Gen. No. 15,419 | Ill. App. Ct. | Nov 28, 1910
delivered the opinion of the court.
It is not contended by appellant that any provision of the ordinances adopted by defendant in 1904 and set forth in the declaration is unreasonable, partial, not designed to promote the public safety, or transcends the limit of the police power granted by the legislature to the city council of the defendant. His Contention is that while the city council might properly, in the exercise of the police power granted to it, adopt such ordinance as to theatres thereafter to be built, it was without power to adopt such ordinance as to theatres theretofore Mult, in the construction of which the provisions of the law and the ordinances in force at the time it was Mailt had been observed and in all respects complied with.
In this contention we cannot concur. If the city council from observation or experience determined that certain provisions relating to the construction and operation of a theatre were necessary for the protection of persons attending such theatre, it would be as important .for their safety to apply such provisions to theatres already built as to those to be built thereafter. In Seattle v. Hinckley, 40 Wash. 468" date_filed="1905-11-13" court="Wash." case_name="City of Seattle v. Hinckley">40 Wash. 468, 82 Pac. 747, 2 L. R. A. (N. S.) 398, a fire escape had been constructed in compliance with the ordinance then in force. An ordinance was thereafter passed requiring different fire escapes to be provided, and it was contended by the owner of the building that the ordinance deprived him of existing rights. In the opinion it was said: ‘£ There is no merit in the contention that the respondent had any inherent or vested right because he had complied with the law existing at the time he built. There is no such thing as an inherent or vested right to imperil the health or impair the safety of the community. But to be protected against such impairment or imperilment is the universally recognized right of the community in all civilized governments—a protection which the government not only has a right to vouchsafe to the citizens, but which it is its duty to extend in the exercise of its police power. * * * It would be a sad commentary on the law if municipalities were powerless to compel the adoption of the best methods for protecting life in such cases simply because the confessedly faulty method in use was the method provided by law at.the time of its construction.” See also Commonwealth v. Roberts, 155 Mass. 281" date_filed="1892-01-06" court="Mass." case_name="Commonwealth v. Roberts">155 Mass. 281.
No right of action accrued to the plaintiff because of the order of January 25, 1904. Section 51 of the ordinance of January 18 gave to certain officers the right to close a theatre, when any violation of the provisions of that ordinance was discovered, until such provisions were complied with. The order did not direct that any theatre should be closed. It only provided that the proprietor of a theatre who should agree to comply with the provisions of that ordinance and the ordinance of January 25, by a certain date, might, under certain conditions and on giving a certain "bond, open Ms theatre. Plaintiff complied with the conditions and was permitted to open his theatre February 11, 1904. He afterwards, in order to obtain a further extension of time to comply with the provisions of said ordinances, gave another bond. The order infringed no right of the plaintiff, was not mandatory, but only permissive.
Sections 146 and 147 of the ordinances in force when plaintiff’s theatre was bmlt gave certain officers of defendant, including the mayor, the right to close a theatre in case of a violation of or failure to comply with such ordinances. The matter of regulating the construction and operation of theatres by a municipal corporation pertains to the police power. In Culver v. Streator, 130 Ill. 238" date_filed="1889-11-26" court="Ill." case_name="Culver v. City of Streator">130 Ill. 238-243, it was said: “That power may be defined, in general terms, as comprehending the making and enforcement of all such laws, ordinances and regulations as pertain to the comfort, safety, health, convenience, good order and welfare of the public, and all persons officially charged with the execution and enforcement of such police ordinances and regulations are, quoad hoc, police officers.” The act of the mayor and cMef of police in closing the plaintiff’s theatre was an act done by them in attempting to exercise the police power, and for such acts the city is not liable. Culver v. Streator, supra; Wilcox v. Chicago, 107 Ill. 334" date_filed="1883-05-10" court="Ill." case_name="Wilcox v. City of Chicago">107 Ill. 334; Chicago v. Williams, 182 id. 135; Tollefson v. Ottawa, 228 Ill. 134" date_filed="1907-06-19" court="Ill." case_name="Tollefson v. City of Ottawa">228 Ill. 134.
We t.Muk that the order sustaining the demurrer to the declaration was proper, and the judgment is affirmed.
'Affirmed.