Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; Chas. E. Woodward, Judge.
Before SPARKS and MAJOR, Circuit Judges, and LINDLEY, District Judge.
This appeal is from a declaratory judgment decree in favor of plaintiff and awarding an injunction against defendants, entered October 23, 1940. The suit was commenced by a bill of complaint, filed February 2, 1939, which sought a judicial declaration that a milk ordinance of the City of Chicago, requiring milk to be delivered in "standard milk bottles," did not prohibit the sale of milk in plaintiff's paper containers, or that, if it does, the ordinance is invalid. An injunction was also sought restraining the defendants from interfering with the sale of milk in such containers. A hearing was had before a master who recommended a denial of the relief sought. The court sustained objections to the master's report and entered the decree in controversy.
Thus, the issues for decision are: (1) Does the ordinance forbid the delivery of milk in plaintiff's paper containers, and (2) if so, is the ordinance valid. Under the latter issue it is contended that any power which the City Council of the City of Chicago might have had to prohibit the sale of milk in such containers was withdrawn by an Act of the Illinois Legislature enacted in 1939, and, irrespective of this, that the ordinance was and is so unreasonable and arbitrary, both as a matter of law and fact, as to make it invalid.
The Master decided all issues in favor of the defendants, while the court concluded that plaintiff's container was a standard milk bottle within the meaning of the ordinance, and further concluded that any other construction of the ordinance would render it void.
Before discussing the merits of the issues presented, it is appropriate to state that the master made a number of purported findings of fact which, in part at least, were not accepted by the court. The defendants contend that the court was obligated under Rule 53(e)(2) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, to accept such findings "unless clearly erroneous." We think it is unnecessary to discuss to what extent, if any, this rule should be given application for the reasons: (1) The purported findings are in the nature of conclusions rather than findings of fact, and (2) for the more important reason that we have reached the conclusion that the cause should be disposed of on a legal rather than factual basis.
On January 4, 1935, there was enacted by the City Council of the City of Chicago, an ordinance regulating the production and distribution of milk in the city. Shortly thereafter there was promulgated by the Chicago Board of Health, regulations in conformity therewith. The provision of the ordinance now under attack is the third sentence of Section 3094: "Any milk or milk products sold in quantities of less than one gallon shall be delivered in standard milk bottles; provided, however, that nothing herein contained shall be construed to prohibit hotels, soda fountains, restaurants, and similar establishments from dispensing milk or milk products from sanitary dispensers approved by the board of health."
Prior to the institution of suit, plaintiff repeatedly sought from the Chicago Board of Health a permit to retail milk in the city which was denied on the ground that the container in which plaintiff proposed to deliver its milk was not a "standard milk bottle" within the meaning of the ordinance. Thus, the first issue in dispute revolves solely around the interpretation of those words as used in the ordinance. It is the contention of the plaintiff, sustained by the lower court, that such words should be construed to include its paper container, while the defendants contend that they should be construed to include glass bottles only.
Any detailed description of plaintiff's business, or the process employed in the manufacture of plaintiff's container appears irrelevant to a construction of the ordinance. At this point, therefore, we make only a brief reference to the same. Plaintiff, a wholly-owned subsidiary of the Dean Milk Company, a corporation, is engaged in the distribution of milk and milk products. Its plant is located at Chemung, McHenry County, Illinois, where it has two machines leased from the Ex-Cell-O Corporation, used for packaging milk in paper containers bearing the trade name "Pure-Pak." Its facilities are such that it is unable to use glass bottles. Its container is manufactured from paper obtained from a mill in West Virginia. The paper is cut, trimmed and printed at a manufacturing plant located in Ohio. the product is shipped to plaintiff's plant and assembled into the type of containers now in controversy. Such containers are commonly and, we think, generally referred to by Governmental officials and those interested in the trade as "Single Service Containers." This follows from the fact that they are destroyed after a single use. Thus they are distinguished from a multi-container, such as a glass bottle, which may be used many times. The court adopted the master's description of plaintiff's container: "Plaintiff's container is a prismatic box about 6 1/2 inches high and 4 1/2 inches wide, with a gable top, made of paper and paraffined on the inside and outside. In the middle of one of the slanting surfaces of the gable top is a so-called pouring lip which is about an inch square and which is pulled out loke an ear when milk is poured out of the container." 35 F.Supp. 451, 453.
the court, in construing the words "standard milk bottle" as including plaintiff's container, relied strongly upon two factors: (1) The situation existing in the trade at the time oif trial rather than at the time the ordinance was enacted, and (2) the definition of the word "bottle" as given by numerous lexicographers. As to the first factor, the court said: " * * * The ordinance is not static. The words are general and continuing in their operation. The ordinance must be construed in the light of new and changing conditions and current thought and practice. If, in the course of time, the advancement of science has produced a container which serves the same purpose as a glass container, and if the product delivered therein conforms to the requirements of sanitation prescribed by the health ordinances, then the ordinance must be given such constrction as to permit the use of the later developed scientific container."
We are of the view that this was an unsound basis upon which to predicate a construction of the ordinance. As was said in Sup v. Cervenka, 331 Ill. 459, 462, 163 N.E. 396, 398: " * * * The courts have no legislative powers, and in the interpretation and construction of statutes their sole function is to determine, and within the constitutional limits of the legislative power to give effect to, the intention of the Legislature. * * * "
And in United States v. Goldenberg, 168 U.S. 95, 102, 18 S. Ct. 3, 4, 42 L. Ed. 394: "The primary and general rule of statutory constructioin is that the intent of the lawmaker is to be found in the language that he has used. He is presumed to know the meaning of words and the rules of grammar. The courts have no functioin of legislation, and simply seek to ascertain the will of the legislator. * * * No mere omission, no mere failure to provide for contingencies, which it may seem wise to have specifically provided for, justify any judicial addition to the language of the statute. * * * "
In United States v. First National Bank, 234 U.S. 245, on page 259, 34 S. Ct. 846, on page 850, 58 L. Ed. 1298, referring to facts subsequent to the enactment as bearing upon its construction, the court said: " * * * But these after facts can have little weight in determining the meaning of the legislation, and certainly cannot overcome the meaning of plain words used in legislative enactments. * * * "
that the language of a legislative enactment is to be construed in accordance with its meaning at the time used rather than by a meaning afterwards acquired was held in People v. Barnett, 319 Ill. 403, 150 N.E. 290. On page 408 of 319 Ill., on page 292 of 150 N.E., the court said:
" * * * The true rule is that statutes are to be construed as they were intended to be understood when they were passed. Statutes are to be read in the light of attendant conditions and that state of the law existent at the time of their enactment. The words of a statute must be taken in the ...