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The ordinance is not a delegation of legislative power to property owners, but provides for a contingency, upon the happening of which the ordinance will be inoperative in certain localities. People v. Reynolds, 5 Gilm. 1; People v. Salomon, 51 Ill. 37; Groesch v. State, 42 Ind. 547; Guild v. Chicago, 82 Ill. 472; People v. Hoffman, 116 id. 594; Bull v. Reid, 13 Gratt. 78; Alcorn v. Hamer, 38 Miss. 652; Aurora v. United States, 7 Cranch, 382; In re Flaherty, 105 Cal. 558; Locke's Appeal, 72 Pa. St. 494; Fell v. State, 42 Md. 71; Anderson v. Commonwealth, 76 Ky. 485; State v. Parker, 26 Vt. 357. The decisions on local option are also applicable to this case. Bancroft v. Eumas, 21 Vt. 456; State v. Board, 52 N. J. L. 398; Paul v. Greene County, 50 id. 585; Sandford v. Court of Common Pleas, 36 N. J. 74; Commonwealth v. Weller, 14 Bush, 218; State v. Wilcox, 42 Conn. 346; In re Hoover, 30 Fed. Rep. 51; Schulherr v. Bordeaux, 64 Miss. 71.
WILLIAM G. BEALE, Corporation Counsel, and GEORGE A. DUPUY, Assistant Corporation Counsel, also for appellant.
SAMUEL J. HOWE, for appellees:
All of the powers of a corporation are derived from the law and its charter, and no ordinance or by-law of a corporation can enlarge, diminish or vary its powers. Dillon on Mun. Corp. (4th ed.) sec. 317; Thompson v. Carroll, 22 How. 422.
The powers vested in municipal corporations must, as far as practicable, be exercised by ordinances general in their nature and impartial in their operations. Chicago v. Rumpf, 45 Ill. 97; Zanone v. Mound City, 103 id. 552.
Ordinances or by-laws must be reasonable, consonant with the general powers and purposes of a corporation, and not inconsistent with the laws or policy of the State. Tugman v. Chicago, 78 Ill. 405; Clinton v. Phillips, 58 id. 102; Trustees v. People, 87 id. 303; Rulison v. Post, 79 id. 567; Lake View v. Tate, 130 id. 252; Yick Woo v. Hopkins, 118 U. S. 356; In re Tie Loy, 26 Fed. Rep. 611.
Public powers and trusts are incapable of delegation. Dillon on Mun. Corp. (4th ed.) sec. 96, and cases in note 4; Cooley's Const. Lim. (5th ed.) 249; Bibel v. People, 67 Ill. 172; East St. Louis v. Wehrung, 50 id. 28; Hickey v. Railroad Co. 6 Ill. App. 172; St. Louis v. Russell, 116 Mo. 248; In re Quong Woo, 13 Fed. Rep. 229.
The city having granted a permit to erect the building and also a license to carry on the business, is estopped from taking any action which would interfere with the lawful conduct of the business. Martel v. East St. Louis, 94 Ill. 67; Chicago v. Sexton, 115 id. 230.
Mr. JUSTICE MAGRUDER delivered the opinion of the court:
The 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 regulate the use and construction of livery
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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 prohibits 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, so 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).
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The question, then, in the present case is, whether the power to direct the location of livery stables and regulate their use and construction, 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 location 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 location 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 general 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 own
ers 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 to 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 deposit 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 whose 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 livery 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 delegations of legislative power. (13 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 condition 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 upon the ordinance validity as an expression of the legislative will. (Alcorn v. Hamer, supra).