City of Rock Island v. Huesing

25 Ill. App. 600, 1887 Ill. App. LEXIS 173

• Court: Appellate Court of Illinois
• Decided: January 7, 1888
• Status: Published

Opinion

Lacey, J.

The appellant raises some preliminary questions as to the right of the appellee, a mere taxpayer, to maintain the suit. It is insisted that the amount of appellee’s tax is so insignificant, it being only 26 cents per annum in addition on account of abattoir expenses, that a court of equity would not notice it; that the appellee is not acting in good faith on his own account, hut is proceeding in the interest of the butchers of the City of Rock Island; that a taxpayer can not enjoin the levy and collection of the proposed tax, levied for the purpose of maintaining the abattoir in the manner proposed by the ordinance; that appellee is estopped because he did not object to the building of the abattoir, and paid taxes for that purpose without objection, and that the State only can question the right of the appellant to hold and use the property. We are inclined to hold all these points against the contention of the" appellant. In the first place, if this case falls within the rule of law that is announced in Lemont v. Talcott Stone Co., 98 Ill. 98, which holds the doctrine that an injunction will lie to enjoin a tax “where it has been imposed where the law has not authorized it. to be levied,” or, as in the case of Wright v. Bishop, 88 Ill. 302, where it was held it would lie to restrain the incurring or issuing evidence of an illegal debt, it would make no difference as to the amount of tax the complainant would he liable to pay in case the tax were levied or the debt incurred and collection enforced.

The first inquiry will be as to the nature of the tax sought to he imposed by the appellant and enjoined by this suit.

Was there any law, according to the allegations and conten tions of the hill, under which the tax or debt, whichever it may he termed, sought to he incurred, could be imposed ? It was asserted and claimed in the bill, and upon that the judgment of the court was asked, that the ordinance under which the debt was about to be created and the tax levied was wholly illegal and void, and without the power of appellant to pass. If this be so, which must be admitted to raise this point, then the city had no legal authority to maintain the abattoir or to incur any indebtedness on its account We are therefore of the opinion this case falls within the rule announced in the two cases above cited. There would he in snch case no law under which to make this levy or create the debt. The contention is, it was without the chartered power of appellant to pass the ordinance, and that the creation of the debt was for purposes not warranted, and that the corporate funds were about to be expended for the same unwarranted purpose. See also Hesing v. Scott, 107 Ill. 600. It is not like the case above, where the vacation of a street was sought to be enjoined. The complainant in that case did not allege that such vacation “ would impose on him a particle of loss, nor that he has, or will, sustain the slightest injury or inconvenience distinct from the general public.”

We also hold that no matter what the appellee’s private motives were as to aiding the butchers, he had a right to maintain his action if he showed legal grounds without reference .to such motives. Nor do we think an estoppel could be invoked against him, as his claim is that the ordinance is illegal, and there is no legal authority to create further indebtedness.

The payment of one tax created and levied without legal authority could not be invoked as an estoppel against the taxpayer who sought to enjoin another wholly illegal debt sought to be created on the same or similar account. Schaffer v. Bonham, 95 Ill. 368. It is not sought in the apjmllee’s bill to interfere with the right of the city to possess and own the abattoir as a property, but the incurring the expense for the alleged illegal use and maintenance of the same as an abattoir, is only objected to. The appellee’s counsel take the ground that under the charter, under which appellant is organized, it had no legal power to pass the ordinance in question or to maintain the abattoir. On the other hand the appellant insists that such power existed, and that the ordinance in question is valid and binding. Upon the decision of this question hangs this controversy.

The appellant claims the power to pass the ordinance in question under certain general provisions of the statute, there being no express power granted in the incorporation act of 1872 to regulate slaughter houses within or without the city.

The general provisions of the “ General Act for Incorporation of Cities and Villages,” in force July 1, 1872, to which we have been referred, and under which the power is claimed, is as follows: Article 5, Sec. 63. The City Council shall have the following powers:

Clause 53. “ To provide for and regulate the inspection of meats, poultry, fish, butter, cheese, lard, vegetables, cotton, tobacco, flour, meal and other provisions.”

Clause 76. “To appoint a board of health and prescribe its powers and duties.”

Clause 78. “ To do all acts and make all regulations which may be necessary or expedient for the promotion of health or the suppression of disease.”

Clause 96. “To pass all ordinances, rules, and make all regulations proper or necessary to carry into effect the powers granted to cities or villages, with such fines and penalties as the City Council or Board of Trustees shall deem proper: provided no fines or penalties shall exceed 8200, and no imprisonment shall exceed six months for one offense.”

If the appellant derived no power under the above several provisions, or some of them, it is conceded it had no power.

The ordinance in question, with all the incidental regulations and the abattoir appliances, is essentially an ordinance for inspection of certain fresh meats before they can be sold in the city for food, as a health measure. The statute grants the power to inspect, expressly. The only question as regards this exercise of power is: is the passage of the ordinance in question, and the regulations therein provided for, a reasonable exercise of the express power granted ? In order to determine that question we must look to the circumstances of the case as developed by the bill, answer and the evidence. The power to pass the ordinance and establish and maintain the abattoir as a sanitary measure, we will notice hereafter. What were the circumstances? Some time prior to the passage of the ordinance and erection of the abattoir the city wras supplied with fresh meats by about fifteen licensed butchers, all of whom did their slaughtering at some five slaughtering houses located in the city, and those houses were kept in a most filthy condition, occasioned somewhat from the want of drainage, which, on account of their location away from the river, could not be remedied, and somewhat on account of the carelessness of the butchers and beepers of the slaughter houses. Besides this, some of the butchers were unprincipled enough to sell diseased meat, and meat in such condition that no civilized pierson would knowingly eat it. The city was of the opinion, after making the effort, that this evil could not be controlled by the ordinary ordinance with only a penalty attached, and determined, as a part of the remedy, to build the abattoir; but while this was being proceeded with, the butchers removed their place of slaughtering the beeves and other animals outside the city limits and more than one mile therefrom, so that the city had no jurisdiction of the slaughter house and could not inspect the animals before killing; could only inspect the meat after it was brought into the city. The ordinance was passed after the butchers had moved their place of butchering outside the city, or in view of the fact that they were about to so move. It was as important for the city to inspect the animals before they were slaughtered as the meat afterward, and that the ordinance provided for. The city already had the building, which it is not disputed it may hold. All that was wanted was some butchering appliances amounting, in cost, to something like §2,585; the inspector would be required at all events. It appears that the abattoir is well located for butchering purposes, and is right on the banks of the Mississippi River, which gives good drainage.

If the animals were compelled to be brought there for inspection, it would not be unreasonable to suppose that the butchers would be willing to have their work clone there instead of at Dingledines, which was far outside the city limits. The ordinance did not compel any of the butchering to be done at the abattoir, only the inspection there or at some other licensed slaughtering house in the city, of which there was only one in existence ; but we are authorized to suppose that there might have been others if any one had seen proper to establish them. At least no refusal on the part of the city is shown. If this be so, there was no monopoly established by the city, even if the city could establish a monopoly where it did the work itself, which we need not decide. Where a city has power to regulate certain matters of police within its limits, in carrying out the details of that power it must necessarily have a large discretion, and an ordinance should not be declared void for unreasonableness, unless clearly so in the mind of the court. Eagan v. City of Chicago, 5 Ill. App. 70.

The next question arising is under the general health clause of the statute. Had the city the power to pass the ordinance and maintain the abattoir? It seems that the issue was made and the case tried and decided in the court below as though the abattoir had been established and all the butchering was required to be done there, or that the ordinance, under all the circumstances, had such coercive features in that direction that it amounted to that, and the city was enjoined from passing an ordinance requiring the butchering to be done at the abattoir. That the general health clause is broad enough to authorize the city to regulate the slaughter houses in ' the qity to a reasonable extent, seems not to admit of much doubt. That would seem to be the effect of the reasoning of the court in the case of Tugman v. City of Chicago, 78 Ill. 405. Clause 78 above cited, seems to be residuary in character, intended to cover every case for the general preservation of the health of cities not specifically delegated, and is not controlled by the specific grants of power enumerated in the other sections. What the city may do to preserve health must necessarily be within the sound discretion of the City Council, controlled in the end by the courts and liable to be declared void for palpable abuse.

The City Council had been informed through an investigation of its Board of Health, of certain facts found to exist at the slaughter houses, and through it of the opinion of nine leading physicians of the city, that the public health was being endangered by the condition of things existing at the slaughter houses in the city.

The physicians resol ved “ that the meat exposed to air rendered poisonous by the septic emanations from the decomposing offal of slaughtered cattle is highly detrimental to those who eat it; that the meat of hogs fattened on any animal matter, and especially that in a state of decomposition, is unfit for human consumption, and where used will surely breed disease; that the meat from diseased cattle and immature calves is inedible and its exposure for sale a crime against the health of the community.”

It was this state of affairs that the appellant was attempting to remedy. What more natural and efficient remedy could be devised than to build an abattoir where all the slaughtering could be done by the city and where the deputy health commissioners could inspect the animals before slaughter, as well as the meat afterward? It is not denied, but admitted by counsel for the appellee, that the Legislature could, by express grant, give the cities in this State the right to maintain an abattoir like this one, but it is insisted that it has not done so and that such power can not be inferred from clause 78 above cited.

It is claimed that under the rule announced in the case of Chicago v. Rumpff, 45 Ill. 91, the city would not have the power to pass the ordinance in question, nor maintain the abattoir for the reason that the ordinance would create a monopoly. Under the general law the city can “do all acts and make all regulations which may be necessary or expedient for the promotion of health and the suppression of disease.” In the Chicago charter recited in Chicago v. Eumpff, supra, the power was “to direct the location, management, construction of, and- to regulate, license, restrain, abate and prohibit, within the city limits * * * slaughtering establishments * * * and all establishments and places where any nauseous, offensive or unwholesome business may be carried on.” An ordinance was passed under this law, or attempted to be passed, held not good by the court, whereby John Eeed & Company, themselves butchers and vendors of meat in the city, were given the exclusive right to have all the slaughtering done, except what was done at the regular packing houses, on their premises, situate on the south half of a certain block. Eeed was to do all the butchering for all the other butchers that might request it; no other slaughter houses after certain date were to be allowed in the city under a penalty, except that the city might allow two more. As a compensation Eeed & Company were to have the usual offal and no more. The ordinance, as stated in the opinion of the court, did not declare the business of slaughtering animals in the city a nuisance. The court held the ordinance to be only a contract between the city and Eeed & Company.

The court further held that the city was only authorized under the charter to locate, manage and construct, and to regulate, license and restrain, abate or prohibit, within the limits of the city, these establishments; and this must be done by ordinance which in that case was not attempted.

The court also found it illegal to confine the business to one building or to give it to one individual; such a regulation was not contemplated by the act and created á monopoly, and the principle of the -equality of rights of corporator^ was violated. The opinion further states that the city did not proceed on the assumption that the butchering of animals was a nuisance. We think that case is distinguishable from the one at bar in important particulars. In this case the whole object of the ordinance, as is declared in See. Ho. 2, was to secure to the city “good, fresh, wholesome meat.” That is, to preserve the health of the city. This was aimed to be accomplished by securing good inspection of the animals and meats, and by keeping a clean slaughter house so that the meats should not become contaminated by contact with impure gases and filth. The health of the people of the city was the main object.

In the Chicago case, as held by the court, there seemed to he no object in view except that of giving Eeed & Company a monopoly of the business of slaughtering animals. The ordinance or contract was void as an ordinance for want of being properly passed, or even if passed it would have been void as decided by the Supreme Court. But surely the Supreme Court did not intend to decide that, under a statute like our present broad charter to cities, the Common Council can not maintain an abattoir like the one established by appellant, for the purpose of preserving life and health and of preventing unscrupulous butchers from poisoning the people by selling them diseased and unwholesome meat. The supposed great damage done the public welfare by the claimed establishing of a monopoly of the butchering business by the City of Bock Island, is the main point relied upon by counsel to establish the unreasonableness of the ordinance. But it seems to us that such considerations must sink into insignificance when we consider the overwhelming benefits to be derived by the same community in the preservation of its health by a clean and wholesome meat supply. The one only touches the pocket, the other the life and health. The slaughtering of the cattle by the city is only an incident necessary to accomplish the more important object of conserving the common health. Individual rights must yield to the public good. Such an ordinance could be no precedent for the establishment of a dangerous monopoly in the future.

The city only charges for the butchering the necessary expense. Any unreasonable charges might make an ordinance void. But under the present ordinance there is no compulsion. This view of the subject has been taken by other courts eminent in ability, and the doctrine announced agrees with our views. The cases referred to are: The City of Milwaukee v. Gross, 21 Wis. 243; Thelfew Orleans Slaughter House Oases, 16 Wall. 36. Holding also that the Bumpff case, supra, is not in conflict, we feel free to hold that the City of Bock Island has not exceeded its chartered power in passing the ordinance in question and in maintaining the abattoir. Taking this view of the subject, we hold that the court below erred in making the injunction perpetual and decreeing costs against appellant. The decree of the court below is therefore reversed and the cause remanded to that court with instructions to dismiss the bill.

Seversed and rememded with directions.