APPEAL from the Circuit Court of Cook County; the Hon. ELMER
J. SCHNACKENBERG, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 19, 1953.
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 establishments, on the ground that the ordinance is unconstitutional. The circuit 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 ordinance.
In determining whether the circuit court erred, the essential issue presented by this appeal is whether the ordinance effects an arbitrary classification by discriminating against retail live-poultry dealers in violation of the rights guaranteed by section 2 of article II and section 22 of article IV of the Illinois constitution, and the fifth and fourteenth amendments of the Federal constitution.
In their complaint to enjoin the enforcement of the ordinance, plaintiffs allege that the operations of killing, bleeding, plucking, drawing and eviscerating poultry, which it performs, are also performed by wholesale poultry dealers and to a great extent by many retail dressed-poultry dealers. Consequently, plaintiffs argue that the sanitation 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 discriminates against the retail live-poultry dealers.
Defendant, city of Chicago, in support of the constitutionality 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. Furthermore, defendant argues, the classification is not arbitrary or discriminatory, inasmuch as the public health is affected differently by the operations of the retail live-poultry dealers than it is by the operations of the wholesale live-poultry dealers or of the retail dressed-poultry dealers.
In adjudging the constitutionality of this ordinance we shall consider the provisions of the ordinance, the statutory authority for its enactment, the effect on public health of the operations of the business regulated as compared with similar operations performed by businesses not covered by the ordinance, and then ascertain whether the classification contained therein is arbitrary or discriminatory.
The ordinance inserts sections 95-29.1 to 95-29.8 into the Municipal Code of the city of Chicago, and amends sections 130-10 and 130-13 of the Code. It is declared unlawful for any person to sell at retail, or to slaughter for sale at retail, any live poultry or live fowl without a license, and it is provided 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 crevices, 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 provided for all refuse material, and all equipment shall be of some impervious and readily cleanable material. Moreover, this room and all equipment therein shall be cleaned each day after the slaughtering for the day has been completed.
It is further provided that there shall be adequate ventilation, an adequate supply of running hot water under pressure, 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 disinfected and cleaned so that no odors or nuisances are created by the storage of the crates, and that refuse must be removed daily.
This ordinance was enacted pursuant to certain provisions 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 revoking 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 places 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 all regulations, which may be necessary or expedient for the promotion of health or the suppression of disease" (par. 23-81;) "To prohibit any offensive or unwholesome business or establishment within the municipality" (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 requirements 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 foregoing powers. However, this ordinance, though based upon proper statutory authority, and reasonably designed to protect 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 ...