Huesing v. City of Rock Island

• Decision Date: 16 May 1889
• Citation: 21 N.E. 558,128 Ill. 465
• Parties: HUESING v. CITY OF ROCK ISLAND et al.
• Court: Illinois Supreme Court

128 Ill. 465

21 N.E. 558

HUESING

v.CITY OF ROCK ISLAND et al.¹

Supreme Court of Illinois.

May 16, 1889.

Appeal from appellate court, Second district.

Bill for injunction, brought by August Huesing against the city of Rock Island, Thomas Murdock, Robert Koehler, and George E. Lambert in the circuit court of Rock Island county.

Ira O. Wilkinson, Wm. Jackson, and Charles Dunham, for appellant.

Wm. McEniry and E. D. Sweeney, for appellees.

CRAIG, C. J.

This was a bill in equity, brought by August Huesing, a resident and tax-payer of the city of Rock Island, to enjoin the municipal authorities of the city of Rock Island from maintainingan abattoir, or public slaughter-house, and appropriating the moneys of the city for that purpose. On the hearing in the circuit court a decree was rendered in favor of the complainant in the bill, but on appeal to the appellate court the decree was reversed, with directions to the circuit court to dismiss the bill. To reverse the judgment of the appellate court the complainant appealed to this court. The city of Rock Island contains a population of about 12,000 people, and is organized under the general incorporation law of the state. The city council procured by gift two acres of land in the city, and erected thereon a building where animals might be slaughtered for consumption in the city. On the 7th day of December, 1885, an ordinance was passed. The first section provides that the premises containing the two acres are designated and established as the city abattoir. Sections 2-10 of the ordinance are as follows: ‘Sec. 2. Said abattoir is established and shall be maintained for the sole use and purpose of so regulating the business of furnishing fresh meats to the inhabitants of said city as reasonably to secure to them good, fresh, wholesome meats. Sec. 3. The commissioner of health shall have the care, custody, charge, and management of the city abattoir, and it shall be his duty to see that the same is conducted in a clean and orderly manner, and that all the provisions, rules, and regulations adopted by the city council for the government and use thereof are enforced, and that the rights and privileges of all persons entitled to use the same are allowed, and given without discrimination or distinction; and in the conduct and management of said abattoir the commissioner of health is hereby authorized and empowered to employ a deputy or deputies; the number and compensation of such deputies to be fixed and determined by the city council. Sec. 4. Every person licensed under the ordinances of this city to sell fresh meats shall be entitled to use said abattoirupon compliance with the provisions, rules, and regulations governing the use thereof. Sec. 5. If any person licensed under the ordinances of this city to sell fresh meats shall, in the use of said abattoir, refuse or neglect to comply with the provisions, rules, and regulations governing the use thereof, the commissioner of health shall suspend such person from further use thereof, and shall forthwith report such suspension, and the cause thereof, to the cith council for its action thereon. Sec. 6. Said abattoir shall be open for use for the inspection and slaughter of animals each day from 4 o'clock A. M. to 7 o'clock A. M., and from 2 o'clock P. M. to 8 o'clock P. M., during the period from May 1st to November 1st, and from 6 o'clock A. M. to 9 o'clock A. M., and from 11 o'clock A. M. to 6 o'clock P. M., during the period from November 1st to May 1st. Sec. 7. Every person licensed under the ordinances of this city to sell fresh meats of cattle, hogs, sheep, calves, or lambs, shall, before offering such meats for sale, have the same inspected and approved by the commissioner of health or his deputy at the city abattoir, or at any licensed packing-house or other place in this city licensed for the slaughter of animals. And it shall be the duty of said commissioner of health, in person or by deputy, to inspect meats at said places other than said abattoir at all reasonable hours, and to as fully as possible meet the convenience of persons asking such inspection.’ ‘Sec. 9. All cattle, hogs, sheep, and calves, the flesh of which shall be desired to be sold by any person licensed to sell fresh meats within the limits of this city, shall be first inspected by the commissioner of health, or his deputy, at the city abattoir, or at any licensed packing-house or other place in this city licensed for the slaughter of animals, before slaughter thereof, and before such flesh shall be sold, or offered for sale, by any person so licensed. Sec. 10. It shall be unlawful for any person licensed to sell fresh meats to sell, or offer for sale, within the limits of said city any fresh meats, except venison, poultry, flsh, or wild game, unless the same have been first inspected and approved by the commissioner of health, or his deputy, as herein provided.’

Several questions of a technical character have been raised and discussed in the argument, but in the view we take of the record there is but one question of any importance presented, and that is whether the city council of Rock Island, under its charter, had the power to pass the ordinance establishing the city abattoir, and appropriate the revenues of the city for its erection and maintenance,-and this is the only question which it will be necessary to consider. Under chapter 24, art. 5, of our Revised Statues of 1874, 96 separate and distinct powers have been conferred on the city council in cities, and upon the president and board of trustees in villages. The powers relate to the various wants and necessities which the legislature no doubt supposed should be conferred upon such incorporations to enable them to preserve order, prevent violations of law, make due and proper regulations to secure the health of the inhabitants, and such other things as pertain to the property and welfare of such incorporated bodies. It will be observed, however, that of the powers enumerated none in terms authorize the construction or maintenance of an abattoir or public slaughter-house by the legislative department of the incorporation, and we find no such express power conferred by any provision of the statute. The city of Rock Island derives its powers, whatever they may be, from the act of the legislature providing for the incorporation of cities and villages, under which it is organized. In Cook Co. v. McCrea, 93 Ill. 236, following the rule laid down by Dillon in his work on Municipal Incorporations, it was held that a municipal corporation can exercise the following powers: First, those granted in express words; second, those necessarily or fairly implied in, or incident to, the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable. There being no provision of the general incorporation law expressly conferring on the city the power to build or maintain an abattoir, if the power exists it must be implied in, or incident to, some of the powers expressly granted by the statute; and it may be conceded that, if the implied power exists, it springs from some one of the specific health powers granted by the act of incorporation. Those powers are as follows: ‘(Par. 12.) To provide for the cleansing of the streets, alleys,’ etc. ‘(15) To regulate and prevent the depositing of ashes, offal, dirt, garbage, or any offensive matter in any street, alley,’ etc. ‘(40) To provide for the cleansing and purification of waters, water-courses,’ etc. ‘(49) To establish markets and market-houses, and to provide for the regulation and use thereof. (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.’ ‘(53) To provide and regulate the inspection of meats, poultry, fish, butter, lard, cheese, vegetables, cotton, tobacco, flour, meal, and other provisions.’ ‘(57) To regulate the construction, repairs, and use of vaults, cisterns, areas, hydrants,...