(dissenting in part).
I regret that I am unable to agree that the ordinance violates the public policy of-Illinois as expressed in Illinois Revised Statutes 1939, Chap. 56%, Section 115-134.
Under Koy v. City of Chicago, 263 Ill. 122, 104 N.E. 1104,. Ann.Cas.1915C, 67, the-authority of Illinois cities to regulate the sale and distribution of milk includes power to declare the means by which purity, wholesomeness and freedom from disease shall be secured; to require milk containers to be of prescribed character and to protect the public generally in the sale and distribution of milk. This municipal authority, thus defined by the Supreme Court, is still lodged in the city unless there is something in the statute mentioned which has expressly or impliedly withdrawn it.
The statute does not direct the use of paper milk bottles. It inferentially recognizes that single servicé containers' of some character will be employed but there is no provision that cities must permit them to be used. The whole effect of the enactment is that if “single-service” -containers are used they shall conform to certain minimum requirements to be prescribed by the Illinois Department of Public Health. To my mind this legislation did not take from the city power to determine whether paper milk bottles were reasonably possibly dangerous to health and therefore should not be used. Indeed, the legislature apparently recognized the retained police power of the city in the provision that nothing in the act “shall impair or abridge the power of any city * * * to regulate the handling * * * [and] sale * * * of pasteurized milk.” This language, it seems to me, was not meaningless or surplusage, as announced in the majority opinion, but rather in the nature of a declaratory clause maintaining the existing status, inserted by the legislature in an abundance of caution, to assure municipalities that their power to act in the premises was not taken away, provided their ordinances should not in any way conflict with the provisions of the statute.
To my mind this is far removed from those cases where the legislature has entered the field and by its action taken over all the police power upon any specific subject, such as confronted the court in Northern Trust Company v. Chicago Rys. Co., 318 Ill. 402, 14.9 N.E. 422 and City of Chicago v. Jensen, 331 Ill. 129, 162 N.E. 115. In case of such complete occupation of the range there is no area left in which the city may legitimately operate. Here the state has apparently left to the city the right to determine whether paper milk bottles shall or shall not be used. The language of City of Chicago v. Union Ice Cream Co., 252 Ill. 311, 96 N.E. 872, Ann.Cas.1912D, 675, is pertinent.
The master found upon substantial evidence a number of facts bearing upon the undesirability of'use of paper milk bottles, showing clearly that at least the question of desirability of their use is debatable. In such casé the city council is entitled to exercise its own administrative and legislative judgment, — a judgment not to be superseded by verdict of a jury or decision of a court. Carolene Products Co. v. Evaporated Milk Ass’n, 7 Cir., 93 F.2d 202; United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778; 82 L.Ed. 1234; United States v. Morgan, 61 S.Ct. 999, 85 L.Ed. 1429. See annotation 119 A.L.R. 243.
I think the ordinance should be sustained.