North American Cold Storage Co. v. City of Chicago

• Citation: 151 F. 120
• Decision Date: 31 January 1907
• Docket Number: 28,416.
• Parties: NORTH AMERICAN COLD STORAGE CO. v. CITY OF CHICAGO et al.
• Court: U.S. District Court — Northern District of Illinois

151 F. 120

NORTH AMERICAN COLD STORAGE CO. v. CITY OF CHICAGO et al.

No. 28,416.

United States Circuit Court, N.D. Illinois, Eastern Division.

January 31, 1907

L. A Stebbins and John M. Curran, for complainant.

James Hamilton Lewis, Corp. Counsel, for defendants.

KOHLSAAT Circuit Judge.

Bill to restrain defendants from alleged interference with complainant's business by threatened arrests, refusal to allow goods to be received at its warehouse, the seizure and threatened condemnation and destruction of certain barrels of poultry, and threats of similar acts in the future. The bill alleges that the defendants, in committing the acts and making the threats complained of, claimed to be, and were acting under and by virtue of section 1161 of the Revised Municipal Code of the city of Chicago of 1905, which is set out in the bill as follows:

'Every person being the owner, lessee or occupant of any room stall, freight house, cold storage house or other place, other than a private dwelling, where any meat, fish, poultry, game, vegetables, fruit, or other perishable article adapted or designed to be used for human food, shall be stored or kept whether temporarily or otherwise, and every person having charge of, or being interested or engaged, whether as principal or agent, in the care of or in respect to the custody or sale of any such article of food supply, shall put, preserve and keep such article of food supply in a clean and wholesome condition, and shall not allow the same, nor any part thereof, to become putrid, decayed, poisoned, infected, or in any other manner rendered or made unsafe or unwholesome for human food; and it shall be the duty of the meat and food inspectors and other duly authorized employes of the health department of the city to enter any and all such premises above specified at any time of any day, and to forthwith seize, condemn and destroy any such putrid, decayed, poisoned and infected food, which any such inspector may find in and upon said premises.'

It is further alleged that this ordinance 'in so far as it attempts to authorize the city of Chicago, its agents, servants, and employes, to seize, condemn or destroy food or other products, is in conflict with the fourteenth amendment of the Constitution of the United States.'

The cause is now before the court on demurrer to the bill. In support of the demurrer, it is urged, among other things, that the court is without jurisdiction (1) because it appears from the bill that the amount involved is less than $2,000, exclusive of interest and costs, and (2) because it appears from the bill that there is no constitutional question involved. As to the first objection: The bill contains an allegation that 'the matter in dispute herein, exclusive of interest and costs, exceeds the sum of $2,000. * * * ' There is nothing in the bill to contradict this allegation. Defendants, however, contend that, inasmuch as it appears in the bill that complainant is a warehouseman, and not the owner of the goods in question, its interest in the way of commissions and charges cannot amount to $2,000. But it does not appear from the bill whether complainant bases his allegation of amount on the value of the goods, the value of its commissions and charges, or the damage that may be done its business by the acts of defendants. The allegation may well have been based upon any or all of these elements. But, even assuming the correctness of defendant's contention that the amount of complainant's personal interest in the way of commissions and charges is alone the proper basis for determining the amount involved, the court cannot say from the face of the bill that the amount of complainant's commissions is not $2,000. While the allegations of the bill taken as a whole might make it unreasonable to suppose that the commissions of complainant upon the particular goods seized amount to $2,000, the court cannot take judicial notice of the amount of such commissions. The reasonableness of such allegation cannot be inquired into on demurrer. The court, therefore, holds that the general allegation of amount above quoted is sufficient.

As to the second objection: Defendant contends that it does not appear from the bill that the ordinance pleaded is based upon state authority-- that the provision of the fourteenth amendment of the Constitution of the United States is that 'No state shall deprive any person * * * ' and that it must appear in the bill that the acts of defendants were acts of the state by allegations showing the authority of the city council to pass the ordinance, and that such ordinance was passed in pursuance of this state authority. This court, being bound to take judicial notice of the general laws of the state (Owings v. Hull, 9 Pet. 625, 9 L.Ed. 246; Gormley v. Bunyan, 138 U.S. 625, 11 Sup.Ct. 453, 34 L.Ed. 1086; Mills v. Green, 159 U.S. 657, 16 Sup.Ct. 132, 40 L.Ed. 293), will take notice of those sections of chapter 24 of Hurd's Revised Statutes of Illinois, defining the powers and duties of the city council in cities, which apparently gives power and authority to declare what shall be a nuisance, to abate the same, and to make regulations which may be necessary or expedient for the promotion of health or the suppression of disease. It is not necessary to allege in pleading either matters of which the court is bound judicially to take notice, or matters which the law presumes. Story's Equity Pleading (10th Ed.) Sec. 24. And the court having taken notice of the general law of the state upon which such an ordinance as the one pleaded might properly have been based will presume that the ordinance pleaded is based upon this state authority. 21 Am. & Eng.Ency. of Law, p. 978, and cases cited. It would therefore appear that this point is not well taken.

From the view the court takes of the case, it becomes unnecessary to pass upon the other questions raised. This suit is brought against the city of Chicago and certain of its officers in their official capacity. It would seem very clear that the defendants cannot be held in this court for acts or threats which they have no power or authority from the state to perform, for if there is no ordinance under which they could with any color of reason, claim to be acting, their acts are not the acts of the state, but mere private acts. While it is alleged that defendants acted and claimed to act under the provisions of section 1161 of the Revised Municipal Code of the city of Chicago, it will be observed that under no possible construction of the ordinance could defendants claim the right of general stoppage of the entire business of comp...