Appeals from the District Court of the United States for the Northern District of Illinois, Eastern Division.
Before EVANS and MAJOR, Circuit Judges, and LINDLEY, District Judge.
In view of the similarity of the questions involved, these two appeals will be disposed of in one opinion. In 6139 appellant is a nonresident manufacturer of automatic cigarette vending machines, who sells to appellant in 6134. The latter purchases these machines and leases them in large numbers to persons in the City of Chicago. Each of appellants filed bills in chancery to enjoin the city from enforcing a certain ordinance prohibiting the use of vending machines for the sale or distribution of cigarettes. The District Court dismissed the bills for want of equity, and these appeals, followed.
In force in the City of Chicago are certain sections of an ordinance dealing with cigarettes. These contain regulatory provisions prohibiting sales to minors, sales within 300 feet of schools, sales of cigarettes containing deleterious or poisonous drugs; imposing upon the health department the duty of inspection, to prevent traffic in cigarettes containing deleterious substances and unsanitary conditions in selling places.
The particular section complained of was added by an act of December 2, 1936, as an amendment to the previous sections, as follows:
"No person, firm or corporation, with or without a retail tobacco dealer's license, shall locate, install, keep, maintain or use, or permit the location, installation, keeping, maintenance or use upon his or its premises of any vending machine, automatic vending machine or coin-controlled or coin-operating machine or other mechanical device used or intended to be used for the sale or distribution of cigarettes.
"Section 2. This ordinance shall be in full force and effect from and after its passage and due publication."
Appellants contend that the amendatory ordinance is invalid and unconstitutional; that it is not within the legislative power of the City of Chicago; that its effect is to deprive them of their property without due process of law, in violation of section 2, article 2 of the Constitution of Illinois and of the Fourteenth Amendment to the Constitution of the United States; that it is not necessary or expedient for the promotion of health; that it prohibits a legal business rather than subjecting it to reasonable rules and regulation; and that it unreasonably and arbitrarily discriminates between persons and businesses of the same general class and character.
The City of Chicago is a municipality organized under the statutes of the State of Illinois. Its legislative powers are those expressly granted by statute and such others as are reasonably incidental to the grant. Klever Karpet Kleaners v. City of Chicago, 323 Ill. 368, 154 N.E. 131, 49 A.L.R. 103. Section 53 of article 5 of the Cities and Villages Act (Smith-Hurd Ill.Stats. c. 24, § 65.52) grants to the city power to regulate inspection of tobacco; section 66 (Smith-Hurd Ill.Stats. c. 24, § 65.65), to regulate the police of the city and to adopt all necessary police ordinances; and section 78 (Smith-Hurd Ill.Stats. c. 24, § 65.77), to do all acts and make all regulations which may be necessary or expedient for the promotion of health or the suppression of disease.
The police power of a municipality is a most important one, as it has to do with the safety and health of the community, and ordinances in promotion of such welfare are to be liberally construed. Biffer v. City of Chicago, 278 Ill. 562, 116 N.E. 182. Acts which are injurious to the public may be suppressed, prohibited, or regulated, and all private rights must yield to the exercise of this paramount power. Koy v. City of Chicago, 263 Ill. 122, 104 N.E. 1104, Ann.Cas. 1915C, 67; City of Chicago v. Arbuckle Bros., 344 Ill. 597, 176 N.E. 761.
Following these principles the Supreme Court in Gundling v. City of Chicago, 176 Ill. 340, 52 N.E. 44, 45, 48 L.R.A. 230, held that the city had power to enact the original ordinance, to which the section being considered is an amendment, saying: "It being well known that young persons of weak and immature minds are more liable to use tobacco in the form of cigarettes than in any other form, a legislative body may properly provide for the regulation and sale of that article in the form in which it is likely to be most deleterious and injurious, and may restrict the sales of that particular form of tobacco. * * * It being clear that the public health and welfare of a large class in the community would be subserved and protected by ordinances regulating the sale of tobacco in one of its manufactured forms, an ordinance directed to the protection of the health or welfare of that particular class of the community would be a police regulation within the power of a city to enact under the power expressly granted by paragraphs 66 and 78. An ordinance of this character is not in conflict with any principle of the common law, or with any public or general statute, and infringes no private right not necessarily infringed in the interests of good government. It subserves the public welfare, protects the health of the community, and is included within the express powers granted the city council. The ordinance was not void. Neither did the ordinance and the judgment of the court deprive the appellant of liberty or property without due process of law. The city having the authority to enact the ordinance and provide a penalty for its violation, which ordinance applies to all citizens within the community, no principle of the constitution of the state of Illinois or of the United States, or the amendments thereto, was violated."
The decision was affirmed in Gundling v. Chicago, 177 U.S. 183, 20 S. Ct. 633, 635, 44 L. Ed. 725, where the Supreme Court said:
"Regulations respecting the pursuit of a lawful trade or business are of very frequent occurrence in the various cities of the country, and what such regulations shall be and to what particular trade, business, or occupation they shall apply are questions for the state to determine, and their determination comes within the proper exercise of the police power by the state, and unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the property and personal rights of the citizen are unnecessarily, and in a manner wholly arbitrary, interfered with ...