| Ill. App. Ct. | Apr 11, 1899
delivered the opinion of the court.
This was a prosecution by, complaint and warrant, cominenced before a police magistrate of the city of Aurora, charging appellant with violating an ordinance of said city, entitled, “ An Ordinance Regulating the Sale of Milk and Cream in the City of Aurora.”
• Appellant was found guilty in the justice court, and appealed to the Circuit Court of Kane County, where a jury was waived and the cause tried by the court. Appellant -was again found guilty and fined $25. A motion for new trial was overruled and judgment entered against appellant, to reverse which he prosecutes this appeal.
The ordinance under which the prosecution was had, being lengthy, we do not deem it necessary to set it out in full, as the whole controversy turns upon the question as to whether the proviso therein contained invalidates the ordinance. After providing that no person shall sell milk or cream in the city of Aurora, without having first obtained a license so to do in accordance with the terms therein prescribed, the ordinance contains the following proviso : “ Provided, however, that this section shall not apply to persons who own not more than two cows and who sell milk therefrom to their neighbors, or customers, by peddling the same by hand.”
On the part of appellant it is contended that this provision invalidates the whole ordinance, because it discriminates between persons of the same class who are similarly situated,, and makes an act done by one person penal, which, if done by another person, is not so.
If the proviso attempts thus to discriminate, or if such -is its intent, purpose and effect, then, clearly, it must be held invalid, because the law is well settled that a municipal corporation has no power to pass an ordinance which is unreasonable, oppressive, or which tends to create a monopoly, or which so discriminates in favor of, or against, any particular class as to make an act done by one penal, while no penalty is imposed for the same act done by another under like circumstances. Dillon on Mun. Cor. (4th Ed.), Sec. 322; 17 Am. & Eng. Ency. of Law, 253; Tugman v. City of Chicago, 78 Ill. 405" date_filed="1875-09-15" court="Ill." case_name="Tugman v. City of Chicago">78 Ill. 405; City of Cairo v. Feuchter, 159 Ill. 155" date_filed="1895-11-22" court="Ill." case_name="City of Cairo v. Feuchter">159 Ill. 155; Zanone v. Mound City, 103 Ill. 552" date_filed="1882-05-12" court="Ill." case_name="Zanone v. Mound City">103 Ill. 552.
This being the law, the only question for our consideration is, does the proviso attempt to make an unjust discrimination in favor of a particular class of persons. We think this question must be answered in the affimative. No reason is perceived why a person having three cows should not have the same right to dispose of the milk therefrom as would another who only had two cows. What particular merit there is in peddling the milk by hand to one’s neighbor when done for a profit, which should create an exemption from the terms of the ordinance, we fail to appreciate. We think the effect of the ordinance and the proviso thereto, would be to create a monopoly in favor of persons living in Aurora and keeping two cows, shutting out competition on the part of those owning a greater number unless they obtained a license, thus probably enhancing the price, to the detriment of consumers and the benefit of the favored class.
The case is not like Littlefield v. State, 42 Neb. 223" date_filed="1894-10-16" court="Neb." case_name="Littlefield v. State">42 Neb. 223, reported also in 28 L. R. A. 588, cited by counsel for appellee.
There the ordinance imposed a license fee of $10 on each wagon from which milk was peddled, and those owning only one cow and delivering milk by hand were required to pay a license fee of two dollars, and one owning two cows must pay a license fee of five dollars. The ordinance was made to operate equally on each class of persons coming within its provisions, and no question of discrimination appears to have been raised in the case. The controversy arose upon the authority to pass the ordinance and the reasonableness of the license fee. In the ordinance before us, persons owning two cows and delivering the milk therefrom by hand, were entirely exempted from any license fee whatever. Because of this unwarranted discrimination we hold the ordinance unreasonable and void.
The conviction being wrongful can not be sustained, and the judgment must be reversed. Judgment reversed.