Gambar halaman
PDF
ePub

ing Loveland, Bankr. p. 1289, the state- composition shall discharge the bankment in which, apparently, is based rupt from his debts, other than those on decisions under the earlier Bank- agreed to be paid by the terms of the ruptcy Act); Beck v. Witteman Bros. composition and those not affected by (1918) 185 App. Div. 643, 173 N. Y. a discharge," said: "The language Supp. 488, 42 Am. Bankr. Rep. 647; may reasonably be interpreted to mean Page v. Carton (1909) 64 Misc. 645, that the debts to be paid by the terms 120 N. Y. Supp. 277; American Woolen of the composition shall not be disCo. v. Friedman (1916) 97 Misc. 593, charged by the order of confirmation 163 N. Y. Supp. 162. And see Ocean itself, but only by the payment of the Acci. & G. Corp. v. Beck (1915) 153 consideration." Of these decisions, N. Y. Supp. 932, and Bell Mfg. Co. v. however, it may be said that the dicta Cross (1923) — S. C. —, 117 S. E. 196, in the Kinnane Co. Case is discredited 1 Am. Bankr. Rep. N. S. 275. In Beck by the reported case (RE MIRKUS, v. Witteman Bros. (1918) 185 App. ante, 435), and that the New York Div. 643, 173 N. Y. Supp. 488, 42 Am. cases have been in effect overruled by Bankr. Rep. 647, supra, the court, in Jacobs v. Fensterstock (1923) 236 holding that confirmation of a com- N. Y. 39, 139 N. E. 772, and other New position does not, by virtue of the pro- York cases treated in the early part visions of the Bankruptcy Act, dis- of this annotation. charge the original debt until prom- In Re Carton (1906) 148 Fed. 63, ises to make payments at a future 17 Am. Bankr. Rep. 343, which intime are kept, said that “the effect of volved a voluntary composition agreethe composition as to the parties to ment entirely outside the Bankruptcy it still remains as it was at common Law, it was held, applying the New law," and "that a promissory consid- York law under which a failure to eration suspends the remedy on the carry out a voluntary composition original debt until the time of pay- agreement revives the original debt, ment comes, and if payment be not that the composition did not opermade, then, at the election of the ate as a discharge of the original promisee, the original debt is re- debt, and that the failure to pay notes vived;" and, discussing the provision given pursuant to the agreement reof 14c that "the confirmation of a vived the original debt. G. J. C.

COUNTY OF COOK

V.
CITY OF CHICAGO, Plff. in Err.

Illinois Supreme Court - February 19, 1924.

(311 Ill. 234, 142 N. E. 512.) Municipal corporations — fire regulations - applicability to county.

1. A county must comply with the fire regulations of a municipal corporation within the limits of which it erects a county building.

[See note on this question beginning on page 450.] Pleading - necessity of setting out State delegation of power to munieordinance.

ipality. 2. A bill to enjoin enforcement of

3. The state may delegate its police a municipal ordinance on the ground that it is not reasonable should set

power to municipal corporations creout the substance of the provision of ated by it, to be exercised for the welthe ordinance objected to, so that the fare, safety, and health of the public. court may see whether or not the

[See 19 R. C. L. 799.] claim is well founded.

(311 Nil. 234, 142 N. E. 512.) Municipal corporations extent of Counties

purpose of creation. police power.

5. Counties are quasi public munic4. Under the police power, munic- ipal corporations created for the puripal corporations may enact reason- pose of convenient local government, able ordinances to preserve health, and exist only for public purposes suppress nuisances, prevent fires, reg- connected with the administration of ulate the use and storing of dangerous the state government. articles, control markets, and similar [See 7 R. C. L. 924, 925; 2 R. C. L. uses and purposes.

Supp. 475.] [See 19 R. C. L. 798, 799.]

ERROR to the Third Branch of the Appellate Court, First District, to review a judgment affirming a judgment of the Superior Court for Cook County (Sullivan, J.) overruling a demurrer to a bill filed to enjoin defendant from enforcing its fire and building ordinances against plaintiff, concerning the construction of a county jail. Reversed.

The facts are stated in the opinion of the court.

Messrs. Francis X. Busch and Al- Ill. App. 194; Ridgway V. Gallatin bert H. Veeder, for plaintiff in error: County, 181 ill. 521, 55 N. E. 146;

The averment that the ordinances Lewis v. Cook County, 72 Ill. App. 151. of the city of Chicago are not suited Two municipal corporations may to the erection of a county jail is a exercise jurisdiction over the same mere conclusion of the pleader. territory for different purposes.

Buckley v. Eisendrath, 58 Ill. App. West Chicago Park v. Chicago, 152 364; People ex rel. Dix v. Chicago, 27 Ill. 392, 38 N. E. 697; Perkins v. Cook Ill. App. 217; Rockford City R. Co. v. County, 271 Ill. 451, 111 N. E. 580, Matthews, 50 ill. App. 267.

Ann. Cas. 1917A, 27; Chicago City R. Grants of power to a county are Co. v. South Park, 257 Ill. 602, 101 N. strictly construed, and only such pow- E. 201. ers as are expressly conferred or are The mere fact that the county or necessarily implied from the powers other public corporation is acting as granted may be exercised by it. a state agent within the territorial

Dahnke v. People, 168 Ill. 102, 39 jurisdiction of a city does not, ipso L.R.A. 197, 48 N. E. 137; Cook County facto, render the county immune v. Gilbert, 146 Ill. 268, 33 N. E. 761; from complying with valid city ordiCook County v. Lowe, 23 Ill. App. 649; nances passed in the exercise of the Hardin County V. McFarlan, 82 Ill. police power to conserve and protect 138.

the general health, safety, and welWhen an ordinance is duly passed fare of the city's inhabitants. in pursuance of a lawful grant of Llano v. Llano County, 5 Tex. Civ. power by the legislature, it has the App. 132, 23 S. W. 1008; Samuels v. same force and effect as a statute. Nashville, 3 Sneed, 298; Pasadena

King v. Davenport, 98 Ill. 305, 38 School Dist. v. Pasadena, 166 Cal. 7, Am. Rep. 89; Hope v. Alton, 214 Ill.

47 L.R.A. (N.S.) 892, 134 Pac. 985, Ann. 102, 73 N. E. 406; Flanagan v. Chi

Cas. 1915B, 1039; Bowers v. Wright, 4 cago City R. Co. 243 Ill. 456, 90 N. E.

W. N. C. 460; 28 Cyc. 937. 688.

The supreme court of Illinois, in The city ordinances in regard to fire

holding in former cases that, alprevention governing jails and build

though the county might be compelled ings within the city limits, having the

by the courts to build a jail, still the force of statutes, are special in their

court could not compel any particular character as prescribing fire regula

design or style of building to be tions; the statute granting power to

erected, nevertheless, did not say that the county to "erect a jail" is couched the county could ignore the requirein the most general terms, and in no ments of fundamental safety imposed wise does it specifically grant the by the city fire ordinances. county any police power to specify People ex rel. Bull v. LaSalle Counminimum safety requirements from ty, 84 Ill. 303, 25 Am. Rep. 461; Merfire hazards.

cer County v. Wolff, 237 Ill. 74, 86 N. People ex rel. Conlon v. Mount, 87 E. 708.

Messrs. Robert E. Crowe, George E. N. E. 812; Illinois C. R. Co. v. AshGorman, and Hayden N. Bell for de- line, 171 Ill. 313, 49 N. E. 521. fendant in error.

While it cannot be contended that Stone, J., delivered the opinion of either the county or an individual is the court:

amenable to an unreasonable ordiThe county of Cook, on December nance, the court cannot take the 10, 1921, filed its bill in the superior statement of a conclusion in that recourt of Cook county seeking to en

gard as sufficient pleading on a join the city of Chicago from en

bill of this character. The bill forcing its fire and building ordi- was therefore demurrable on that nances against the county, concern

ground. ing the construction of a county jail

The principal question argued in located within the territorial limits the case is whether or not the city of the city. The grounds upon

council has power to require an obwhich such injunction is sought are servance of its fire regulations by that "these ordinances and require the county in the building of a counments are not suitable to the said ty jail. This question has never been jail, and that it will be impossible passed upon in this state, and but to comply with the ordinances in few cases have been cited by counsel the building of said jail.”

representing the parties to this proThe injunction was also sought on

ceeding in which the matter has the general ground that the city did been passed upon in other states. not have a right to enforce its ordi- It becomes necessary, therefore, to nances against the county. The city review some of the underlying prinfiled a general demurrer to the bill. ciples governing the police power Upon hearing thereon it was held granted to cities and counties under that the city did not have police the law. power over the construction of Among the powers exercised by buildings erected by the county, and, municipalities are what are known evidently holding that the statement as the police powers

State-delegaof the ordinances in the bill was suf

of the state. These tion of power to

municipality. ficient, the court overruled the de- powers rest in the murrer. Two questions, therefore, state, and may be delegated to muare presented here: First, is the nicipal corporations created by the unreasonableness of the city ordi- state, to be exercised for the welnances sufficiently pleaded ? and, fare, safety, and health of the pubsecond, may the city, under its police lic. Under the police power cities power, regulate the construction of and villages may enact reasonable a county jail so far as fire hazards ordinances to preserve health, supare concerned?

press nuisances, prevent fires, regThe statement in the bill that the ulate the use and

Municipal ordinances of the city of Chicago storing of danger- corporationswere not suited to the erection of a ous articles, control extent of police county jail, and that it would be im- markets, and simpossible to comply with them in the ilar uses and purposes. The police construction of the jail, were mere power is not impaired by the 14th conclusions of the pleader. The sub- Amendment to the Constitution of stance of the part of an ordinance the United States (Barbier v. Con

objected to should nolly, 113 U. S. 27, 28 L. ed. 923, 5 Pleadingnecessity of

be set out, so the Sup. Ct. Rep. 357), but every citizen setting out court may see, on

holds his property subject to the ordinance.

reading it, whether proper exercise of the police power, or not the claim that it is not suited either by the state legislature or by and is unreasonable is well founded. public or municipal corporations, to The presumption is that an ordi- which the legislature has delegated nance is reasonable. People ex rel.

People ex rel. that power. This power rests upon Morrison v. Cregier, 138 Ill. 401, 28 the principle that one may not so

power.

(311 I. 234, 142 N. E. 512.) use his property as unreasonably to terhouses within 1 mile of the city injure others. These regulations limits was attacked on the ground rest upon the maxim "salus populi that it was not within the police suprema est lex.

power of the city, this court upheld An ordinance prohibiting wash- the ordinance on the ground that to ing and ironing in public laundries protect the health and lives of a within a specified district and with- large number of people living in one in specified hours was held a valid community, the state had power to exercise of the police power. Soon confer, and has conferred, on cities Hing v. Crowley, 113 U. S. 703, 28 and villages the right to regulate L. ed. 1145, 5 Sup. Ct. Rep. 730. In such instrumentalities as slaughterButchers' Union S. H. & L. S. L. Co. houses, even though the territory v. Crescent City L. S. L. & S. H. Co. over which the jurisdiction of the 111 U. S. 746, 28 L. ed. 585, 4 Sup. ordinance extended embraced other Ct. Rep. 652 (known as the Slaugh- municipalities. terhouse Case), the right of the city, Since the early case of Com. v. under the police power, to regulate Tewksbury, 11 Met. 58, the right to the operation of slaughterhouses restrain owners of lands in cities was upheld. Under the police pow- from erecting buildings contrary to er, cities may destroy buildings to fire regulations has been established prevent the spread of conflagration by many decisions. Wadleigh v. This right existed at common law, Gilman, 12 Me. 403, 28 Am. Dec. and the owner was entitled to no 188; King v. Davenport, 98 Ill. 305, compensation. 2 Kent, Com. 339. 38 Am. Rep. 89. In the last case citThe prevention of damage by fire is ed the court upheld an ordinance an object within the scope of mu- regulating fire limits, and the charnicipal authority, either by express acter of buildings to be erected grant or by the power delegated to within such limits, as a part of the the city to make police regulations. police power delegated to cities.

It was held in Pye v. Peterson, 45 Such power was likewise recognized Tex. 312, 23 Am. Rep. 608, that a in Louisville v. Webster, 108 Ill. 414, general grant of power to a city to though it was held in that case that pass such ordinances, not inconsist- the ordinance was not within the ent with the laws of the state, as police power given the city by the shall be needful for the government, legislature. interest, welfare, and good order of The legislature, by statute in this the corporation, did not authorize state, has conferred on municipal the city to establish fire limits and corporations, such as cities, villages, regulate the character of buildings and incorporated towns, the police within such limits. It is, however, power to prescribe fire regulations generally regarded that the preven- and to regulate buildings within tion of fires in incorporated towns their limits in respect to fire protecand cities is a matter for local reg- tion. Cahill's Stat. 1923, chap. 24, ulation and that it belongs to the art. 5, T 61, 62, 63. ordinary police powers of the city, There is a distinction to be borne and, unless such a course is incon- in mind between municipal corporasistent with the legislation of the tions proper, such as exist by charstate touching the subject, a general ters issued by the state, as incorpogrant of police powers to pass ordi- rated towns, cities, and villages nances for the welfare of the city voluntarily organized under the will also include fire regulation. 1 general Incorporation Act, and corDill

. Mun. Corp. 4th ed. 88 143, 405, porations, such as counties and note, and cases cited.

townships, which are frequently reIn Chicago Packing & Provision ferred to as involuntary quasi corpoCo. v. Chicago, 88 Ill. 221, 30 Am. rations. Municipal corporations are Rep. 545, where an ordinance by the those called into existence either at city of Chicago prohibiting slaugh- the direct request or by consent of

as

the persons composing them. Quasi Under the Act to Incorporate municipal corporations, such Counties, approved January 3, 1827 counties and townships, are, at

(Rev. Code of Laws 1827, p. 107), most, but local organizations, which counties are constituted a body corare created by general law, with porate and politic, with power out the consent of the inhabitants make and enter into contracts and thereof, for the purpose of the civil to sue and be sued in relation to such and political administration of gov- contracts, and by $$ 24 and 25 of the ernment, and they are invested with Counties Act (Smith's Stat. 1923, p. but few characteristics of corpo- 529), numerous other powers necesrate existence. They are, in other sary to the exercise of corporate words, local subdivisions of the powers of counties are there grantstate, created by the sovereign pow. ed; not, however, including police er of the state of its own will, with- powers. It has been uniformly held out regard to the wishes of the peo- that a right of action for damages ple inhabiting them. A municipal does not lie against a county or corporation is created principally township. The ground upon which for the advantage and convenience this doctrine rests is that these orof the people of the locality. Coun- ganizations are not voluntary but ty and township organizations are compulsory; not for the benefit of created in this state with a view to individuals who have asked for such aid in carrying out the policy of the a corporation, but for the public state at large for the administration generally. of matters of political government, The distinction between counties finance, education, taxing, care of and townships or quasi corporathe poor, military organizations, tions, and incorporated cities, vilmeans of travel, and the administra- lages, and towns, was laid down in tion of justice. The powers and the early case of Russell v. Devon, functions of county and township 2 T. R. 667, 100 Eng. Reprint, 359, organizations, therefore, as distin- 1 Revised Rep. 585, 12 Eng. Rul. guished from municipal corpora- Cas. 694. It was there held that tions, have a direct and exclusive while an action would lie by an inbearing on and reference to the gen- dividual against another for injury eral, rather than local, policy of gov- the former had received, on the ernment of the state. Hamilton ground of personal liability thereCounty v. Mighels, 7 Ohio St. 109; for, and while for that reason an acAskew v. Hale, 54 Ala. 639, 25 Am. tion for damages can be maintained Rep. 730; Lawrence County v. Chat- against municipal corporations betaroi R. Co. 81 Ky. 225; Manuel v. cause of their voluntary character, Cumberland County, 98 N. C. 9, 3 yet as to quasi corporations, such as S. E. 829; Cathcart v. Comstock, 56 townships and counties, such action Wis. 590, 14 N. W.833; 1 Dill. Mun. does not lie against them in the abCorp. 4th ed. § 23. Counties and sence of a statute authorizing it. towns, being purely auxiliaries of A distinction is drawn between the the state, owe their creation to the character of these organizations in general statutes of the state, which Riddle v. Locks & Canals, 7 Mass. confer upon them all the powers 186, 5 Am. Dec. 35, where it was which they possess and prescribe all held that, because of the limited the duties and liabilities to which character and powers and the involthey are subject. They have been untary nature of quasi corporations, referred to as ranking low in the the same may not be sued for damscale or grade of corporate exist- ages. A like conclusion is reached ence, and for that reason are fre- in Bartlett v. Crozier, 17 Johns. 446, quently termed quasi corporations. 8 Am. Dec. 428. This is likewise Hamilton County v. Garrett, 62 Tex. the rule in this state as established 602; Union Twp. v. Gibboney, 94 by a long line of decisions. Hedges Pa. 534.

v. Madison County, 6 Ill. 567;

« SebelumnyaLanjutkan »