People ex rel. Lincoln Ice Co. v. City of Chicago

• Decision Date: 28 October 1913
• Parties: PEOPLE ex rel. LINCOLN ICE CO. v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

260 Ill. 150

102 N.E. 1039

PEOPLE ex rel. LINCOLN ICE CO.

v.CITY OF CHICAGO et al.

Supreme Court of Illinois.

Oct. 28, 1913.

Appeal from Circuit Court, Cook County; Samuel C. Stough, Judge.

Mandamus by the People, on the relation of the Lincoln Ice Company, against the City of Chicago and others. From a judgment awarding a peremptory writ, defendants appeal Affirmed.William H. Sexton, Corp. Counsel, of Chicago (Leon Hornstein, of Chicago, of counsel), for appellants.

D'Ancona & Pflaum, of Chicago, for appellee.

VICKERS, J.

The Lincoln Ice Company filed a petition in the circuit court of Cook county against the city of Chicago and certain of its municipal officers, praying for a writ of mandamus to compel respondents to issue to petitioner a building permit for the construction of a building, to be used in connection with the business of manufacturing and selling ice, on certain described vacant lots belonging to said petitioner. The petition alleged a compliance with all ordinances,rules, and regulations necessary to entitle the petitioner to a building permit; and, unless the matter set up in the answer of the city shows a legal excuse for refusing to grant the permit, it is conceded that the facts alleged in the petition will justify the issuance of a peremptory mandamus. The answer of respondents sets out an ordinance which was duly passed by the city council, which went into effect on January 6, 1913, which is relied upon as the sole reason for refusing the building permit to petitioner. The ordinance relied upon is as follows: ‘2414 1/2. Location of Ice-Making Houses and Cooling Plants.-It shall be unlawful for any person, firm or corporation to locate, establish, conduct or maintain any ice-making house or cooling plant within four hundred (400) feet of any church, hospital, public or parochial school, said distance to be measured by the shortest straight line between the ice-making house or cooling plant sought to be so located, established, conducted or maintained, and any such building used for the purpose of a church, hospital, public or parochial school.’

The answer avers that the proposed location of the building is within 200 feet of a church known as Our Lady of Lourdes and within 20 feet of a parochial school known as Our Lady of Lourdes Parochial School; that said church has a membership of 4,500 people; that divine services are held in said church twice daily; and that said school has an attendance of 560 pupils. The validity of the ordinance relied on was attacked by a demurrer to the answer. The court below, being of the opinion that the ordinance relied upon was not valid, sustained the demurrer to the answer, and, respondents having elected to stand by the answer, a peremptory mandamus was awarded. Respondents, having procured a certificate from the trial judge that the validity of a municipal ordinance is involved, have perfected a direct appeal to this court.

[1]The ground upon which the validity of this ordinance is assailed is that the city had no power to pass it. In the first place, it is to be noted that the ordinance does not, in terms, declare an ice-making house or cooling plant, when established contrary to its provisions, a nuisance, and, since these establishments are not nuisances per se, the statute giving the city the power to declare what shall be a nuisance, and to abate the same, cannot be construed as conferring the power upon the city to pass said ordinance. Nuisances may be divided into three classes: First, those which in their nature are nuisances per se or are so denounced by the common law or the statute; second, those which in their nature are not nuisances but may become so by reason of their locality, surroundings, or the manner in which they may be conducted or managed; and, third, those which in their...