delivered the opinion of the court:
The county of Cook on December 10, 1921, filed its bill in the superior court of Cook county seeking to enjoin the city of Chicago from enforcing its fire and building ordinances against the county concerning the construction of' a county jail located within the territorial limits of the city. The grounds upon which such injunction is sought are, that “these ordinances and requirements are not suitable to the said jail and that it will be impossible to comply with the ordinances in the building of said jail.” The injunction was also sought on the general ground that the city did not have a right to enforce its ordinances against the county. The city filed a general demurrer to the bill. Upon hearing thereon it was held that the city did not have police power over the construction of buildings erected by the county, and, evidently holding that the statement of the ordinances in the bill was sufficient, the court overruled the demurrer. The Appellate Court affirmed the decree. Two questions, therefore, are presented here: First, is the unreasonableness of the city ordinances sufficiently pleaded ? and second, may the city, under its police power, regulate the construction of a county jail so far as fire hazards are concerned ?
The statement in the bill that the ordinances of the city of Chicago were not suited to the erection of a county jail, and that it would be impossible to comply with them in the construction of the jail, were mere conclusions of the pleader. The substance of the part of, an ordinance objected to should be set out, so the court may see, on reading it, whether or not the claim that it is not suited and is unreasonable is well founded. The presumption is that an ordinance is reasonable. (People v. Cregier,
The principal question argued in the case is whether or not the city council has power to require an observance of its fire regulations by the county in the building of a county jail. This question has never been passed upon in this State, and but few cases have been cited by counsel representing the parties to this proceeding in which the matter has been passed upon in other States. It becomes necessary, therefore, to review some of the underlying principles governing the police power granted to cities and counties under the law.
Among the powers exercised by municipalities are what are known as the police powers of the State. These powers rest in the State and may be delegated to municipal corporations created by the State, to be exercised for the welfare, safety and health of the public. Under the police power cities and villages may enact reasonable ordinances to preserve health, suppress nuisances, prevent fires, regulate the use and storing of dangerous articles, control markets, and similar uses and purposes. The police power is not impaired by the fourteenth amendment to the constitution of the United Staítes, (Barbier v. Connolly,
An ordinance prohibiting washing and ironing in public laundries within a specified district and within specified hours was held a valid exercise of the police power. (Soon Hing v. Crowley,
It was held in Pye v. Peterson,
In Chicago Packing Co. v. City of Chicago,
Since the early case of Commonwealth v. Tewksbury,
The legislature, by statute in this State, has conferred on municipal corporations, such as cities, villages and incorporated towns, the police power to prescribe fire regulations and to regulate buildings within their limits in respect to fire protection. Cahill’s Stat. 1923, chap. 24, art. 5, pars. 61, 62, 63.
There is a distinction to be borne in mind between municipal corporations proper, such as exist by charters issued by the State, as incorporated towns, cities and villages voluntarily organized under the general Incorporation act, and corporations such as counties and townships, which are frequently referred to as involuntary quasi corporations. Municipal corporations are those called into existence either at the direct request or by consent of the persons composing them. Quasi municipal corporations, such as counties and townships, are at most but local organizations, which are created by general .law, without the consent of the inhabitants thereof, for the purpose of the civil and political administration of government, and they are invested with but few characteristics of corporate existence. They are, in other words, local subdivisions of the State created by the sovereign power of the State of its own will, without regard to the. wishes of the people inhabiting them. A municipal corporation is created principally for the advantage and convenience of the people of the locality. County and township organizations are created in this State with a view to aid in carrying out the policy of the State at large for the administration of matters of political government, finance, education, taxing, care of the poor, military organizations, means of travel and the administration of justice. The powers and functions of county and township organizations, therefore, as distinguished from municipal corporations, have a direct and exclusive bearing on and reference to the general, rather than local, policy of government of the State. (Hamilton Co. v. Mighels,
Under the act to incorporate counties, approved January 3, 1827/ counties are constituted a body corporate and politic, with power to make and enter into contracts and to sue and be sued in relation to such contracts, and by sections 24 and 25 of the Counties act (Smith’s Stat. 1923, p. 529,) numerous other powers necessary to the exercise of corporate powers of counties are there granted, not, however, including police powers. It has been uniformly held that a right of action for damages does not lie against a county or township. The ground upon which this doctrine rests is, that these organizations are not voluntary but compulsory ; not for the benefit of individuals who have asked for such a corporation, but for the public generally.
The distinction between counties and townships, or quasi corporations, and incorporated cities, villages and towns, was laid down in the early case of Russel v. Men Dwelling in the County of Devon, 2 Durn. & East, 311. It was there held that while an action would lie by an individual against another for injury the former had received, on the ground of personal liability therefor, and while for that reason an action for damages can be maintained against municipal corporations because of their voluntary character, yet as to quasi corporations, such as townships and counties, such action does not lie against them in the absence of a statute authorizing it. A distinction is drawn between the character of these organizations in Riddle v. Proprietor of Locks,
In Pasadena School District v. City of Pasadena,
In Kentucky Institution for the Blind v. Louisville,
In Samuels v. Mayor of Nashville, 3 Sneed, (Tenn.) 298, the plaintiff in error was sued to recover a fine for erecting horse-racks around the court house in the city of Nashville, contrary to an ordinance of the city. The defense was that plaintiff in error was acting under the order of the county court of the county of Davidson to put the posts and hitch-racks in the court house square for the hitching of horses. The question in the case was one of paramount authority between county and city. The argument was used that the public square belongs to the county and is under the control of the county court and therefore not subject to the police regulations of the city. It was there held, however, that ownership of the square was not material; that regardless of who owned the land, the county could not exercise its power so as to inflict a nuisance upon the citizens of the city; that the power to prevent or abate a nuisance must abide in the local authorities where necessity for self-preservation exists; that the rule that everyone must use his own property so as not to injure others was binding upon the county; that in the exercise of the police power the city controlled the matter of nuisances, and the fact that the plaintiff in error was authorized and directed by the county court to erect the hitching posts did not prevent the city from enforcing its ordinance against him.
In Village of Coulterville v. Gillen,
In Bowers v. Wright, 4 W. N. C. (Pa.) 460, a statute had been passed conferring upon the board of education of the city of Philadelphia power to erect a school house and build the same, provided “all matters in connection with the erection of said school house shall be under the direction of said board of public education.” By another statute power was granted to the board of building inspectors of the city of Philadelphia to control the matter of granting permits for the erection of buildings, and the question was whether the board of education was required to obtain a permit from the board of building inspectors before erecting a school building. It was there held that the board was so required and that it was subject to the police power vested in the city and could not build a school house which did not comply with the regulations of the building inspectors.
In Llano v. Llano County,
In People v. Board of Supervisors of LaSalle County,
In County of Mercer v. Wolff,
Counties are quasi public municipal corporations created for the purpose of convenient local government and exist only for public purposes connected with the administration of the State government. (Millikin v. County of Edgar,
The powers granted to the counties under the general law do not include the police power. That power is granted to cities and villages under the act concerning their incorporation and by that statute it extends to all buildings within its limits. The county is not required to build a court house within the limits of any city but may build it elsewhere if directed so to do by the people, or may maintain or condemn land of its own volition without a vote of the people. (County of Mercer v. Wolff, supra.) When the county builds a court house within the limits of a city it may be held that in so doing it acts voluntarily. No good reason, therefore, is perceived why it should not be made amenable to the reasonable police regulations imposed by the city in the interest of the general welfare.
It is urged that the county is an arm of the State to which there has been committed the control of the county buildings, and that it is not, therefore, subject to the police power of the city. While the county is an agency of the State it is likewise a creature of the State vested with only the powers conferred upon it by the State. It is not correct, therefore, to say that the county is a part of the State in the exercise of police power.
The police power of the State has been said to be the law of overruling necessity, for the preservation of the general welfare. In Chicago Packing Co. v. City of Chicago, supra, it was held, as we have seen, that the city has the right to require that slaughter and packing houses be maintained not less than one mile from the city limits, even though the town of Lake, which was an incorporated town, had given a permit to the packing company to operate its business in said town at a point nearer than one mile from the city limits of Chicago. This court there said: “Did they [the legislature] intend that the city should be annoyed and injured in health and comfort by the exercise of the power of a corporation with a comparatively sparse population and to submit to have imposed on them such nuisances as the town of Lake might impose by licensing them? We cannot suppose the General Assembly so disregardful of the health and comfort of such great numbers of people, but, on the contrary, we must suppose it was intended that the people of Chicago, and other cities under like circumstances, should have the means of protecting themselves against such intolerable wrongs as might thus be inflicted upon them. We must conclude that the General Assembly, rather than subject our large cities to such hazards from smaller municipalities in their immediate vicinity, would have repealed the charters of the latter or at least have curtailed their powers.”
We are of the opinion that the police power delegated to the city must be construed, as between the county and the city, as a delegation of a power to the latter which the former is expected to observe. What was said in the cases of People v. Board of Supervisors of LaSalle County, supra, and County of Mercer v. Wolff, supra, had to do with the general power of a county to determine the character, size and location of a county court house and a jail. The matter of the police power or the obligation of the county to observe the reasonable exercise of that power delegated to cities in which county buildings are located was not there discussed. We are of the opinion that in enacting paragraph 63 of article 5 of the Cities and Villages act, and in using the language, “and to cause all such buildings and inclosures as may be in a dangerous state to be put in a safe condition,” the legislature intended to confer upon the city council such power over all of the buildings erected within the city as the words there indicate, including those of the county or other municipalities located therein.
It was error for the superior court to overrule plaintiff in error’s demurrer to the bill. The judgment of the Appellate Court is reversed and the cause remanded to the superior court, with directions to sustain the demurrer.
Reversed and remanded, with directions.