Petition for Writ of Certiorari — Charles v. City of Chicago

Supreme Court brief1953

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IN THE —

| SUPREME COURT OF THE UNITED STATES

Octoser TERM, 1952.

LeROY G. CHARLES, JOHN L. CHARLES,

MARY E. CHARLES, WOODROW CHARLES,

DOCK CHARLES, EUGENE CHARLES ayn

GRADY JONES,

Petitioners,

vs.

CITY OF CHICAGO,

A MunicrpaL CorporaTION,

Respondent.

PETITION FOR WRIT OF CERTIORARI.

LeRoy G. CHARLES

Joun L. CHARLES

Mary E. CHarLes

Woovrow CHARLES

Dock CHARLES and

Grapy JONES,

Petitioners.

’ LeRoy G. Cuar.es,

Attorney for Petitioners.

Midwest Law Printing Co., DFiaware 17-6669

INDEX. -

Petition for Writ of Certiorari | 1

Summary and Statement of Matters Involved ........ 2, 17

The Amended Complaint 4

Obnoxious Provisions of the Amended Ordinance

Under Attack 8

The Defendants’ Motion to Strike the Amended

Complaint 9

Jurisdictional Statement -........ 2... 10, 17

Questions Presented 11

Reasons for Granting the Writ of Certiorari ................ 13

Prayer 16

Supporting Brief ...... 17

Opinions Below (First and Second Opinions) ..17, 47, 55

Specifications of Errors 18

Summary of Argument 19-22

Argument

1. The second decisions of the Supreme Court of

Illinois in affirming that part of the decree up-

holding the validity of Sections 95-29.1 to Sec-

tions 95-29.7, both inclusive, and reversing that

part of the decree, which was not appealed from

or drawn into question by either party to the

cause, which held Section 95-29.8 of the ob-

noxious ordinance as amended is a reasonable

regulation of the retail poultry business in Chi-

am hits

cago, that in no way constitutes a denial of due

process of law or equal protection of the laws,

or other guaranteed by the State and Federal

Constitutions (R. 27) is erroneous in that it

upholds arbitrary, discriminatory class legisla-

tion contrary to applicable decisions of this

Court, and arbitrarily imposes upon petitioners

the unnecessary and unconscionable physical and

financial burdens of structural and refrigeration

requirements

The second decision of the Supreme Court of

Illinois, in affirming the decree as to Sections

95-29.1 to 95-29.7, both inclusive and reversing

the decree as to Section 95-29.8 which Section

95-29.8 was condemned as invalid by the decree,

from which adjudication, neither party appealed,

or filed cross appeal and which matter was not

properly before the court, denied due process

of law and equal protection of the law to the

plaintiffs and abridged their rights, privileges

and immunities, and took their property without

any compensation in violation of the Fifty and

14th Amendments to the Constitution of the

Sy een

The second decision of the Supreme Court of

Tilinois upholding the controverted ordinance,

declared an arbitrary and unreasonable classi-

fication of the poultry business in Chicago, which

has no reasonable relation to the health, safety

or morals of the community and constitutes an

unwarranted interference with the carrying on

of a lawful retail live poultry business in Chica-

go and deprives such poultry dealers and peti-

tioners of their property without compensation

or due process of Jaw and denies them equal

pee

ili

protection of the law and imposes upon Peti-

tioners and live poultry dealers in Chicago un-

reasonable, unconscionable and oppressive physi-

cal and financial burdens of unnecessary building

construction and installation of an elaborate

system of keeping books and records and vir-

tually excludes petitioners and other retail live

poultry dealers from business in Chicago in vio-

lation of the Fifth and 14th Amendments to

the Constitution of the United States

The second decision of the Supreme Court of

Illinois, in predicating the validity of the ob-

noxious ordinance upon the existence of a zoning

ordinance, which itself is vulnerable to attack

and was not before the court, amended the ordi-

nance by judicial legislation, which is itself un-

constitutional, and made the ordinance enact

what confessedly the city council never meant,

and excluded all retail live poultry dealers in

Chicago and the petitioners from operatin:: a

retail live poultry business in any district in

Chicago as a matter of right, without complying

with the obnoxious ordinance ....

The second decision of the Supreme Court of

[linois, in upholding the ordinance prohibiting

the use of buildings, which is not dangerous or

contaminative in any way and specifying partic-

ular materials to be used, denied the petitioners

equal protection of law and due process of law

under the 14th Amendment to the Constitution

SL i SE REID es Me i hes NoPE

a Bt hr aa

DI isles ac cdiasig i - Seer U PER

€

Tasie or Cases CITED. |

Atchison and Sante Fe Ry. Co. v. Vosburg, 238 U.S.

56 14

Bain v. Fleck, 406 Ill. 193 30

Bordens Co. v. Baldwin, 293 U.S. 194 ........2....--..---2-+--+- 31

Chicago, Burlington and Quincy Ry. v. Chicago, 166

LS fe ppb rina WRalor sierao ope att cy eam e aan eee EL ERC IW TNeEneE 14, 30

City of Chgo Heights v. Rub. Service Co., 408 Ill. 604 30

City of New Orleans v. New Orleans B. Co-Op Abat-

a ih: SRR LORERER see Sener OnE s reine Snr Mary Reno ECS 35

Coe v. Armour Fertilizer Works, 237 U.S. 413 -...... 16, 42

Connolly v. Union Sewer Co. 184 US. 540

Ainscilbictracdison'insccgunacepiasacspenbtiinetabssieaats 13, 14, 15, 32, 36, 41, 48

Cotting v. Kansas City Stock Yards Co., 183 U.S.

72 LAER DRE Te NO RE a eT Reece Oe TN a 15, 36

Cowan v. City of Buffalo, 288 U.S. 239 ................-....--.---. 13

’ Daffins v. Los Angeles, 195 U.S. 223 .....2..-.---.--------+- 15, 36

Davis v. Wallace, 257 U.S. 478 ..............- 15, 40

Paismont Oo. v.. Mien. 274 US. 2 15

Forsythe v. Village of Cookville, 356 Ill. 289 .......... 30

Frasier v.. Gheiton, S20 TL. 266 ...................................... 3l

Freitag v. Union Stock Yards, 262 Ill. 551 -................... 31

reat ¥. Coe, Soe Te: Ob nn 13

Giebelhausen v. Daley, 407 II. 25 ............2....----------0-+ 3

Gulf, Colorado and Sante Fe Ry. v. Etlis, 165 U.S.

MD 5a iin ds skcsasnicchinab aaa hsncdiceaiaddh paamnantamreiaesesiodea eeapiuabieie 13

Hague v. Committee for Industrial Organization, 307 ra

Heine ¥, Degia, 202 Ii. 350...

‘

b tad

Horne Teland Tel. Co,.v. Los Angeles, 227 U.S. 278. 15

Justensen’s Food Stores Ine. v. City of Tulare, le

Cal (2d) 324; 84° P (2d) 140 20 bri cas. “13

eS Co. v. Baldridge, 278 US. 105, Set 13, 4, “15, 28, 37

Lombardo Wine Co. v. Taylor, 401 Ill. 454 30°

McCoy v. Town of York, 8 SE (2d) 905 .....0...... 38, 39

McDougall v. Lueder, 389 Ill. 141 30

Nakwasas v. Western Paper Stock Co., 260 Ill. 172 .... 31

New State Ice Cream Co. v. Liebman, 285 U.S. 262 ..15, 38

Norris v. Alabama, 294 U.S. 587 13

North Carolina Ry. Co. v. Zachary, 232 U.S. 248 _._... 11

Quaker City Cab Co. v. Penn., 277 U.S. 389 _.22 2... 15

Retirement Board v. Alton Ry. Co., 295 U.S. 330

14, 32, 41

Roland Co. v. Walling, 326 U.S. 657 13

Rutgers Chapter v. City of New Brunswick, 28 A(2d)

759 16, 41

Smith v. Texas, 233 U.S. 630 _........ 15

Spraigue v. Thompson, 118 U.S. 90 15, 40

State v. Hurst, 41 P (2d) 1079, 1081 .. 26

Troax v. Corregan, 257 U.S. 312 .............. 13, 28, 31

Weaver v. Palmer Bros., 270 U.S. 402

Dbsischeasuihcceda taskbeitaded icone 13, 14, 15, 16, 28, 36, 44, 45

Winter v. Barrett, 552 Tl. 441 0. 31

PIRVON DSL AST EEL IES PORN PETAR Me

Sratutes Crrep.

Par. 2, Sec. 1257 Judicial Code (Title 28, Ch. 81.

See. 1257, Par. 2, U. S. Code) 10

Par. 3, Sec. 1257 Judicial Code (Title 28, Ch. 81 See.

th ee ARR ee een 10

MunicrpaL Copes oF Cxtcaco CITED.

Chapter 13, Sec. 40-2 Municipal Code of Chicago ........ 24

Chapter 13, Sec. 40-6 Municipal Code of Chicago ........ 24

Chapter 50, Sec. 50-8 Municipal Code of Chicago ........ 24

Section 194 A-12(2) Municipal Code of Chicago ....... 25, 40

Section 194 A-11 Municipal Code of Chicago ................ 25

"-) IN THE. .

SUPREME COURT OF THE UNITED STATES —

Ocroser TreRM, 1952.

LeROY G. CHARLES, JOHN L. CHARLES,

MARY E. CHARLES, WOODROW CHARLES,

DOCK CHARLES, EUGENE CHARLES anp

GRADY JONES,

Petitioners,

vs.

CITY OF CHICAGO,

A MuwnicrpaL Corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI.

To The. Honorable Chief Justice and Associate Justices

of The Supreme Court of the United States:

Petitioners, LeRoy G. Charles, John L. Charles, Mary

KE. Charles, Woodrow Charles, Dock Charles, Eugene

Charles and Grady Jones, Plaintiffs-Appellants in the

Court below, pray that a Writ of Certiorari issue to re-

view the judgment of the Supreme Court of Illinois en-

tered on the 20th day of November 1952 (R. 41-48).

A petition for rehearing was duly filed within the time

allowed by the rules of the Supreme Court of Illinois, and

was considered and denied by said Court on the 19th

day of January 1953. This petition for certiorari, to

gether with the certified transcript of record are filed

in this Court within three months after the denial of

the petition for rehearing by the Supreme Court of Illi-

Nois.

Summary and Statement of the Matters Involved.

This is a suit in chancery, brought by the petitioners

to enjoin and restrain the enforcement of certain amend-

ments to an ordinance of the City of Chicago regulating

the licensing and operation of retail live poultry dealers

in Chicago, on the ground that the amendments are unrea-

sonable and arbitrary class legislation exempting retail

dressed poultry dealers and wholesale live poultry dealers

in the City of Chicago from the confiseatory burdens and

prohibitions that it imposed upon retail live poultry dealers

in the City of Chicago, in violation of the due process

clause of the constitution of the State of Illinois and

the Fifth and Fourteenth Amendments to the Consti-

tution of the United States.

The cause was decided upon the amended complaint

and the defendant’s motion to strike the amendea com-

plaint and dismiss the suit, which motion was sustained

by the trial court, except as to Section 95-29.8, which

the court held unconstitutional (R. 27).

A Certificate of Importance was issued by the trial

court certifying to the Supreme Court of Illinois that

the validity of a municipal ordinance .was involved, which

required speedy settlement of the constitutional questions

involved by a decision of the ‘Supreme Court of. Illinois,

and a direct appeal was taken to the Supreme Court

of Illinois (R. 28-29).

On May 22, 1952, the Supreme Court of Illinois re-

versed the trial court, except as to Section 95-29.8, which

was not appealed from by either party, and held the

amendments void (R. 32-37).

The City filed a petition for rehearing on June 12,

1952, and Kosher Butchers Association-Inc. were per-

mitted to intervene as amicus curiae on June 13, 1952,

and file briefs in 20 days. Rehearing was allowed on

September 15, 1952. (R. 40-41). The Supreme Court of

Illinois reversed itself on November 20, 1952, and held

the ordinance valid, and reversed that part of the de-

cree, which was not appealed from by either party,

which held Section 95-29.8 of the ordinance void. In its

second opinion, the Supreme Court of Illinois held the

amendments to said ordinance to be reasonable and valid

regulations under both the state and federal constitutions

(R. 41-48).

All the facts in the case are unequivocally set forth in

the amended complaint (R. 1-17). The nature and effect

of the obnoxious amendments are apparent on their

face. Plaintiffs’ Exhibit 1, is attached to their amended

complaint (R. 17-23). The facts positively stated in the

amended complaint are unqualifiedly admitted by the

defendant, in its motion to strike the amended complaint

and dismiss the suit, which motion has now been sustained

in toto by the second opinion of the Supreme Court of

Illinois,

Lee eee

Rds 4

The Amended Complaint.

The amended complaint alleged that the plaintiffs are

engaged in the live poultry business in the City of Chi-

cago, under the style and name of Farm House Poultry

Markets; that beginning in 1935, they established, owned —

and operated seven of such stores by January 1, 1948, and

that each store contains steel batteries, with removable

drop pans, which collect the waste; that the chickens

are taken from delivering trucks and placed and kept

in these steel batteries until they are slaughtered and

sold; that in the rear of each of the stores are steel and

metal bleeders, each one of which contains six cone-

shaped troughs 10 inches in diameter at the top and 4

inches in diameter at the bottom; that the tops and bot-

toms of the bleeders are open; that the slaughtered

chickens are placed in the bleeders with their heads

down; that the blood is caught in movable pans; that the

dead chickens are then placed in water of about 190 de-

grees Fahrenheit and then into electric picking machines

and the feathers removed, after which the chickens are

eviscerated; that the refuse is placed in metal containers

with tight fitting covers; that the refuse is carted away

three times per week by private scavengers hired by plain-

tiffs: that all equipment, including batteries, bleeders,

pans, floors, walls and ceilings are thoroughly cleaned

daily; that all crates are thoroughly cleaned and stored

in the rear yards of each store and are removed three

times each week by the wholesalers; that each store is kept

and maintained in a clean and sanitary condition and in

compliance with all the rules and provisions of the Board

of Health of the City of Chicago, and in compliance with

the ordinances of the City of Chicago and the laws of

the State of Illinois and the United States (R. 1-3).

Applicable parts of the ordinance regulating the con-

duct of the poultry business in all of its phases in the

City of Chicago prior to the obnoxious amendments of

December 1, 1950, are set forth, which ordinance pro-

vides for adequate ventilation, and that such places be

kept free from rats, mice, flies and other insects and

vermin (R. 3); that they shall be kept free from litter

and rubbish; that adequate lockers and dressing rooms

shall be provided outside of the kitchen or other food

processing rooms; that soiled linens, coats and aprons

shall be kept in containers provided for that purpose;

that a license shall be issued to an applicant only upon

giving the Board of Health full information as to the

size and nature of the place of business; the purpose

of the business, the condition, equipment and facilities

for conducting the business therein, the health of the

persons employed and to be employed and the regula-

tions and facilities provided for them. The existing ordi-

nance further provides that before any license shall issue,

the Board of Health shall cause an inspection to be

made of the premises to be occupied by the applicant,

the equipment contained therein, the employees intended

for the same and other matters relating to the business

(R. 4).

The amended complaint further alleged that the rear

of each of their stores contain cement floors and sanitary

toilets; that the floors and toilets are kept and have al-

nieied

as Neo

SR EES EE I ECE WE

Barta

bad

ways been kept in a clean and sanitary condition; that the

plaintiffs have always conducted their businesses under

licenses issued to them by said City of Chicago; that the

Board of Health of the City of Chicago has always in-

spected their stores and the premises in which they are

conducted and has always approved the sanitary condi-

tions therein; that the plaintiff’s stores are located in

business districts and are surrounded by business property

occupied by various businesses; that the plaintiffs applied

for their licenses and tendered therewith the required fees.

but were refused licenses on the sole ground of their non-

compliance with the amendments under attack; that the

plaintiffs are obligated on leases on said stores, ranging

from one year to five years at rentals of from $100.00

per month to $250.00 per month; that before leasing said

stores, they requested inspections of said stores by the

Building and Health commissioners of the City of Chica-

go, and were informed by these officials that said build-

ings were suitable for the purposes for which they are

being used (R. 4-5).

The amended complaint further alleged that the manner

in which their businesses are conducted is in no way in-

jurious to the public health, safety or morals; that their

lessors will not permit their buildings to be remodeled

as required by the amendments in question; that it would

cost at least $5000.00 to remodel each store to comply

with the amendments; that according to the 1948 statis-

ties of the United States Department of Agriculture,

wholesale live poultry dealers in Chicago slaughtered and

sold to retail dealers about 52 million pounds of poultry

in that year; that wholesale live poultry dealers are en-

gaged in slaughtering, drawing, eviscerating, bleeding and

removing the feathers from poultry free from the: re-

straints, prohibitions and penalties of the amended ordi-

nance for the purpose of creating a monopoly for the

wholesale dealers; that the amended ordinance arbitrarily

discriminates against and oppresses and penalizes the

retail live poulterers: that wholesale live poulterers also

slaughter, partially bleed and remove the feathers from

poultry only, and sell it to retail dressed poulterers

in the City of Chicago; that retail dressed poulterers then

open, clean, pluck (R. 8-9) and eviscerate the poultry

causing refuse, entrails and blood to be removed there-

from, which remain in the establishment of the retail

dressed poulterer; that the retail dressed poulterer is

exempted froin the provisions of the amended ordinance

and are free from its restraints, prohibitions and penal-

ties; that the amended ordinance unlawfully and arbitrar-

ily discriminates against retail live poulterers and the

plaintiffs in favor of retail dressed and wholesale live

poulterers for the purpose of creating a monopoly for

them (R. 10).

The amended complaint further alleged that said

amended ordinance is unreasonable, discriminatory, con-

fiseatory and prohibitory of the operation of retail live

poultry business in the City of Chicago, and denies equal

protection of the laws of Illinois and the United States

(R. 11); that it has no relation to the public health, safe-

ty, morals or public welfare; that it deprives the plain.

tiffs of their property without due process of law under

the Illinois constitution and the Fifth and Fourteenth

Amendments to the Constitution of the United States, and

deprives the plaintiffs of their property without just com-

pensation in violation of Section 13 of Article III of the

Constitution of Illinois and the Fifth Amendment to the

Constitution of the United States; that the City of Chi-

eago has ordered all of plaintiffs’ businesses closed and

placed ‘‘Closed’’ signs on the doors and have declared

said businesses to be nuisances solely for non-compli-

ance with said amended ordinance (R. 12-13); that said

action on the part of the City has no relation to cleanli-

ness or health in the community; that plaintiffs were re-

fused their licenses and ordered to cease operating their

businesses and are now being criminally prosecuted for

non-compliance with said amended ordinance (R. 14).

The plaintiffs prayed for an injunction restraining

the enforcement of the obnoxious amendments and for

a declaratory judgment awarding a writ of mandamus to

compel the City of Chicago to accept plaintiffs’ applica-

tions for licenses and issue to them the several licenses

(R. 16-17).

Obnoxious Provisions of the Amended

Ordinance Under Attack.

On the first day of December 1950, the City Council of

Chicago amended the ordinance regulating the operation

of poultry stores in Chicago, and made it unlawful for

retail live poultry dealers to operate in the City of Chi-

eago without first obtaining a license, and prohibited

the issuance of a license to a retail live poulterer unless

the premises in which the business is to be operated con-

tains a separate preparation room to be used exclusively

for the killing and dressing of poultry. The floors must

be constructed of cement or concrete or other impervious

material, and so graded and drained as to discharge all

liquid waste into a properly trapped sewer or cesspool

eonected drain. The ceilings must be at least eight

feet above the top of the floor and must be ‘‘of a smooth,

hard, impervious material free from’ crevices, cracks,

ledges or projections.’’ The walls from the floor to

the ceiling must be of white enamel bricks, or enamel

tile, porcelain or enamel finished material or stainless

steel. The lavatory must be completely separated from.

the preparation room and ventilated into the outside air

(R. 18-19). Refrigeration must be established and main-

tained (R. 20).

Section 95-29.5 of said amended ordinance prohibits

the operation of a retail live poultry business within

200 feet of a residence, public institution, or a building

which manufactures food (R. 21).

Section 95-29.8 of said amended ordinance requires re-

tail live poultry dealers to keep a record of all purchases

of live poultry showing the dates of purchase, the number,

weight, breed, description, and other distinguishing marks

of the poultry, the name, address and description of the

seller or sellers and the type of conveyance used by the

seller or sellers and their vehicle license numbers (R. 22).

The Defendant’s Motion to Strike the Amended

Complaint and Dismiss the Suit.

The defendant filed its motion to strike the amended

complaint and dismiss the suit on the grounds that a

court of equity had no jurisdiction in the premises because

of the insufficiency of the amended complaint and its

failure to state a cause of action; and that the facts

pleaded in said amended complaint are both insufficient

to warrant equitable relief and are wholly immaterial

II.

Jurisdictional Statement.

The jurisdiction of this Court is invoked pursuant to

paragraphs 2 and 3 of Section 1257, Title 28, Chap. 81,

of the U.S. Code.

The judgment of the Supreme Court of Illinois sought

to be reviewed draws in question the validity of a

municipal ordinance of the City of Chicago on the ground

of its being repugnant to the Constitution of the United

States, and the second decision of the Supreme Court of

Illinois in favor of its validity is also repugnant to the

Federal Constitution.

The validity of a Municipal Ordinance is drawn in

question on the ground of its being repugnant to the

Constitution of the United States and abridges the rights,

privileges and immunities specially claimed by petitioners

under said Constitution in the amended complaint, and

the second decision of the Supreme Court of Illinois is in

favor of its validity.

In its second opinion, the Supreme Court of Illinois held

that the said ordinance does not contravene any rights

guaranteed to petitioners under the Constitution of the

United States (R. 44).

The Supreme Court of Llinois decided questions involv-

ing the rights, privileges and immunities claimed by

petitioners under the Federal Constitution erroneously

and contrary to the decisions of this Court, which neces-

ait

Ate

sarily requires a-decision-by this Court te-correct such

errors to protect the rights of petitioners. North Carolina

Ry. Co. v. Zachary, 232 U. S. 248, 257; Hague v. Commit-

tee for Industrial Organization, 307 U. S. 496.

The judgment of the Supreme Court of Illinois became

final upon the denial of the petition of the plaintiffs for

rehearing on January 19, 1953 (R. 49). This petition is

filed within ninety days of said date as provided by Sec-

tion 2101(c), Title 28, Chap. 133, of the U. S. Code.

ITI.

Questions Presented.

The ultimate questions to be decided are:

1. Whether an ordinance of the City of Chicago, which

exempts all retail dressed poultry dealers and all whole-

sale live poultry dealers in said City from its provisions

and penalties, but prohibits all retail live poultry dealers

in said city from operating or continuing to operate a

retail poultry business in said city, without regard to

conditions of cleanliness and sanitation, unless such re-

tail live poultry dealers construct in their establish-

ments a separate preparation room with impervious

material eight feet from the floors, and floors of concrete,

and walls of glazed enamel bricks or enamel tile, porcelain

or enamel finished material or stainless steel eight feet

high to the ceilings and comply with other prohibitive

structural requirements, is unreasonable, discriminatory

class legislation, which denies plaintiffs equal protection of

the law and due process of law in confiscating their prop-

erties.

2. Whether the second decision of the Illinois Supreme

aA et

Court amounts to a judicial amendment of the ordinance

as amended, which excepts retail dressed poulterers and

wholesale live poulterers from its operation, but prohibits:

retail live poulterers from operating or continuing to

operate their poultry businesses unless such poulterers

comply with the prohibitive financial burdens imposed

upon them by Section 95-29.1 to 95-29.8 of Chapter 95 of

the obnoxious ordinance is oppressive, unreasonable and

discriminatory and deprives petitioners, as retail live

poulterers, of their rights and property without due pro-

cess of law, and denies them equal protection of the law

and abridges their rights, privileges and immunities in

violation of the Fifth and 14th Amendments to the Con-

stitution of the United States.

3. Whether the restrictions imposed upon retail live

poulterers by the ordinance as amended, is based upon an

arbitrary and unreasonable classification, and constitutes

an unwarranted and unreasonable interference with the

carrying on of lawful businesses and a confiscation of

the same without compensation, in violation of the Fifth

and 14th Amendments to the Constitution of the United

States.

4. Whether the nature and effect of the ordinance as

amended is a reasonable regulation of the poultry busi-

ness in the City of Chicago to protect the public health

or is an arbitrary and discriminatory exclusion of live

poultry dealers in said city from business in violation

of the Fifth and 14th Amendments to the Constitution

of the United States.

REASONS FOR GRANTING THE: - .

WRIT OF CERTIORARI.

1, The second decision of the Supreme Court of Ili-

nois in affirming that part of the decree upholding the

validity of Sections 95-29.1 to Sections 95-29.7, both in-

clusive, and reversing that part of the decree, which was

not appealed from or drawn into question by either

party to the cause, which held Section 95-29.8 of the ob-

noxious ordinance unconstitutional, and holding that the

obnoxious ordinance as amended is a reasonable regu-

lation of the retail live poultry business in Chicago, that

in no way constitutes a denial of due process of law or

equal protection of the laws, or other rights guaranteed

by the State and Federal Constitutions, (R. 47) is er-

roneous in that it upholds arbitrary, discriminatory class

legislation contrary to applicable decisions of this Court,

and arbitrarily imposes upon petitioners the unnecessary

and unconscionable physical and financial burdens of

structural and refrigeration requirements.

Connolly v. Union Sewer Co., 184 U.S. 540;

Truax v. Corregan, 257 U.S. 312, 324-5;

Norris vy. Alabama, 294 U.S. 587,. 590;

Frost v. Comm., 278 U.S. 515, 522;

Gulf Colorado and Sunte Fe Ry. vy. Ellis, 165

U.S. 150, 155, 159, 165;

Weaver v. Palmer Bros., 270 U.S. 402;

Liggett v. Baldridge, 278 U.S. 105, 111;

Cowan v. City of Buffalo, 288 N.Y.S. 239, 243-4;

Roland Co. v. Walling, 326 U.S. 657, 673-75;

Justensen’s Food Stores Inc. v. City of Tulare,

12 Cal. (2d) 324; 84 P. (2d) 140.

2. The second decision of the Supreme Court of

Illinois, in affirming the decree as to Sections 95-29.1 to

a |

95-29.7, both inclusive, and reversing the decree as to

Section 95-29.8, which Section 95-29.8 was condemned as

invalid by the decree, from which adjudication, neither

party appealed, or filed cross appeal and which matter

was not properly before the court, denied due process

of law and equal protection of the law to the plaintiffs

and abridged their rights, privileges and immunities, and

took their property without any compensation in violation

of the Fifth and 14th Amendments to the Constitution

of the United States (R. 47).

Chicago Burlington and Quincy Ry. v. Chicago,

166 U.S. 226, 233-235;

Atchison and Sante Fe. Ry. Co. v. Vosburg, 238

U.S. 56;

Connolly v. Union Sewer Co., 184 U.S. 540;

Weaver v. Palmer Bros., 270 U.S. 402, 413;

Tiggett Co. v. Baldridge, 278 U.S. 104;

Retirement Board y. Alton Ry. Co., 295 U.S. 330,

360.

3. The second decision of the Supreme Court of IIli-

nois upholding the controverted ordinance, declared an

arbitrary and unreasonable classification of the poultry

business in Chicago, which has no reasonable relation

to the health, safety or morals of the community and

constitutes an unwarranted interference with the carry-

ing on of a lawful retail live poultry business in Chica-

go and deprives such poultry dealers and petitioners of

their property without compensation or due. process of

law and denies them equal protection of the law and im-

poses upon Petitioners and live poultry dealers in Chicago

oe unconscionable and oppressive physical and

unnecessary building construction and

installation of an elaborate system of keeping books and

records and virtually excludes petitioners and other retail

live poultry dealers from business in Chicago in violation

of the Fifth and 14th Amendments to the Constitution of

the United States.

Daffins v. Los Angeles, 195 U.S. 223;

Connally v. Union Sewer Co., 184 U.S. 540;

Cotting v. Kansas City Stock Yards Co., 183 U.S.

79;

Weaver v. Palmer Bros. Co., 270 U.S. 402, 413;

Quaker City Cab Co. v. Penn., 277 U.S. 389;

Liggett Co. v. Baldridge, 278 U.S. 105;

Smith v. Texas, 233 U.S. 630;

Fairmont Co. v. Minn., 274 U.S. 1;

New States Ice Crean Co. v. Liebman, 285 U.S.

262, 278;

Home Teland Tel. Co. v. Los Angeles, 227 U.S.

278.

4. The second decision of the Supreme Court of Illi-

nois, in predicating the validity of the obnoxious ordi-

nance upon the existence of a zoning ordinance, which

itself is vulnerable to attack and was not before the

court, amended the ordinance by judicial legislation,

which is itself unconstitutional, and made the ordinance

enact what confessedly the city council never meant,

and excluded all retail live poultry dealers in Chicago

and the petitioners from operating a retail live poultry

business in any district in Chicago as a matter of right,

without complying with the obnoxious ordinance.

Spraigue v. Thompson, 118 U.S. 90, 95;

Davis v. Wallace, 257 U.S. 478;

Connally v. Union Sewer Pipe Lime Co., 184 U.S.

540;

posting ete |

a RR Ne

Rutgers Chapter v. City of New Brumswick, 28

A. 2d 759, 762-3;

Retirement Soard v. Alton Ry. Co., § 295 U.S. 330,

360, 362;

Coe v. Armour Fertilizer Works, 237 U.S. 413,

424-5.

5. The second decision of the Supreme Court of IIli-

nois, in upholding the ordinance prohibiting the use of

building materials in general use in the construction of

buildings, which is not dangerous or contaminative in any

way and specifying particular materials to be used denied

the petitioners equal protection of the law and due process

of law under the 14th Amendment to the Constitution of

the United States.

Weaver v. Palmer Bros., 270 U.S. 402.

PRAYER.

Wherefore, for the reasons hereinbefore set forth,

plaintiffs (petitioners) pray that a Writ of Certiorari

issue to review the second judgment of the Supreme Court

of Illinois in this case.

Respectfully submitted,

LeRoy G. CHARLES

Joun L. CHARLES

Mary E. CHar.es

Wooprow CHARLES

Dock CHaRLEs and

Gravy JONES,

Petitioners.

LeRoy G. CHARLEs,

Attorney for Petitioners.

Brief in Support of Petition for Writ of Certiorari to the

Supreme Court of Illinois.

Opinions Below.

The first Opinion of the Supreme Court of Illinois in

this case was not reported but was filed in the Office of

the Clerk of said court on May 22, 1952, under General

No. 32185, and is fully set out in the Record in this cause

(R. 32-37) and on pages 47-54 of this petition.

The Second Opinion of the Supreme Court of Illinois

was filed November 20, 1952, under General No. 32185

aforesaid and is reported in 413 Ill. Page 428, of the Illin-

ois Reports and also in 109 N. E. 2nd Page 790, on Pages

41-48 of the printed records, and further appears on pages

55-63 of this petition.

Jurisdictional Statement.

Petitioners adopt the jurisdictional statement appear-

ing on Page 10 of the petition for a writ of certiorari and

incorporates it in this petition.

Statement of the Case.

Petitioners adopt the statement of facts appearing on

Page 2 of the petition for a writ of certiorari and in-

corporate it in this brief.

SPECIFICATION OF ERRORS.

The Supreme Court of Illinois Erred:

1. In its second decision in affirming that part of the

decree upholding the constitutional validty of Sections

95-29.1 to 95.29.7, both inclusive of the controverted ordi-

nance and reversing that part of the decree, which held

Section 95-29.8 of said ordinance unconstitutional and void.

2. In its second decision, in not adjudicating the ob-

noxious amendments, under attack herein, to said ordi-

nance to be arbitrary, discriminatory class legislation,

which denies petitioners due process of law, equal protec-

tion of the law and confiscates their property without any

compensation to them whatsoever in violation of the Fifth

and 14th Amendments to the Constitution of the United

States.

3. In its second decision, in absolutely prohibiting the

use of existing buildings and future buildings constructed

of material not inherently dangerous or contagious or in-

jurious to the health, safety or morals of the community,

without regard to the manner and conditions of use and

without any regulation, and upholding arbitrary, discrim-

inatory class legislation in violation of the Fifth and 14th

Amendments to the Constitution of the United States.

4. In its second decision, in assuming jurisdiction of and

reversing that part of the decree, which was not appealed

from or questioned in any way or manner by either party

to the cause by appeal or cross appeal, which held See-

tion 95-29.8 of said controverted ordinance unconstitutional

and void and thereby imposed upon petitioners in the

operation of their businesses unreasonable, unconscionable

and oppressive physical and financial burdens and a wholly

unnecessary and elaborate system of keeping books and

records. :

5. In its second decision, in upholding the validity of

said controverted ordinance, which denies due process of

law and equal protection of the law to petitioners and

deprives them of their property without any compensa-

tion whatsoever in violation of the Fifth and 14th Amend-

ments to the Constitution of the United States.

6. In its second decision, in holding that said con-

troverted ordinance constituted a reasonable regulation of

the poultry business in Chicago, and did not contravene

either the Fifth or 14th Amendment to the Constitution

of the United States.

7. In its second decision, in not holding that the

controverted ordinance unconstitutionally discriminates

against retail live poultry dealers in Chicago and the

petitioners.

8. The second decision of the Supreme Court of Illinois,

is erroneous in predicating the validity of the controverted

ordinance upon the existence of a certain zoning ordinance,

amended the ordinance by judicial legislation, which is it-

self unconstitutional, and made the ordinance enact what

confessedly was not the intent of the City Council of

Chieago.

Summary of Argument.

1. The plaintiffs-petitioners herein, urge that an ordi-

nance, which exempts from its operation retail dressed

poultry dealers and wholesale live poultry dealers in the

City of Chicago, and prohibits the issuance of a license

* ae

‘20

to a retail live poulterer, and the operation of a. retail

live poultry business unless the retail live poultry dealer

makes structural improvements at a cost of approximately

$5000 in each establishment, with specified materials, and

tear out and discard existing material, which is neither

contagious nor dangerous or a health hazard, and which

requires such poulterer to install and maintain an expen-

sive refrigeration system, which is wholly unnecessary

to the proper operation of such a business, with the final

result that only the blood will be immediately disposed of,

with no change in the disposition of other refuse, is

arbitrary, discriminatory and unreasonable and denies the

retail live poultry dealer due process of law, equal pro-

tection of the law and confiseates his property without

any compensation in violation of the Fifth and 14th

Amendments to the Federal Constitution.

2. The plaintiffs-petitioners further urge that the first

decision of the Supreme Court of Illinois is correct and

that the second decision of the Supreme Court of Illinois,

reversed that part of the decree, which was not appealed

from or drawn into question by cross appeal and was not

before the court, and thereby wrongfully assumed juris-

diction in the matter, and denied petitioners due process

of law and that said second decision of the Supreme Court

of Illinois together with said obnoxious ordinance abridged

the rights, privileges and immunities of petitioners, and

took their property without any compensation, and denies

petitioners due process of law and equal protection of

the law, and arbitrarily denied petitioners the right to

engage in a domestic business under regulations applica-

ble alike to those engaged in the same general class of

business in violation of the Fifth and 14th Amendments

to the Constitution of the United States.

3. The plaintiffs-petitioners further urge that said con-

troverted ordinance does not have any reasonable relation

to the health, morals or safety of the community, but that

it is an unwarranted interference with the carrying on of

a lawful useful business, and was conceived and enacted

to give wholesale poultry dealers a monopoly on the poul-

try business in Chicago, and is being unconstitutionally

administered for that purpose and denies petitioners due

process of law, equal protection of the law and arbitrarily

excludes petitioners from the retail poultry business in

Chicago in violation of the Fifth and 14th Amendments to

the Constitution of the United States.

4. The plaintiffs-petitioners further urge that the sec-

ond decision of the Supreme Court of Illinois, in effect,

amended the controverted ordinance by unconstitutional

judicial legislation and made the ordinance enact what the

city council never intended that it should enact, by at-

tempting to limit its effective operation to zones con-

trary to the clear, positively expressed intent of the City

Council that its effective operation should be co-extensive

with the boundaries of the City of Chicago and exclude,

without exception, all retail live poultry dealers from

business in each and every zone and district in the City,

unless they comply with the unconstitutional arbitrary

physical and financial burdens imposed by prohibitive

structural requirements and the installations of an ex-

pensive, unneeded and useless refrigeration system and

the expensive system of keeping records and data un-

necessarily, which burdens are not imposed alike upon

other businesses of the same general class in violation of

the 14th Amendment to the Constitution of the United

States.

5. The plaintiffs-petitioners further urge that the City

Council was without the power to prohibit the use of ma-

terial, not inherently contagious or dangerous without

regard to the conditions of sanitation; and that the con-

troverted ordinance constitutes arbitrary, discriminatory

class legislation in violation of the Federal Constitution.

Argument.

The second decision of the Supreme Court of Illinois

in affirming that part of the decree upholding the validity

of Sections 95-29.1 to Sections 95-29.7, both inclusive,

and reversing that part of the decree, which was not ap-

pealed from or drawn into question by cross appeal, which

held Section 95-29.8 of the obnoxious ordinance uncon-

stitutional, and holding that the obnoxious ordinance as

amended is a reasonable regulation of the retail live poul-

try business in Chicago, that it in no way constitutes a

denial of due process of law or equal protection of the

laws, or other rights guaranteed by the State and Federal

Constitutions, (R. 47) is erroneous in that it upholds

arbitrary, discriminatory class legislation contrary to ap-

plicable decisions of this Court, and arbitrarily imposes

upon petitioners the unnecessary and unconscionable phys-

ical and financial burdens of structural and refrigeration

requirements.

We agree with the Supreme Court of Illinois that all

phases of the poultry business in Illinois are subject to

reasonable regulation by the respondent herein. But we

cannot agree with the analysis in the second decision of

that learned court. Section 40-2 of Chap. 13 of the Build-

ing Code of Chicago classifies buildings existing at the

time of its adoption or later designed, erected, altered or

converted according to their oecupaney, use and construc-

tion in accordance with the building provisions of the

eode. The building commissioner is authorized to classify

= Peirce - peel

all buildings not classified by the code. Section 40-6 of

the same chapter of the code defines a business unit as:

“‘Any building or part of a building designed in-

tended, or used as an office unit, a financial unit, a

sales unit, a storage unit or a manufacturing unit.’’

Chapter 50 of the Building code provides for all struc-

tural requirements for business units; Section 50-8 of

Chapter 50, provides that business units of ordinary or

superior type of construction fifty feet or less in height,

or more than two stories high, if of ordinary construction,

ceilings and partitions shall be covered with metal lath

and plaster; that if the unit is not more than two stories

high, ceilings, and partitions may be covered with wood

laths and plaster or other material of equal fire resistive

value.

The admitted facts show that petitioners obtained official

inspection and approval of the buildings in which they

operate their businesses before entering into their leases

for the same (R. 45). The ordinance under attack ex-

cludes petitioners from the retail live poultry business

unless they spend at least $5000 remodelling each store

(R. 8) over the objection of their landlords (R. 7).

The analysis made in the second decision of the Snu-

preme Court of Illinois is both general and inaccurate.

Operators and employees only use the preparation rooms

of retail dressed poultry dealers, wholesale live poultry

dealers and retail live poultry dealers. Plastered walls

will inoculate the employees of retail dressed poutry deal-

ers and wholesale live poultry dealers as easily as they

will the employees of retail live poultry dealers. Toilet

doors opening into the preparation rooms of the retail

dressed poultry dealers and wholesale live poultry dealers

will contaminate the poultry being prepared for sale as

easily and as quickly as that prépared by retail live poul-

‘try dealers. The admitted facts -show that each- fowl is

weighed and sold by the retail live poulterer before it is

killed and dressed and is immediately taken from the

establishment by the customer (R. 2). There is no need

or use for a refrigeration system. But the ordinance

under attack compels retail live poulterers to install an

expensive refrigeration system (R. 20).

In its second decision the Supreme Court of Illinois

relied upon the declaration in the preamble of the ordi-

nance that live poultry is delivered in crates that become

soiled; that they remain on the side walk for long periods

of time; that in opening up the fowls refuse, blood and

feathers remain for a considerable time and create a

nuisance, which attracts rats and vermin (R. 45). The

present ordinance requires that all such business estab-

lishments be kept in a clean and wholesome condition

and adequately ventilated so as to insure free circulation

of fresh air at all times; that they shall be kept free from

rats, mice, flies and other insects (R. 3). The admitted

facts show that petitioners have done all of these things

as attested by official inspectors (2-3, and 5).

The Illinois Supreme Court never pointed out in its

second decision that the specified walls and troughs of

enamel bricks or enamel tile or stainless steel are more

antibacterial or bactericidal or innocious than plastered

walls. The court never pointed out that the specified

material is an antidote or an antitoxin. That learned

a ehh coe |

EY SRR TNO Reta LP NU BLES

court did not point out that the specified material is more

innoxious or antibromic or mere of a deodorant than

walls of metal laths and plaster. The Illinois Supreme

Court never pointed out that the specified material is

more innoxious or innoculable than the condemned ma-

terial. The ordinance exempts retail dressed poulterers

and wholesale live poulterers from its provisions.

In its second decision the Illinois Supreme Court said

that Section 194 A-12 (2) of the Municipal Code of Chi-

eago confined wholesale poulterers to manufacturing dis-

triets (R. 47).

Said Section 194 A-12 (2) reads as follows:

‘*Manufacturing districts. Permitted uses in manu-

facturing districts are: (2) Poultry game and small

animal hatching, raising, breeding, killing, packing

and storage for wholesale distribution.’’

Section 194 A (11) of that same code is as follows:

‘*Commercial districts. Permitted uses in commer-

cial districts are: (1) Any use permitted in a business

district; (2) Wholesale produce market.’’

In the case of State v. Hurst, 41 P (2d) 1079, 1081,

(OR.) the court said:

**In defining the term ‘produce’ to include ‘fruits,

vegetables, live and dressed poultry, dressed veal,

pork, mutton and beef.’’

The legislature had reference to food products. We

contend that only wholesale live poulterers, who hatch,

raise, kill and store poultry for distribution are confined

to manufacturing districts; and that those who buy,

slaughter and sell poultry to retail dealers may legally

operate in a business district. We are supported in this

contention by the definition and analysis of ‘‘wholesale’’

and ‘‘retail’’ by this court in Roland Co. v. Walling, 326

U. S. 657, 673-76. .

An analysis of the controverted ordinance and the sec-

ond decision of the Supreme Court of Illinois will disclose

that the ordinance is discriminatory irrespective of its

purpose. Assume that petitioners comply with the ordi-

nance, the only refuse immediately disposed of is blood.

The entrails, feces and feathers will remain until earted

away. The admitted facts show that much dressed poul-

try is defeathered and partially bled and sold to retail

dressed poulterers; that the preparation is completed by

the retail dealer in his preparation room, in which remains

blood, feces and entrails (R. 9-10). The effect of the

holding of the second decision of the Supreme Court of

Illinois is that feathers and an undetermined amount of

blood, in excess of that remaining in retail dressed poul-

terers’ preparation rooms, constitute a nuisance, but that

the blood, feces, and entrails remaining in the establish-

ments of retail dressed poulterers do not constitute a

nuisance. In the case of Connolly v. Union Sewer Pipe

Co.. 184 U. S. 540, 560, this Court held invalid an Illinois

Statute which proscribed all commercial combinations, ex-

cept those composed of producers of agricultural com-

modities and raisers of live stock. This court held the

statute to be arbitrary, unreasonable, discriminatory and

a denial of equal rights under the 14th Amendment to the

Federal Constitution. On page 563, this Court said that

a State cannot by legislation divide those engaged in

domestic trade into classes and make criminals of one

class if they do certain forbidden things, while allowing

ee SE i

another of the same general class engaged in. the same

domestic trade to do the same things with impunity. The

exemption of the retail dressed poulterer is unreasonable,

arbitrary and discriminatory.

In the case of Truaz v. Corregan, 257 U. S. 312, 324-5,

this court said that when the facts alleged are admitted

by demurer, this court will analyze the facts to deter-

mine whether a federal right has been wrongly denied the

plaintiff by the decision of the State Court upon the facts

pleaded and admitted by demurrer in violation of the 14th

Amendment to the Federal Constitution. In Weaver v.

», Palmer, 270 U. S. 402, 413, this Court cited with approval

an Illinois case holding that to prohibit the use of ma-

terial not inherently dangerous which may be rendered

safe by reasonable regulation violates the personal and

property rights guaranteed by the constitution.

In the case of Liggett v. Baldridge, 278 U. 8S. 105, 113,

this court held that a State cannot, under the guise of

protecting the public, arbitrarily interfere with private

business or prohibit lawful occupations or impose un-

reasonable and unnecessary restrictions upon them. We

contend that the ordinance, on its face, forbids to peti-

tioners the exercise of a fundamental property right and

arbitrarily imposes upon them unconstitutional physical

and financial burdens, not borne by their competitors.

The unconscionable structural requirements and the in-

stallation of an unneeded refrigeration system are op-

pressive, arbitrary and unreasonable and bear no substan-

tial relation to the health, morals, welfare, or safety of

the community; that the controverted ordinance denies

petitioners due process of law and equal protection of

the law, and is arbitrary discriminatory class legislation,

which is forbidden by the Fifth and 14th Amendments

to the. Constitution of the United States. |

II.

The second decision of the Supreme Court of Iliinois in

affirming the decree as to Sections 95-29.1 to 95-29.7, both

inclusive, and reversing the decree as to Section 95-29.8,

in which Section 95-29.8 was condemned as invalid by the

decree, from which adjudication, neither party appealed,

or filed cross appeal and which matter was not properly

before the court, denied due process of law and equal

protection of the law to the petitioners and abridged their

rights, privileges and immunities, and took their property

without any compensation in violation of the Fifth and

14th Amendments to the Constitution of the United States

(R. 47).

The Supreme Court of Illinois said the Chancellor held

Section 95-29.8 of the ordinance void; that since appellants

have not seen fit to defend that determination in their

brief, and that there was no proof introduced on the hear-

ing below indicating that the provisions of that section

of the ordinance are unreasonable, the presumption of its

validity prevailed (R. 47, 48). The respondent did argue

the validity of this section of the ordinance in its brief,

but petitioners stated clearly, on page one of their reply

brief that the validity of that section of the ordinance was

not in dispute because the respondent did not file a cross

appeal. In the case of Heine v. Degen, 362 Ill. 359, 380,

the Supreme Court of Illinois said:

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“Rule 35. -(1)° Each appelleee who desires to prose-

cute a cross-appeal from all or any part of the judg-

ment, decision, order or decree, and each co-party

who did not join in the notice of appeal but who

desires to join as appellant or to prosecute a separate

appeal, shall, within ten days after service of notice of

appeal, serve a notice upon each party or attorney or

firm of attorneys who signed the notice of appeal, and

upon each appellee, or in case of a crossappeal upon

each co-appellee, and file a copy thereof in the trial

court.’’

Although, the court held that cross appeal was properly

filed in the Degan case, we were entitled to rely upon the

Court’s construction of its own rule and refuse to argue

matters excluded from its consideration by the rule made

by that court as a guide to the legal profession. We contend

that to relax the rule in this particular case subjected

petitioners to a special procedure inconsistent with the

plain language of the rule and the court’s own construction

thereof, and so adversely affected the substantial rights

of the petitioners that they were denied due process of

law. Chicago, Burlington Ry. v. Chicago, 166 U.S. 226,

234-35.

The Illinois Supreme Court further said that petitioners

were bound to present clear and convincing evidence of the

invalidity of the section of the ordinance held invalid.

(R. 48). This holding is inconsistent with the holdings o!

the Supreme Court of Illinois in City of Chicago Hts. v.

Rub. Service Co., 408 Ill. 604, 606, 608, Giebelhausen v.

Daley, 407 Ill. 25, Lombardo Wine Co. v. Taylor, 401 Ill.

454, 457, Bam v. Fleck, 406 Ill. 198, 194, MeDougall v. Lue-

der, 389 Ill. 141, Forsythe v. Village of Cookville, 356 111.289,

Winter v. Barrett, 352 Ill. 441 and Frazier. v. Shelton, 320

Ill. 254, in all of which cases ordinances and statutes were

declared unconstitutional: upon demurrer or motion to

strike and dismiss. In the case of Truac v. Corrigan, 257

U.S. 312, 324-25, this court held that facts alleged and ad-

mitted by demurrer are binding on the court, and that this

court will analyze the facts and determine for itself

whether plaintiffs’ legal rights under the 14th Amendment

have been violated. The second decision of the Supreme

Court of Illinois is a capricious departure from the set-

tled law of Illinois, both substantive and procedural and

deprived the petitioners of their legal rights. Truag v.

Corrigan Supra.

The exception to the principles laid down in these eases

is found in Nakwosas v. Western Paper Stock Co., 260

Ill. 172 and Freitag v. Union Stock Yards, 262 Till. 551,

which hold that a demurrer on the ground that an act was

not passed in accordance with the prerequisites of the

constitution—must set up the steps taken by the legislature

and introduce the entries in the journals of the house and

senate or a certificate of the Secretary of State. The ex-

ception held by this court deals with price differentials in

Bordens Co. v. Baldwin, 293 U. 8. 194. These cases simply

hold that facts not in the range of common knowledge of

all the people cannot be admitted by demurrer.

In its second decision, the Supreme Court of Illinois

said that Section 95-29.8 of the obnoxious ordinance is

designed to aid the municipal authorities in controlling

the traffic in diseased and stolen poultry and fowl, by en-

abling them to trace the source of supply (R. 48). Seetion

95-29.8 is found on page 27 of the record herein. This is a

most capricious and arbitrary holding by the court. It is

admitted that the United States Government statistics

show that wholesale live poultry dealers are slaughtering

and selling to retail dressed poultry dealers in Chicago

about fifty-two million pounds of poultry in one year (R.

8-9). Retail live poultry dealers kill and dress the chickens

as each one is sold (R. 2-3). They buy chickens in small

lots. But the Illinois Court assumed that all thieves and

peddlers of diseased poultry deal only with retail live

poultry dealers and that retail live poultry dealers are

the only dealers dishonest enough to buy such unfit or

stolen poultry. This is an arbitrary and capricious as-

sumption, because the section, if upheld by this court, is

wholly inadequate and not designed to control the traffic

in either stolen or diseased poultry. Thieves and peddlers

of stolen and diseased poultry will sell to wholesale

dealers as readily as they will to retail live poultry

dealers. The authorities should be just as anxious to trace

the source of supply of such poultry regardless of who

bought it or held it for sale. Diseased poultry handled by

wholesale poulterers is just as dangerous as that handled

by retail live poulterers. This section places an unconstitu-

tional, unreasonable, unconscionable and oppressive

burden upon petitioners and retail live poulterers

regardless of how honest and fair they are in the conduct

of their business and denies them due process of law and

equal protection of the law. Retirement Board v. Alton

R. Co., 295 U.S. 330, 360.

In the case of Connolly v. Union Sewer Pipe Co., 184

U.S. 540, 559-60, this court held that due process of law

and equal protection of the laws mean that laws musi

operate on all alike, and must not subject the individual

to an arbitrary: exercise of the powers of: ‘government ;

that all persons engaged in trade or sale of merchandise

and commodities within the state and within the same

general classification must be subject to regulation, appli-

cable alike to all under like conditions; that classification

of persons and firms and corporations must be to subserve

public object and must rely upon some difference, which

bears a reasonable and just relationship to the act in

respect to which the classification is proposed, and can

never be made arbitrarily and without such basis; that

arbitrary selection can never be justified by calling it

classification; that the equal protection of the law de-

manded by the 14th Amendment forbids this.

We therefore earnestly contend that Section 95-29.8 of

said obnoxious ordinance is unconstitutional, arbitrary

and discriminatory and places upon petitioners and other

retail live poultry dealers in Chicago unconsciable physical

and financial burdens not placed upon other in the same

general class and is invalid under the 14th Amendment

to the Constitution of the United States.

ITI.

The second decision of the Supreme Court of Illinois

upholding the controverted ordinance, declared an arbi-

trary and unreasonable classification of the poultry busi-

aess in Chicago, which has no reasonable or logical rela-

tion to the health, safety or morals of the community and

constitutes an unwarranted interference with the carrying

on of a.lawful retail live poultry business in Chicago and

deprives such poultry dealers and petitioners of their

property without compensation or due process of law, and

denies them equal protection of the law, and imposes upon

petitioners and live poultry dealers in Chicago unreason-

able, unconscionable and oppressive physical and financial

burdens of unnecessary building construction and installa-

tion of an elaborate system of keeping books and records

and virtually excludes petitioners and other retail live

poultry dealers from business in Chicago in violation of

the Fifth and 14th Amendments to the Constitution of the

United States.

The admitted facts in the record show that the whole-

sale poulterers in Chicago are performing, with impunity,

the identical acts that are being performed by petitioners

and which are condemned and made criminal by the ob-

noxious ordinance as a nuisance with respect to petitioners

(R. 9, 13); that retail dressed poulterers in Chicago buy

partially bled and defeathered poultry from wholesale

dealers and open, clean, pluck, (R. 9) eviscerate and

finish bleeding the dressed poultry, and cause refuse, en-

trails and blood to be and remain in such establishments

and that the wholesale and retail dressed poulterers are

arbitrarily exempted from the operation of the ordinance

(R. 10). The first decision of the Supreme Court of

Illinois correctly held that there was no reasonable and

substantial relation between the difference in marketing

poultry, and the public interest in health and sanitation;

that the ordinance was directed to slaughtering operations

and not to the manner in which poultry was sold; that

whether poultry was slaughtered by a wholesaler or a

retailer, the conditions under which it is slaughtered are

equally important to the public health. (R. 35).

The admitted facts show that petitioners have been

ordered by the city employees to close each of their stores

until they comply with said obnoxious ordinance; that the

city has placed ‘‘closed’’ signs on their doors and de-

clared each store to be a nuisance (R. 13); that the mayor

has directed the revocation of their licenses and directed

the police to arrest, imprison and prosecute petitioners

for non-compliance with said ordinance (R. 14).

The admitted facts show that the petitioners are con-

ducting each of their stores in a clean and sanitary manner

as required by all of the laws of health of the city and

state and that they are officially inspected; that the stores

in which petitioners operate were and are officially in-

spected and were officially declared suitable and proper

(R. 2-5). All of these outrages are committed against

petitioners, not because they are committing any nuisance,

but because they are operating retail live poultry busi-

nesses within the territorial limits of the City of Chicago.

In the case of City of New Orleans v. New Orleans B. Co-Op,

Abattoir 96 So. 113, an ordinance prohibited the business

of rendering lard, oil, fat, yrease or other substance of

kindred character, from anim als or animal matter in the

City of New Orleans. The ourt held that the ordinance

did not undertake to regulate, but it arbitrarily suppressed

a legitimate and harmless business in violation of the

14th Amendment to the Constitution of the United States.

The ordinance in question was not enacted for the bene-

fit of the general public, but its sole purpose is to benefit

a particular class, the wholesale poulterers. The action

Been :

of the City Council is a mere excuse for the unjust dis-

crimination, oppression and spoliation of a particular class,

the retail live poulterers, who alone stand between the

wholesalers and a complete monopoly. The petitioners are

being despoiled and denied due process of law and equal

protection of the law under the 14th Amendment to the

Constitution of the United States. Dobbins v. Los Angeles,

195 U.S. 223, 236-37 and Connolly v. Union Sewer Pipe

Co., 184 U.S. 540, 558.

In the case of Cotting v. Kansas Stock Yards Co., 183

U.S. 79, this court condemned a state statute which regu-

lated the charges of a certain stock yard company, and

which exempted other like companies from its operation,

and held the statute to be a denial of equal protection of

the laws forbidden by the 14th Amendment. In the case

of Weaver v. Palmer Bros., 270 U.S. 403, a Pennsylvania

statute regulating the manufacture and sale of bedding,

forbade the use of shoddy in manufacturing the articles.

On Page 403 this court said that all dangers to. health

may be eliminated by appropriate treatment of shoddy

at low cost. On Page 412 this court said that there is no

evidence that any sickness or disease was ever caused by

the use of shoddy; that the record contains persuasive

evidence and opinions of scientists eminent in fields re-

lating to public health, that the transmission of disease

is almost entirely by immediate eontact with or close

proximity to affected persons; that such bacteria perish

rapidly when separated from human or animal organisms:

that upon that evidence the absence of sterilization or

disinfection would be of little danger to health even to

users of comfortables filled with shoddy, new or second

hand. On page 413 the court. said legislation that goes

beyond mere regulation and prohibits the sale of second

hand quilts and comfortables even when sterilized or re-

made from sterilized second hand materials or prohibits

the use of materials not inherently dangerous that might

be rendered safe by reasonable regulation, transgresses

the constitutional protection of personal and property

rights. On page 415 this court said the business involved

is legitimate and useful, but that it is subject to all rea-

sonable regulations; that the absolute prohibition of the

use of shoddy in the manufacture of comfortables is purely

arbitrary and violates the due process clause of the 14th

Amendment.

The City of Chicago has a building code regulating the

construction of business properties and has health ordi-

nances, and the buildings in use by petitioners have been

approved as to all materials used, and the structural ar-

rangements for the particular businesses, and the ordi-

nances in question arbitrarily and unreasonably imposes

upon petitioners and retail live poulterers in Chicago the

burden of remodeling existing buildings at prohibitive

cost and prohibits the use of material which is not in

any way dengerous to the health, safety or morals of the

community and plainly forbids the exercise of ordinary

property rights, and on its face, denies what the consti-

tution guarantees and arbitrarily interferes with private

business and prohibits the operation of a lawful business

in violation of the 14th Amendment to the Constitution of

the United States. Liggett Co. v. Baldridge, 278 U.S. 105,

112-13.

The obnoxious ordinance arbitrarily prohibits petition-

ers and retail live poulterers from engaging in a lawful

private business. Such action on the part of the State

denies due process of law and equal protection of the law

under the 14th Amendment to the Constitution of the

United States. New State Ice Cream Co. v. Liebman, 285

U.S. 262, 278.

An ordinance cannot be made valid by any declaration

in its preamble, if it is unreasonable and opposed to the

constitution. Yates v. Milwaukee, 10 Wall 497, 19 L. Ed.

984. There must be a real connection between the actual

provisions of a police regulation and its avowed purpose

to be valid as a legislative exercise of police power. The

legislation must be clearly demanded for the public safety,

health, safety, morals or general welfare. McCoy v. Town

of York, 8 S.E. 2d 905, 907.

The record discloses in the case at bar, that the peti-

tioners and retail live poulterers will be the only poulterers

operating in the City of Chicago, who will suffer harm

by the enforcement of this obnoxious ordinance. Their

overhead will be increased, causing them to increase the

prices of their poultry to the resultant benefit of their

competitors, and the wholesalers in particular. Therefore,

petitioners as retail live poulterers are being arbitrarily

and unreasonably discriminated against in favor of other

local poulterers in the same general classification; that the

effect of the ordinance and its professed object as stated

in the preamble are not in harmony.

Under the guise of protecting public health and wel-

fare, this ordinance is passed, in which the inevitable and

evidently intended effect is to prevent the legitimate use

by petitioners of legally suitable buildings and equipment

in carrying on their business in the most sanitary and

inoffensive manner and is unreasonable, arbitrary and

void and denies petitioners due process of law and equal

protection of the law and excludes them from business

in violation of the 14th Amendment to the Constitution of

the United States. McCoy v. Town of York, 8 S.E. 2d 905,

907-8.

No evidence, however clear and convincing, as required

by the second decision of the Supreme Court of Illinois,

can be as convincing of the arbitrary and discriminatory

nature of the obnoxious ordinance, as its nature and

effeec.. which appear clearly on its face.

IV.

The second decision of the Supreme Court of Illinois,

in predicating the validity of the obnoxious ordinance

upon the existence of a zoning ordinance, which itself is

vulnerable to attack and was not before the court, amended

the ordinance by judicial legislation, which is itself un-

constitutional, and made the ordinance enact what con-

fessedly the city council never meant, and excluded all

retail live poultry dealers in Chicago and the petitioners

from operating a retail live poultry business in any zone

or district in Chicago as a matter of right, without com- —

plying with the obnoxiows ordinance.

The first decision of the Supreme Court of Iillinois

held that the obnoxious ordinance does not regulate the

places or locations where the retailers may operate their

business and that it is not a zoning ordinance; that the

brings 4

zoning ordinance relied upon by the respondent herein is

no answer to the constitutional objection made and urged

(R. 35). The second decision of the Supreme Court of

Tllinois based its adjudication that the ordinance is valid

upon that same ordinance rejected in the first decision (R.

47). We agree with the first decision of the Supreme Court

of Illinois, which said that Section 194 A-12 (2) of the

Zoning Ordinance was itself vulnerable to attack and that

the constitutionality of the obnoxious ordinance could not

rest upon such an ordinance.

The obnoxious ordinance under attack excludes peti-

tioners and all retail live poulterers from business any-

where within the territorial limits of the City of Chicago,

unless compliance is made with the ordinance. It is not a

zoning ordinance and its plain language makes it coexten-

sive with the boundaries of the city. In the case of

Spraigue v. Thompson, 118 U.S. 90, 95 this court held

that the construction placed by the Supreme Court of

Georgia on a Georgia statute made the statute enact

what confessedly the legislature never meant; that such

construction conferred upon the statute a positive opera-

tion beyond what the legislature intended and beyond

what anyone can see it would have enacted. This court

rejected such construction and condemned the statute as

invalid.

In the case of Davis v. Wallace, 257 U.S. 478, 484, this

court held that where the legislative intent clearly ap-

peared on the face of the enactment, if the court by con-

struction changed the clear intent of the legislature, it

would mutilate the statute and garble its meaning; that

the legislative intent must not be confounded with their

power to carry their intention into effect; that ‘to

refuse to give force and vitality toa provision of law is

one thing and to refuse ‘to-read it is-a-very different

thing. This court adhered to the samie principles of con-

struction in Retirement Board v. Alton’R. Co., 295 U.S.

330, 362.

We contend that the construction placed upon the ordi-

nance by the Supreme Court of Illinois, in its second

decision, constituted an unconstitutional judicial amend-

ment of the ordinance, which is unreasonable and uncon-

scionably burdensome and oppressive upon petitioners and

denies them due process of law and equal protection of

the law. In the case of Rutgers Chapter v. City of New

Brunswick, 28 A. 2d 759, 762, the trial court had placed

an erroneous construction upon a statute guaranteeing

tax exemptions to certain concerns and the Supreme Court

of New Jersey was reviewing the decree. The court said

the enacting clause stripped of the limitations is not the

legislative expression; that such construction would bring

about an effect different from that designed by the legis-

lature; that such construction was in defiance of the

declared legislative will; that if the enforcement of a

statute with a constitutionally vicious provision elim-

inated would cause results not contemplated or desired

by the legislature, then the entire statute must be held

inoperative, Citing Connolly v. Union Sewer Pipe Co.,

184 U.S. 540.

It is clear from the language of the ordinance itself

that petitioners are excluded from operating in any dis-

trict, business or manufacturing within the territorial

limits of the City of Chicago, without compliance with the

obnoxious ordinance, and that they cannot operate as a

matter of right in any zone or district anywhere in the city

under the ordinance. They could operate only as a matter of

official grace or favor or discretion, which this court

held cannot be deemed a substantial substitute for the due

process of law that the constitution requires; that it is

not enough that parties may by chance enjoy or exercise

rights denied them by law or have notice of a

proceeding against them or that they may as a matter of

favor or grace exercise such rights, but the law must

both give them their rights and protect the parties in the

exercise of such rights. Coe v. Armour Fertilizer Works,

337 U.S. 413, 424-25. The court was dealing with a situa-

tion where notice was not officially required to be given

by the statute with respect to tax assessments. On page

425 this court said if the statute did not provide for notice

in any form, it is not material that as a matter of grace

or favor notice may have been given of the proposed

assessment; that it is not what notice, unealled for by

the statute, the tax payer may have received in a particu-

lar case that it is material, but the question is whether

any notice is provided by the statute. We earnestly con-

tend in this case that under the plain language of the

ordinance and the legislative intent expressed therein, if

the petitioners move their business next door to a whole-

sale poulterer even in a manufacturing district anywhere

in the City of Chicago, they would be in violation of the

ordinance and subject to punishment as criminals, while

the wholesaler would be exempted, although the whole-

saler does a much larger business than petitioners. Th»

erroneous construction found in the second decision of the

Supreme Court of Illinois intensifies the arbitrary, dis-

eriminatory and prohibitive physical and financial burdens

imposed upon the retailers and the viciousness of the

exemption of competitors engaged in the same general

class of business and denies petitioners due process of

law and equal protection of law in violation of the 14th

amendment to the constitution of the United States.

Connolly v. Sewer Pipe Co., 184 U.S. 540, 560.

The purpose of the ordinance remains the key to the

words defining its coverage and also defining its ex-

emptions from coverage. There never was an intent ex-

pressed to exclude the wholesale live poultry dealers from

business districts in Chicago.

The second decision of the Supreme Court of Illinois,

in upholding the ordinance prohibiting the use of building

materials in general use in the construction of buildings

in which retail live poultry dealers operate and specifying

particular materials to be used, denied the petitioners

due process of law and equal protection of the law under

the 14th Amendment to the Constitution of the United

States.

The obnoxious ordinance forbids the issuance of a license

to a retail live poulterer unless the preparation room be

used exclusively for killing and dressing poultry with

floors constructed of cement or concrete or other im-

pervious material, so graded and drained as to discharge

all liquid waste into a properly trapped sewer or cess-

pool converted drains. The ceilings must be at least eight

feet above the top of the floor and must be ‘‘of smooth,

hard, impervious material free from crevices, cracks,

ledges or projections.’’’ The walls from the floor to the

ceiling must be of white enamel bricks, or enamel tile,

porcelain or enamel finished material or stainless steel.

The toilet must be completely separated from the prepara-

tion room and ventilated into the outside air (R. 18-19).

A system of refrigeration must be established and main-

tained (R. 20). It prohibits a retail live poulterer from

operating within 200 feet of a residence, a public institu-

tion or building in which food is manufactured (R. 21).

The building code of Chicago classifies and defines busi-

ness property in the City of Chicago and provides the

specifications for their construction, including the kind

and quality of the materials to be used. All buildings

constructed or to be constructed designed and adapted

to business uses in compliance with the building code of

Chicago are proscribed by this arbitrary and vicious ordi-

nance, by a legislative fiat. It makes that which is law-

ful, useful and harmless within the City of Chicago for

all other poulterers to do, unlawful and criminal for re-

tail live poulterers, except upon onerous conditions not

imposed upon other poulterers of the same general class.

The proscribed businesses and operators thereof, are

excluded from all buildings in said city, which are avail-

able to other businesses and operators, except upon

onerous conditions not imposed upon other members of

the same general class or business operators generally.

Said obnoxious ordinance arbitrarily punishes the refusa!

of retail live poulterers to submit to such conditions and

arbitrary discriminations by criminal prosecution and 2

confiscation of business. In the ease of Weaver v. Palmer

Bros. Co., 270 U.S. 402, 415, this court held that the abso-

lute prohibition of the use of a particular material in a

legitimate and useful business is purely arbitrary and

violates the due process clause of the Fourteenth Amend-

ment to the Constitution of the United States.

The respondent does not pretend or contend that com-

mon knowiedge or experience, or scieutific investigation,

has given assurance that clean and sanitary walls, ceilings

and floors of tested durable building materials, used

generally in the construction of buildings are generally

or universally more contagious than the materials specified

in the obnoxious ordinance. The specified materials have

no inherent bactericidal qualities or efficiency to purify

an atmosphere murky with stench. The claim of unsani-

tary conditions that breed mice and rats and stench have no

factual support in the record.

There is no factual support in the record that buildings

constructed of time tested durable materials in general

use in Chicago are more contaminative or contagious

than the materials specified in the ordinance. There is no

factual support in the record that buildings in Chicago,

constructed of materials specified by the building code

of Chicago have any characteristic inherence inducive to

and productive of unsanitary conditions and nuisances.

There is no factual support in the record, or claim that

by common knowledge or scientific investigation the

materials specified in the obnoxious ordinance possess

exceptional and inherent qualities of purity, sanitation or

immunization. We therefore conclude that the City Coun-

cil exceeded its powers in enacting the arbitrary, dis-

criminatory and monopolistic ordinance.

Conclusion.

For the reasons stated and on the basis of the argu-

ment herein made, we urge that the petition of the plain-

tiffs (Petitioners) for a writ of certiorari to review the

judgment of the Supreme Court of Illinois be granted.

Respectfully submitted,

LeRoy G. CHARLEs,

Attorney for Petitioners.

APPENDIX.

_—_—_——

FIRST OPINION OF THE SUPREME COURT

OF ILLINOIS.

[fol. 45] In Tue Supreme Court or I.urnors

Opinion—Filed May 22, 1952

Docket No. 32185—Agenda 22—January, 1952

LeRoy G. Charles et al., Appellants, v. The City of Chicago,

Appellee.

Mr. Justice Crampton delivered the opinion of the court:

The plaintiffs, operators of a retail live-poultry business

in Chicago, brought suit in the circuit court of Cook County

against the city, praying for an injunction to restrain de-

fendant from enforcing an ordinance regulating the han-

dling and slaughtering of live poultry in retail food estab-

lishments. Defendant filed a motion to strike the complaint

and dismiss the suit. After hearing arguments on the mo-

tion the court entered a decree enjoining defendant from

enforcing certain provisions of the ordinance requiring the

keeping of records, which provisions it held unconstitu-

tional and void. The remaining provisions of the ordinance

were found to be valid, and as to such matters the suit was

dismissed for want of equity. The court thereafter signed

a certificate of importance, and plaintiffs appeal directly

to this court on the ground that the validity of a municipal

ordinance is involved.

The ordinance in question was passed on December 1,

1950. It amends chapter 95 of the municipal code of Chi-

cago by inserting therein sections 95-29.1 to 95-29.8. It

also repeals section 95-21.1, and amends sections 130-10

and 130-13 of the code. The ordinance declares it unlawful

for any person to sell at retail, or to slaughter for sale at

retail, any live poultry or other live fowl] without first ob-

taining a license. It is then provided that no license shall

be issued unless the premises on which the poultry or fowl

is slaughtered or to be slaughtered meet all of a number of

designated requirements. A separate preparation room is

required, which must be used exclusively for the killing and

dressing of poultry. Its floors must be constructed of

‘‘cement, conerete or other approved water-tight nonab-

sorbent material so graded and drained as to discharge

all liquid matter into properly trapped sewer or cesspool-

connected drains.’’ The ceiling must be at least eight feet

above the floor and must be ‘‘of a smooth, hard, impervious

material free from crevices, cracks, ledges or projections.”’

The walls must be ‘‘of enamel brick, enamel tile or any

other impervious material to the entire height of the ceil-

ing. The junctions with the ceilings and floors shall be

made with a six-inch sanitary cove base of glazed tile or

[fol. 46] brick.’’ The room must be provided with ‘‘a kill-

ing trough with a minimum width of 1 foot and a minimum

depth of 11% feet, and approved by the Board of Health.

The walls and face of the trough must be of white glazed

brick or tile, porcelain or enamel-finished metal, or stain-

less steel, and shall discharge over properly trapped and

sewer-connected drains. Proper receptacles shall be pro-

vided for the holding, storing or keeping of all refuse mate-

rial. All equipment shall be of enamel, enamel tile, steel or

other impervious and readily cleanable material. The

preparation room and all equipment therein shall be

cleansed each day after the slaughtering for the day ha»

been completed.”’

49°

Requirements are also prescribed for ventilation, light-

ing, hot water, screens, the location of toilet rooms, the

location and disposition of crates, cages or batteries, the

disinfection of empty crates and receptacles for refuse, the

disinfection and daily removal of feathers and refuse ma-

terial, the manner in which live poultry must be kept, and

other details of conducting the business in question. Under

the terms of the ordinance its provisions are applicable only

to persons who keep or slaughter live poultry ‘‘for sale at

retail.”’

It is plaintiffs’ contention that the ordinance, by omit-

ting from its coverage similar operations of wholesale poul-

try dealers and retail dressed-poultry dealers, arbitrarily

discriminates against retail live-poultry dealers. It is al-

leged in the complaint, and admitted by the motion, that

the operations of killing, bleeding, plucking, drawing and

eviscerating poultry, performed by plaintiffs after their

customers have selected and made purchases, are also

performed by wholesale poultry dealers in the city; that

many retail poultry dealers in the city purchase poultry

which has been only slaughtered, plucked and partially bled;

that the sale of such dressed poultry by the retail dressed-

poultry dealers necessarily requires that it be opened,

cleaned and eviscerated, causing refuse, entrails and blood

to be removed therefrom; and that the only difference be-

tween plaintiffs’ operations and those of retail dressed-

poultry dealers is that the former also slaughter the

poultry and remove the feathers.

The complaint also sets forth in detail the manner in

which plaintiffs conduct the slaughtering of poultry. It

alleges that all equipment is thoroughly cleaned every day,

and that the premises are kept and maintained in a clean,

sanitary condition, and in compliance with all rules of the

board of health. It is further alleged that plaintiffs hold

[fol. 47] long-term leases on their store buildings; that

the construction provisions of the ordinance would require

substantial alterations in the buildings, to which their les-

sors will not consent; and that under prevailing costs of

construction a compliance with the ordinance would force

plaintiffs out of business.

The first question presented is whether the failure to

impose the same restrictions upon others engaged in the

business of slaughtering live poultry for sale renders the

ordinance invalid. The determination of this question de-

pends, in turn, upon whether the discrimination made bears

a reasonable relation to the purposes to be accomplished by

the ordinance. A classification made by a statute or ordi-

nance is never arbitrary when there is some reasonable

basis for the differentiation between the classes or subject

matters included as compared to those excluded from its

operation. (Father Basil’s Lodge, Inc. v. City of Chicago,

393 Ill. 246.) But there must be some reasonable connec-

tion between the distinction made and the purposes of the

ordinance. Whether the differences between wholesalers

and retailers can support the present ordinance depends

upon its object or purpose. What would serve for a classi-

fication for some purposes may furnish no reason whatever

for a classification for other purposes. See Father Basil’:

Lodge, Inc v. City of Chicago, 393 Ill. 246, 259.

The manifest purpose of the present ordinance is th«

promotion of health and sanitation. The difference between

the class of persons included and the class excluded is that

in the one case the persons slaughtering poultry sell directly

to consumers while in the other they sell to retail poultry

dealers who in turn sell to the consumers. Is there a rea-

sonable and substantial relation between this difference in

marketing the poultry, and the public interest in health

and sanitation? We can perceive none. The provisions of

the ordinance are directed to the conduct of slaughtering

operations; they do not concern the manner in which the

product is sold. Whether poultry is slaughtered by a whole-

saler or a retailer, the conditions under which the slaughter-

ing is conducted are equally important to public health.

The dangers arising from unsanitary premises or equip-

ment are not more likely where poultry is slaughtered for

sale at retail than where it is slaughtered for sale to inter-

mediate dealers. If the prescribed requirements are appro-

priate in the one case they are equally appropriate in the

other, where the operations to be regulated are the same.

[fol. 48] Defendant insists: ‘‘The fact that wholesale poul-

trv dealers do the same things as the retail live poultry

dealers does not put both in the same class for legislative

purposes.’’ In support of this position it states that Chi-

cago has certain zoning laws permitting retail live-poultry

stores in business districts from which poultry killing for

wholesale distribution is excluded; that such districts are

near where people live or collect in large numbers; and

that the odors of slaughter, the attraction of rats, and the

filth associated with the business create a nuisance and

a health hazard ‘‘which justifies the classification, neces-

sitates the regulation, and affords a compelling need for

regulating the distance of slaughter of poultry from the

specified places.’’ The argument is no answer to the con-

Eo or

situtional objection here. The present ordinance does

not purport to regulate the places or locations in which

the operations in question may be conducted. It is not a

zoning ordinance. It regulates the slaughtering of poultry

by persons who sell at retail, wherever the business may be

located, while leaving untouched other persons who per-

form the same operations constituting the subject of the

regulations. The fact that Chicago may have the zoning

ordinances referred to cannot supply a reasonable basis for

the classification where none exists in their absence. The

validity of ordinances such as that in the case at bar ob-

viously cannot be predicated upon the existence of other

ordinances not before the court, which ordinances them-

selves may be subject to constitutional objections, or may

at any time be modified, changed, or repealed. It is ap-

parent that no distinction has been shown between slaugh-

tering by wholesale dealers and slaughtering by retail

dealers, which would provide a reasonable basis for the

classification made by the ordinance. We conclude, there-

fore, that the classification is unlawful and diseriminatory

in its nature, and renders the ordinance invalid.

It is well settled that under proper delegation of police

power a municipality may, by reasonable and appro.

priate ordinances, regulate the conduct of any occupation,

business or activity which might otherwise injuriously affect

the health or safety of its citizens. But when it attempts

to do so by confining the regulation to only some of those

engaged in the same general business, the classification must

rest on some difference related to the objects of the ordi-

nance. A mere difference in classification does not meet

(fol. 49] the constitutional requirement. Unless it has a

reasonable connection with the purpose to be accomp-

lished, it constitutes an arbitrary discrimination and rend-

ers the ordinance void. Chicago Park Dist. v. Canfield, 382

Ill. 218.

It is one of the highest duties of the courts to carefully

enforce constitutional provisions intended to secure equality

of rights. Equally in right, privilege and burden is the

thought running through our constitution and laws, and

legislation which creates inequality based on no relevant

difference in condition or circumstances is opposed to the

spirit of free government and is expressly prohibited by

the constitution. (See Marallis v. City of Chicago, 349 Ill.

422.) It has been stated that ‘‘It is common * * * for

certain classes of citizens, those engaged in a particular

business, to appeal to the Government—National, state, or

municipal—to aid them by legislation against another class

of citizens engaged in the same business, but in some other

way. This class legislation, when indulged in, seldom bene-

fits the general public, but nearly always aids a few for

whose benefit it is enacted, not only at the expense of the

few against whom it is ostensibly directed, but also at the

expense and to the detriment of the many for whose bene-

fit all legislation should be, in a republican form of gov-

ernment, framed and devised. This kind of legislation

ordinarily receives no encouragement at the hands of the

courts, and will be upheld only where it is strictly within

the legitimate power of the municipal legislature.’’ (37 Am.

Jur. 775-776.) The effect of the ordinance is to exempt

from its requirements persons engaged in a competing

business, different in no relevant respect from the business

subject to the ordinance. This, as we have indicated, is an

unreasonable discrimination.

In view of our conclusion as to plaintiff’s. first conten-

tion, it becomes unnecessary to consider their further ob-

jections that the ordinance is unreasonable in its terms

and not sufficiently related to the preservation of public

health, morals, safety, or welfare; that it constitutes an

unlawful delegation of power to the board of health; and

that the city lacks power to declare plaintiffs’ business a

nuisance. Our holding that the ordinance is void as an

unlawful discrimination also disposes of defendant’s con-

tention that the circuit court erred in holding invalid sec-

tion 95-29.8, requiring the keeping of detailed records.

In so far as the decree of the circuit court of Cook

County overruled defendant’s motion and granted an in-

junction, it is affirmed. In so far as it sustained defend-

ant’s motion as to other matters alleged in the complaint,

the decree is reversed and the cause remanded, with diree-

tions to enter a decree for injunction as prayed.

Affirmed in part, and reversed in part,

and remanded, with directions.

SECOND OPINION OF THE SUPREME COURT

OF ILLINOIS.

Senate

(fol. 87] In Tue Supreme Court or Inuinots

Oprnton—Filed November 20, 1952

Docket No. 32185—Agenda 40— September, 1952

LeRoy G. Cxartes, et al., Appellants,

Tue Crry or Cuicaco, Appellee

Mr. Justice Bristow delivered the opinion of the court:

Plaintiffs, operators of a retail live-poultry business in

Chicago, instituted proceedings to enjoin defendant from

enforcing a municipal ordinance regulating the handling

and slaughtering of live poultry in retail food establish-

ments, on the ground that the ordinance is unconstitutional.

The cireuit court of Cook County held unconstitutional only

certain provisions with reference to the keeping of records,

but sustained the constitutionality of the remainder of the

law, and dismissed plaintiffs’ complaint for want of equity.

The court signed a certificate of importance, and plaintiffs

have appealed directly to this court on the ground that the

cause involves the constitutionality of a municipal ordi-

nance.

In determining whether the circuit court erred, the es-

sential issue presented by this appeal is whether the ordi-

nance effects an arbitrary classification by discriminating

against retail live-poultry dealers in violation of the rights

guaranteed by section 2 of article IT and section 22 of arti-

cle IV of the Illinois constitution, and the fifth and four-

teenth amendments of the Federal constitution.

In their complaint to enjoin the enforcement ‘of the ordi-

nance, plaintiffs allege that the operations of killing, bleed-

ing, plucking, drawing and eviscerating poultry, which

it performs, are also performed by wholesale poultry deal-

ers and to a great extent by many retail dressed-poultry

dealers. Consequently, plaintiffs argue that the sanita-

tion requirements of the ordinance, apparently designed in

the interests of public health, should apply to all businesses

which perform similar operations, and by omitting from

its coverage the wholesale poultry dealers and the retail

dressed-poultry dealers the ordinance arbitrarily discrimi-

nates against the retail live-poultry dealers.

Defendant, city of Chicago, in support of the constitu-

tionality of the ordinance, urges first that it was enacted

pursuant to proper legislative authorization in the Revised

Cities and Villages Act, and that the ordinance reasonably

regulates the retail live-poultry business to effectuate the

statutory purpose of protecting the public health. Fur-

thermore, defendant argues, the classification is not arbi-

[fol. 88] trary or discriminatory, inasmuch as the public

health is affected differently by the operations of the retail

live-poultry dealers than it is by the operations of the

wholesale live-poultry dealers or of the retail dressed-

poultry dealers.

In adjudging the constitutionality of this ordinance we

shall consider the provisions of the ordinance, the statutory

authority for its enactment, the effect on public health of

the operations of the business regulated as compared with

similar operations performed by businesses not covered by

the ordinance, and then ascertain whether the classification

contained therein is arbitrary or discriminatory.

The ordinance inserts sections 95-29.1 to 95-29.8 into the

Municipal Code of the city of Chicago, and amends sections

130-10 and 130--13 of the Code. It is declared unlawful for

any person to sell at retail, or to slaughter for sale at retail

any live poultry or live fowl without a license, and it is pro-

vided that no license shall be issued unless the premises

in which the poultry is slaughtered meet certain specified

requirements.

For killing and dressing poultry there must be a separate

room with a floor of ‘‘cement, concrete or other approved

water tight nonabsorbent material, so graded and drained

as to discharge all liquid matter into properly trapped

sewer or cesspool connected drains.’’ The ceilings must be

at least eight feet above the floor and must be ‘‘of a smooth,

hard impervious material free from cervices, cracks, ledges

or projections.’’ The walls must be of some impervious

material, and the junctions with the ceilings and floors shall

be made with a six-inch sanitary cove base of glazed tile or

brick.

The room must be provided with a ‘‘killing trough’’ of

certain dimensions and of certain hard, smooth-surfaced

material, and shall discharge over properly trapped and

sewer-connected drains. Proper receptacles shall be pro-

vided for all refuse material, and equipment shall be

of some impervious and readily cleanable material. More-

over, this room and all equipment therein shall be cleaned

each day after the slaughtering for the day has been com-

pleted.

It is further provided that there shall be adequate ventila-

tion, an adequate supply of running hot water under pres-

sure, that all doors and other openings shall be ‘properly

screened, that the-toilet rooms shall not open directly into

the preparation room, that the empty crates shall be dis-

infected and cleaned so that no odors or nuisances are

[fol. 89] created by the storage of the crates, and that refuse

must be removed daily.

This ordinance was enacted pursuant to certain provi-

sions of the Revised Cities and Villages Act, (Ill. Rev. Stat.

1949, chap. 24,) whereby municipalities are authorized:

‘*To fix the amount, terms and manner of issuing and re-

voking licenses’ (par. 23-5;) ‘‘To define, prevent and

abate nuisances”’ (par. 23-61;) ‘‘To regulate the sale of all

beverages and food for human consumption; to locate and

regulate the place where and the manner in which any

beverage or food for human consumption is sold’’ (par.

23-63 ;) ‘‘To provide for and regulate the inspection of all

food for human consumption’’ (par. 23-64;) ‘‘To do all acts

and make ali regulations, which may be necessary or ex-

pedient for the promotion of health or the suppression of

disease’’ (par. 23-81;) ‘‘To prohibit any offensive or un-

wholesome business or establishment within the munici-

pality’’ (par. 23-89;) ‘*To compel the owner of any grocery,

cellar, * * * or other unwholesome or nauseous house or

place, to cleanse, abate or remove the same, and to regulate

the location thereof’’ (par. 23-90;) ‘‘To pass all ordinances

and make all rules and regulations proper or necessary,

to carry into effect the powers granted to municipalities,

with such fines or penalties as may be deemed proper’’

(par. 23-106.)

The controverted ordinance herein is designed to protect

public health by imposing more stringent sanitation re-

quirements upon a business involving the sale of food for

human consumption, and one which may also be offensive,

and may be predicated upon any one of the several fore-

going powers. However, this ordinance, though based upon

proper statutory authority, and reasonably designed to pro-

tect the public health, cannot, under the rights guaranteed

by the Illinois and Federal constitutions, effect an arbitrary

discrimination against the class upon which it operates by

omitting from its coverage persons and objects similarly

situated. Marallis v. City of Chicago, 349 Ill. 422; People

v. Weiner, 271 Ill. 74.

Statutory classifications can properly be sustained only

where there are real differences between the classes, and

where the selection of the particular class, as distinguished

from others, is reasonably related to the evils to be remedied

by the statute or ordinance. Josma v. Western Steel Car

and Foundry Co., 249 Tl. 508.

The classification made by the ordinance is between the

(fol. 90] retail live-poultry dealers as the class regulated,

and the wholesale live-poultry dealers .and retail dressed-

poultry dealers as the class outside the scope of the ordi-

nance. Although it may be argued that since the ordinance

is designed to protect publie health, the sanitation require-

ments respecting the handling and slaughtering of live

poultry and other fowl should apply to all businesses which

perform similar operations, and not merely the retail live-

poultry dealers, however, that rationale reflects an incom-

plete analysis of the manner and extent to wi.ich the public

health is affected by the respective classes.

In the preamble of the controverted ordinance the justifi-

eation for the classification is set forth. It is stated, in

substance, that the handling and slaughtering of live poultry

and othér fowl in retail food establishments requires that

such poultry and fowl be delivered in crates and other

receptacles, which are deposited upon the sidewalks of the

city, and, when emptied, remain thereon for considerable

periods of time; and also that the operations require that

the poultry and fowl be opened, cleaned and plucked,

whereby the refuse, blood and feathers remain for con-

siderable periods of time, all of which creates a nuisance

and attracts rats and other vermin, affecting health and

causing other hazards.

The potential health hazards of this business, warrant-

ing special regulation, have been recognized by courts as

well as by the municipal council. In Roich v. Board of Com-

missioners, 168 Atl. 165 (N. J.), where the court sustained

an ordinance vesting in the municipality’s health officier and

board of commissioners discretion to license live-poultry

markets, it was stated: ‘‘Live poultry markets are not

favorably regarded by the health officer of Union City

because of the stench and vermin incident thereto. * * *

It seems that the board of commissioners may very well

refuse to issue new permits for what they believe to be an

unnecessary and an unsanitary business.’? In King v.

Davenport, 98 Ill. 305, the court stated: ‘“Unwholesome

trades, slaughter-houses, operations offensive to the senses,

* * * may all, says Chancellor Kent, be interdicted by law

in the midst of dense masses of population, on the general

and rational principle that every person ought so to use his

property as not to injure his neighbor, and that private

interests must be made a subservient to the general interest

of the ecommunity.”’

ial |

It is common knowledge that the retail live-poultry busi- ;

[fol. 91] ness, as suggested in the preamble of the ordinance, }

involves the shipment of live chickens and other fowl in

crates into retail stores, and the killing, bleeding, disem-

boweling and eviscerating of such poultry, with its attend-

ant stench, refuse, vast quantities of blood, waste matter

from the live chickens, and noise. Moreover, the blood and

entrails attract vermin and rats, and the refuse incidental

to the plucking and cleaning, plus the empty filthy crates

stored on the sidewalks, forms an ideal breeding place for

such vermin and disease germs.

Inasmuch as these retail live-poultry stores are loca-

ted in business districts (Municipal Code of Chicago, sec-

tion 194A-10,) where people go for shopping and recreation,

and are in close proximity to residential and apartment-

house districts, the health hazards involved in the opera-

tions of this business affect great numbers of people in the

conduct of their daily affairs.

In contrast, the operations of the retail dressed-poultry

dealers, while iocated in the same area, involve, at most,

evisceration of the poultry, and the refuse incidental thereto.

The operations of these retail dressed-poultry dealers do

not involve the shipment of live chickens in crates, with

the attendant waste matter from the live poultry, vermin

and stench; nor do they involve the killing, plucking and

bleeding, with the extensive refuse and pools of blood,

which attract rats and flies, nor the storing of dirty crates

on the sidewalks. In is not merely the presence of a ‘‘few

additional feathers’’ which distinguishes the classes, as

suggested by plaintiff. In fact, it is difficult to perceive

how the operations of the retail live-poultry dealers and

the retail dressed-poultry dealers can be classed together

with respect to the public-health hazards they create ; hence,

it is in no way arbitrary to differentiate between these two

classes and to regulate only the retail live-poultry dealers

whose operations have a far more dangerous effect on

public health.

With reference to the classification between the whole-

sale and retail-live poultry dealers, it is apparent that while

their operations are identical in many respects, neverthe-

less, they are conducted in different proximity to the public.

The court may properly take judicial notice of the zoning

ordinance whereby wholesale live-poultry dealers may oper-

ate only in a manufacturing district. (Municipal Code of

Chicago, section 194A-12(2).) Under these circumstances,

the noxious operations of the wholesalers are not con-

[fol. 92] ducted in an area which the public must traverse

for its shopping or its recreation, or in close proximity to

dwelling places, churches, hospitals, or other places where

people congregate, as are the operations of the retail live-

poultry dealers. Consequently, the dangers to the public

health from the vermin, disease germs, rats, stench, and

other nauseous elements incidental to the live-poultry busi-

ness are not as great from the operations of the wholesale

dealers as they are from the operations of the retail live-

poultry dealers. Therefore, a legitimate basis for differen-

tiation exists between these two classes, which warrants

imposing the additional sanitation requirements upon only

the retail live-poultry dealers.

On the basis of this analysis it is our judgment that

the classification effected by the controverted ordinance is

neither arbitrary nor discriminatory, and therefore, in no

way constitutes a denial of due process or equal protection

of the laws, or of other rights guaranteed by the State and

Federal constitutions. The decree of the circuit court sus-

taining the constitutionality of these regulatory and li-

censing provisions, and dismissing plaintiff’s complaint to

enjoin the enforcement of the ordinance, must therefore

be affirmed.

Section 95-29.8 reads as follows: ‘‘Every licensee who

purchases any live poultry or live fowl for resale or to be

slaughtered for sale at retail, shall keep a record which

will show the date of purchase, the number, weight, breed,

description, and other distinguishing marks, if any, of

said live poultry or live fowl and the name, address and

brief description of the seller or sellers, type of conveyance

used by said seller or sellers; and if said conveyance is a

motor vehicle, a record of the license number thereof;

which record shall be open to inspection by officers of the

city at all times.’’

The chancellor held this section void. Appellants have

not seen fit to defend this determination in their brief.

There was no proof introduced on the hearing below indi-

eating that the provisions of that section are in any way

unreasonable. That section is designed for the purpose of

aiding the municipal authorities to control the traffic in

diseased and stolen poultry and fowl by being able to trace

the source of supply. The presumption is in favor of the

validity of an ordinance, and it will not bow to an attack

because of unreasonableness unless the proof is clear and

strong. (Dorwari v. City of Jacksonville, 333 Ill. 143,

148.) It was error for the trial court to strike down this

provision. This action of the trial court is reversed. It is

our conclusion that the ordinance is valid.

Affirmed in part, and reversed in part.

LIER LON ee. |

COE eewniret

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.