Illinois Cigarette Service Co. v. City of Chicago
Decision Date | 29 April 1937 |
Docket Number | No. 6134,6139.,6134 |
Citation | 89 F.2d 610 |
Parties | ILLINOIS CIGARETTE SERVICE CO. v. CITY OF CHICAGO et al. ROWE MFG. CO., Inc., v. SAME. |
Court | U.S. Court of Appeals — Seventh Circuit |
Allan J. Altheimer, of Chicago, Ill., for appellant Rowe Mfg. Co.
Charles P. Schwartz, of Chicago, Ill., for appellant Illinois Cigarette Service Co.
Barnet Hodes, Corp. Counsel, of Chicago, Ill. (Martin H. Foss, Asst. Corp. Counsel, of Chicago, Ill., of counsel), for appellees.
Before EVANS and MAJOR, Circuit Judges, and LINDLEY, District Judge.
In view of the similarity of the questions involved, these two appeals will be disposed of in one opinion. In 6139 appellant is a nonresident manufacturer of automatic cigarette vending machines, who sells to appellant in 6134. The latter purchases these machines and leases them in large numbers to persons in the City of Chicago. Each of appellants filed bills in chancery to enjoin the city from enforcing a certain ordinance prohibiting the use of vending machines for the sale or distribution of cigarettes. The District Court dismissed the bills for want of equity, and these appeals followed.
In force in the City of Chicago are certain sections of an ordinance dealing with cigarettes. These contain regulatory provisions prohibiting sales to minors, sales within 300 feet of schools, sales of cigarettes containing deleterious or poisonous drugs; imposing upon the health department the duty of inspection, to prevent traffic in cigarettes containing deleterious substances and unsanitary conditions in selling places.
The particular section complained of was added by an act of December 2, 1936, as an amendment to the previous sections, as follows:
Appellants contend that the amendatory ordinance is invalid and unconstitutional; that it is not within the legislative power of the City of Chicago; that its effect is to deprive them of their property without due process of law, in violation of section 2, article 2 of the Constitution of Illinois and of the Fourteenth Amendment to the Constitution of the United States; that it is not necessary or expedient for the promotion of health; that it prohibits a legal business rather than subjecting it to reasonable rules and regulation; and that it unreasonably and arbitrarily discriminates between persons and businesses of the same general class and character.
The City of Chicago is a municipality organized under the statutes of the State of Illinois. Its legislative powers are those expressly granted by statute and such others as are reasonably incidental to the grant. Klever Karpet Kleaners v. City of Chicago, 323 Ill. 368, 154 N.E. 131, 49 A.L.R. 103. Section 53 of article 5 of the Cities and Villages Act (Smith-Hurd Ill.Stats. c. 24, § 65.52) grants to the city power to regulate inspection of tobacco; section 66 (Smith-Hurd Ill.Stats. c. 24, § 65.65), to regulate the police of the city and to adopt all necessary police ordinances; and section 78 (Smith-Hurd Ill.Stats. c. 24, § 65.77), to do all acts and make all regulations which may be necessary or expedient for the promotion of health or the suppression of disease.
The police power of a municipality is a most important one, as it has to do with the safety and health of the community, and ordinances in promotion of such welfare are to be liberally construed. Biffer v. City of Chicago, 278 Ill. 562, 116 N.E. 182. Acts which are injurious to the public may be suppressed, prohibited, or regulated, and all private rights must yield to the exercise of this paramount power. Koy v. City of Chicago, 263 Ill. 122, 104 N.E. 1104, Ann.Cas.1915C, 67; City of Chicago v. Arbuckle Bros., 344 Ill. 597, 176 N.E. 761.
Following these principles the Supreme Court in Gundling v. City of Chicago, 176 Ill. 340, 52 N.E. 44, 45, 48 L.R.A. 230, held that the city had power to enact the original ordinance, to which the section being considered is an amendment, saying:
The decision was affirmed in Gundling v. Chicago, 177 U.S. 183, 20 S.Ct. 633, 635, 44 L.Ed. 725, where the Supreme Court said:
It is conclusively established, therefore, that the enactment of the original...
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