Tugman v. the City of Chicago.

• Decision Date: 30 September 1875
• Citation: 1875 WL 8500,78 Ill. 405
• Parties: CHARLES H. TUGMANv.THE CITY OF CHICAGO.
• Court: Illinois Supreme Court

78 Ill. 405

1875 WL 8500 (Ill.)

CHARLES H. TUGMAN

v.THE CITY OF CHICAGO.

Supreme Court of Illinois.

September Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Criminal Court of Cook county; the Hon. WILLIAM W. FARWELL, Judge, presiding.

Messrs. TULEY, STILES & LEWIS, for the appellant.

Mr. RICHARD S. TUTHILL, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a prosecution, originally instituted before a police magistrate by the city of Chicago, to recover from Chas. H. Tugman a penalty of $10, for the violation of a regulation or ordinance adopted on the 12th day of December, 1871, by the board of health of the city of Chicago, which reads as follows:

“That from and after the first day of January, A. D. 1872, no distillery, slaughter house, rendering establishment or soap factory shall be erected or put into operation in any building not now used for such purpose, within the territory in the city of Chicago bounded as follows, to-wit: Fullerton avenue on the north, Thirty-fifth street on the south, Lake Michigan on the east, and Western avenue on the west.”

The cause was taken by appeal from the police court to the criminal court of Cook county, where, upon a trial, judgment was rendered against appellant, for the sum of $10. It is conceded that appellant owned a slaughter house within the limits designated by the ordinance, which was erected and put into operation after the 1st day of January, 1872, and at the time, and prior to the commencement of the action, he was engaged in slaughtering cattle therein, both for packing and city consumption.

It is also conceded, by both parties, that at and prior to the commencement of the suit, several other slaughter houses were in operation in said city, within the limits designated in the regulation, which were erected and in operation prior to the adoption of the ordinance.

There being no dispute as to the facts, the only question presented by the record is, whether the regulation or ordinance adopted by the board of health is valid or void.

The first position of appellant is, that the regulation is void, because it is unreasonable and oppressive.

Where power is conferred upon the legislative department of a municipal corporation to enact by-laws and ordinances for the better government of the inhabitants of the municipality, the body intrusted with that power, in its exercise, can not enact ordinances that are unreasonable, oppressive, or such as will create a monopoly.

Each member of a municipal corporation is required to share the burdens incident to such an organization; but, at the same time, all are entitled to share and participate equally in all benefits to be derived from such a government.

An ordinance, therefore, which would make an act done by one penal, and impose no penalty for the same act done, under like circumstances, upon another, could not be sanctioned or sustained, because it would be unjust and unreasonable. Dillon on Municipal Corporations, sec. 256.

In the case of the City of Chicago v. Rumpff, 45 Ill. 90, where the validity of an ordinance was called in question, which provided that all slaughtering for city consumption should be done at the establishment of a particular firm, and prohibited, under a penalty, slaughtering at any other place, it was said: “All by-laws should be general in their operation, and should bear equally upon all the inhabitants of the municipality. When privileges are granted by an ordinance, they should be open to the enjoyment of all upon the same terms and conditions. That the common council had the right, under the large powers conferred by the charter, to so regulate the business of slaughtering animals as to prohibit its exercise, except in a particular portion of the city, leaving all persons free to erect slaughtering houses, and to exercise the calling at the place designated, can not be controverted. * * * * When that body have made the necessary regulations required for the health or comfort of the inhabitants, all persons inclined to pursue such an occupation should have the opportunity of conforming to such regulations, otherwise the ordinance would be unreasonable, and tend to oppression.”

The same principle was clearly and forcibly enunciated in the case of Mayor v. Thorne, 7 Paige, 261, in the following language: “As all by-laws must be reasonable, the common council can not make a by-law which permits one person to carry on the dangerous business, and prohibit another, who has an equal right, from pursuing the same business. Neither have they the right to permit the dangerous manufacture to be carried on in buildings already erected, and to prohibit these defendants, whose buildings were destroyed by an incendiary, from rebuilding the same for the purpose of carrying on a manufacture which is permitted to others.” See, also, Cooley's Constitutional Limitations, 200.

It will be observed, that the regulation, to enforce which this suit was instituted, prohibits the use...