« SebelumnyaLanjutkan »
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 necessary 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 accomplish 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 council 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 the action of the commissioner of buildings in issuing the permit. In matters of purely 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 section 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 of 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 engages 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 confer 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 upon 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. (People 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 without the written consent of the owners of onehalf 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 defined. 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.
THE TITLE GUARANTEE AND TRUST CO., Receiver, et al.
THE CITY OF CHICAGO.
Filed at Ottawa May 12, 1896-Rehearing denied October 13, 1896.
1. SPECIAL ASSESSMENTS-assessment for city sewer-prospect of future connection with sewer as basis of assessment. No assessment based upon the prospect of a future connection with a sewer can be valid unless a drainage district is created which will drain into it, or some provision is made which will eventually effect such connection.
2. SAME-where benefits depend on future work the latter must be provided for. Property cannot be assessed for an improvement where it can not be benefited except in case of subsequent work for which no provision is made.
3. SAME when ordinance is invalid as a basis of special assessment. An ordinance for the construction of a sewer in such a manner that to make it of any use it must be covered to a depth of several feet, without provision for the work of furnishing data for an estimate of the cost of covering it, or for an assessment, is invalid as the basis of a special assessment.
162 505 185 286 162 505 a189 267
4. COURTS―reasonableness of exercise of power is for the court. The reasonableness of the exercise of a legislative grant of power to a city over the construction of sewers is to be determined by the court as a question of law.
5. SAME-when court may pass upon the reasonableness of ordinance for sewer. The rule that an ordinance specifically authorized by statute cannot be impeached because it is unreasonable, does not apply to an ordinance for the construction of a sewer, passed under a general power over the subject, as such grant is subject to the implied limitation that its exercise shall be reasonable.
6. SAME-power of court not taken away by provision of general Incorporation act. The fact that the general act for the incorporation of cities expressly provides that sewers may be paid for by special assessment, the proceeding to conform to the provisions of article 9 of the act, does not preclude the courts from passing upon the reasonableness of the ordinance.
7. SAME-power of court to hold preliminary questions under advisement until after trial. The court cannot hold under advisement preliminary questions involving the validity of an ordinance for the construction of a sewer until after trial before a jury, as the objectors have a right, before such trial, to a decision as to whether the ordinance and assessment legally afford any basis for a trial.
APPEAL from the County Court of Cook county; the Hon. COLOSTIN D. MYERS, Judge, presiding.
WILSON, MOORE & MCILVAINE, WILLIAM J. DONLIN, JOHN A. MAY, and IRA J. GEER, for appellants.
J. D. ADAIR, for appellee.
Mr. JUSTICE CARTWRIGHT delivered the opinion of the court:
This is an appeal from a judgment of confirmation, entered in the county court of Cook county, of a special assessment for the construction of a sewer 5600 feet long, in One Hundred and Sixth street, from the Calumet river east to the Indiana State line. The estimated cost of the sewer was $34,948.69, and assessments aggregating about that sum were levied upon a district extending the length of the sewer and a quarter of a mile north and half a mile south therefrom, covering a territory of 480 acres as stated by appellee and 600 acres as claimed by appel
lants. A very large part of the property was objected for. The objections were held by the court, and after a trial by a jury were overruled.
The objection made on behalf of property not situated on One Hundred and Sixth street, in which the sewer was to be laid, both by formal objection filed and by motion to strike out from the assessment roll such property, was, that as to such lands and lots no provision was made for connecting them with the sewer, and there had been no legislation by which it could be known that any such lands would ever be permitted to drain into the sewer. It was shown to the court that the proposed sewer would lie, in large part, above the natural surface of the ground, and that the catch-basins and man-holes, when constructed, would stand above the surface of the ground, varying in height from one to four feet, so that there could be no surface drainage from the district into the sewer. As the land now is the surface drainage is good, and the sewer would operate as a dam to prevent surface drainage of the lands lying north of it. As there could be no surface drainage, the property not abutting upon the sewer could not be in any way benefited, unless, in the course of time, laterals should be built. It is true that property may be benefited which is not directly reached by a sewer, provided the ordinance is of such a character as to bring an outlet for sewerage nearer to the property, with some provision permitting the property to use such outlet in the future. But no assessment can be valid, based upon a prospect of a future connection with a sewer, unless a drainage district is created which will drain into it or some provision is made which will eventually effect such connection. The privilege of using the sewer in such cases depends upon the will of a body not within the control of the property owners, which may be expressed against the privilege. This ordinance designated no territory to be drained, and made no provision necessary to effect drainage from the land for which this