City of Chicago v. Bowman Dairy Co.
84 N.E. 913
Ill.
1908
Check Treatment
Mr. Chibe Justice Hand

delivered the opinion of the court:

It is contended by the defendant that the ordinance for a violation of which it was convicted is unconstitutional in this: that it deprives it of its property without due procеss of law and is special legislation.

We think the ordinance can be sustained as an exercise of the police power of the,city of Chicago. Thе police power is said to be an attribute of sovereignty and to exist without any reservation in the constitution, and to be founded upon the duty of the State to рrotect its citizens and to provide for the safety and good order of society. (22 Am. & Eng. Ency. of Law,—2d ed.—p. 918.) In Hawthorn v. People, 109 Ill. 302, it was held that the statute requiring the operators of butter and cheese factories on the co-operative plan to give bonds to protect their patrons was valid, as a proper exercise of the police power of the State; and in McPherson v. Village of Chebanse, 114 Ill. 46, that an ordinance prohibiting persons from keeping open their places of business in a сity or village for the purpose of vending ‍​‌‌‌​​‌​​​​​​​‌‌‌​​‌‌​​‌‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌​‌​‌‌​​‍goods, wares and merchandise on Sunday was a proper exercise of the police power of such city or village; and in Booth v. People, 186 Ill. 43, that section 130 of the Criminal Code, which declares grain option contracts to be gambling contracts, was a valid police regulation and sustainable as such; and in City of Chicago v. Gunning System, 214 Ill. 628, on page 635, it was said: “The police power of the State is that inherent or plenary power which enables the State to prohibit all things hurtful to the comfort, safety and welfare of society, and may be termed ‘the law of overruling necessity.’ (Town of Lake View v. Rosehill Cemetery Co. 70 Ill. 191; Wabash, St. Louis and Pacific Railway Co. v. People, 105 id. 236.) Anything which is hurtful to the public interest is subject to the police power and may be restrained or prohibited in the exercise of that power. (Dunne v. People, 94 Ill. 120; Cole v. Hall, 103 id. 30; Harmon v. City of Chicago, 110 id. 400.) All rights, whether tenable or untenable, ‍​‌‌‌​​‌​​​​​​​‌‌‌​​‌‌​​‌‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌​‌​‌‌​​‍are held subject to this police power.—Northwestern Fertilizing Co. v. Village of Hyde Park, 70 Ill. 634.” In People v. Wagner, 86 Mich. 594, an ordinance providing that all bread manufactured by the bakers of the city of Detroit for sale should be made into loaves of one, two and four pounds’ weight was held to be a valid exercise of the police power. The court, on pag-e 600, sаid: “The police power of a State is not confined to regulations looking to the preservation of life, health, good order and decency; laws рroviding for the detection and prevention of imposition and fraud, as a general proposition, are free from constitutional objection:—Tied. Lim. seс. 89, p. 208.” And in Hawthorn v. People, supra, on page 311, the court, in discussing the question whether the statute then under consideration fell within the exercise of the police power of the State, said: “It is said that this is not a police regulation. That may be true if the term were confined merely to the protection of the health and morals of the people. .The term has a much more comprehensive meaning. It has been defined to be: ‘The regulation and government of a country оr city, so far as it regards its inhabitants;’ also, ‘The laws, ordinances and other measures which require the citizens to exercise their rights in a particular form.’ It is true, there аre other and more limited meanings of the word, and when it is said that there are other limits to its exercise than the constitution, it has reference to the more 'restricted meaning of the term. When, exercised by the legislature in its more comprehensive sense, in the passage of laws for the protection of life, liberty and property or laws for the general welfare, the only limitations to restrain its action must be found in the constitution. This, in the larger sense, is an exercise of the poliсe power by the General Assembly and falls fully within legislative "power, and sustains the enactment under consideration.” And under the police power of the State it is hеld “weights and measures are established.” (Cooley’s Const. Lim.—2d ed.—p. 596; State v. Wilson, 61 Kan. 32.) It is said the police power of the State may, in the absence of any constitutionаl restrictions upon the subject, be delegated to the various municipalities throughout the State, to be exercised by them within the corporate limits. 22 Am. & Eng. Ency. of Law,—2d ed.— p. 919.

Milk and creаm are articles of general consumption. They are usually sold by the pint or quart, and while each transaction involves but a few cents, the number of such transaсtions in a large city like Chicago daily reaches a large sum. The opportunities for fraud in their sale are great, and the ordinary, legal remedy afforded thе individual consumer to protect himself against fraud or deceit is wholly inadequate. Clearly, therefore, an ordinance like the one under consideration is vаlid and is not obnoxious to any of the provisions of the State or national constitution.

Neither does the fact, we think, that the ordinance does not apply to all persons who vend substances in liquid form or to all persons who engage in the business of selling milk or cream in the city of Chicago make the ordinance void, as special legislation. The ordinance, as framed, applies to all persons who sell milk or cream in bottles or glass jars in the city of Chicago, and in the fullest sеnse is general in its terms. In Hawthorn v. People, supra, on ‍​‌‌‌​​‌​​​​​​​‌‌‌​​‌‌​​‌‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌​‌​‌‌​​‍page 311, it was said: “It (the statute) embraces all persons in the State similarly engaged. If all laws were held uncоnstitutional because they did not embrace all persons, few would stand the test. * * * A law is general, not because it embraces all of the governed, but that it may, from its tеrms, when many. are embraced in its provisions, and all others may be when they occupy the position of those who are embraced.” And in Gundling v. City of Chicago, 176 Ill. 340, it was held thаt the city council of Chicago might pass an ordinance regulating the sale of cigarettes under the exercise of its police power, and that the оrdinance was not void, as special legislation, by reason of the fact that it did not require a license to sell tobacco in all its forms in said city but subjected оnly tobacco to regulation put up in the form, of cigarettes.

It is also urged that the defendant is deprived of its property in the bottles which it had on hand at the timе the ordinance went into effect on October 1, 1907. The exercise of the police power differs from the exercise of the right of eminent domain. Under thе right of eminent do- • main property cannot be taken or damaged without compensation, but under the police power it may be destroyed and the ownеr left remediless. (22 Am. & Eng. Ency. of Law,—2d ed.—p. 916.) In the Booth case, on page 48, it was said: “In the exercise of this power the General Assembly may, by valid enactments,—i. e., ‘due process of law,’—prohibit all things hurtful to the comfort, safety and welfare of society, even though the prohibition invade the right of liberty or property of an individual. (18 Am. & Eng. Enсy. of Law, 739, 740; Town of ‍​‌‌‌​​‌​​​​​​​‌‌‌​​‌‌​​‌‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌​‌​‌‌​​‍Bake View v. Rose Hill Cemetery Co. 70 Ill. 191.) * * * It is not without the power of the General Assembly, in the proper exercise of the police power, by an enactment otherwise valid, to declare that unlawful which was theretofore lawful, even if the act so condemned be an attribute of the right of liberty or prоperty guaranteed to the citizen by the constitutional provisions under consideration.”

It is also said that the evidence does not show that the defendant knowingly hаd bottles in its possession which had less capacity than the amount indicated on their outside. The evidence showed the defendant had bottles for use in its business in its possession which held less than the markings on the outside showed they would hold. This proof was sufficient to show a violation of the ordinance, and the defendant could not excuse itself by saying that it had neglected to inform itself of the size of the bottles which it had in its possession.

The defendant has urged other reasons for a reversal, but we think them without force.

The judgment of the municipal court of Chicago ‍​‌‌‌​​‌​​​​​​​‌‌‌​​‌‌​​‌‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌​‌​‌‌​​‍will be affirmed. Judgment affirmed.