# Petition for Writ of Certiorari — Charles v. City of Chicago > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_1647%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1953 - **Citation:** 345 U.S. 974 ## Text 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 ii 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 23 29 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 39 43 ¢ 2 § ? a zg # ® * Ls s € iv 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 De PIRVON DSL AST EEL IES PORN PETAR Me & : g = £ > g ¢ % Z vi 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). 2 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. I. 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 3 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 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 a 5 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- 4 3 | nieied as Neo SR EES EE I ECE WE Barta & bad = A % E 6 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- 7 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 8 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 9 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 10 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 11 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 12 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. 13 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 | 4 4 . i & 5 i a & E Bb fe t fw os ka Ey * 14 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 15 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 16 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. 17 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. 18 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 19 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 21 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- , . 22 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 - a4 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 25 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 26 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 27 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 28 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 29 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: & cae ‘ PREBUES RMMER PRP PK, npsre Sa eV PA AAA: ROR RGR Sete IR ee : e Pe z . & x” “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, 31 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 o2 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 33 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 i 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 J ae oe 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 : 36 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 37 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. 38 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 4 39 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 40 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 41 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 42 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 43 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. V. 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, 44 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 45 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. 46 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. 47 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 48 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, a 50 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 51 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 52 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 53 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. 54 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. 55 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, v. 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. 56 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. 37 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- 58 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- 09 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 60 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.”’ a ial | 61 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 62 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 63 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_1647%3A1. Public record. Not legal advice.