People ex rel. Friend v. City of Chicago

• Citation: 261 Ill. 16,103 N.E. 609
• Parties: PEOPLE ex rel. FRIEND v. CITY OF CHICAGO et al.
• Decision Date: 17 December 1913
• Court: Supreme Court of Illinois

261 Ill. 16

103 N.E. 609

PEOPLE ex rel. FRIEND

v.CITY OF CHICAGO et al.

Supreme Court of Illinois.

Dec. 17, 1913.

Error to Superior Court, Cook County; Charles M. Foell, Judge.

Mandamus by the People, on the relation of Julius P. Friend, against the City of Chicago and others. Judgment for plaintiff, and defendants bring error on certificate that the validity of a municipal ordinance was involved. Affirmed.William H. Sexton, Corp. Counsel, of Chicago (Leon Hornstein and Loring R. Hoover, both of Chicago, of counsel), for plaintiffs in error.

Leo Koretz and Samuel J. Richman, both of Chicago, for defendant in error.

VICKERS, J.

The city of Chicago has sued out this writ of error to obtain a review of the judgment overruling its demurrer to a petition for mandamus and awarding a writ compelling the building commissioner of said city to issue to the relator a permit for the construction of a two-story and basement brick building, containing stores on the ground floor and flats and offices on the second floor, on premises belonging to the relator located at the southeast corner of Greenwood avenue and Fifty-First street. The petition alleges the compliance with all the requirements of the city ordinances in relation to buildings of this class except section 712 1/2 of the city ordinances, which, the petition alleges, is invalid. The section referred to is as follows: ‘712 1/2. Frontage Consents-Retail Store.-It shall be unlawful for any person, firm or corporation to locate, build or construct any store for the sale, at retail, of goods, wares and merchandise on any street, in any block in which all the buildings are used exclusively for residence purposes, without first securing and filing with the commissioner of buildings the written consent of a majority of the property owners, according to frontage, on both sides of the street in the block in which the building to be thus used is located: Provided, in determining whether all the buildings in said block are used exclusively for residence purposes any building fronting upon another street and located upon a corner lot shall not be considered.’

The case comes direct to this court by virtue of a certificate of the trial judge certifying that the validity of a municipal ordinance is involved.

Plaintiffs in error make some criticisms on the sufficiency of the petition in addition to the omission to aver compliance with the requirements of section 712 1/2, but these points we do not regard as of sufficient importance to require discussion. The important question presented is whether the ordinance above quoted is valid. It will be noted that the ordinance in question makes it unlawful to locate, build, or construct any store for the sale, at retail, of goods, wares, and merchandise in any block used exclusively for residence purposes without the frontage consent of a majority of the property owners on both sides of the street in the block in which the building is to be located. The ordinance does not, in terms, purport to prohibit the establishment of a retail store in such residence block, but is directed against the location and construction of a building in which such business may be carried on. It will also appear from an inspection of this ordinance that there is no attempt to classify retail store buildings, but their location and construction are indiscriminately forbidden except upon the frontage consent as provided in the said ordinance.

[1] The city of Chicago is organized under the Cities and Villages Act, and it has therefore only such powers as are therein delegated or necessarily implied. City of Chicago v. Netcher, 183 Ill. 104, 55 N. E. 707,48 L. R. A. 261, 75 Am. St. Rep. 93;City of Earlville v. Radley, 237 Ill. 242, 86 N. E. 624.

[2] It is a rule established by many authorities that statutes granting powers to municipal corporations are strictly construed, and any fair and reasonable doubt as to the existence of the power must be resolved against the municipality. City of Chicago v. M. & M. Hotel Co., 248 Ill. 264, 93 N. E. 753;City of Chicago v. Ross, 257 Ill. 76, 100 N. E. 159.

[3][4] Power to regulate and control the location of certain enumerated occupations is conferred upon cities and villages by various clauses of paragraph 62 of the Cities and Villages Act. The clauses which relate to these subjects are as follows:

‘50. To regulate the sale of meats, poultry, fish, butter, cheese, lard, vegetables, and all other provisions, and to provide for place and manner of selling the same.’

‘81. To direct the location and regulate the management and construction of packing houses, renderies, tallow chandleries, bone factories, soap factories and tanneries, within the limits of the city or village, and within the distance of one mile without the city or village limits.

82. To direct the location and regulate the use and construction of breweries, distilleries, livery, boarding or sale stables, blacksmith shops, foundries, machine shops, garages, laundries, and bathing beaches, within the limits of the city or village.'

‘84. To compel the owner of any grocery, cellar, soap or tallow chandlery, tannery, stable, pigsty, privy, sewer or other unwholesome or nauseous house or place, to cleanse, abate or remove the same, and to regulate the location thereof.’

‘93. To regulate and prohibit the keeping of...