Cook Cnty. v. City of Chicago

• Decision Date: 19 February 1924
• Docket Number: No. 15600.,15600.
• Citation: Cook Cnty. v. City of Chicago, 311 Ill. 234, 142 N.E. 512 (Ill. 1924)
• Parties: COOK COUNTY v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

311 Ill. 234

142 N.E. 512

COOK COUNTY

v.CITY OF CHICAGO.

No. 15600.

Supreme Court of Illinois.

Feb. 19, 1924.

Error to Third Branch, Appellate Court, First District, on Appeal from Superior Court, Cook County; Denis E. Sullivan, Judge.

Bill by the County of Cook against the City of Chicago for an injunction. A general demurrer to the bill was overruled, judgment affirmed (228 Ill. App. 498), and defendant brings error.

Reversed and remanded, with directions.

Francis X. Busch, Corporation Counsel, of Chicago (Albert H. Veeder, of Chicago, of counsel), for plaintiff in error.

Robert E. Crowe, State's Attorney, and George E. Gorman, both of Chicago (Hayden N. Bell, of Chicago, of counsel), for defendant in error.

STONE, J.

The county of Cook on December 10, 1921, filed its bill in the superior court of Cook county seeking to enjoin the city of Chicago from enforcing its fire and building ordinances against the county concerning the construction of a county jail located within the territorial limits of the city. The grounds upon which such injunction is sought are, that--

‘These ordinances and requirements are not suitable to the said jail and that it will be impossible to comply with the ordinances in the building of said jail.’

The injunction was also sought on the general ground that the city did not have a right to enforce its ordinances against the county. The city filed a general demurrer to the bill. Upon hearing thereon it was held that the city did not have police power over the construction of buildings erected by the county, and, evidently holding that the statement of the ordinances in the bill was sufficient, the court overruled the demurrer. Two questions, therefore, are presented here: First, is the unreasonableness of the city ordinances sufficiently pleaded? and, second, may the city, under its police power, regulate the construction of a county jail so far as fire hazards are concerned?

The statement in the bill that the ordinances of the city of Chicago were not suited to the erection of a county jail, and that it would be impossible to comply with them in the construction of the jail, were mere conclusions of the pleader. The substance of the part of an ordinance objected to should be set out, so the court may see, on reading it, whether or not the claim that it is not suited and is unreasonable is well founded. The presumption is that an ordinance is reasonable. People v. Cregier, 138 Ill. 401, 28 N. E. 812;Illinois Central Railroad Co. v. Ashline, 171 Ill. 313,19 N. E. 521. While it cannot be contended that either the county or an individual is amenable to an unreasonable ordinance, the court cannot take the statement of a conclusion in that regard as sufficient pleading on a bill of this character. The bill was therefore demurrable on that ground.

The principal question argued in the case is whether or not the city council has power to require an observance of its fire regulations by the county in the building of a county jail. This question has never been passed upon in this state, and but few cases have been cited by counsel representing the parties to this proceeding in which the matter has been passed upon in other states. It becomes necessary, therefore, to review some of the underlying principles governing the police power granted to cities and counties under the law.

Among the powers exercised by municipalities are what are known as the police powers of the state. These powers rest in the state and may be delegated to municipal corporations created by the state, to be exercised for the welfare, safety, and health of the public. Under the police power cities and villages may enact reasonable ordinances to preserve health, suppress nuisances, prevent fires, regulate the use and storing of dangerous articles, control markets, and similar uses and purposes. The police power is not impaired by the fourteenth amendment to the Constitution of the United States (Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923), but every citizen holds his property subject to the proper exercise of the police power, either by the state Legislature or by public or municipal corporations, to which the Legislature has delegated that power. This power rests upon the principle that one may not so use his property as unreasonably to injure others. These regulations rest upon the maxim salus populi suprema est lex.

An ordinance prohibiting washing and ironing in public laundries within a specified district and within specified hours was held a vaild exercise of the police power. Soon Hing v. Crowley, 113 U. S. 703, 5 Sup. Ct. 730, 28 L. Ed. 1145. In Butchers' Union Co. v. Crescent City Co., 111 U. S. 746, 4 Sup. Ct. 652, 28 L. Ed. 585 (known as the Slaughterhouse Case), the right of the city, under the police power, to regulate the operation of slaughterhouses was upheld. Under the police power, cities may destroy buildings to prevent the spread of conflagration. This right existed at common law, and the owner was entitled to no compensation. 2 Kent's Com. 339. The prevention of damage by fire is an object within the scope of municipal authority, either by express grant or by the power delegated to the city to make police regulations.

It was held in Pye v. Peterson, 45 Tex. 312, 23 Am. Rep. 608, that a general grant of power to a city to pass such ordinances, not inconsistent with the laws of the state, as shall be needful for the government, interest, welfare, and good order of the corporation, did not authorize the city to establish fire limits and regulate the character of buildings within such limits. It is, however, generally regarded that the prevention of fires in incorporated towns and cities is a matter for local regulation and that it belongs to the ordinary police powers of the city, and, unless such a course in inconsistent with the legislation of the state touching the subject, a general grant of police powers to pass ordinances for the welfare of the city will also include fire regulation. 1 Dillon on Mun. Corp. (4th Ed.) §§ 143, 405, note, and cases cited.

In Chicago Packing Co. v. City of Chicago, 88 Ill. 221, 30 Am. Rep. 545, where an ordinance by the city of Chicago prohibiting slaughterhouses within one mile of the city limits was attacked on the ground that it was not within the police power of the city, this court upheld the ordinance on the ground that to protect the health and lives of a large number of people living in one community the state had power to confer, and has conferred, on cities and villages the right to regulate such instrumentalities as slaughterhouses, even though the territory over which the jurisdiction of the ordinance extended embraced other municipalities.

Since the early case of Commonwealth v. Tewksbury, 11 Metc. (Mass.) 58, the right to restrain owners of lands in cities from erecting buildings contrary to fire regulations has been established by many decisions. Wadleigh v. Gilman, 3 Fairf. (12 Me.) 403, 28 Am. Dec. 188; King v. Davenport, 98 Ill. 305, 38 Am. Rep. 89. In the last case cited the court upheld an ordinance regulating fire limits, and the character of buildings to be erected within such limits, as a part of the police power delegated to cities. Such power was likewise recognized in Village of Louisville v. Webster, 108 Ill. 414, though it was held in that case that the ordinance was not within the police power given the city by the Legislature.

The Legislature, by statute in this state, has conferred on municipal corporations, such as cities, villages, and incorporated towns, the police power to prescribe fire regulations and to regulate buildings within their limits in respect to fire protection. Cahill's Stat. 1923, c. 24, art. 5, pars. 61, 62, 63.

There is a distinction to be borne in mind between municipal corporations proper, such as exist by charters issued by the state, as incorporated towns, cities, and villages voluntarily organized under the general Incorporation Act, and corporations, such as counties and townships, which are frequently referred to as involuntary quasi corporations. Municipal corporations are those called into existence either at the direct request or by consent of the persons composing them. Quasi municipal corporations, such as counties and townships, are at most but local organizations, which are created by general law, without the consent of the inhabitants thereof, for the purpose of the civil and political administration of government, and they are invested with but few characteristics of corporate existence. They are, in other words, local subdivisions of the state created by the sovereign power of the state of its own will, without regard to the wishes of the people inhabiting them. A municipal corporation is created principally for the advantage and convenience of the people of the locality. County and township organizations are created in this state with a view to aid in carrying out the policy of the state at large for the administration of matters of political government, finance, education, taxing, care of the poor, military organizations, means of travel and the administration of justice. The powers and functions of county and township organizations, therefore, as distinguished from municipal corporations, have a direct and exclusive bearing on and reference to the general, rather than local, policy of government of the state. Hamilton Co. v. Mighels, 7 Ohio St. 109; Askew v. Hale, 54 Ala. 639, 25 Am. Rep. 730; County v. Chattaroi Railroad Co., 81 Ky. 225;Manuel v. Commissioners, 98 N. C. 9, 3 S. E. 829;Cathcart v. Comstock, 56 Wis. 590, 14 N. W. 833; 1 Dillon on Mun. Corp. (4th Ed.) § 23. Counties and towns, being purely auxiliaries of the state, owe their creation to the general statutes of the state, which confer upon them all the powers which they possess and prescribe all the duties and liabilities to which they are subject. They have been referred to as ranking low in...