City of Savanna v. Robinson

Mr. Justice Higbee delivered the opinion of the court. The most important question presented by the record in this case is whether the appellant had the power to enact and enforce the ordinance in question, requiring all coal sold or offered for sale in the city, to be weighed by the city weighmaster, and providing penalties for failure to comply with such ordinance. The authority is abundant, and it is conceded by counsel, that the legislature has the power to authorize cities to erect scales, appoint a weighmaster and require all coal sold or offered for sale in the city limits, to be first weighed by such weighmaster; but the question here is, has the legislature, by the provisions of the general act for the incorporation of cities and villages, under which appellant was incorporated, granted that power to the cities incorporated under it. Unless the power to pass the ordinance was clearly given by the statute, it can not be sustained. Under the general incorporation law of the State, a city council is “ clothed with such powers and only such as are conferred by the act of incorporation, or such as may be necessary to carry out the powers expressly granted. It is a plain proposition of law and one well understood, that in the discharge of their duties, a city council must act within the bounds prescribed by their charter, and if they exceed the powers conferred by the charter, such acts are nugatory.” Agnew v. Brall, 124 Ill. 312. Any ambiguity or doubt arising out of the terms used by the legislature in conferring their powers, must be resolved in favor of the public. Seeger v. Mueller, 133 Ill. 86. The case last referred to, and the case of Emmons v. The City of Lewiston, 132 Ill. 380, quote approvingly the language of Judge Dillon that “any fair, reasonable doubt concerning the existence of a power is resolved against the corporation, and the power is denied.” 1 Dill. on Munic. Corp., Sec. 89. This is especially the rule if the power in question is unusual, attended with taxes, tolls, assessments, or burdens upon the - inhabitants, or oppresses them, or abridges natural or common rights. Id., Sec. 149, n. 2. It is said in 29 Am. & Eng. Ency. of Law, 54, that “ A State or municipality may, in the exercise of its police power, appoint public or licensed weighers, surveyors, etc., and provide that all sales of certain commodities, such as hay, grain, etc., shall be upon the weight or quantity as ascertained by such weighers or surveyors, for which they may charge a reasonable fee.” In the note to which reference is made for authority for the above statement, it is said, “But the municipalities have only power to pass such ordinances when the authority is specially conferred by the legislature.” In the case of Stokes v. City of New York, 14 Wend. 87, it was held that the city had power to pass an ordinance requiring anthracite coal to be weighed by weighers appointed by the city. It appears from the opinion in that case, however, that the law expressly gave the power to appoint weighmasters, and the court held that the power to compel their employment was necessarily implied in the power to appoint. That provision of the statute which is relied upon as authorizing the ordinance in question is Art. 5, Sec. 1, Par. 54 of the General Incorporation Act, which gives cities and villages the power “ to regulate the inspection, weighing and measuring of brick, lumber, firewood, coal, hay, and any article of merchandise.” Does the authority to regulate the inspection, weighing and measuring of coal include the right to erect scales, appoint a city weigh-master, and require that all coal sold in the city shall be weighed by such officer and a fee paid him therefor ? The case of Davis v. Anita, 73 Iowa, 325, is the principal one relied upon by appellant as authority in support of the ordinance. In Iowa, cities organized under the general law are empowered “ to provide for the measuring or weighing of hay, coal, or any other article for sale.” Iowa Code, Sec. 456. Under that statute it was held that a city might erect scales, appoint a weighmaster and provide for the use of such scales by those desiring to sell such articles. It is said in the course of the opinion in that case, that the ordinance in question was a “ regulation,” and that “ the statute evidently confers on cities and towns, power to provide scales, a competent weighmaster and correct weights or balances.” On the other hand, a contrary doctrine was established by the Supreme Court of Arkansas in the ease of Taylor v. The City of Pine Bluff, 24 Ark. 603. Under an act of the legislature, the city of Pine Bluff had an express grant of power “to provide for the measuring or weighing of hay, wood, or any other article for sale.” The city, by ordinance, established the office of city weigher and directed him to weigh all articles and give a certifícate of weight. It was then provided that all cotton, hay or fodder should be weighed by the city weigher, and any person violating the ordinances should be subject to a fine. It was said by the court, in passing upon the case, “ when our legislature granted the authority to provide for weighing and measuring, it is not to be presumed it was not thought necessary to give the power to purchase and fix scales for public convenience, but rather that the city should be empowered to establish the system of requiring articles for sale to be weighed and measured,” and the ordinance was declared void. In the above cases, however, it will be noted that the power given by the statute was to provide for the weighing of coal, etc., while under our statute the power given is to regulate. There is, however, a marked difference between the power to regulate the weighing of an article and the power to provide for the weighing of the same. The definition of “ regulate ” according to the Century Dictionary is “to adjust by rule, method or established mode; govern by or subject to certain rules or restrictions; direct; to put or keep in good order.” The same authority defines the word “ provide ” as “ to procure beforehand; get, collect or make ready for future use; prepare, furnish, supply.” To regulate the weighing of a thing is not to weigh it. If such were the case, then under Par. 50 of the section of the general incorporation act above referred to, the power to regulate the sale of meats, poultry and other provisions would also include the power to go into the business of selling provisions, and under Par. 57 the power given to cities to regulate the sale of bread would also give such cities the power to establish bakeries and sell bread. By reading the word “ regulate,” in the several connections in which it appears in the said sections of the statute, we are of opinion that by its use the legislature intended to confer the power upon cities and villages, to establish and direct the manner in which the sale or weighing of the articles mentioned should be done by others, and not to permit such cities and villages themselves to go into the business of selling or weighing such articles. In the case of Huesing v. The City of Rock Island, 128 Ill. 465, the question arose whether the city had the right to pass an ordinance for the establishment of an abattoir or public slaughter house, and appropriate the means of the city for that purpose. Par. 50 of the section of the statute above referred to, gives to cities and villages the power to regulate the sale of meats, etc., to provide for place and manner of selling the same, and section 53, the power to provide and regulate the inspection of meats, etc., but the court held that there was nothing in the language of either of the powers granted, that would lead to the conclusion that the erection of a public slaughter house by the city, was in the contemplation of the legislature in the enactment of such provisions. It was further held in the same case that no such power was given under Par. 78 of the same section which authorized cities and villages “ to do all acts, and make all regulations which may be necessary or expedient for the promotion of health or the suppression of disease; ” nor under section 81, which gave the power “ to direct the location and regulate the management and construction of packing houses,” etc. If cities have no power under the provisions of the statute above referred to, to erect and operate slaughter houses, can it not be properly said or reasonably contended that the city may erect and operate public scales and compel the weighing of ail coal by the public weighmaster, under the clause authorizing it “ to regulate the weighing of coal ? ” The powers of the city to enact the ordinance in question, was, to say the least, very doubtful, and to concede that the power is doubtful, is to deny the power. Emmons v. The City of Lewiston, supra. We must, therefore, hold that the power given by the statute to cities and villages to regulate the- inspection and weighing of coal does not, by implication, include the power to appoint weighmasters and compel persons desiring to sell coal, to have the same weighed by, and receive certificates showing the same has been so weighed from such officers before offering the same for sale, and that so much of said ordinance as conflicts with this rule is void. The judgment of the court below will therefore be affirmed.