City of Chicago v. Stratton

• Decision Date: 12 May 1896
• Citation: 44 N.E. 853,162 Ill. 494
• Parties: CITY OF CHICAGO v. STRATTON et al.
• Court: Illinois Supreme Court

162 Ill. 494

44 N.E. 853

CITY OF CHICAGO

v.STRATTON et al.¹

Supreme Court of Illinois.

May 12, 1896.

Appeal from appellate court, First district.

Action by the city of Chicago against Charles J. Stratton and others. From a judgment of the appellate court (58 Ill. App. 539) affirming a judgment for defendants, plaintiff appeals. Reversed.Farson & Greenfield, for appellant.

S. J. Howe, for appellees.

This was a suit brought under a section of the building ordinance, and is to recover the penalty for a violation of the ordinance. The section of the ordinance is as follows: ‘Sec. 49. It shall not be lawful for any person to locate, build, construct or keep in any block in which two-thirds of the buildings are devoted to exclusive residence purposes, a livery boarding or sales stable, gas house, gas reservoir, paint, oil or varnish works, within 200 feet of such residence, on either side of the street, unless the owners of a majority of the lots in such block fronting or abutting on the street consent in writing to the location or construction of such livery stable, gas house, gas reservoir, paint, oil, or varnish works therein. Such written consent of the property owners shall be filed with the commissioner of buildings before a permit be granted for the construction or keeping of such livery stable, gas house, gas reservoir, paint, oil or varnish works.’ It is conceded by the appellees that they are engaged in keeping a livery, boarding, and sale stable at Nos. 211 and 213 Evanston avenue, in the city of Chicago; that they were so engaged on the 7th day of June, 1894, at said place; and that they did not procure the consent of the owners of a majority of the lots in such block fronting or abutting on the street before the erection of said building. The building which they were occupying on the 7th day of June, 1894, for that purpose, was constructed under a building permit to erect a two-story and basement brick carriage repository and stable in the rear, which was issued July 28, 1893. Instead of building a stable in the rear, it appears that the horses-some 30 or more-were kept in the basement. The building is back about 59 feet from the street, and has a plank driveway running from the entrance of the stable, which is about 6 feet above the ground, down to Evanston avenue. The livery stable and driveway are so near to a residence building on the adjoining lot that carriages driving out and in shake the whole building. On the 7th of June, 1894, there were 31 buildings in the block in which this livery stable is located, 28 of which were devoted to exclusive residence purposes. No petition has ever been signed by a majority of the property owners, as required by the ordinance governing the location and keeping of livery stables in the city of Chicago. This suit was originally brought before a justice of the peace, where judgment was entered against the defendants, and was, by the defendants, appealed to the circuit court of Cook county. Upon the trial before the court, a jury having been waived, certain propositions of law, in pursuance of the statute, were offered on behalf of the plaintiff, presenting the question of the legaility of the ordinance in question, which the court was requested to hold as the law governing the case, but the court held the section of the ordinance to be invalid, and entered a finding for the defendants. Motion for a new trial having been overruled, the court entered judgment upon the finding. The case was taken by appeal to the appellate court, where the judgment of the court below was affirmed. The plaintiff now brings the case to this court by appeal.

The assignment of error chiefly relied upon is that the court below refused to hold as law the following propositions of law submitted on behalf of the plaintiff, the city of Chicago: ‘(2) The court is requested to hold as a proposition of law that the provisions of section 49 of the building ordinance of the city of Chicago passed March 13, 1893, wherein it is ordained that it shall not be lawful for any person to locate, build, construct, or keep in any block in which two-thirds of the buildings are devoted to exclusive residence purposes a livery, boarding, or sales stable, unless the owners of a majority of the lots in such block fronting or abutting on the street consent in writing to the location of such livery stable, is not, under the laws of the said state of Illinois, a delegation of legislative power by the common council of said city of Chicago to the property owners of such block. (3) The court is requested to hold as a proposition of law that section 49 of the building ordinance of the city of Chicago passed by the common council of said city on the 13th day of March, A. D. 1893, is lawful, valid, and binding upon the defendants in this case, and that under the evidence the plaintiff is entitled to recover. (4) If the court find from the evidence that on the 6th day of June, 1894, the defendants were engaged in keeping a livery, boarding, and sales stable within the limits of the city of Chicago, and that the said defendants have not at any time procured in writing the consent of the owners of a majority of the lots in the block in which said livery stable is located fronting or abutting on the street upon which the same is located, in pursuance of the requirements of section 49 of the certain building ordinance of the city of Chicago passed by the common council of said city on the 13th day of March, A. D. 1893; and, if the court further finds from the evidence that two-thirds of the buildings in the block in which said livery stable is located are devoted to exclusive residence purposes,-then the court is requested to hold as a proposition of law that the defendants have been guilty of a violation of said section 49 of said ordinance, and the plaintiff is entitled to recover in this suit the penalty provided in said ordinance for the violation thereof.’

MAGRUDER, J. (after stating the facts).

The eighty-second paragraph of section 1 of article 5 of the city and village act, which has been adopted by the city of Chicago, provides that the city council in cities shall have the power ‘to direct the location and regulate the use and construction of * * * livery stables * * * within the limits of the city.’ 3 Starr & C. Ann. St. p. 191. The power to make laws which the constitution confers upon the legislature cannot be delegated by the legislature to any other body or authority. The constitutional maxim which prohibits such delegation of legislative power is not violated when municipal corporations are vested with certain powers of legislation in view of the recognized propriety of conferring upon such municipal organizations the right to make local regulations, of the need of which they are supposed to be beteer judges than the legislature of the state. But such powers as are conferred upon municipality, and, so far as they are legislative, cannot be delegated to any subordinate or to any other authority. The same restriction which rests upon the legislature as to the legislative functions conferred upon it by the constitution, rests upon a municipal corporation as to the powers granted to it by the legislature. Cooley, Const. Lim. (6th Ed.) pp. 137, 138, 248, 249. Accordingly, ‘the principle is a plain one that the public powers or trusts devolved by law or charter upon the council or governing body, to be exercised by it when and in such manner as it shall judge best, cannot be delegated to others.’ 1 Dill. Mun. Corp. (4th Ed.) § 96. The question, then, in the present case is whether the power to direct the location of livery stables and regulate their use and construction which has been conferred upon the common council of the city of Chicago by the city and village act is delegated by section 49 of the building ordinance to the owners of a majority of the lots in the blocks therein specified. That section provides that ‘it shall not be lawful for any person to locate, build, construct or keep in any block in which two-thirds of the buildings are devoted to exclusive residence purposes, a livery, boarding or sales stable * * * within 200 feet of such residence, on either side of the street, unless the owners...