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
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.
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
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.
Page 211 U. S. 313
MR. JUSTICE PECKHAM, after making the foregoing statement,
delivered the opinion of the Court.
In this case, the ordinance in question is to be regarded as in
effect a statute of the state, adopted under a power granted it by
the state legislature, and hence it is an act of the state within
the Fourteenth Amendment.
New Orleans v. Sugar Co.,
125 U. S. 18,
125 U. S.
31.
The circuit court held that the defendants, being sued in their
official capacities, could not be held for acts or threats which
they had no power or authority under the ordinance to make or
perform; that, although it was alleged that the defendants acted
under the provisions of the section of the Code already quoted, yet
that under no possible construction of that ordinance could the
defendants claim the right to the entire stoppage of the business
of the complainant in storing admittedly wholesome articles of
food, so that it would seem that these acts were mere trespasses,
and plainly without the sanction of the ordinance; as to these
acts, therefore, the remedy was to be pursued in the state courts,
there being no constitutional question involved necessary to give
the court jurisdiction.
The court further held that the allegation that the intention to
seize and destroy the poultry without any judicial determination as
to the fact of its being unfit for food was in violation of the
Fourteenth Amendment could not be sustained; that such amendment
did not impair the police power of the
Page 211 U. S. 314
state, and that the ordinance was valid, and not in violation of
that amendment. The demurrer was therefore sustained and the bill
dismissed, as stated by the court, for want of jurisdiction.
We think there was jurisdiction, and that it was error for the
court to dismiss the bill on that ground. The court seems to have
proceeded upon the theory that, as the complainant's assertion of
jurisdiction was based upon an alleged federal question which was
not well founded, there was no jurisdiction. In this we think that
the court erred. The bill contained a plain averment that the
ordinance in question violated the Fourteenth Amendment because it
provided for no notice to the complainant or opportunity for a
hearing before the seizure and destruction of the food. A
constitutional question was thus presented to the court over which
it had jurisdiction, and it was bound to decide the same on its
merits. If a question of jurisdiction alone were involved, the
decree of dismissal would have to be reversed. The complainant,
however, has, in addition to procuring the certificate of the court
as to the reason for its action, also appealed from the decree of
dismissal directly to this Court under the fifth paragraph of § 5
of the act of 1891. Such appeal can be heard without resort to the
certificate and may be decided on its merits.
Giles v.
Harris, 189 U. S. 475,
189 U. S. 486.
A constitutional question being involved, an appeal may be taken
directly to this Court from the circuit court.
Holding there was jurisdiction in the court below, we come to
the merits of the case. The action of the defendants, which is
admitted by the demurrer, in refusing to permit the complainant to
carry on its ordinary business until it delivered the poultry,
would seem to have been arbitrary and wholly indefensible. Counsel
for the complainant, however, for the purpose of obtaining a
decision in regard to the constitutional question as to the right
to seize and destroy property without a prior hearing, states that
he will lay no stress here upon that portion of the bill which
alleges the unlawful and forcible
Page 211 U. S. 315
taking possession of complainant's business by the defendants.
He states in his brief as follows:
"There is but one question in this case, and that question is,
is § 1161 of the Revised Municipal Code of Chicago in conflict with
the due process of law provision of the Fourteenth Amendment in
this: that it does not provide for notice and an opportunity to be
heard before the destruction of the food products therein referred
to? If there is no such conflict, the ordinance is valid for the
purposes of federal jurisdiction; the bill states no cause of
action, and was properly dismissed, as there is no claim of any
such diversity of citizenship as would confer jurisdiction upon the
federal court, and no such jurisdiction exists, except by reason of
the claim that such ordinance is in conflict with the Fourteenth
Amendment."
The general power of the state to legislate upon the subject
embraced in the above ordinance of the City of Chicago counsel does
not deny.
See California Reduction Co. v. Sanitary Reduction
Works, 199 U. S. 306,
199 U. S. 318.
Nor does he deny the right to seize and destroy unwholesome or
putrid food, provided that notice and opportunity to be heard be
given the owner or custodian of the property before it is
destroyed. We are of opinion, however, that provision for a hearing
before seizure and condemnation and destruction of food which is
unwholesome and unfit for use is not necessary. The right to so
seize is based upon the right and duty of the state to protect and
guard, as far as possible, the lives and health of its inhabitants,
and that it is proper to provide that food which is unfit for human
consumption should be summarily seized and destroyed to prevent the
danger which would arise from eating it. The right to so seize and
destroy is, of course, based upon the fact that the food is not fit
to be eaten. Food that is in such a condition, if kept for sale or
in danger of being sold, is, in itself, a nuisance, and a nuisance
of the most dangerous kind, involving, as it does, the health, if
not the lives, of persons who may eat it. A determination on the
part of the seizing officers that food is in an unfit condition to
be eaten is not a decision which concludes
Page 211 U. S. 316
the owner. The
ex parte finding of the health officers
as to the fact is not in any way binding upon those who own or
claim the right to sell the food. If a party cannot get his hearing
in advance of the seizure and destruction, he has the right to have
it afterward, which right may be claimed upon the trial in an
action brought for the destruction of his property, and in that
action those who destroyed it can only successfully defend if the
jury shall find the fact of unwholesomeness, as claimed by them.
The often-cited case of
Lawton v. Steele, 152 U.
S. 133, substantially holds this. By the second section
of an act of the legislature of the State of New York of 1800 it
was provided that any "net . . . for capturing fish which was
floated upon the water or found or maintained in any of the waters
of the state," in violation of the statutes of the state for the
protection of fish, was a public nuisance, and could be abated and
summarily destroyed, and that no action for damages should lie or
be maintained against any person for or on account of seizing or
destroying such nets. Nets of the kind mentioned in that section
were taken and destroyed by the defendant, and the owner commenced
action against him to recover damages for such destruction. That
portion of the section which provided that no action for damages
should lie was applicable only to a case where the seizure or
destruction had been of a nature amounting to a violation of the
statute, and, of course, did not preclude an action against the
person making a seizure if not made of a net which was illegally
maintained. The seizure and destruction were justified by the
defendant in the action, and such justification was allowed in the
state courts (119 N.Y. 226) and in this Court. Mr. Justice Brown,
in delivering the opinion of this Court, said:
"Nor is a person whose property is seized under the act in
question without his legal remedy. If in fact his property has been
used in violation of the act, he has no just reason to complain; if
not, he may replevy his nets from the officer seizing them, or, if
they have been destroyed, may have his action for their value. In
such cases, the burden would be upon the
Page 211 U. S. 317
defendant to prove a justification under the statute. As was
said by the Supreme Court of New Jersey, in a similar case
(
American Print Works v. Lawrence, 21 N.J.L. 248, 259):
'The party is not, in point of fact, deprived of a trial by jury. .
. .' Indeed, it is scarcely possible that any actual injustice
could be done in the practical administration of the act."
The statute in the above case had not provided for any hearing
of the question of violation of its provisions, and this Court held
that the owner of the nets would not be bound by the determination
of the officers who destroyed them, but might question the fact by
an action in a judicial proceeding in a court of justice. The
statute was held valid, although it did not provide for notice or
hearing. And so in
People &c. v. Board of Health, 140
N.Y. 1, the question arose in a proceeding by certiorari, affirming
the proceedings of the Board of Health of the City of Yonkers, by
which certain dams upon the Nepperhan River were determined to be
nuisances and ordered to be removed. The court held that the acts
under which the dams were removed did not give a hearing in express
terms, nor could the right to a hearing be implied from any
language used in them, but that they were valid without such
provision because they did not make the determination of the board
of health final and conclusive on the owners of the premises
wherein the nuisances were allowed to exist; that, before such a
final and conclusive determination could be made, resulting in the
destruction of property, the imposition of penalties and criminal
punishments, the parties proceeded against must have a hearing, not
as a matter of favor, but as a matter of right, and the right to a
hearing must be found in the acts; that, if the decisions of these
boards were final and conclusive, even after a hearing, the citizen
would, in many cases, hold his property subject to the judgments of
men holding ephemeral positions in municipal bodies and boards of
health, frequently uneducated, and generally unfitted to discharge
grave judicial functions. It was said that boards of health under
the acts referred to could not, as to any existing state of facts,
by their
Page 211 U. S. 318
determination, make that a nuisance which was not in fact a
nuisance; that they had no jurisdiction to make any order or
ordinance abating an alleged nuisance unless there were in fact a
nuisance; that it was the actual existence of a nuisance which gave
them jurisdiction to act. There being no provision for a hearing,
the acts were not void nevertheless, but the owner had the right to
bring his action at common law against all the persons engaged in
the abatement of the nuisance to recover his damages, and thus he
would have due process of law, and if he could show that the
alleged nuisance did not in fact exist, he will recover judgment,
notwithstanding the ordinance of the board of health under which
the destruction took place.
The same principle has been decided by the Supreme Judicial
Court of Massachusetts. The case of
Salem v. Eastern R.
Co., 98 Mass. 431, was an action brought to recover moneys
spent by the city to drain certain dams and ponds declared by the
board of health to be a nuisance. The court held that, in a suit to
recover such expenses incurred in removing a nuisance, when
prosecuted against a party on the ground that he caused the same,
but who was not heard, and had no opportunity to be heard upon the
questions before the board of health, such party is not concluded
in the findings or adjudications of that board, and may contest all
the facts upon which his liability is sought to be established.
Miller v. Horton, 152 Mass. 540, is in principle like
the case before us. It was an action brought for killing the
plaintiff's horse. The defendants admitted the killing, but
justified the act under an order of the board of health, which
declared that the horse had the glanders, and directed it to be
killed. The court held that the decision of the board of health was
not conclusive as to whether or not the horse was diseased, and
said that:
"Of course, there cannot be a trial by jury before killing an
animal supposed to have a contagious disease, and we assume that
the legislature may authorize its destruction in such emergencies
without a hearing beforehand.
Page 211 U. S. 319
But it does not follow that it can throw the loss on the owner
without a hearing. If he cannot be heard beforehand, he may be
heard afterward. The statute may provide for paying him in case it
should appear that his property was not what the legislature had
declared to be a nuisance, and may give him his hearing in that
way. If it does not do so, the statute may leave those who act
under it to proceed at their peril, and the owner gets his hearing
in an action against them."
And in
Stone v. Heath, 179 Mass. 385, the court held
that, under the statute, it had no power to restrain the board of
health from abating nuisances and from instituting proceedings
against plaintiff on account of his failure to abate them, as
provided for in the statute, because the board of health had
adjudged that a nuisance existed and had ordered it to be abated by
the plaintiff, yet still the question
"whether there was a nuisance, or whether, if there was one, it
was caused or maintained by the parties charged therewith, may be
litigated by such parties in proceedings instituted against them to
recover the expenses of the abatement, or may be litigated by the
parties whose property has been injured or destroyed in proceedings
instituted by them to recover for such loss or damage, and may also
be litigated by parties charged with causing or maintaining the
nuisance in proceedings instituted against them for neglect or
failure to comply with the orders of the board of health directing
them to abate the same."
In that way, they had a hearing and could recover or defend in
case there was no nuisance.
See also Lowe v. Conroy, 120 Wis. 151;
Pearson v.
Zehr, 138 Ill. 48;
State v. Main, 69 Conn. 123;
Gaines v. Waters, 64 Ark. 609, 612, where the same
principle is announced.
Complainant, however, contends that there was no emergency
requiring speedy action for the destruction of the poultry in order
to protect the public health from danger resulting from consumption
of such poultry. It is said that the food was in cold storage, and
that it would continue in the same condition
Page 211 U. S. 320
it then was for three months, if properly stored, and that
therefore the defendants had ample time in which to give notice to
complainant or the owner and have a hearing of the question as to
the condition of the poultry; and, as the ordinance provided for no
hearing, it was void. But we think this is not required. The power
of the legislature to enact laws in relation to the public health
being conceded, as it must be, it is to a great extent within
legislative discretion as to whether any hearing need be given
before the destruction of unwholesome food which is unfit for human
consumption. If a hearing were to be always necessary, even under
the circumstances of this case, the question at once arises as to
what is to be done with the food in the meantime. Is it to remain
with the cold storage company, and, if so, under what security that
it will not be removed? To be sure that it will not be removed
during the time necessary for the hearing, which might frequently
be indefinitely prolonged, some guard would probably have to be
placed over the subject matter of investigation, which would
involve expense, and might not even then prove effectual. What is
the emergency which would render a hearing unnecessary? We think
when the question is one regarding the destruction of food which is
not fit for human use, the emergency must be one which would fairly
appeal to the reasonable discretion of the legislature as to the
necessity for a prior hearing, and in that case its decision would
not be a subject for review by the courts. As the owner of the food
or its custodian is amply protected against the party seizing the
food, who must, in a subsequent action against him, show as a fact
that it was within the statute, we think that due process of law is
not denied the owner or custodian by the destruction of the food
alleged to be unwholesome and unfit for human food without a
preliminary hearing. The cases cited by the complainant do not run
counter to those we have above referred to.
Even if it be a fact that some value may remain for certain
purposes in food that is unfit for human consumption, the right to
destroy it is not on that account taken away. The
Page 211 U. S. 321
small value that might remain in said food is a mere incident,
and furnishes no defense to its destruction when it is plainly kept
to be sold at some time as food.
California Reduction Co. v.
Sanitary Reduction Works, 199 U. S. 306,
199 U. S. 322;
Gardner v. Michigan, 199 U. S. 325,
199 U. S.
331.
The decree of the court below is modified by striking out the
ground for dismissal of the bill as being for want of jurisdiction,
and, as modified, is
Affirmed.
MR. JUSTICE BREWER dissents.
