Dean Milk Co. v. City of Chicago

• Decision Date: 22 March 1944
• Docket Number: No. 27139.,27139.
• Citation: 53 N.E.2d 612,385 Ill. 565
• Parties: DEAN MILK CO. et al. v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

385 Ill. 565

53 N.E.2d 612

DEAN MILK CO. et al.

v.CITY OF CHICAGO et al.

No. 27139.

Supreme Court of Illinois.

Jan. 20, 1944.

Rehearing Denied March 22, 1944.

Action by Dean Milk Company and another against the City of Chicago and others for an injunction restraining defendants from interfering with plaintiffs in the sale of milk in single service containers, and for a writ of mandamus commanding officials of the City of Chicago to issue to plaintiffs a permit to sell milk in Chicago in such containers. From a judgment granting a permanent injunction and writ of mandamus as prayed, defendants appeal.

Judgment reversed.

STONE, WILSON, and GUNN, JJ., dissenting.Appeal from Circuit Court, Cook County; Benjamin P. Epstein, judge.

Barnet Hodes, Corp. Counsel, of Chicago (J. Herzl Segal, L. Louis Karton, Louis H. Geiman, and Harry Markin, all of Chicago, of counsel), for appellants.

Fred A. Gariepy, Charles O. Rundall, and Horace A. Young, all of Chicago (Owen Rall and John Spalding, both of Chicago, of counsel), for appellees.

MURPHY, Justice.

This is an appeal from a judgment of the circuit court of Cook county entered in an action where injunctional relief and a writ of mandamus were both prayed. A permanent writ of injunction was issued restraining the city of Chicago and its officers from interfering with plaintiffs in the sale of milk or milk products in quantities less than one gallon in single service containers. Such containers are known as ‘Pure-Pak’ containers. The judgment also directed a writ of mandamus to issue commanding the city officials of the city of Chicago to issue plaintiffs, upon payment of fees as fixed by the ordinance, a permit to sell milk in Chicago in such single service containers. The issue involves the construction and validity of a provision in the milk ordinance of the city of Chicago. The trial judge certified the validity of a municipal ordinance was involved, and, therefore, the case has been brought to this court by direct appeal.

Section 154-15 of the Municipal Code provides that: ‘Any milk or milk products sold in quantities of less than one gallon shall be delivered in standard milk bottles; * * *.’ Defendants construe the ordinance to mean glass bottles. Plaintiffs contend that: (1) The single service paper container in which they sell milk is a ‘Standard milk bottle’ within the meaning of the ordinance; (2) that any power which the city had to prohibit the sale of milk in paper containers was taken away by the Illinois Milk Pasteurization Plant Act of 1939 (Ill.Rev.Stat.1939, chap. 56 1/2, pars. 115-134) and that the ordinance is in conflict with this statute and therefore void; and (3) that the ordinance, if construed to prohibit the use of single service paper containers, would be unreasonable and void.

The issues have had an extended history of litigation in both the Federal and State courts. The original suit was filed by plaintiff Fieldcrest Dairies, Inc., in the United States District Court, Northern District of Illinois, on February 2, 1939. It asked for an injunction restraining the city and its officers from interfering with plaintiff's sale of milk in single service containers. It also prayed for a declaratory judgment holding that single service paper milk containers are ‘standard milk bottles' within the meaning of the ordinance, or, in the alternative, that a declaratory judgment be entered holding the ordinance invalid when applied, as in its case, to prohibit the sale of milk by plaintiff in single service containers. A master in chancery of the Federal District Court heard voluminous evidence and filed a report, on April 27, 1940, finding all the issues in favor of the city. On October 23, 1940, the United States District Court sustained objections to the master's report and entered a decree enjoining the city and its officers from interfering with plaintiff in the sale and delivery of milk in single service containers. A declaratory judgment was also entered finding that plaintiff's single service containers were ‘standard milk bottles' within the meaning of the ordinance and that such containers were in conformity with the ordinance. Fieldcrest Dairies, Inc., v. City of Chicago, D.C., 35 F.Supp. 451. An appeal was taken, and on August 4, 1941, the United States Circuit Court of Appeals held that the district court erred in finding that single service containers were ‘standard milk bottles' within the meaning of the ordinance, but it held the ordinance void for the reason it was contrary to the public policy of the State as expressed in the Milk Pasteurization Plant Act of 1939. Ill.Rev.Stat.1943, chap. 56 1/2 par. 115 et seq.; Fieldcrest Dairies, Inc., v. City of Chicago, 7 Cir., 122 F.2d 132. The city prosecuted a further appeal to the United States Supreme Court, and on April 27, 1942, that court vacated the judgment of the Circuit Court of Appeals and remanded the cause to the district court with directions to retain the bill pending a determination of proceedings in the State courts. It held that the questions of State law involved should not be passed upon by the Federal courts in the absence of a determination by the State courts, which it was said, constituted a more appropriate forum for the trial of such issues. City of Chicago v. Fieldcrest Dairies, Inc., 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355. On June 10, 1942, the district court entered an order vacating the injunction decree awarding the injunction but retained the cause pending a determination of the issues in a case then pending in the State court.

While the suit was pending in the Federal courts, and on May 15, 1940, the Dean Milk Company, parent corporation of the Fieldcrest Dairies, Inc., filed this action in the circuit court of Cook county. That court, on December 3, 1940, granted a temporary injunction pending a final disposition of the Fieldcrest Dairies, Inc., case in the Federal courts. After the United States Supreme Court opinion in the Fieldcrest Dairies, Inc., case was filed, the circuit court vacated the temporary injunction and permitted Fieldcrest Dairies, Inc., to join in this action as a party plaintiff. Amended pleadings were filed and the circuit court reissued a temporary injunction. The case was heard on its merits, on a stipulation of facts. It provided that the record of the hearings before the master in chancery of the Federal court should be received in evidence and considered as though originally heard in the circuit court. The circuit court held the city had no power to prohibit the use of single service containers which were permitted by the Milk Pasteurization Plant Act of 1939, and that the ordinance as applied to plaintiff's use of single service containers was void.

Fieldcraft Dairies, Inc., is a wholly owned subsidiary of the Dean Milk Company and is engaged in the distribution of milk and milk products at wholesale and retail in various municipalities in Cook and other counties in Illinois. Their plaint is located at Chemung, in McHenry county, and has been inspected and approved by the Department of Public Health of the State. During the years 1936 to 1939 the Dean Milk Company made several applications for a permit or license under the ordinance to sell milk in the paper containers, but each application was denied on the ground that the paper containers proposed to be used were not standard milk bottles as required by section 154-15 of the Municipal Code and the rules and regulations of the Board of Health adopted pursuant to the ordinance.

The single service ‘Pure-Pak’ container in which the plaintiffs seek to deliver milk is described as a prismatic box made of paper and paraffined on the inside and outside. It has a gabled top in the middle of which is a pouring lip. It is made in various sizes to contain a half pint, pint or quart. Plaintiffs claim that this carton is a ‘standard milk bottle’ within the meaning of the ordinance.

The rules for the construction of an ordinance are the same as those applied in the construction of a statute. People ex rel. Dwight v. Chicago Railways Co., 270 Ill. 87, 110 N.E. 386, Ann.Cas.1917B, 821;People ex rel. City of Chicago v. Hummel, 215 Ill. 43, 74 N.E. 68;People ex rel. Griffith v. Mohr, 252 Ill. 160, 96 N.E. 893;Illinois Central Railroad Co. v. City of Chicago, 169 Ill. 329, 48 N.E. 492; Stanton v. City of Chicago, 154 Ill. 23, 39 N.E. 987. As is the case with statutes, the primary rule for the interpretation and construction of ordinances is to ascertain and give effect to the intention of the lawmaking body. People v. Price, 257 Ill. 587, 101 N.E. 196, Ann.Cas.1914A, 1154;Merchants' Loan & Trust Co. v. City of Chicago, 264 Ill. 76, 105 N.E. 726. To determine the intent of the legislative body, ordinances are to be construed as of the time of enactment and as they were intended to be understood when they were passed. Expediency, born of changing circumstances and conditions, will not alter the meaning of plain and ordinary language used in an ordinance. The words of an ordinance must be taken in the sense in which they were understood at the time the ordinance was enacted. People ex rel. Fyfe v. Barnett, 319 Ill. 403, 150 N.E. 290;United States v. Union Pacific Railroad Co., 91 U.S. 72, 23 L.Ed. 224. It is true that statutes and ordinances framed in general terms apply to new cases that arise and to new subjects that are created, from time to time, and which come within the general scope and policy of the ordinance. The rule is well recognized in statutory construction that legislative enactments in general and comprehensive terms, prospective in operation, apply alike to all persons, subjects and businesses within their general purview and scope coming into existence subsequent to their passage. But this rule does not aid plaintiffs.

The question here presented is the meaning of the phrase ‘in standard milk bottles' and what did the city council intend to include within that term...