straining the city from enforcing the ordi- Counsel for appellee do not contend that the nance. The city answered the bill, averring, among other things, that the business conducted by complainants is of such a nature that it affects the health of the people at large by reason of the process of manufacture and by reason of the fact that the product of such concerns is used as food, and that many of such manufacturers will not observe health regulations unless rigid inspections and restrictions are enforced; avers that it is necessary for the city to expend large sums of money in making inspections of such manufacturing plants, and denies that the business of manufacturing confectioners does not need to be inspected or regulated for the sake of public health; admits that the city had made demands upon complainants for the payment of the license fees provided for in the Code and that it intends to institute prosecutions against complainants for failure to take out licenses as required by the ordi nance. Upon the trial complainants introduced evidence showing the number of concerns engaged in the business and the nature of the products used in their business. Defendant introduced in evidence the testimony of a physician of the health department of the city for the purpose of showing the need of inspection of the business of complainants, promotive of sanitary conditions, materials used in the manufacture of confectionery, the nature of the inspection and of the regulations of the business by the city. The court held that the several sections of the Code were valid and enforceable and dismissed the bill for want of equity. The errors relied on for reversal of the decree are: (1) The city has not been expressly delegated power by the Cities and Villages Act to regulate the business of complainants; (2) clause 78 of section 1 of article 5 of the act (Smith-Hurd Rev. St. 1927, c. 24, § 65) giving the city power "to do all acts, make all regulations, which may be necessary or expedient for the promotion of health or the suppression of disease," does not authorize the city to pass the ordinance licensing the business of complainants. Without setting out in extenso the sanitary requirements of the ordinance, it is sufficient to say that under the sole question presented they are conducive to a healthful environment in the manufacture and handling of confectionery. The ordinance is not challenged in that respect nor on the ground that it is not a proper police regulation if a valid ordinance. [1] The first contention of counsel for appellants is that the city has no inherent power to license occupations, and that the power to license must be found in the charter, expressly granted or as a necessary incident to carry out some power expressly granted. city has authority to license occupations except as an incident to regulation. Reliance is placed by appellants upon Barnard & Miller v. City of Chicago, 316 111. 519, 147 N. E. 384, 38 A. L. R. 1533, in support of their contention. It defines the licensing power of municipal corporations, with its limitations. Part of the opinion relied on reads: "This court has many times held that power to license or tax an occupation must be expressly granted to cities by the Legislature or be a necessary incident to a power expressly granted. City of Chicago v. Murphy, 313 III. 98 [144 Ν. E. 802]; Potson v. City of Chicago, 304 111. 222 [136 Ν. Ε. 594]; Condon v. Village of Forest Park, 278 Ill. 218 [115 N. E. 825, L. R. A. 1917E, 314]; City of Chicago v. Mandel Bros., 264 Ill. 206 [106 N. E. 181]; People v. City of Chicago, 261 III. 16 [103 Ν. Ε. 609, 49 L. R. A. (N. S.) 438, Ann. Cas. 1915A, 292]; City of Chicago v. Ross, 257 III. 76 [100 Ν. Ε. 159, 43 L. R. A. (N. S.) 205]; City of Chicago v. Μ. & M. Hotel Co., 248 Ill. 264 [93 N. E. 753]. If the business sought to be regulated does not tend to injure the public health or public morals or to interfere with the general welfare it is not a subject for the exercise of the police powLowenthal v. City of Chicago, 313 III. 190 [144 Ν. Ε. 829]. Section 1 of article 5 of the Cities and Villages Act, with its one hundred clauses, is the source of the legislative power of the city council. Its powers are therein enumerated to the exclusion of all other subjects. City of Chicago v. Murphy, supra; City of Cairo v. Bross, 101 III. 475." er. Arms v. City of Chicago, 314 III. 316, 145 N. E. 407; Lowenthal v. City of Chicago, 313 III. 190, 144 N. E. 829, supra; Potson v. City of Chicago, supra, and City of Chicago v. M. & M. Hotel Co., supra, are also relied on as authorities against the power to pass the ordinance. The ordinances in those cases differ in purpose from that now attacked. The Arms Case held that the city had no power to require electricians to be licensed. In the Lowenthal Case it was held that things which may or may not be injurious to the public, according to the manner in which they are managed, conducted, and regulated. may be licensed for the purpose of regulation, but a business which has no tendency to injure the public health, affect public morals, or interfere with general welfare is not a subject for the exercise of the police power. The clear implication is, if the business tends to affect either, the power to license exists. In the Potson Case it was held that a city has no power, except by delegation from the General Assembly, to license any occupation or require the payment of a tax for the privilege of engaging in an occupation, and such power must be reasonably necessary to make effective a power expressly granted; therefore restaurant keepers could not be required to take out a license. It was further held that the General Assem (161 Ν.Ε.) bly had not given power to cities to require a license of the keeper of a restaurant, and that the term "keepers of ordinaries," mentioned in clause 5 of section 1 of article 5 of the act, does not include restaurant keepers. In City of Chicago v. M. & M. Hotel Co. it was held that power to license hotels had not been conferred upon the city, and therefore the ordinance requiring a license to conduct the business was void, but it did not appear that the operation of hotels is attended by danger to the health of employees or patrons, and therefore there was no occasion to license, as an incident to the power to regulate, the business. It is contended by appellee that the power to license, as limited by the above cases, is applicable and supports the ordinance now attacked. The insistence is that the ordinance is not one to license the business of appellants as a business or for the privilege of engaging in it, but is in furtherance of the limitations upon the licensing power announced in the cases cited and in numerous other cases from City of Cairo v. Bross, supra, to the last decision of this court. Appellee justifies the licensing power exercised upon the principle that the business of appellants, if not properly safeguarded, is one tending to injure the public health by the use of deleterious ingredients employed in the manufacture of confectionery and uncleanly environment, and is therefore a proper subject for its exercise under clause 66 of section 1 of article 5 of the Cities and Villages Act. The case of Moy v. City of Chicago, 309 Ill. 242, 140 N. E. 845, relied on, among others, by appellee, is said by appellants to stand alone as authority for support of the ordinance now under consideration. It is contended that it is unsupported by any decision preceding or following it. Counsel say: "If the Moy Case is extended to cover manufacturing confectioners the whole line of decisions of this court will be nullified. Drug stores, factories, restaurants, and hotels cannot be licensed because no express power exists. Confectioners can be, and such a result is impossible in view of the decision of this court." They acquiesce in the decision in City of Chicago v. Union Ice Cream Co., 252 III. 311, 96 Ν. Ε. 872, Ann. Cas. 1912D, 675, but say a different question is presented here. The difference between that case and this is really one not more substantial than that between ice cream and candy. Both are manufactured as articles for consumption by man. Sanitary environment and wholesome ingredients are essential in the manufacture of both in the interest of public health. In that case Mr. Chief Justice Carter said: "The laws of the state operate within the limits of municipal corporations the same as elsewhere, unless otherwise clearly provided by municipal charters or statute. Local laws and regu161 Ν.Ε.-31 * * * lations are at all times subject to the paramount authority of the Legislature. Did the Legislature intend by the passage of the Pure Food Act in 1907 [Hurd's Rev. St. 1909, c. 127b] to deprive municipal authorities of all power to legislate on subjects touched upon or regulated by said act? Clearly not. Said act has certain provisions with reference to milk and its measurement, but this court has held since its passage that a municipality could regulate by ordinance the size of the bottles or jars in which milk was sold. City of Chicago v. Bowman Dairy Co., 234 III. 294 [84 Ν. Ε. 913, 17 L. R. A. (N. S.) 684, 123 Am. St. Rep. 100, 14 Ann. Cas. 700]. There are also many provisions in said Pure Food Act with reference to food. We recently held that a municipality could pass an ordinance regulating the sale and weight of bread. City of Chicago v. Schmidinger, 243 III. 167 [90 Ν. E. 369, 44 L. R. A. (N. S.) 632, 17 Ann. Cas. 614]. We think it is clear that the Pure Food Act was not intended to deprive cities and villages of the authority given by the provisions of article 5 of the City and Village Act to regulate and control, by ordinances not in conflict with said Pure Food Law, the sale of foods, including such regulation as provided in said section 1160 of the Revised Municipal Code of Chicago. Municipal ordinances must be in harmony with the general laws of the state and with the municipal charter. In case of a conflict the ordinance must give way. The great weight of authority is to the effect that the Legislature may confer police power upon a municipality over subjects within the provisions of existing state laws. An act may be a penal offense under the laws of the state, and further penalties, under proper legislative authority, may be imposed for its commission by municipal ordinances. The enforcement of one would not preclude the enforcement of the other." As was said in that case, the ordinance now considered does not prohibit what the statute permits. There is no repugnancy between them. The general policy underlying both is the promotion of health in the production and sale of wholesome articles eaten by children and adults. In City of Chicago v. Drogasawacz, 256 III. 34, 99 N. E. 869, defendant in error was required to take out a license to operate a bakery. He resisted the requirement and the court below sustained him. This court, reversing the judgment, held that under clauses 50 and 53 of section 1 of article 5 of the Cities and Villages Act the power to "regulate the sale" under the first section, and to provide for and "regulate the inspection" under the second, conferred power to license bakeries. Bakeries were not mentioned in either clause or in any section, but the power having been conferred to regulate the sale and the inspection of specific articles of food, the general words "all other provisions" and "other provisions" must be construed as applying to articles of food, including bakery products, such products being of the same character as those specifically mentioned. The reason for sustaining the power to license was: "The power to regulate confers the power to license. Kinsley v. City of Chicago, 124 Ill. 359 [16 Ν. E. 260]; Chicago Packing Co. v. City of Chicago, 88 III. 221; Gundling v. City of Chicago, 176 Ill. 340 [52 Ν. Ε. 44, 48 L. R. A. 230]; 2 Dillon on Mun. Corp. (5th Ed.) § 665. Clearly, by its terms this ordinance is not a revenue measure, but one to regulate bakeries in said city, the sale of the food products therein and the sanitary conditions under which they are produced." Moy v. City of Chicago, supra, rests upon precisely the same principle. It is an application of the health and police clauses of section 1 of article 5 of the Cities and Villages Act. The power to license was exercised as an incident of the power to regulate the business of laundries. It had a manifest relation to the purpose. The principle underlying the exercise of the police power in the conservation of health is thus expressed: "The ordinance is clearly a health regulation, and the city had authority, under paragraph 78, of the same section, to pass the ordinance. That paragraph provides that the city shall. have power 'to do all acts, make all regulations which may be necessary or expedient for the promotion of health or the suppression of disease.' This clause gives the city the power to compel any owner or occupant of a building to keep it in a sanitary condition and to conduct his business so that it will not endanger the health of the employees or of the public. City of Chicago v. Pettibone & Co., 267 111. 573 [108 Ν. Ε. 698]. We have held that the city has authority, under this provision, to regulate the conduct of bakeries (City of Chicago v. Drogasawacz, 256 Ill. 34 [99 N. E. 869]) and the distribution of milk (Koy v. City of Chicago, 263 III. 122 [104 N. E. 1104, Ann. Cas. 1915C, 67]). Under paragraph 66, which gives cities the power to 'pass and enforce all necessary police ordinances,' the city council is given authority to pass this ordinance to carry out the purposes of paragraph 78. It is manifest that the laundry business is of that character which without proper regulation may create unsanitary and unhealthful conditions, and that by the employment therein of persons suffering from communicable or contagious diseases, or by the improper mixing and laundering of the soiled linens of different people, the health of the public is seriously endangered. There seems to be no doubt that the city had authority, under paragraphs 66 and 78, to regulate the establishment and operation of laundries and to provide a license fee to care for the additional expense incurred by the city in properly enforcing such regulation." * * * Counsel say the power to regulate manufacturing confectioners has not been conferred upon cities, and that if the power exists it must be under clause 78. It is further said the licensing of such establishments cannot be justified as a health measure because the regulation provided for is required under state statutes, but they make no reference to any such statute. In City of Chicago v. Drogasawacz, supra, it was contended that cities had no authority to pass the sanitary provi sions contained in the ordinance there in question and to license as an incident thereto, as that subject was fully covered by sections of the statute with reference to the inspection of establishments where food is prepared, manufactured, packed, stored, distributed, or sold. It was said in reply to the contention: "Municipal ordinances must be in harmony with the general laws of the state, but this ordinance does not in any way conflict with the state law." The ordinance now under consideration conflicts with no statute to which our attention has been called. The terms of the ordinance confer power to be exercised concurrently with, but which does not conflict with, a like power vested in or exercised by the state. [2] It is argued that clauses 50 and 53, relied on in part by appellee. not embracing candy and confectionery as subjects of regulation and inspection, afford no authority for regulating or inspecting the business of appellants. But it was held in City of Chicago v. Drogasawacz, supra, that the general words "and other provisions" in those clauses include bakery products, which clearly are food. Bouvier's Law Dictionary defines "provisions" as food for man; victuals. In Savage v. Jones, 225 U. S. 501, 32 S. Ct. 715, 56 L. Ed. 1182, it was said the word "food," used in the Federal Pure Food Law (21 USCA §§ 1-5, 7-15), includes all articles used for food, drink, confectionery, or condiment for man or other animals, whether simple, mixed, or compound. In the Pure Food Act of this state (Smith-Hurd Rev. St. 1927, c. 56%) confectionery is included in the catalogue of foods. In Commonwealth v. Pflaum, 236 Pa. 294, 84 A. 842, Ann. Cas. 1913E, 1287, it was said: The universal use of confectionery of all sorts by adults and by children renders it pre-eminently a fit subject for surveillance as an article of commerce under pure food laws and its manufacture and preparation for commerce where it is manufactured. We are of the opinion the ordinance in question is a valid police regulation and within the competence of the city to enact. That is the only question argued or presented by the assignment of errors. The decree of the circuit court sustaining the demurrer to the bill and dismissing it for want of equity is therefore affirmed. (161 Ν.Ε.) PER CURIAM. The foregoing opinion re ported by Mr. Commissioner Crow is hereby adopted as the opinion of the court, and judgment is entered in accordance herewith. Decree affirmed. (330 111. 373) was affirmed by the Appellate Court (244 Ill. App. 171), and plaintiff brings certiorari. Affirmed. James Percival Pio, of Chicago, for plaintiff in error. Hayden N. Bell, of Chicago, for defendant in error Lane. PER CURIAM. Margaret J. K. Lane sold SHERMAN STATE BANK v. SMITH et al. and conveyed certain real estate in Cook (No. 18306.) Supreme Court of Illinois. April 21, 1928. 1. Mortgages 239-Where trustee named in Where trustee named in trust deed secured note and trust deed from payee by fraudulent representations, and he gave payee his note, which she understood was a receipt, title never passed to trustee. 2. Mortgages 264-Bank, purchasing from president note and trust deed, in which president was named as trustee, held not innocent purchaser. Bank, purchasing from its president a note and deed of trust, in which president was named as trustee, which president had secured from payee by fraud, held not to be an innocent purchaser, since bank had sufficient knowledge to put it on inquiry as to title of its president. 3. Estoppel 54-To estop a party, position taken must be with full knowledge of his right. To estop a party, the position taken must be with full knowledge of his right. 4. Mortgages 239-Payee, induced by fraud to deliver note and trust deed to trustee bank president, who sold it to bank, held not estopped to repudiate transaction, where she was without knowledge of facts. Where payee was induced by fraud to deliver note and trust deed to trustee named in trust deed, who sold note and trust deed to bank of which he was president, and trustee gave payee his personal note, which she thought was a receipt, she was not estopped to repudiate transaction because of acceptance of note and subsequent payments from trustee, where she did not have knowledge of fraud, or of transfer of her papers to bank, until after trustee's death. county to John T. Smith and Annie E. Smith, his wife, as joint tenants, and received as part of the purchase price their note for $3,500, dated July 20, 1920, payable to their own order and indorsed by them, payable five years after date and bearing 7 per cent. interest, payable semiannually, as evidenced by interest coupons attached. The principal note and coupons were secured by a trust deed to Bruno F. Kowalewski of the purchased premises; his brother, Roman J. Kowalewski, being named as successor in trust. Peter Nedvar became the owner of the equity of redemption. The principal note and the last interest coupon being due and unpaid, the Sherman State Bank, claiming to own them, began a suit to the October term of the superior court of Cook county to foreclose the trust deed. Nedvar answered, confessing the amount due and alleging his willingness to pay it, but averring that Mrs. Lane claimed to be the owner of the notes and trust deed, and that payment to any other person would not be a payment of the debt secured by the trust deed. He also filed a cross-bill, praying that the bank and Mrs. Lane be required to interplead, and that he be permitted to pay the money into court for the benefit of the true owner. Mrs. Lane was made a defendant to this cross-bill, and on her petition was allowed to become a defendant to the original bill. She answered the original bill and the cross-bill, and also filed a cross-bill, alleging that the note and trust deed had been obtained from her by Bruno F. Kowalewski by fraud, and the bank acquired them with notice of her rights and was not a holder for value. Upon a hearing on a stipulation of facts the chancellor found the issues in accordance with the allegations of Mrs. Lane's cross-bill, that she was the owner of the notes and trust deed, that the amount due, $3,622.50, with interest accrued from Error to Third Branch Appellate Court, July 20, 1925, be paid to her by Nedvar, and First District, on Appeal from Superior Suit by the Sherman State Bank against John T. Smith and others, in which Peter Nedvar filed cross-bill, praying that plaintiff and Margaret J. K. Lane be required to interplead. Mrs. Lane was made defendant to cross-bill, and was allowed to become a defendant to original bill, and filed a crossbill. Judgment for Mrs. Lane on her cross-bill that thereupon the notes and trust deed be surrendered and canceled, and Roman J. Kowalewski, as successor in trust, execute a release. The bank appealed to the Appellate Court (244 Ill. App. 171), which affirmed the judgment, and a writ of certiorari was awarded to bring the record before us for review. In addition to the facts which have been stated, it appears from the stipulation of facts that prior to July 20, 1920, Bruno F. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Kowalewski was to a certain extent the financial adviser of Mrs. Lane and caused himself to be named trustee in the trust deed. On and before that date he and his brother, as partners under the name of Sherman Park Safety Deposit Company, maintained at Fifty-First and Throop streets safety deposit boxes, one of which Mrs. Lane rented, and in which she kept her valuable papers. It was her custom to take the interest coupons on the Smith note as they matured to the complainant bank. Kowalewski, in his real estate office, would call to the cashier in the bank and instruct him to pay Mrs. Lane her interest. Kowalewski advanced to Mrs. Lane $200 on April 24, 1924, $150 on June 5, 1924, and on August 14, 1924, he gave her $167.40 and a note for $3,000, due one year after date. The $17.40 of the $167.40 represented earned interest on the trust deed. On August 14, Kowalewski came to Mrs. Lane's home and told her, in substance, that the Smiths were engaged in some crooked scheme, and were doing some crooked work about the property described in the trust deed, which rendered it necessary for him to have possession of the note and trust deed, in order to protect her interests and to save her the loss of the money, which she would certainly lose if she failed to deliver the note and trust deed to him, and he promised that, if she would deliver them to him, he would protect her interests and save her the loss of the money. Relying upon his statements and believing that if she failed to follow his advice she would lose her money Mrs. Lane delivered the note and trust deed to him, and, upon his statement that it was necessary, signed two papers, which were so folded as to hide their contents, which she did not know, but she signed them for the same purpose for which she delivered the note and trust deed to him. She asked him how she was to be protected in the delivery of the papers to him, and he told her, in substance, that she was doing business with the Sherman Park State Bank. He then handed her a paper, which she did not read, but understood to be a receipt, though she afterwards discovered it was his personal note for $3,000. For the purpose of delivering the note and trust deed to Kowalewski, she got her safety deposit box from the bank, and, with Kowalewski, opened it and removed from it the note and trust deed and such other papers pertaining to the matter as he claimed to need to protect her interests. Kowalewski was then, and until January 1, 1925, president and a director of the Sherman Park State Bank, and the Sherman State Bank is successor in interest to the Sherman Park State Bank. He failed to return her note and trust deed to her, or make any payment thereon, except what has already been mentioned. On May 21, 1925, Mrs. Lane filed for record her affidavit giving notice to all whom it might concern of her interest in the note and trust deed, and caused a like notice to be served upon Nedvar. The complainant bank acquired the trust deed on August 15, 1924, paying $3,526.05 for it, of which $3,500 represented the principal and $26.05 accrued interest, and placed the same among its assets. Kowalewski obtained possession of the note and trust deed and the apparent title by fraud and deceit. There is no question of proofthe facts are stipulated. He induced Mrs. Lane to believe that, if she did not deliver the note and trust deed to him, they would be lost to her through the rascality of Smith, and, trusting his false statement, she delivered the note and trust deed to him, receiving from him a paper which she supposed was a receipt. The next day he transferred the papers to the complainant. It is clear that he got the note by means of a confidence game, with the intention of swindling Mrs. Lane out of her property. She knew nothing of the transfer to the complainant, and the record contains no evidence that she ever learned of it in Kowalewski's lifetime. The delivery of the instruments to Kowalewski effected no change in her interest in them, nor did the transfer by him to the complainant, assuming that it had notice or such information as to put the bank upon inquiry as to his title. At any time, upon discovery of the fraud perpetrated upon her, she might have proceeded to recover her property. [1, 2] Plaintiff in error claims it is an innocent purchaser of the note before maturity. The only proof offered upon this question is, it is stipulated that plaintiff in error bought the note and trust deed from its president, B. F. Kowalewski, August 15, 1924, and paid therefor the principal and accrued interest on the note. That may or may not be sufficient proof that plaintiff in error was an innocent purchaser. It is undenied that Kowalewski obtained the securities from Mrs. Lane by fraud. As between Mrs. Lane and Kowalewski, the title never passed to him. It appears from the stipulation that. prior to plaintiff in error's acquiring the note from its president, the bank had some knowledge of the fact that Mrs. Lane owned the Smith note. It was stipulated her custom was to take the interest coupons to the plaintiff in error bank when they matured, and that the president, Kowalewski, would call the cashier of the bank and instruct him to pay Mrs. Lane her interest. Kowalewski, it is stipulated, was to a certain extent the financial adviser of Mrs. Lane, and was named as trustee in the trust deed securing the payment of the $3,500 note. Plaintiff in error had knowledge, at the time of the purchase from Kowalewski, that he was the trustee in the trust deed for the owner of the note. It purchased them the next day after he had secured possession of them by the commission of a crime which prevented the title to the papers vesting in him, and we are of opinion the knowledge of the bank was suffi |