Wice v. Chicago & N.W. Ry. Co.

• Decision Date: 18 December 1901
• Citation: 193 Ill. 351,61 N.E. 1084
• Court: Illinois Supreme Court
• Parties: WICE v. CHICAGO & N. W. RY. CO.

193 Ill. 351

61 N.E. 1084

WICE

v.CHICAGO & N. W. RY. CO.

Supreme Court of Illinois.

Dec. 18, 1901.

Appeal from appellate court, First district.

Action by Joseph E. Wice against the Chicago & Northwestern Railway Company. From a judgment of the appellate court (93 Ill. App. 266) affirming a judgment in favor of defendant, plaintiff appeals. Reversed.

W. P. Black and A. B. Chilcoat, for appellant.

E. E. Osborn (A. W. Pulver and Lloyd W. Bowers, of counsel), for appellee.

CARTER, J.

Appellant, plaintiff below, brought this suit against appellee to recover damages for false imprisonment. On the morning of the day in question he was a passenger on the train of appellee, and when said train had reached a place in Chicago where the plaintiff wished to leave the train to proceed to his place of business, and while said train was running very slowly, but before it had reached the station, the plaintiff stepped from the train to the ground, and was proceeding on his way, when he was arrested on view by a policy officer of the city, but who was under the pay and authority of appellee, and taken before a justice of the peace, where, on complaint of the officer, a warrant was issued, and plaintiff was, by the authority of the justice, confined during the day, but by request of the officer was at the close of the day discharged. These facts, in a more formal way, were alleged in the declaration. The appellee justified by pleading a certain ordinance of the city of Chicago, which was as follows: ‘No person shall get upon or off, or attempt to get upon or off, any locomotive engine, tender, car or train of cars, or any platform or step thereof, while the same, or either of them, are in motion, without first having obtained from the person or persons having charge thereof express permission so to do. Any violation hereof shall be punished by fine of not less than $2 nor more than $50 for each offense.’ The plaintiff replied, in substance, among other things, that the ordinance was void, because the city was without authority of law to pass it, and because it was unreasonable. The court sustained a demurrer to the replications, and, the plaintiff standing by them and refusing to plead over, judgment was rendered against him in bar of his action and for costs. The appellate court has affirmed the judgment.

The only question necessary to consider is the alleged invalidity of the ordinance. Clause 66 of paragraph 62 of article 5 of the act for the incorporation of cities and villages provides that the city council shall have power ‘to regulate the police of the city * * * and pass and enforce all necessary police ordinances.’ This is the provision of the statute relied on as conferring power on the city to pass the ordinance, and it can be sustained, if at all, only under the police power conferred on the city by this provision of its charter. In Culver v. City of Streator, 130 Ill. 238, 22 N. E. 810,6 L. R. A. 270, in defining the police power, we said (page 243, 130 Ill., page 811, 22 N. E., and page 270, 6 L. R. A.): ‘That power may be defined, in general terms, as comprehending the making and enforcement of all such laws, ordmances, and regulations as pertain to the comfort, safety, health, convenience, good order, and welfare of the public.’ This definition is certainly broad enough to cover all the power the city had to pass the ordinance. The provision of the general incorporation act is a delegation by the general assembly to the city of Chicago of police power to pass and enforce all necessary police ordinances; that is, ordinances necessary for the comfort, safety, health, convenience, good order, and welfare of its inhabitants. It is assumed by counsel on both sides that the ordinance applies to passengers on railway trains, and we cannot see that any other reasonable construction can be given to it.

The validity of the ordinance is challenged on three grounds: First, that it is not within the grant of power made by the statute; second, that it is unreasonable; and, third, that its enforcement will deprive person of liberty without due process of law, and that, therefore, the ordinance is unconstitutional. We need only consider the first two, although it is clear that the constitutional rights of appellant are involved.

We are of the opinion that it was not the intention of the legislature, as disclosed by said statute, to confer on the city council power to adopt an ordinance so restrictive of the liberty of the citizen as is the one in question, and that the ordinance is unreasonable and oppressive in its operation, and is void for both reasons, and that the plea setting it up as a defense to the cause of action was bad and showed no defense. It is difficult to conceive of the necessity, as a police regulation, for such an ordinance, and it is only necessary police ordinances that the city is authorized to pass. True, by the word ‘necessary’ ‘indispensable’ was not meant, but only such ordinances as would be conducive to, or beneficial or effective in, the promotion of the comfort, safety, health, convenience, good order, or general welfare of the municipal public. In the case at bar it is not alleged in defendant's plea, nor does it appear in any way, that there was any danger to the person or property of others, or even to the plaintiff himself, in the act he performed in stepping from the train, while it was running very slowly, in order that he might proceed at his own convenience to his place of business. The ordinance makes it unlawful, and punishable by fine, for any person to get on or off any car or train of cars, or any platform or steps thereof, while the same are in motion, without first having obtained the express permission so to do from the person or persons in charge of such car or train. It is seen that there is no qualification as to place, speed, or danger. It applies to regular passenger stations as well as elsewhere, and to places where it would be as safe to alight as at a regular station, and when the train is moving, however slowly, making the question of danger to the person or property of others, or even to himself, wholly immaterial, unless it can be said that such an act, under any and all circumstances, is unsafe or injurious to the public or to himself (if his own safety can be considered as...