City of Cairo v. Coleman

Mr. Presiding Justice Sample

delivered the opinion of the Court.

If the ordinance was valid, the facts stipulated required a finding and judgment for the city. The court below held it was invalid, and that ruling is the only question for determination here. The ordinance is said to be authorized by the 54th power of Sec. 1, Art. 5, Part 1. Chap. 24 of the general incorporation act of 1872, under which the city of Cairo is incorporated, which is as follows: “ The city council in cities shall have the power to regulate the inspection, weighing and measuring of brick, lumber, firewood, coal, hay, and any article of merchandise.” This right falls under the designation of a police power, and the authority of the city to pass the ordinance in question is said to be reinforced by the 66th power of same section, which is, the city council shall have the power “ To regulate the police of the city, and pass and enforce all necessary police ordinances.” The object of the ordinance is said to be to bring all venders of merchandise under police regulation, so as to be able to inspect all stocks of merchandise, and thereby discover and prevent the sale of “ merchandise which shall be injurious to the health or public welfare of the citizens of Cairo, or be a fraud upon the public.” The power to regulate the inspection, etc., it is said, includes the power to license. This latter position is not contested by appellee. The law has been so declared in Farwell v. Chicago, 71 Ill. 272; Kinsley v. Chicago, 124 Ill. 362.

The appellee, a vender of stationery, books, periodicals and other articles of merchandise usually kept by a book seller, contends the ordinance is invalid as to him for at least two reasons, 1. The city had no power, under its charter, to pass an ordinance providing for the inspection of such articles of merchandise as were kept and sold by him. 2. That if it had, it could not delegate to the city marshal the arbitrary power of determining what article of merchandise would be injurious to the health or public welfare of the citizens of Cairo, or a fraud upon the public, if sold. The law is, the appellant, being a creature of the legislature, can exercise such powers only, as are expressly conferred and as are necessarily incident thereto. Mather v. City of Ottawa, 114 Ill. 659.

“ Any fair, reasonable ” doubt concerning the existence of power is resolved against the separation, and the power is denied. Emmons v. City of Lewistown, 132 Ill. 380; Seeger v. Mueller et al., 133 Ill. 94. The ordinance in question declared, “ Any store or building in the city of Cairo, not a place licensed for the sale of provisions, wherein shall be sold or offered for sale to the public * * * any articles of merchandise, shall be deemed a public place, and no article of merchandise shall be sold at or from such public place until an inspection of such merchandise shall have first been made by the city inspector of merchandise, and a certificate of inspection thereof obtained, under a penalty of not less than five dollars, nor more than fifty dollars for each offense.” The ordinance excepts auctioneers and others licensed to make sales, and religious and benevolent societies and makes the city marshal the city inspector. The authority to pass this ordinance must be found in the 54th grant of power, above set out, or it does not exist. The 66th power does not purport to be a grant of police power, as such, but gives authority to the city to pass and enforce all necessary police ordinances; that is, ordinances relating to matters coming within the police power.

The appellant contends the last general clause, “ any article of merchandise,” in the 54th power, sivprco, is not limited in its meaning by the specific articles mentioned preceding it. The appellee contends it is, and must be construed to mean articles of merchandise of the same general kind or class as there specified. In Potter’s Dwarris, p. 247, it is said in regard to construing penal statutes : “ If general words follow an enumeration of particular cases, such general words are held to apply only to cases of the same kind as those which are expressly mentioned.” This rule is not limited to penal statutes. In Broom’s Legal Maxims, p. 657, it is said in regard to the construction of an act of Parliament, “ Where a particular class of persons or things is spoken of, and general words follow, the class first mentioned is to be taken as the most comprehensive, and the general words treated as referring to matters ejusdem generis with such class, the effect of general words when they follow particular words being thus restricted.”

It is there further said, “ General words may be aptly restrained according to the subject-matter or persons to which they relate.”

In the case of Ambler v. Whipple, 139 Ill. 317, where the proper construction of section 16 of the law of limitations was involved, and where the particular issue was as to whether the words “ or other evidence of indebtedness in writing ” included judgments, when they followed an enumeration of different kinds of contracts in writing, it was said: " It is a general rule of statutory construction, that general words, following an enumeration of particular cases, apply to cases of the same kind and description.” To the same effect, see Wilson v. Board of Trustees, 133 Ill. 470. It is said, however, that the words “ any article of merchandise” are as broad and comprehensive as the English language admits of. This is true, if considered alone and by themselves, without reference to the words preceding them, as is said in regard to the general clause under consideration in the Whipple case, 139 Ill. 317, supra. But why ignore those particular and specific words % They were used for a purpose as clearly as the general words. To arrive at the intention of the legislature all the words included in this fifty-fourth power must be considered together. Statutes should be construed so that no clause, sentence or words shall be deemed superfluous. Hunt v. C. H. & D. Ry. Co., 121 Ill. 644. The ordinance is void in our judgment for want of power to pass it. It is also void in that it delegates the power to the city marshal to determine what articles of merchandise, if sold, would be injurious to the health or public welfare of the citizens of Cairo or a fraud upon the public.

There would be no stability in such a regulation. Citizens engaged in legitimate business would be subject to the whims and caprice of each city marshal. The best and most intelligent of men frequently differ on such subjects. The determination of one city marshal as to what was injurious would be no criterion for the determination of another. If the power existed to inspect all merchandise, merchants would have the right to know by fixed law what was placed under the ban of official powers. Any other course would be oppressive and intolerable. In such case the power to determine what was injurious would rest in the council and not its agents; one agent can not delegate power to another agent unless authorized to do so by the principal. The city itself is only an agent of the State. It can not delegate its power to another. Dillon on Municipal Cor., Secs. 60, 618; Chicago v. Trotter, 136 Ill. 430. The judgment is affirmed.