Ploner v. Standard Oil Co.

• Decision Date: 12 September 1922
• Docket Number: 3096.
• Citation: 284 F. 34
• Parties: PLONER v. STANDARD OIL CO.
• Court: U.S. Court of Appeals — Seventh Circuit

284 F. 34

PLONER v. STANDARD OIL CO.

No. 3096.

United States Court of Appeals, Seventh Circuit.

September 12, 1922

Rehearing Denied October 13, 1922.

Chas H. Mitchell and S. P. Douthart, both of Chicago, Ill., for plaintiff in error.

Robert J. Folonie, of Chicago, Ill., for defendant in error.

The action was in debt on an ordinance of the city of Chicago passed April 18, 1881, which provided that 'there is hereby created the office of inspector of oils who shall hold his office for the term of two years'; that he be appointed by mayor with consent of council, give bond to city, shall have knowledge of mineral oils, shall at his own expense provide instruments for testing oils, and may appoint deputies, shall test oils on request of dealer or vendor and brand 'each package, cask or barrel,' which may not without such inspection and branding, be offered for sale in the city; that 'the inspector may charge not to exceed 6 cents for inspecting or examining each package, cask or barrel, and collect the same from the party employing him'; that it shall be unlawful to keep for sale kerosene or other products of earth oils for illuminating purposes except such thereof 'as will stand a fire test of 150 degrees Fahrenheit according to the method and directions of John Tagliabue'; that persons violating the ordinance by refilling containers, or offering for sale oil not inspected and branded as provided, shall suffer the prescribed penalties.

The declaration further alleges that such ordinance became and still is in force, and that on May 1, 1905, plaintiff was duly appointed as such inspector of oils by the mayor of Chicago, with approval of the council; that he gave bond approved by the council, took oath of office, and qualified and acted as such until May 1, 1907, 'under the ordinance aforesaid and the laws of the state of Illinois'; that he appointed deputies and 'made inspection of oils as provided in said ordinance at all times during his said term of office'; that during said time the defendant applied to plaintiff to inspect gasoline and naptha and agreed to pay plaintiff for the inspection 'the price specified in said ordinance, to wit, six cents for examining each package, cask, or barrel,' and has not paid same.

From the evidence it appeared that in 1897 there was passed another ordinance on the subject substantially like that of 1881, but providing that the inspector shall collect in cash 6 cents for each package, cask, or barrel inspected, and retain therefrom for his own compensation $300 per month, paying the balance into the city treasury, and repealing all conflicting ordinances. The revised City Code of 1905 likewise fixes 6 cents as the inspection rate, and $300 monthly as the inspector's compensation. It provides that on a container holding more than 52 gallons the fee shall be 6 cents for each 52 gallons thereof. It repeals prior ordinances. It appears that, on his appointment, plaintiff entered into a separate contract with the city that the amount fixed in the ordinance ($300 per month) should be the maximum of compensation he would retain for his personal compensation as such inspector, and that whatever fees he collected in excess of such amount he would turn over to the city.

Defendant was willing to pay and did pay the fee on illuminating oils, but not on gasoline and naptha, and, as monthly bills for inspection were rendered by plaintiff, defendant would pay that part which represented the illuminating oils, but refused to pay the other, saying, in writing: 'This we refuse to pay, and, as we understand, you are willing to accept this payment, for inspection of oil only, until the question of the legality of the ordinance for the inspection of gasoline is settled. If this is your understanding, and is satisfactory to you, please accept this check and sign voucher; otherwise, return both check and voucher to us. ' This was the routine month by month; the checks being accepted by plaintiff, and the balance remaining unpaid. Out of the payments made, plaintiff retained his compensation of $300 monthly, and after the payment further of the expenses of the office a large balance was turned into the city treasury. For the unpaid inspection bills on the gasoline and naptha the suit was brought, and on the trial the jury, at the court's direction, found for defendant, and judgment was entered accordingly, the correctness whereof is challenged by the writ herein.

Before ALSCHULER and EVANS, Circuit Judges.

ALSCHULER Circuit Judge (after stating the facts as above).

While it appears that the ordinance of 1881 was, in terms, repealed by the subsequently enacted ordinances, it is the theory of plaintiff that the below referred to action of the Supreme Court of Illinois, in holding invalid the subsequent ordinances, left that of 1881 in full force, as though its repeal had not been undertaken. Granting this contention, we are first met with the question of the validity of the ordinance of 1881. Save only as to the different provisions of the subsequent ordinances, requiring the surplus of fees collected over $300 per month to be turned into the city treasury, this ordinance is subject practically to the same objections pointed out by the Illinois Supreme Court in City of Chicago v. Burke, 226 Ill. 191, 80 N.E. 720. By the statute of 1874 the Legislature assumed control over the subject of oil inspection, and its enactment thereon covers the subject, giving to the municipality only the function of appointing the inspector, who is to act in the city, and the fixing of his compensation. The ordinance of 1881, like those that follow it, purports to be a complete codification of the subject, just as though the Legislature had not acted thereon. In the main, the conflicting and additional provisions of this ordinance are like those of the subsequent ordinances, held to be invalid as covering a subject with which the city council was not empowered to deal. That plaintiff purported to act only under the authority of the ordinance is quite as plain here as in the Burke Case, where the court held that,...