US SUPREME COURT DECISIONS

A municipal ordinance properly adopted under a power granted by the state legislature is to be regarded as an act of the state within the Fourteenth Amendment.

Where the Circuit Court has sustained the demurrer to the complaint because the case does not involve the construction or application of the Constitution of the United States and has given a certificate to chanrobles.com-red

Page 211 U. S. 307

that effect, and complainant has also appealed directly to this Court under § 5 of the Act of March 3, 1891, c. 517, 26 Stat. 826, if this Court finds that jurisdiction exists, the appeal can be heard without resort to the certificate, and decided on the merits. Giles v. Harris, 189 U. S. 475.

Under its police power, the state has the right to seize and destroy food which is unwholesome and unfit to use, and, in exercising such a power, due process of law, within the meaning of the Fourteenth Amendment, does not require previous notice and opportunity to be heard; the party whose property is destroyed has a right of action after the act which is not affected by the ex parte condemnation of the state officers.

Where, under the police power of the state, the legislature may enact laws for the destruction of articles prejudicial to public health, it is, to a great extent, within its discretion as to whether any notice and hearing shall be given, and the fact that the articles might be kept for a period does not give the owners a right to notice and hearing.

The right of the state under the police power to destroy food that is unfit for human consumption is not taken away because some value may remain in it for other purposes, when it is kept to be sold at some time as food. Reduction Co. v. Sanitary Works, 199 U. S. 306; Gardner v. Michigan, 199 U. S. 325.

The provisions in the cold storage ordinances of Chicago for destruction of unsafe and unwholesome food are not unconstitutional as depriving persons of property without due process of law because they do not provide for notice and opportunity to be heard before such destruction, or because the food destroyed might have some value for other purposes than food.

The bill of complaint in this case was dismissed by the circuit court for want of jurisdiction, and a certificate of the circuit judge was given that the jurisdiction of the court was in issue, and the question of jurisdiction alone was certified to this Court, under paragraph 2 of § 5 of the Act of March 3, 1891 (26 Stat. 826, c. 517). The appellant also appealed, and now asserts its right of appeal under paragraph 5 of the same section of the above act on the ground that the case involves the construction or application of the Constitution of the United States, and hence may be brought directly to this Court from the decision of the circuit court. chanrobles.com-red

Page 211 U. S. 308

The bill was filed against the City of Chicago and the various individual defendants in their official capacities -- Commissioner of Health of the City of Chicago, Secretary of the Department of Health, Chief Food Inspector of the Department of Health, and inspectors of that department, and policemen of the city -- for the purpose of obtaining an injunction under the circumstances set forth in the bill. It was therein alleged that the complainant was a cold storage company, having a cold storage plant in the City of Chicago, and that it received, for the purpose of keeping in cold storage, food products and goods as bailee for hire; that, on an average, it received $20,000 worth of goods per day, and returned a like amount to its customers, daily, and that it had on an average in storage about two million dollars worth of goods; that it received some forty-seven barrels of poultry on or about October 2, 1906, from a wholesale dealer, in due course of business, to be kept by it and returned to such dealer on demand; that the poultry was, when received, in good condition and wholesome for human food, and had been so maintained by it in cold storage from that time, and it would remain so, if undisturbed, for three months; that, on the second of October, 1906, the individual defendants appeared at complainant's place of business and demanded of it that it forthwith deliver the forty-seven barrels of poultry for the purpose of being by them destroyed, the defendants alleging that the poultry had become putrid, decayed, poisonous, or infected in such a manner as to render it unsafe or unwholesome for human food. The demand was made under § 1161 of the Revised Municipal Code of the City of Chicago for 1905, which reads as follows:

"Every person being the owner, lessee, or occupant of any room, stall, freight house, cold storage house, or other place, other than a private dwelling, where any meat, fish, poultry, game, vegetables, fruit, or other perishable article adapted or designed to be used for human food shall be stored or kept, whether temporarily or otherwise, and every person having charge of, or being interested or engaged, whether as principal

Page 211 U. S. 309

or agent, in the care of or in respect to the custody or sale of any such article of food supply, shall put, preserve, and keep such article of food supply in a clean and wholesome condition, and shall not allow the same, nor any part thereof, to become putrid, decayed, poisoned, infected, or in any other manner rendered or made unsafe or unwholesome for human food, and it shall be the duty of the meat and food inspectors and other duly authorized employees of the health department of the city to enter any and all such premises above specified at any time of any day, and to forthwith seize, condemn, and destroy any such putrid, decayed, poisoned, and infected food, which any such inspector may find in and upon said premises."

The complainant refused to deliver up the poultry, on the ground that the section above quoted of the Municipal Code of Chicago, insofar as it allows the city or its agents to seize, condemn, or destroy food or other food products, was in conflict with that portion of the Fourteenth Amendment which provides that no state shall deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

After the refusal of the complainant to deliver the poultry, the defendants stated that they would not permit the complainant's business to be further conducted until it complied with the demand of the defendants and delivered up the poultry, nor would they permit any more goods to be received into the warehouse or taken from the same, and that they would arrest and imprison any person who attempted to do so until complainant complied with their demand and delivered up the poultry. Since that time, the complainant's business has been stopped and the complainant has been unable to deliver any goods from its plant or receive the same.

The bill averred that the attempt to seize, condemn, and destroy the poultry without a judicial determination of the fact that the same was putrid, decayed, poisonous, or infected was illegal, and it asked that the defendants, and each of them, might be enjoined from taking or removing the poultry from chanrobles.com-red

Page 211 U. S. 310

the warehouse or from destroying the same, and that they also be enjoined from preventing complainant delivering its goods and receiving from its customers, in due course of business, the goods committed to its care for storage.

In an amendment to the bill, the complainant further stated that the defendants are now threatening to summarily destroy, from time to time, pursuant to the provisions of the above-mentioned section, any and all food products which may be deemed by them, or either of them, as being putrid, decayed, poisonous, or infected in such manner as to be unfit for human food, without any judicial determination of the fact that such food products are in such condition.

The defendants demurred to the bill on the ground, among others, that the court had no jurisdiction of the action. The injunction was not issued, but, upon argument of the case upon the demurrer, the bill was dismissed by the circuit court for want of jurisdiction, as already stated. chanrobles.com-red

Page 211 U. S. 313