author: Mr. Justice Scanlan

text:
    People ex rel. John E. Cassidy, Attorney General, Appellee, v. James Karban and Company, Inc., Appellee. James L. Preisler, Appellant.
    Gen. No. 41,312.
    Opinion filed November 26, 1940.
    J. H. Silver and S. F. Brown, both of Chicago, for appellant.
    James J. Hajek, of Cicero, for certain appellee,
    John E. Cassidy, Attorney General, for certain other appellee; John E. Johnson, Assistant Attorney General, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Appeal by James L. Preisler, intervening petitioner, from an order denying his motion to vacate an order that vacated a decree dissolving James Karban & Co., a corporation.

The Attorney General filed an information under section 82 of the Corporations Act (Ill. Eev. St. 1933, ch. 32, par. 82, sec. 82) for dissolution of James Karban & Company, a corporation. The information alleged that the corporation had failed to file its annual reports as required by statute, had failed to pay the franchise tax assessed against it as provided by statute, had discontinued the exercise of all corporate functions, and had abandoned its corporate franchise and charter. The sheriff made the following return upon the summons issued: “The within named defendant, a corporation, not found in my County nor can I find any officer or any agent of said corporation in my County ... .” Thereupon the Attorney General proceeded to obtain service by publication. Upon June 15, 1935, no appearance nor answer having been filed by defendant, an order defaulting defendant was entered. The decree finds, inter alia, that defendant has failed, neglected and refused to file its annual report as required by statute and has failed, neglected and refused to pay the franchise tax assessed against it as is provided for by statute; that defendant has ceased to do business as a corporation in this State, has discontinued the exercise of all corporate functions and has abandoned its corporate franchise and charter, and decrees that “defendant corporation be, and the same is hereby dissolved and that the charter and authority of said corporation be, and the same is hereby declared to be null and void and of no force and effect whatsoever ... .”

Upon November 28,1939, Joseph Linhart filed in the cause a verified petition, which recites:

“. . . he is a shareholder and the duly elected chairman of the Board of Directors of the defendant corporation in the above entitled cause and represents unto this Honorable Court:

“1. . . .

“2. On November 2, 1939, he was apprised for the first time of the entry of the decree of June 15, 1935, and therefore is in the exercise of all due diligence in presenting this petition setting forth the following facts.

“3. . . . [This paragraph refers to section 84 of the Corporations act (Ill. Rev. Stat. 1933, chap. 32, par. 84, sec. 84) that provides for the method in which summons shall be served upon a corporation in a proceeding by the Attorney General to dissolve the corporation.]

“4. At all times from the commencement of the proceedings to dissolve the Corporation to and including the date of the return by the Sheriff . . . , March 13, 1935, James Karban, president, and James L. Preissler, office manager, and Otto P. Ring, secretary of said corporation, were in the County of Cook . . . and could have been found by said Sheriff and also during said entire period an agent of defendant was located at the principal office of defendant in Cook County . . . and could have been found by said Sheriff.

“5. . . . said Sheriff, without making any effort to find the President, Clerk, Secretary, Superintendent or other agent of said defendant in Cook County, Illinois, made the following return endorsed on said summons: [Here follows the return of the sheriff.] After said return . . ' . an attempt to give notice of this proceeding by publication and by mail was made.

“6. The defendant has never been served with summons in this proceeding, and said attempt to give notice of this proceeding by publication and by mail after said return . . . was not in compliance with the statutes . . . then in force, and did not constitute notice to the defendant of this proceeding.

“7. That the defendant corporation has continued to operate as a corporation ever since prior to the entry of said decree, has called shareholders’ meetings, has elected officers and directors and has filed Annual Corporate Income Tax Returns with the Internal Revenue Department of the United States each year, including a Return for the year 1938.

“8. That there are over eighty shareholders of this corporation who have invested over $250,000 in the shares of this corporation who will be greatly prejudiced if the order of dissolution is not vacated and set aside.

“9. That your petitioner tenders herewith taxes due the State . . . for the year 1934 and represents that he will direct his efforts immediately upon the vacating of said decree for dissolution to calling a shareholders’ meeting as well as a meeting of the Board of Directors . . . and set about the preparation and filing of annual reports for said corporation, and paying the annual franchise and other taxes for said corporation for all years intervening since the entry of said decree for dissolution.

“. . . prays that the said return of the Sheriff, said publication notice and said decree of dissolution entered herein on June 15, 1935, be vacated and set aside and that said complaint to dissolve the James Karban & Company, Inc., a corporation, be dismissed and that your petitioner may have such other and further relief as equity may require.

“Joseph Linhart

“Chairman of the Board of Directors of James Karban & Company, Inc. a Corp.”

Upon November 28, 1939, the same date, the following order was entered in the cause:

“This cause coming on to be heard on the motion of the defendant for the entry of an order vacating the decree of dissolution entered herein on the 15th day of June 1935, and it appearing to the Court that thie plaintiff had due notice hereof in accordance with the rules of the court, and the court having jurisdiction of the subject matters and parties thereto and the plaintiff having appeared before the court by its counsel and the court having examined the files in this cause and heard the testimony of Joseph Linhart, Chairman of the Board of Directors of the defendant corporation and the statements of counsel, and being fully advised in the premises, finds:

“1. That the statutes . . . in'force at the time this proceeding was commenced and during the entire time subsequent up to the date of entry of decree herein relating to dissolutions of corporations provided that summons shall issue directed to the Sheriff of the County in which principal office in the State of Illinois as shown by the records in the Office of the Secretary of State of Illinois is located, which summons shall be served by delivering a copy thereof to the President of said Corporation if he can be found in such County, and if he cannot be found therein then by leaving such copy with the Clerk,- Secretary, Superintendent or other agent of said corporation, and in case the Sheriff shall make a return thereon that such President, Clerk, Secretary, Superintendent or other agent of said corporation cannot be found in his County then the Attorney General of Illinois shall cause publication to be made as provided in said statutes.-

“2. At all times from the commencement of the proceedings to dissolve the Corporation to and including the date of the return by the Sheriff of Cook County, Illinois herein to-wit March 13, 1935, James Karban, president and James L. Preissler, office manager, and Otto F. Bing, Secretary of said corporation, were in the County of Cook and State of Illinois and could have been found by said Sheriff and also during said entire period an agent of the defendant was located at the principal office of the defendant in Cook County, Illinois, and could have been found by said Sheriff, if said Sheriff exercised a diligent effort to obtain personal service, he conld have done so.

“That upon a return by said Sheriff, notice by publication of the pendency of the above entitled cause was obtained.

“4. The defendant has never been served with summons in this proceeding, and said attempt to give notice of this proceeding by publication and by mail after said return of said Sheriff was not in compliance with the statutes . . . then in force, and did not constitute notice to the defendant of this proceeding.

“5. That the defendant has paid its franchise taxes for the year 1934, has filed its annual reports for all years since its incorporation to and including 1934 as required by the laws of the State . . . , and has represented to the court that immediately upon the vacating of said decree for dissolution the petitioner, Joseph Linehart, will call a shareholders’ meeting as well as a meeting of the Board of Directors of said corporation and set about the preparation and the filing of annual reports for said corporation and pay the annual franchise and other taxes, for said corporation due the State . . . for all years intervening since the entry of said decree for dissolution.

“Now, Therefore, It Is Ordered that said decree of dissolution entered herein on June 15,1935, be and the same hereby is vacated and set aside and held for naught nunc pro tunc as of June 15, 1935.

“It Is Further Ordered that said cause stand continued for ninety days, that is to say, until February 26, 1940, without further notice.”

Upon December 29, 1939, James L. Preisler (appellant), upon leave of court, filed a verified petition, in substance as follows:

“. . ■. that he is a stockholder of J ames Karban & Company, Inc., ....

“. . . [This paragraph recites the entry of the decree of dissolution and the entry of the order upon the petition of Joseph Linhart.]

. . that said corporation did receive by mail, a copy of the summons of the dissolution proceedings, but no steps were made to reinstate the corporation and to pay any franchise tax, because it would not be in line with the course of conduct planned by the stockholders of said corporation, who intended to liquidate said corporation, and since 1934, gave James Karban, President of said corporation, full power to take any and all steps to liquidate said corporation, and make a distribution of the assets to the creditors and stockholders of the said corporation; that the non-payment of said franchise tax was done wilfully and deliberately, under the authority of all the directors of the corporation, and, therefore, Joseph Linhart, petitioner, had actual notice of the fact that the corporation was to be liquidated with the full consent of all the stockholders and directors and, therefore, did not act diligently on the proposition of having said corporation reinstated.

. . that at various meetings of the stockholders, it was decided that the corporation could not function profitably because of conditions, as from an examination of the minutes of the various meetings of the corporation, will more fully appear.

“. . . that Joseph Linhart is a brother of James J. Linhart, who was the original owner of two notes of the corporation, and that said notes were assigned to James J. Linhart for the purpose of enforcing the payment thereof; that . . . judgments were entered on said notes on March 7, 1939, for the purpose of obtaining a preference over all other creditors and stockholders of the corporation, and for said purpose, a creditor’s bill was filed in the Circuit Court of Cook County, Illinois, in case entitled, ‘James J. Linhart vs. James Karban & Company, Inc., a corporation, et al.’, No. 39 C 6244.

“. . . that in order to maintain said proceedings and to make their judgments good and valid, and for the purpose of securing a preference over and ahead all creditors . . . Joseph Linhart presented his petition offering to pay and did pay one year’s franchise tax and obligated the corporation for the payment of franchise taxes for the years 1936, 1937, 1938 and 1939, to the impairment of the assets of the corporation, and to the further impairment of the rights of the creditors and stockholders of the corporation, . . . so that an equitable distribution could not be made of the assets of said corporation, in line with plans heretofore made and approved by all directors and stockholders, as aforesaid.

“. . . charges . . . that said action by Joseph Linhart was without the sanction and authority of the stockholders and directors of the corporation . . . [and] were for the sole purpose of preferring the said judgments, hereinabove referred to, over other creditors who had good and valid claims against said corporation; that said action ... of Joseph Lin-hart, was contrary to the intentions of the stockholders and directors . . . ; that the liabilities of the corporation are far in excess of the assets, and the.creditors will sustain a substantial loss, and that the obligation of the corporation to pay franchise taxes will further impair the claims of said creditors and the rights of the stockholders; that it is for the best interests of the creditors and stockholders of the corporation, to have the corporation stand dissolved as of the date of the entry of the Decree of Dissolution.

“Wherefore, your petitioner prays that the order vacating the Decree of Dissolution, be vacated and set aside.”

Upon January 9, 1940, the People, by the Attorney General, filed an answer to the petition of said Preisler, which contains, inter alia, the following:

“And for a further defense the Respondent answering says that the petitioner has no right or authority to question the order vacating or setting aside the Decree of Dissolution . . . because that right or authority to question the existence of a corporation is vested only in the office granted by Statute to The Attorney General of The State of Illinois on behalf of The People of The State of Illinois.

“Your respondent further answering says that in paragraph 3 of the petition, he alleges that the nonpayment of said franchise taxes was done wilfully and deliberately, yet the petitioner is attempting to avail himself- of the rights and privileges granted under the • corporate act of The State of Illinois, when said corporation wilfully and deliberately attempted to evade the payment of this tax.

“And for a further defense the respondent answering says that he has received as part payment of the franchise taxes which is owed and due The State of Illinois, a certified check made payable to Edward J. Hughes, Secretary of State, in the sum of $200 to apply on account, and your respondent is of the opinion that if the order to vacate the Decree of Dissolution is permitted to remain in full force and effect, that it will receive the balance of the monies owed and due by James Karban & Company, Inc., a corporation.”

Joseph J. Linhart filed a verified answer to the petition of Preisler, in which he denies the charges made by Preisler and states that Preisler filed a sworn petition in Case No. 39C 6244 in the circuit court (creditors’ bill entitled James J. Linhart v. James Karban & Company, Inc., et al., seeking to restore certain assets alleged to have been taken from the corporation) , in which he stated that he first learned on October 20, 1939, that a decree of dissolution of the corporation had been entered; that Preisler has been for a number of years closely associated with the president of the corporation and has been active in the management and manipulation of its affairs, and was one of the defendants in said creditors’ bill; that James J. Karban, the other defendant in that suit, in a verified petition filed in Case No. 2783422 in the municipal court of Chicago asking for an order to vacate the judgment in that case, on which said creditors’ bill is based, stated that he, Karban, on October 20,1939, learned for the first time that the dissolution decree had been entered ; that from the date of the filing of the creditors’ bill, on or about July 3, 1939, to October 31, 1939, various hearings were had and that at no time during said period was mention made, in any way, of the dissolution of the corporation; “that neither the directors nor the stockholders had any knowledge of the dissolution and that while the question of dissolution was discussed and power to liquidate with certain proviso given to James Karban, president, the liquidation was never undertaken nor the power used, and that no dissolution was ever undertaken as provided in Sections 74, 75, 76 of the Business Corporation Act of the State of Illinoisthat if the corporation had notice of the dissolution proceedings, that “petitioner and/or James Karban . . . wilfully and fraudulently concealed that fact from this respondent and from the other directors and stockholders of the corporation and, as charged in the Creditor’s Bill, have taken over the assets of the corporation and are manipulating same for their own personal gain and advantage and have wilfully refused to attend all directors ’ meetings Called by this respondent as Chairman of the Board of Directors; that this respondent, further answering, states that he had no knowledge that the franchise taxes were not being paid, and therefore, cannot be charged with lack of diligence in reinstating the corporation;” states that no action was ever taken to liquidate the corporation; “denies that the sole purpose of filing the Creditor’s Bill was to obtain a preference over other creditors and stockholders, but on the contrary says it was for his advantage as well as that of the other creditors and the shareholders of . . . [the] corporation, and that in . . . 1936 and 1937 one of the principal defendants to said Creditor’s Bill . . . began operation of Karban Construction Company for the purpose of building homes, and Mortgage Service Company for the purpose of dealing in mortgage securities, and gave the directors and stockholders of James Karban & Company the understanding that the profits from these enterprises would accrue to the benefit of, and that these enterprises were part of James Karban & Company, . . . and that upon filing of [said] Creditor’s Bill . , . James Karban and James L. Preisler . . . filed their answer to said Creditor’s Bill, a portion of which reads as follows: ‘These defendants state the fact to be that Karban Construction Company, Emankay Properties and Mortgage Service Company are co-partnerships and are no subterfuges for James Karban and Company, and that Karban Construction Company, Emankay Properties and Mortgage Service Company, are not individually and collectively James Karban and Company, Inc. . . .; deny that they individually or trading as Karban Construction Company, Emankay Properties and Mortgage Service Company, have anything in their possession or control belonging to James Karban & Company, beneficially or otherwise. ’ ” Respondent, “further answering, says that Karban Construction Company and Mortgage Service Company are profitable enterprises, while James Karban & Company, Inc., is not profitable, and that the purpose of filing the Creditor’s Bill is to determine and judicially declare that Karban Construction Company and Mortgage Service Company are in fact and in law James Karban & Company, and thus to procure for the creditors and stockholders a means of sustaining their claims against James Karban & Company, the contention that these enterprises are James Karban & Company, Inc., a corporation is substantiated by the profit and loss Statements, Balance Sheets, Federal Income Tax Returns of James Karban & Company, Inc., for the year 1938 and prior years.” Respondent, Linhart, admits that he paid one year’s franchise taxes, and states “that the judgment creditor and plaintiff in Creditor’s Bill . . . has obligated himself to pay the franchise taxes for the years 1935 to 1939, both inclusive, out of any money acquired from said Creditor’s Bill, and that several of the stockholders and directors have voluntarily consented to payment of the franchise taxes, from profits realized, out of the continuance of the business of the corporation, or out of the assets of the corporation on liquidation.” Respondent further “states that vacation of the order reinstating James Karban & Company as a corporation will work great hardship on the stockholders and creditors of James Karban & Company, in that James Karban and James Preisler will be permitted to hold all of the assets of said corporation and it may never be properly liquidated,” and that since the decree of dissolution was entered nothing has been done to liquidate the assets of the corporation; “that no intention to dissolve was ever filed as required by law; that the stockholders were never notified of any dissolution of said corporation, and that this petitioner has no standing in this court to attack this action as he does not purport to represent the corporation or its shareholders,” and respondent prays that petitioner’s petition be denied for want of equity, etc.

Upon February 28,1940, Judge Grover C. Niemeyer entered an order denying the petition of Preisler to vacate the order vacating the dissolution decree. Appellant appeals from that order. No report of proceedings appears in the record.

A number of points are argued in this court, but in our view of this appeal the only point we need consider is the one made by the Attorney General in his answer to appellant’s petition, “that the petitioner has no right or authority to question the order vacating or setting aside the Decree of Dissolution . . . because that right or authority to question the existence of a corporation is vested only in the office granted by Statute to The Attorney General of The State of Illinois on behalf of The People ... .” The able trial judge who passed upon the motion of appellant undoubtedly was of the opinion that this point was a meritorious one. Under section 82, supra, no one but the Attorney General could file an information to dissolve a corporation. “It is for the State alone to complain of any mis-user or non-user of the powers conferred in the creation of the corporation. Coquard v. National Linseed Oil Co., 171 Ill. 480, and cases there cited.” (Lincoln Park Chap. R. A. M. v. Swatek, 204 Ill. 228, 232.) “And the government creating the corporation can alone institute such a proceeding, since it may waive a broken condition of a compact made with it as well as an individual.” (Baker v. Administrator of Backus, 32 Ill. 79, 110.) “The attorney-general was not bound to proceed at law, if at all, against the appellant, by quo warranto proceedings to forféit its charter. It may frequently better serve the public interest to restrain a corporation from exceeding its powers in an unlawful direction, than to punish it by penal remedies, or to forfeit its charter, and the attorney general may ■ elect which course he will take.” (Chicago Fair Grounds Ass'n v. People, 60 Ill. App. 488, 496.) “Only the State can complain of injury to the public or that public rights are being interfered with, and enforce a forfeiture of defendant’s franchise for that reason. [Cases cited.] ” (Coquard v. National Linseed Oil Co., supra, 171 Ill. 480, 484.) “Where a corporation, by the exercise of powers not conferred by its charter, does no private injury, and commits an offense against the public alone, the State may punish or waive the right to do so, as in the judgment of those entrusted with the appropriate power in that respect may be deemed most in consonance with the public interest. If a wrong is done by the abuse of a franchise, it is a public wrong, and a proceeding by quo warranto must be by the public prosecutor or other authorized agent of the State; and a private citizen can not, in such ease, have the aid of this extraordinary remedy. High on Extraordinary Remedies, sec. 654, and cases cited; Angell & Ames on Corp. sec. 736; Murphy v. Farmers’ Bank, 20 Pa. St. 415.” (People ex rel. Jones v. North Chicago Ry. Co., 88 Ill. 537, 544.)

From the record it appears that the order vacating the order of dissolution of the corporation was entered with the consent of the Attorney General. Appellant argues that Joseph Linhart had no authority from the corporation to make the motion to vacate the dissolution order. The Attorney General did not question the right of Linhart to represent the corporation, and if the Attorney General was of the opinion that justice required that the order of dissolution be vacated, he had the undoubted power to consent to the entry of the order vacating the order of dissolution. Indeed, the Attorney General, in a case like the instant one, might of his own motion have had the dissolution order vacated if facts came to his knowledge that showed that the dissolution order should not have been entered. The order vacating the order of dissolution recites that the court heard testimony ‘ and the statements of counsel,” and it must be presumed from the order in question that the trial court and the Attorney General were satisfied that “Joseph Linhart, Chairman of the Board of Directors of the defendant corporation,” had authority to represent the corporation in the matter of the motion. Appellant insists that the corporation is dissolved notwithstanding the order vacating the dissolution order. Then what authority has he, “a stockholder in the corporation,” to now intervene in this cause and ask, in effect, that the corporation be held to be dissolved? It is the settled law of this State that in a proceeding like the instant one only the State can insist upon a forfeiture of the franchise of the corporation. The position of appellant is a most unusual one. He alleges that Linhart had ulterior motives in filing his motion to vacate; that the effect of the order vacating the dissolution order was to impair the assets of the corporation by making it liable for franchise taxes, and perhaps other claims, and that the creditors and stockholders would be injured thereby. While such matters could not be litigated in the instant proceedings, they may all be determined in appropriate actions.

Appellees contend that although all of the charges contained in the petition of appellant were denied in the answer of Joseph J. Linhart, appellant offered no proof to sustain said charges. While this contention of appellees is very strenuously urged, we deem it entirely unnecessary, in the view we have taken of this appeal, to consider the same.

The order of the superior court of Cook county is affirmed.

Order affirmed.

Friend, P. J., and John J. Sullivan, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    City of Park Ridge, Appellee, v. J. Kussy et al., Defendants. Coca-Cola Bottling Co. of Chicago, Inc., Appellant.
    Gen. No. 41,329.

      Opinion filed November 26, 1940.
    Joseph P. Savage, of Chicago, for appellant; W. F. McLaughlin and A. D. McMahon, both of Chicago, of counsel.
    Monahan & Monahan, of Chicago, for appellee; Robert J. Monahan and Thomas A. Matthews, of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Cook county that the City of Park Ridge, appellee (hereinafter called plaintiff), recover from appellant, Coca-Cola Bottling Co. of Chicago, Inc. (hereinafter called defendant), the sum of ten dollars and costs for violation of an ordinance regulating vehicles carrying foodstuffs.

The cause was submitted to the court on the following stipulation:

. . that the trial court may take judicial notice of all relevant ordinances of the City of Park Ridge, Illinois, and of the ordinances of the City of Chicago mentioned in Paragraph (4) of this stipulation.

(1) That since April 17, 1925 Coca-Cola Bottling Co. of Chicago, Inc. has been, and now is, a foreign corporation, duly licensed to do business within the state of Illinois . . .

“(2) That on the first day of July 1935, the . . . corporation was duly licensed under the laws of the State of Illinois to do business within that State; that ever since said date and continuously up to the present time, pursuant to said license and by virtue of the powers granted to it in its charter, the said Coca-Cola Bottling Co. of Chicago, Inc. has been engaged in the manufacture and distribution of Coca-Cola.

“(3) That Coca-Cola is a carbonated, non-vinous, non-malt and non-intoxicating beverage; and . . . is the only product manufactured and distributed by said . . . Bottling Co. . . .

‘ ‘ (4) That the manufacturing plants of the said . . . Bottling Co. of Chicago, Inc. are located at the following street addresses in the City of Chicago, to-wit: . . . that said manufacturing plants are duly licensed by the City of Chicago and are subject to the regulations of, and inspection by, the officers of the Department of Health of said City.

“(5) That Coca-Cola, the only beverage manufactured by said company, is manufactured by blending a syrup compound containing fruit juices with pure, filtered and carbonated water; that said blending is done entirely by machinery, and that neither the said syrup compound nor the carbonated water mixed therewith is touched by human hands during the course of manufacture; that when the beverage is blended it is placed in cleansed and sterilized glass bottles; that the said bottles are placed by hand in a washing and sterilization machine, which then automatically cleanses and sterilizes each bottle and feeds the bottles so sterilized to the blending machine, where they are filled and hermetically sealed; the bottles so sealed are placed in cases, each case containing twenty-four bottles and each being of a distinctive character and bearing thereon the trade mark ‘Coca-Cola’; that neither the bottles nor the beverages are handled in manufacture or in bottling, the only work done by hand being the placing of the bottles in the cleansing machine, and in the cases after they are sealed.

“(6) That said Coca-Cola Bottling Co. of Chicago, Inc. employs automobile trucks exclusively in distributing its said product; that said trucks have an open-deck body, especially designed to contain the Coca-Cola cases, so that no case is placed upon or over another; that said trucks are provided with curtains or shields of tarpaulin for use in inclement weather; that a photo of a typical Coca-Cola truck loaded with the cased beverage is attached to and made a part of this stipulation.

“(7) That the said . . . Bottling Co. . . . maintains offices and distributing centers in charge of regular employees in the following communities in Illinois: In the City of Joliet, an office and depot, employing seven persons; in the City of Waukegan, an office and depot, employing seven persons; in the City of Chicago Heights, an office and depot, employing eight persons; in the City of Elgin, an office and depot, employing eight persons; in the City of Aurora, an office and depot, employing seven persons; that each of said depots and offices was opened with a single employee, but the number of employees has been and is gradually increased as the business of the company expands; that said offices and distributing centers have been maintained since the beginning of the company’s operation.

“(8) That the Coca-Cola manufactured and distributed by said . . . Bottling Co. ... is sold only to retail dealers.

“(9) That said . . . Bottling Co. . . . employs salesmen, who call on retail dealers of soft drinks in the territory supplied by said company, which territory extends to points within the state of Illinois, located within approximately 50 miles of the City of Chicago; that said salesmen distribute advertising matter of the said company and try to induce retail dealers to purchase Coca-Cola from the said Company.

“(10) That said . . . Bottling Co. ... in the development of its business has created and does now maintain routes to be covered by its delivery trucks, which routes depend largely on the location of the places of business of the regular customers of said company.

“(11) That one of the routes now maintained by said Coca-Cola Bottling Co. of Chicago, Inc. passes over, upon and along the streets of the City of Park Ridge, Cook County, Illinois.

“(12) That on June 7, 1939, there was in force in the City of Park Ridge, Illinois, an ordinance in words and figures as follows:

“ ‘An Ordinance

“ ‘Regulating the Vehicles Carrying Foodstuffs.

“ ‘Be it ordained by the City Council of the City of Park Ridge, Cook County, Illinois:

“ ‘Section 1. (License required.) It shall be unlawful to use or permit the use of any vehicle, including wagons and motor vehicles and vehicles propelled by human power, for the storage or carrying of any meats, poultry, fish, butter, cheese, lard, vegetables, bread or bakery products, or any other provisions intended for human consumption, including beverages and milk, in the City for the purpose of delivering any such foodstuffs to any place in the City for use and consumption or for resale in the City for such purposes, unless a license for such vehicle is first secured and the provisions of this ordinance fully complied with.

“ ‘Application for such licenses shall be made to the City Clerk and shall state thereon the name and address of the owner thereof, the name or names of the persons from which such deliveries are made, and the nature of the goods carried. The Clerk shall issue such licenses, and shall give to the City Council a list of all of such licenses issued.

■ “ ‘The annual fee for such licenses shall be Ten Dollars and such license shall be for one year beginning on the first day of January of each calendar year. Such fees shall be paid to the City Clerk who shall turn them over to the City Treasurer forthwith.

“ ‘Section 2. (Exemption.) No license fee shall be required for any vehicle used to deliver foodstuffs from any establishment which is licensed and inspected as a food dealing establishment in the City; but all provisions of this ordinance shall be complied with in connection with such vehicles other than that providing for the payment of the fee.

“‘Section 3. (Regulations.) All such vehicles shall be kept in a clean and sanitary condition, and shall be thoroughly cleaned each day they are so used. It shall be unlawful to permit stale food, decaying matter or other waste material to accumulate in or on any such vehicle while it is so used.

“ ‘If unwrapped foodstuffs are transported in any such vehicle, such goods shall be carried in a portion of the vehicle which' is screened and protected against dust and insects.

“ ‘Section 4. (Inspections.) It shall be the duty of the Mayor to make or cause to be made such inspections as may be necessary to insure compliance with the provisions of this ordinance,

“ 6Section 5. (Penalty.) Any person, firm or corporation violating the provisions of this ordinance shall be fined not less than five dollars nor more than one hundred, dollars for each offense, and a separate offense shall be deemed committed on each day during or on which a violation occurs or continues. Any license granted under the provisions of this ordinance may be revoked by the Mayor for any violation of Section 3 hereof, and such revocation shall be in addition to any fine imposed by virtue of this section.

“ ‘ Section 6. All ordinances or parts of ordinances in conflict herewith are hereby repealed.

“ ‘Section 7. (Time of taking effect.) This ordinance shall be in effect from and after its passage, approval and publication according to law.

Cí É ?

“ (13) That on said date, one of the automobile trucks delivering Coca-Cola was passing through the said City of Park Eidge under the control of a driver named J. Kussy and had delivered, or was about to deliver Coca-Cola in cases to various retail dealers in said City; that neither said driver . . . nor his employer, Coca-Cola Bottling Co. of Chicago, Inc., had a license as required by the terms of the ordinance hereinbefore in Paragraph 12 set forth; that the Coca-Cola Bottling Co. of Chicago, Inc., was not on June 7, 1939 licensed as a food dealing establishment in the City of Park Eidge; that the said automobile truck so being operated . . . was on said day delivering nothing but bottled Coca-Cola manufactured by his employer, Coca-Cola Bottling Co. of Chicago, Inc.; that said J. Kussy and employees of Coca-Cola Bottling Co. of Chicago, Inc. service in the City of Park Eidge a total of thirty-five (35) retail dealers; seventeen (17) of these dealers are in the grocery business; four (4) operate drug stores; four (4) operate cafes; two (2) operate fruit stores; five (5) operate filling stations; and one (1) operates a golf club; one (1) a confectionery store; and one (1) a bowling alley.

“ (14) That before, at the time, and since, the adoption of the ordinance set forth in Paragraph (12), the City of Park Ridge maintained a police department consisting of eleven men, to-wit: one captain of police, one lieutenant of police, one sergeant of police, six policemen and two desk clerks; and that it was, and is the duty of said police department, among other things, to enforce all municipal ordinances; that the City of Park Ridge appropriates $30,000.00 annually for the operation and maintenance of the police department.

“(15) That the Mayor of the City of Park Ridge, with the approval of the City council, by virtue of the authority of municipal ordinances, appoints a city inspector whose duty it is to enforce the regulations and make the inspections of vehicles carrying foodstuffs, as provided in the ordinance set forth in Paragraph (12) and that the annual salary of the city inspector is $980.00; that a city physician is appointed by the Mayor with the approval of the City Council, whose duty it is to see to the enforcement of all ordinances relating to food or drink intended for human consumption and that the annual salary of the city physician is $300.00.

“(16) That beverage dealers and distributors other than the Coca-Cola Bottling Co. of Chicago, Inc., employ trucks to carry, distribute and deliver bottled beverages in the City of Park Ridge and that such trucks are of a varied construction, design and appearance. ’ ’

In its original brief defendant states its position as follows: “Because the food product involved in this record, Coca-Cola, is delivered only in sterilized and hermetically sealed glass bottles; and because by reason of such fact there is no possibility of contamination of the product, sterilization involving the idea of freeing from germs and making the product pure, and hermetically sealed container involving the idea of a container which is impervious even to air; and because Coca-Cola ... is produced under complete regulation and under the supervision of the Department of Health of the largest city of this State; and because that Health Department likewise inspects the vehicles used in carrying Coca-Cola; and because, in addition thereto, the City of Park Ridge has ordinances, which, by regulating and licensing their retail dealers, who distribute Coca-Cola, protect the health of their citizens purchasing food products for all these reasons, it must be manifest that any attempt to include the delivery trucks of the Coca-Cola Bottling Co. of Chicago, Inc., within the terms of the ordinance here in question, is unreasonable and unfair.” In its reply brief defendant concedes that the ordinance is a valid one “and properly applicable to vehicles which are used to transport foodstuffs that are subject to contamination during delivery,” but defendant contends that “it should be held on the facts shown by this record that the ordinance of Park Ridge should not be applied to vehicles which deliver only one product, and that product in sterilized and hermetically sealed containers.” In its reply brief defendant also states: “We argued in our brief that while it might be true that the Coca-Cola Co. vehicles were within the letter of the Park Ridge ordinance, it was clear from the facts in this record that those vehicles were not within the spirit of the ordinance and that to subject them to inspection for the purpose sought by the ordinance would be unreasonable;” that “the ordinance of Park Ridge should not be so construed as to include within its terms the delivery trucks of a manufacturer who ships his product in sterilized and hermetically sealed ■ containers. In such a case there is no necessity for inspection of the vehicle because the condition of the vehicle can have no ill effect upon the food product incased in the sterile and impervious container.”

Defendant concedes that it was held in American Baking Co. v. Wilmington, 370 Ill. 400, that the ordinance in question is a valid one, but defendant calls attention to the fact that the point it is making was not raised by the appellants in the Wilmington case. It does appear, however, from the opinion of the court, that the plaintiffs in that case alleged in their complaint that they were “engaged in the business of distributing foodstuffs at wholesale to various cities, including the city of Wilmington, and their residence and principal places of business are outside the city of Wilmington; that trucks are used to make such deliveries, all of which trucks were duly licensed by the State of Illinois and by the city of Joliet; that all of the vehicles of plaintiffs have been duly inspected and their sanitary conditions ascertained by local authorities of the place of residence or principal place of business of each of the plaintiffs; that the trucks and vehicles are operated under sanitary conditions and that the articles contained therein are in a clean, healthy condition and wrapped in sealed containers; that the products of plaintiffs are duly inspected, and the source of supply thereof inspected in compliance with all of the pure food laws of the State of Illinois and of the Federal government.” We think it is quite likely that the aforesaid point was not argued in the Supreme Court because of the decision in City of Chicago v. Arbuckle Bros., 344 Ill. 597. We will hereafter refer to that case.

Defendant contends that the point it makes has authority to support it. We will briefly refer to the cases cited:

City of Chicago v. Chicago & N. W. Ry. Co., 275 Ill. 30, was a suit brought against the Railway Company for a violation of the city ordinance regulating the production, transportation and sale of milk. The section of the ordinance upon which the prosecution of the case was based reads: “It shall be unlawful for any person, firm or corporation to transport into the city of Chicago, or to transport or deliver from point to point within the city, milk, cream, skim milk or buttermilk for human consumption which is of a higher o temperature than 60 degrees Fahrenheit, provided that after June 1, 1914, it shall be unlawful for any person, firm or corporation to transport into the city of Chicago, or to transport from point to point within the city, or to deliver, any milk, cream, skim milk or buttermilk for human consumption which is of a temperature higher than 55 degrees Fahrenheit.” The Supreme Court held that under the record in the case it was impossible to tell what practical regulations should be included in an ordinance in reference to the transportation of milk by common carriers from the various shipping points to the city of Chicago; that the ordinance, under the record, imposed conditions that the Bailroad Company could not possibly comply with. But the Supreme Court stated that the question as to whether or not the requirements were reasonable was not properly covered in the trial court, and reversed the judgment, but remanded the cause in order to give the City an opportunity to present proof upon the question as to whether or not the requirements of the ordinance were reasonable. That case has no application to defendant’s point in the instant case.

City of Chicago v. Arbuckle Bros., supra, cited by defendant, in our opinion not only does not aid defendant’s contention but the reasoning of the court is adverse to it. There the defendant was convicted of conducting a wholesale food establishment without a license in violation of section 2004 of the Chicago municipal code. The ordinance provides for sanitary regulations of wholesale food establishments. To quote from the opinion of the Supreme Court (p. 600): “The plaintiff in error is engaged in the business of receiving, packing and selling at wholesale, coffees, teas, spices and flavoring extracts. The coffee is received in bulk and is then roasted and ground and packed in containers by machinery. Most of the teas are kept and sold in their original containers, though some teas are picked over and repacked. All spices are handled automatically, without the intervention of human hands, except that an original package of allspice will be broken when someone wants a smaller quantity, and whole spices are handled occasionally. The flavoring extracts are also manufactured without the intervention of human hands. The products of the plaintiff in error are distributed in all the States east of the Rocky Mountains. The business of the plaintiff in error subjects it to the provisions of the act ‘to prevent the preparation, manufacture, packing, storing, or distributing of food intended for sale, or sale of food, under insanitary, unhealthful or unclean conditions or surroundings, to create a sanitary inspection, to declare that such conditions shall constitute a nuisance, and to provide for the enforcement thereof, ’ approved June 5, 1911. (Laws of 1911, p. 528.)” The court further said (pp. 604, 605): “If there is a reasonable connection between any business or occupation and danger to the public a reasonable ground for regulation is presented. Insanitary conditions in the production, keeping, handling and sale of food may result in unwholesome food and affect the health of the persons who purchase it. The probability of the existence of these conditions renders the business of the sale of food a proper one for municipal regulation, and the city council is the judge of the expediency of regulation. . . . It is argued on behalf of the plaintiff in error that if there is any question of public health connected with the distribution of the articles dealt in by it the question is very remote; that most of the operations involved in the preparation of its products are accomplished through the use of automatic machinery; and furthermore, that teas and coffees, before consumption, are prepared with boiling water in the home and spices and flavoring extracts are used sparingly in cooking. However remote the question may be, whether it exists and the degree of its importance are for the determination of the city council, and while its determination is not final, it will not be set aside if there is any reasonable relation between the action of the council and the public health. . . . It may be that the plaintiff in error has never violated the terms of the ordinance in regard to the conditions under which its business must be conducted. It is not charged with any such violation. The sole charge against it is that it operated a wholesale food establishment without obtaining a license. The duty of obtaining a license applies equally to those who violate the terms of the ordinance and those who do not. All are required to have a license, and it is no defense to a charge of carrying on the business without having a license that the business was conducted strictly according to the terms of the ordinance.”

In City of Mt. Vernon v. Julian, 369 Ill. 447, the court held that a comprehensive Sunday closing ordinance purporting to make it unlawful to keep any place of business open on Sunday with certain enumerated exceptions, is invalid as being arbitrary and discriminatory and not a proper exercise of the police power where it operates to prohibit the keeping open of a community or neighborhood grocery store, while other businesses, having no greater connection with the public welfare, but being among the enumerated exceptions, a're allowed to be kept open.

In City of Chicago v. Netcher, 183 Ill. 104, the defendant conducted a department store and was convicted for the violation of two ordinances of the City. The cases were tried on an agreed statement of facts before the court without a jury. The court held both ordinances void and found the defendant not guilty. The Supreme Court sustained the trial court. As to one of the ordinances, making it unlawful for any person, firm or corporation engaged in selling “dry goods, clothing, jewelry, and drugs ... to have exposed for sale, or sell to any person, firm or corporation, any meats, fish, butter, cheese, lard, vegetables or any other provisions,” the Supreme Court held that such ordinance was not a regulation but a purely arbitrary prohibition and void as an interference with property rights guaranteed by the State and Federal constitutions. As to the second ordinance, which forbad any person, firm or corporation to expose for sale or sell any intoxicating, malt or fermented liquor in any place of business where dry goods, clothing, jewelry or hardware are sold, the Supreme Court held that such ordinance was unreasonable and void as to one who has complied with the license regulations, and who sells liquor in sealed packages only and not for consumption on the premises, since such restriction was arbitrary and did not tend to protect public welfare.

The ordinance involved in the instant case was declared valid in American Baking Co. v. Wilmington, supra. None of the cases cited by defendant supports its contention that because it uses clean, sanitary trucks and the beverage, Coca-Cola, is delivered to retailers in cases containing sterilized and hermetically sealed glass bottles, the ordinance in question should not be applied to its delivery vehicles. The fact that at the present time it handles its product in a sanitary manner does not exempt it from the license fee, nor does it make the ordinance invalid as to it. As plaintiff strenuously argues, if defendant’s point were sustained then the City could exact licenses only of such owners as allowed their trucks to become unclean and unsanitary.

In a final plea defendant states: “Although the license fee in the instant case may appear to be trifling, it becomes plain, when we consider the facts in this record, that a very serious situation is faced. If municipal corporations in this State are to be given power to inspect vehicles which deliver only hermetically sealed and sterilized containers, it becomes apparent that a very obnoxious trade barrier can be erected within the metropolitan district of Chicago. There are upwards of 85 municipal corporations in Coolc County alone, and if each of those communities has power to enact such an ordinance it becomes readily apparent that they are in a position to put a very effective clog on business throughout the State of Illinois. Such a condition should not be tolerated. No community in Illinois can be self-sufficient and altogether self-contained. Each must buy and use products manufactured in other cities and even in other states. Where adequate safeguards and inspections are provided in the manufacturing center, they should satisfy the residents of adjoining communities. Any license laid upon a manufacturer under such circumstances is manifestly laid as a tax and not a reasonable, fair inspection fee.” The ordinance, as we have already stated, has been held valid by the Supreme Court, and it is not our province to pass upon the wisdom of it. Ferguson Coal Co. v. Thompson, 343 Ill. 20, 27, states: “Where an ordinance is within the grant of power conferred upon municipalities the presumption is that it is reasonable. (McCray v. City of Chicago, 292 Ill. 60.) In order to justify a court in interfering on the ground that an ordinance is unreasonable the proof must be clear and strong, and the action of the city council is final if there is room for reasonable difference of opinion upon the question. (Dorwart v. City of Jacksonville, 333 Ill. 143.) A court will not hold an ordinance void and unreasonable if there is room for a fair difference of opinion upon the question, though the correctness of the" legislative judgment'may be doubtful and the court may regard the ordinance as not the best which might be adopted for the purpose. Melton v. City of Paris, 333 Ill. 190.”

After giving careful consideration to the points made by defendant, we have reached the conclusion that the judgment of the circuit court of Cook county must be affirmed and it is so ordered.

Judgment affirmed.

Friend, P. J., and John J. Sullivan, J., concur.