is used as food, and that many of such manufacturers will not observe health regulations unless rigid inspections and restrictions are enforced; avers that it is necessary for the city to expend large sums of money in making inspections of such manufacturing plants, and denies that the business of manufacturing confectioners does not need to be inspected or regulated for the sake of public health; admits that the city had made demands upon complainants for the payment of the license fees provided for in the Code and that it intends to institute prosecutions against complainants for failure to take out licenses as required by the ordinance.

Upon the trial complainants introduced evidence showing the number of concerns engaged in the business and the nature of the products used in their business. Defendant introduced in evidence the testimony of a physician of the health department of the city for the purpose of showing the need of inspection of the business of complainants, promotive of sanitary conditions, materials used in the manufacture of confectionery, the nature of the inspection and of the regulations of the business by the city. The court held that the several sections of the Code were valid and enforceable and dismissed the bill for want of equity.

The errors relied on for reversal of the decree are: (1) The city has not been expressly delegated power by the Cities and Villages Act to regulate the business of complainants; (2) clause 78 of section 1 of article 5 of the act (Smith-Hurd Rev. St. 1927, c. 24, § 65) giving the city power ‘to do all acts, make all regulations, which may be necessary or expedient for the promotion of health or the suppression of disease,’ does not authorize the city to pass the ordinance licensing the business of complainants.

Without setting out in extenso the sanitary requirements of the ordinance, it is sufficient to say that under the sole question presented they are conducive to a healthful environment in the manufacture and handling of confectionery. The ordinance is not challenged in that respect nor on the ground that it is not a proper police regulation if a valid ordinance.

The first contention of counsel for appellants is that the city has no inherent power to license occupations, and that the power to license must be found in the charter, expressly granted or as a necessary incident to carry out some power expressly granted. Counsel for appellee do not contend that the city has authority to license occupations except as an incident to regulation.

Reliance is placed by appellants upon Barnard & Miller v. City of Chicago, 316 Ill. 519, 147 N. E. 384, 38 A. L. R. 1533, in support of their contention. It defines the licensing power of municipal corporations, with its limitations. Part of the opinion relied on reads:

‘This court has many times held that power to license or tax an occupation must be expressly granted to cities by the Legislature or be a necessary incident to a power expressly granted. City of Chicago v. Murphy, 313 Ill. 98 ;Potson v. City of Chicago, 304 Ill. 222 ;Condon v. Village of Forest Park, 278 Ill. 218 [115 N. E. 825, L. R. A. 1917E, 314];City of Chicago v. Mandel Bros., 264 Ill. 206 ;People v. City of Chicago, 261 Ill. 16 [103 N. E. 609,49 L. R. A. (N. S.) 438, Ann. Cas. 1915A, 292];City of Chicago v. Ross, 257 Ill. 76 [100 N. E. 159,43 L. R. A. (N. S.) 205];City of Chicago v. M. & M. Hotel Co., 248 Ill. 264 . If the business sought to be regulated does not tend to injure the public health or public morals or to interfere with the general welfare it is not a subject for the exercise of the police power. Lowenthal v. City of Chicago, 313 Ill. 190 . Section 1 of article 5 of the Cities and Villages Act, with its one hundred clauses, is the source of the legislative power of the city council. Its powers are therein enumerated to the exclusion of all other subjects. City of Chicago v. Murphy, supra; City of Cairo v. Bross, 101 Ill. 475.’

Arms v. City of Chicago, 314 Ill. 316, 145 N. E. 407;Lowenthal v. City of Chicago, 313 Ill. 190, 144 N. E. 829, supra; Potson v. City of Chicago, supra, and City of Chicago v. M. & M. Hotel Co., supra, are also relied on as authorities against the power to pass the ordinance. The ordinances in those cases differ in purpose from that now attacked. The Arms Case held that the city had no power to require electricians to be licensed. In the Lowenthal Case it was held that things which may or may not be injurious to the public, according to the manner in which they are managed, conducted, and regulated, may be licensed for the purpose of regulation, but a business which has no tendency to injure the public health, affect public morals, or interfere with general welfare is not a subject for the exercise of the police power. The clear implication is, if the business tends to affect either, the power to license exists. In the Potson Case it was held that a city has no power, except by delegation from the General Assembly, to license any occupation or require the payment of a tax for the privilege of engaging in an occupation, and such power must be reasonably necessary to make effective a power expressly granted; therefore restaurant keepers could not be required to take out a license. It was further held that the General Assemblyhad not given power to cities to require a license of the keeper of a restaurant, and that the term ‘keepers of ordinaries,’ mentioned in clause 5 of section 1 of article 5 of the act, does not include restaurant keepers. In City of Chicago v. M. & M. Hotel Co. it was held that power to license hotels had not been conferred upon the city, and therefore the ordinance requiring a license to conduct the business was void, but it did not appear that the operation of hotels is attended by danger to the health of employees or patrons, and therefore there was no occasion to license, as an incident to the power to regulate, the business.

It is contended by appellee that the power to license, as limited by the above cases, is applicable and supports the ordinance now attacked. The insistence is that the ordinance is not one to license the business of appellants as a business or for the privilege of engaging in it, but is in furtherance of the limitations upon the licensing power announced in the cases cited and in numerous other cases from City of Cairo v. Bross, supra, to the last decision of this court. Appellee...