Catholic Bishop of Chicago v. Village of Palos Park

• Decision Date: 06 February 1919
• Docket Number: No. 12383.,12383.
• Citation: 121 N.E. 561,286 Ill. 400
• Parties: CATHOLIC BISHOP OF CHICAGO v. VILLAGE OF PALOS PARK.
• Court: Illinois Supreme Court

286 Ill. 400

121 N.E. 561

CATHOLIC BISHOP OF CHICAGO

v.VILLAGE OF PALOS PARK.

No. 12383.

Supreme Court of Illinois.

Dec. 18, 1918.

Rehearing Denied Feb. 6, 1919.

Appeal from Superior Court, Cook County; Denis E. Sullivan, Judge.

Suit by the Catholic Bishop of Chicago against the Village of Palos Park to restrain enforcement of ordinance. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded, with directions to dismiss bill.

McCulloch & McCulloch, of Chicago (Albert M. Kales, Bertram W. Rosenstone, and Weightstill Woods, all of Chicago, of counsel), for appellant.

Coburn & Bentley, of Chicago, for appellee.

CARTWRIGHT, J.

The appellant, the village of Palos Park, is organized under the general act for the incorporation of cities, villages, and towns (Hurd's Rev. St. 1917, c. 24). On May 8, 1917, an ordinance of the village was passed prohibiting the establishment of a cemetery within the corporate limits or within one mile thereof. The appellee, the Catholic Bishop of Chicago, in the exercise of his religious and temporal duty, had sought for a suitable location for a cemetery for the burial of the communicants of churches under his care and decided to purchase a tract of land well adapted for the purpose consisting of about 288 acres and had contracted for 140 acres of the land. The proposed cemetery would be adjacent to the village, and the nearest entrance would be about 80 rods from the Palos Park station of the Wabash Railroad. The appellee filed his bill in equity in the superior court of Cook county praying the court to declare the ordinance unreasonable and void and to enjoin the village and its officers and employés from interfering with him in the laying out, establishment, and maintenance of the cemetery. The bill was answered and the issues referred to a master in chancery, and after the reference a cross-bill was filed by the appellant asking the court to enjoin the appellee from locating the cemetery as contemplated. The master in chancery took the evidence and reported the same with his conclusion that the ordinance was unreasonable and void. The cause was heard on exceptions to the master's report, which were overruled, and the appellant was perpetually enjoined from enforcing the ordinance against the appellee.

The right to provide for the establishment and discontinuance of public cemeteries and to regulate their use is within the control of the General Assembly in the legitimate exercise of the police power. 5 R. C. L. 239. A municipal corporation has no inherent power to enact police regulations,but such power may be delegated by the General Assembly. Among the powers conferred upon municipalities organized under the general act is the seventy-ninth:

‘To establish and regulate cemeteries within or without the corporation, and acquire lands therefor, by purchase or otherwise, and cause cemeteries to be removed, and prohibit their establishment within one mile of the corporation.’

The ordinance prohibiting the location of a cemetery within one mile of the corporate limits was passed by the village of Palos Park in the exercise of the specific power so granted. If a legislative power is delegated by the General Assembly to municipalities in general terms, it is implied that the power shall be reasonably exercised, and citizens will be protected by the courts against an illegal, unreasonable, or oppressive exercise of the power. Whether any ordinance is within the power delegated is a question for the courts, and if it is not it will be declared void. Where, however, an ordinance is passed in pursuance of express power granted by the General Assembly, it is regarded as an act of the General Assembly itself and cannot be set aside by the courts because they would deem it unreasonable. City of Peoria v. Calhoun, 29 Ill. 317;Block v. City of Chicago, 239 Ill. 251, 87 N. E. 1011,130 Am. St. Rep. 219;City of Chicago v. Ripley, 249 Ill. 466, 94 N. E. 931,34 L. R. A. (N. S.) 1186, Ann. Cas. 1912A, 160; Dillon on Mun. Corp. § 262. What legislation is reasonable is a question for the General Assembly and not for the courts, and if a legislative act is alleged to be unreasonable the appeal must be to the representatives of the people who are authorized to legislate for them. It is not within the province of the courts to say that any act of the General Assembly is unreasonable and therefore void. Legislative authority delegated by the General Assembly...