City of Chicago v. Stratton
162 Ill. 494
Ill.
1896
Check Treatment
Mr. Justice Magruder

delivered the opinion of the court:

Thе eighty-second paragraph of section 1 of article 5 of the City and "Village act, which has been adopted by the city of Chicago, provides that the city council in cities shall have the power “to direct the location and regulatе the use and construction of * * * livery stables * * * within the limits of the city.” (3 Starr & Cur. Stat. p. 191). The power to make laws, which the constitution confers upon the legislature, cannot be delegated by the legislature to any other body or authority. The constitutional maxim, which рrohibits such delegation of legislative power, is not violated when municipal corporations are vested with certain powers of legislation, in view of the recognized propriety of conferring upon such municipal organizations the right to make local regulations, of the need of which they are supposed to be better judges than the legislature of the State. But such powers as are conferred upon municipal corporations must be executed by the municipality, and, sо far as they are legislative, cannot be delegated to any subordinate or to any other authority. - The same restriction, which rests upon the legislature as to the legislative functions conferred upon it by the constitution, rests upon a municipal corporation as to the powers granted to it by the legislature. (Cooley’s Const. Lim.—6th ed.— pp. 137, 138, 248, 249). Accordingly, “the principle is a plain one, that the public powers or trusts devolved by law or charter upon the council or governing body, to be exercised by it when and in such manner as it shall judge best, cannot be delegated to others.” (1 Dillon on Mun. Corp.—4th ed.—sec. 96).

The question, then, in the present case is, whether the power to direct the location of livery stables and'regulate their use and construсtion, which has been conferred upon the common council of the city of Chicago by the City and Village act, is delegated by section 49 of the building ordinance to the owners of a majority of the lots in the blocks therein specified. That section provides, that “it shall not be lawful for any person to locate, build, construct or keep in any block, in which two-thirds of the buildings are devoted to exclusive residence purposes, a livery, boarding or sales stable * * * within two hundred feet of such residence, on either side of the street, unless the owners of a majority of the lots in such block fronting or abutting on the street consent in writing to the location or construction of • such livery stable.” ‘ It is to be noticed, that the ordinance does not prohibit the locаtion or construction or keeping of livery stables in blocks which are vacant, or where the buildings are devoted to business purposes, or where less than two-thirds of the buildings are devoted to exclusive residence purposes. It forbids the locatiоn of such stables in blocks where two-thirds of the buildings are devoted to exclusive residence purposes, but provides that they may be located even in such blocks if the owners of a majority of the lots therein consent thereto in writing. There is a generаl prohibition against the location of livery stables in blocks where two-thirds of the buildings are devoted to exclusive residence purposes, and then an exception to the prohibition is created in favor of blocks of the class designated, where a majority of the lot owners consent in writing to the location of a livery stable there. We are unable to see how this exception amounts to a delegation by the common council of its power to direct the location of livery stables to such lot owners.

While it may be true, that a livery stable in a city or town is not per se a nuisance, “yet it becomes so if so kept or used as ‍‌‌‌​‌​​‌​​‌‌‌​​‌‌‌​‌​​​​​‌​​‌‌‌‌‌‌‌‌‌‌​​​‌‌‌​‌​​‍to destroy the comfort of owners and occupants of adjacent premises, and so as tо impair the value of their property.” (13 Am. & Eng. Ency. of Law, p. 935). A livery stable in close proximity to an existing residence may be injurious to the comfort and even health of the occupants by the permeation of deleterious gases and by the near dеposit of offal removed therefrom. (Shiras v. Olinger, 50 Iowa, 571; 32 Am. Rep. 138, and note). As cities are constructed, the division of the territory is into blocks bounded by streets. The persons, who will be injuriously affected by a livery stable, so kept as to be a nuisance, are those whosе residences are in the same block where the stable is located. The prohibition against the location of a stable in a residence block is for the benefit of those who reside there. If those for whose benefit the prohibition is created, make no objection to the location of such a stable in their midst, an enforcement of the prohibition as to that block would seem to be unnecessary.

By section 49 the lot owners are not clothed with the power to locate livеry stables, but are merely given the privilege of consenting, that an existing ordinance against the location of a livery stable in such a block as theirs may not be enforced as against their block. They are simply allowed to waive the right to insist upon the enforcement of a legal prohibition which was adopted for their benefit and comfort.

It is competent for the legislature to pass a law, the ultimate operation of which ‍‌‌‌​‌​​‌​​‌‌‌​​‌‌‌​‌​​​​​‌​​‌‌‌‌‌‌‌‌‌‌​​​‌‌‌​‌​​‍may, by its own terms, be made to depend upon a contingency. (People v. Hoffman, 116 Ill. 587, and cases cited). As was said by the Supreme Court of Pennsylvania in Locke’s Appeal, 72 Pa. St. 491: “The true distinction * * * is this: The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend.” In the case at bar, the ordinance provides for a contingency, to-wit: the consent of a majority of the lot owners in the block, upon the happening of which the ordinance will be inoperative in certain localities. The operation of the ordinance is made to depend upon the fact of the consent of a majority of the lot owners, but the ordinance is complete in itself as passed. What are known as local option laws depend for their adoption or enforcement upon the votes of some portion of the people, and yet are not regarded as delеgations of legislative power. (18 Am. & Eng. Ency. of Law, p. 991). Delegation of power to make the law is forbidden, as necessarily involving a discretion as to what the law shall be; but there can be no valid objection to a law, which confers an authority or discretion as to its execution, to be exercised under and in pursuance of the law itself. (Cincinnati, etc. Railroad Co. v. Comrs. of Clinton Co. 1 Ohio St. 77). Here, the provision in reference to the consent of the lot owners affects the execution of the ordinance rather than its enactment. (People v. Salomon, 51 Ill. 37; Bull v. Read, 13 Gratt. 78; Aurora v. United States, 7 Cranch, 382; Alcorn v. Hamer, 38 Miss. 652). The ordinance in question does not delegate to a majority of the lot owners the right to pass or even approve of it. On the contrary, their consent is in the nature of a cоndition subsequent, which may defeat the operation of the prohibition against the ‍‌‌‌​‌​​‌​​‌‌‌​​‌‌‌​‌​​​​​‌​​‌‌‌‌‌‌‌‌‌‌​​​‌‌‌​‌​​‍location of a livery stable in a block where two-thirds of the buildings are devoted to exclusive residence purposes but which was never intended to confer upоn the ordinance validity as an expression of the legislative will. (Alcorn v. Hamer, supra).

The express grant of the power to direct the location of livery stables as made by the legislature to the municipal corporation carries with it all nеcessary and proper means to make the power effectual. (Huston v. Clark, 112 Ill. 344). In other words, a grant of legislative power to do a certain thing carries with it the power to use all necessary and proper means to accomрlish the end; and the legislature may authorize others to do things which it might properly, but cannot conveniently or advantageously do itself. (Chicago, Burlington and Quincy Railroad Co. v. Jones, 149 Ill. 361). In determining the question of the location of a livery stable the common сouncil may properly consult the wishes and ascertain the needs of the residents of the block where the stable is to be kept, and to that end make their written consent the basis of thé action'of the commissioner of buildings in issuing the permit. In matters of purеly local concern the parties immediately interested may fairly be supposed to be more competent to judge of their needs than any central authority. (Cooley’s Const. Lim.—6th ed.—p. 138).

In Meyers v. Baker, 120 Ill. 567, there was involved the question of the validity of a sectiоn of the Criminal Code, which provides that “whoever, during the time of holding any camp or field meeting for religious purposes, and within one mile of the place of holding such meeting, hawks or peddles goods, wares or merchandise, or, without the permission оf the authorities having charge of such meeting, establishes any tent, booth or other place for vending provisions or refreshments, or sells or gives away, or offers to sell or give away, any spirituous liquor, wine, cider or beer, or practices or еngages in gaming or horse racing, or exhibits or offers to exhibit any show or play, shall be fined,” etc. In that case we held, that “the rule which would control an ordinance would also apply to ‍‌‌‌​‌​​‌​​‌‌‌​​‌‌‌​‌​​​​​‌​​‌‌‌‌‌‌‌‌‌‌​​​‌‌‌​‌​​‍an act of the legislature,” and that the statute did “not confеr the power to license on the authorities in charge of the meeting,” and we there said (p. 572): “The fact that the act confers on the authorities the right to consent, or refuse consent, cannot be held to authorize such authorities to license. The right to consent or refuse consent is one thing, while the right or power to license a person to conduct a certain business at a certain place is quite a different thing. Had the legislature intended to authorize the authorities to license, language expressing that intention in plain words would no doubt have been used. But however this may be, we see nothing in the language of the act which can be construed as authorizing the authorities to license.”

Where an annexation act of the legislature provided, that, when territory was annexed to a city under the provisions of that act, and, prior to such annexation, there were in force ordinances providing that licenses to keep dram-shops should not be issued except upоn petition of a majority of the voters residing within a certain distance of the location of such proposed dram-shop, it was held that such ordinance still remained in force after the annexation, and that it was not unreasonable. (Peoрle ex rel. v. Cregier, 138 Ill. 401).

The case of City of St. Louis v. Russell, 116 Mo. 248, is relied upon as announcing a different view of the present question from that which is here expressed, but the ordinance condemned in that case provided that no livery stable should “be located on any block of ground in St. Louis withоut the written consent of the owners of one-half of the ground of said block.” It will be noticed, that, in the Missouri case, the ordinance requiring the consent of adjacent property owners related to the entire city. Under the operation of such an ordinance livery stables might be totally suppressed and prohibited everywhere within the municipal limits. The ordinance, however, in the case at bar is not thus unreasonable, as it relates only to certain residence districts which are clearly dеfined. Within such specified residence districts, the city council undoubtedly has the power to prohibit or forbid the location of livery stables, and, having the power of total prohibition within those districts, it may impose such conditions and restrictions in relation to their limited area as it may see fit.

For the reasons stated, we are of the opinion that the ordinance here in question is not void as being a delegation of legislative power, and that the circuit court erred in not holding as law the propositions submitted to it as the same are set forth in the statement preceding this opinion.

Accordingly, the judgments of the Appellate and circuit courts are reversed, and the cause is remanded ‍‌‌‌​‌​​‌​​‌‌‌​​‌‌‌​‌​​​​​‌​​‌‌‌‌‌‌‌‌‌‌​​​‌‌‌​‌​​‍to the circuit court for further proceedings in accordance with the views herein expressed.

Reversed and remanded.