.

    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 receives some 47 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 2nd of October, 1906, the individual defendants appeared at complainants's place of business and demanded of it that it forthwith deliver the 47 barrels of poultry for the purpose of being by them destroyed, the defendants alleging that the poultry had been putrid, decayed, poisonous, or infected in such a manner as to render it unsafe or unwholesome for human food.  The demand was made under Section 161 of the Revised Municipal Code of the city of Chicago for 1905.

    The complainant refused to deliver up the poultry, on the ground that the section of the Municipal Code of Chicago, in so far 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 14th 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 complaint's business has been stopped and the complainant has been unable to deliver any goods from its plant or receive the same.

    The bill averted 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 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.
 

. . . .Mr. Justice Peckham 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 14th Amendment.

    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 14th Amendment could not be sustained; that such amendment did not impair the police power of the state, and that the ordinance was valid, and not in violation of that amendment.

    Holding there was jurisdiction in the court below, we come to the merits of the case.  The action of the defendants, 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 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 section 1161 of the Revised Municipal Code of Chicago in conflict with the due process of law provision of the 14th Amendment, is 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 14th 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.  +++  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 or 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 the owner.  The ex parte finding of the health officers so 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 them.

    And so in People ex rel. Copcutt v. Board of Health, 140 N.Y. 1, 23 L.R.A. 481, 37 Am. St. Rep. 522, 35 N. E. 320, 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 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 he 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.

    Miller v. Horton, 152 Mass. 540, 10 L.R.A. 116, 23 Am. St. Rep. 850, 26 N.E. 100, 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."  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."

    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 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.

    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 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. +++

    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.
 
 

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