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(311 I. 234, 142 N. E. 512.)

Browning v. Springfield, 17 Ill. 143, 63 Am. Dec. 345; Waltham v. Kemper, 55 Ill. 346, 8 Am. Rep. 652; White v. Bond County, 58 Ill. 297, 11 Am. Rep. 65; Symonds v. Clay County, 71 Ill. 355; Hollenbeck v. Winnebago County, 95 Ill. 148, 35 Am. Rep. 151. In the last-cited case attention is called to the fact that counties are clothed with but few corporate powers, and these are not of a private character, but rather a part of the political government of the state; that a county can, however, sue and be sued, and has the power to purchase and hold real estate; that the county board has power to manage county funds and county business, settle accounts against the county, and collect taxes for county purposes. It is the duty of the county to erect or otherwise provide, when necessary and finances will justify it, and to keep in repair, a suitable courthouse, jail, and other necessary county buildings. These, with a few other similar provisions, constitute the duties and powers delegated to the county and county boards by the legislature. There is no delegation of police power to the counties and townships of the state, and it would seem clear, therefore, that by the delegation of the police power to cities, villages, and incorporated towns the legislature intended that the exercise of that power over the property and inhabitants within the limits of the city or village should be by that municipality, subject, of course, to the right of the state-of which it is never devested-to exercise the police power.

In Pasadena School Dist. v. Pasadena, 166 Cal. 7, 47 L.R.A. (N.S.) 892, 134 Pac. 985, Ann. Cas. 1915B, 1039, the question arose as to whether or not the school district, a quasi municipal corporation, was governed by the fire and building ordinances of the city of Pasadena, a municipal corporation, and whether it was required to pay fees for inspection. Under the Constitution of that state, power is conferred upon each county, city, town, or township

to make and enforce, within its limits, police, sanitary, and other regulations not in conflict with the general laws. The school district contended that as it was an independent governmental agency of the state, created under the general law, by which school property within the district was committed to its control, its property was not subject to control by the police regulations of the city. The argument was that, since by general law the management and control of school property was given to such districts, including the power to build schoolhouses, which were required to be approved by the county superintendent of schools and the school board, there was to be inferred, as necessary to the application of such power, police power in the school district to regulate sanitation and fire protection within the district, and that such power, being derived from a general law, could not be interfered with by the municipality. It was not there contended that any general law existed which expressly conferred police powers upon the school district. It was there held that, school districts being quasi municipal corporations, their powers were limited to the express grants of power given by the legislature; that, since the Constitution had given to the city the right to impose reasonable police regulations, a school district desiring to build a school building within the limits of the city was subject to such regulations. In answer to the argument that if the power of the city authorities be sustained the effect would be to deprive the state of its power to regulate the building of schools, it was held that while the. state, in the exercise of its police power, undoubtedly might provide a complete system of regulation for the protection of public health, safety, and comfort in the erection of the school buildings of the state, such had not been done, and that it was not intended by the legislature to empower the trustees of school districts to exercise such police pow

er; that a school district which embraces territory included in a densely populated city, or whose territory, as such, is exclusively within the city, should be made subject to reasonable regulations for the benefit of the entire city concerning fire protection; that the legislature recognized that in the matter of public safety school districts should be subject to the same building regulations as governed others erecting structures in the city, and that the only way it could be relieved from such control would be by general law.

In Kentucky Inst. v. Louisville, 123 Ky. 767, 8 L.R.A. (N.S.) 553, 97 S. W. 402, it was held that the state of Kentucky was not subject to the police powers of the city of Louisville in the matter of erection and control of buildings for the state institution for the blind; that the giving of the police power by the legislature to the municipality did not take that power from the state itself.

In Samuels v. Nashville, 3 Sneed, 298, the plaintiff in error was sued to recover a fine for erecting horse racks around the courthouse 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 courthouse 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 Coulterville v. Gillen, 72 Ill. 599, an action was brought against Gillen to recover a penalty for violation of an ordinance of the incorporated village against the sale of intoxicating liquors. The defense was that the county had issued a grocery license to the defendant authorizing him to sell spirituous liquors in Coulterville for one year, under a statute in existence at that time. The act also provided that the president and trustees of incorporated towns should have the exclusive privilege of granting licenses to grocers within their incorporated limits, and it was held that the license issued by the county was not a defense, for the reason that the county had no authority to interfere with the village in the matter.

In Bowers v. Wright, 4 W. N. C. 460, a statute had been passed conferring upon the board of education of the city of Philadelphia power to erect a schoolhouse and build the same, provided "all matters in connection with the erection of said schoolhouse 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 schoolhouse which did not

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comply with the regulations of the building inspectors.

In Llano v. Llano County, 5 Tex. Civ. App. 132, 23 S. W. 1008, it was held that the city may, under the police power, prevent the county from so using a courthouse square as to create a nuisance.

In People ex rel. Bull v. La Salle County, 84 Ill. 303, 25 Am. Rep. 461, it was held that mandamus will lie to compel the county board to construct a jail. It was said, however, that the kind of jail to be provided must necessarily be left to the discretion of the board, the court there saying: "They have the sole power to determine the size, cost, and quality of the material of which it shall be constructed, and the various other matters in relation to the construction of the same."

It was held that the court had no authority to compel the county to make the county jail sanitary. No question of the police power of the city arose in that case.

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In Mercer County v. Wolff, 237 Ill. 74, 86 N. E. 708, it was held that the duty resting on the board of supervisors to erect a county jail is ect a c imperative, but that the board has a discretion as to the kind, cost, size, and other conditions of the building. Counties are quasi public municipal corporations created for the purpose of convenCorpseient local govern govern ment, and exist only for public purposes connected with the administration of the state government. Millikin v. Edgar County, 142 Ill. 528, 18 L.R.A. 447, 32 N. E. 493; Wetherell v. Devine, 116 Ill. 631, 6 N. E. 24; Marion County v. Lear, 108 Ill. 343. The duty to erect a county jail rests upon the relation of the county to the state. Its use concerns the public at large, for the whole state is interested in the enforcement of the law in each county, and the county acts in the building of the jail as an agency of the state. In Jasper County v. Persons, 155 Ga. 277, 116 S. E. 538, it was held that a county

31 A.L.R.-29.

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may be mandamused to require it to make the county jail safe and sanitary, and put it in a condition that would not jeopardize the lives or health of the prisoners.

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 courthouse 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. Mercer County v. Wolff, supra. When the county builds a courthouse within the limits of a city, it may be held that in so doing it acts voluntarily. No good reason, therefore, is

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perceived why it Municipal should not be made are regulations amenable to the rea- to county. ➡applicability sonable 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 the by the state. It is not correct, therefore, to say that the county is that not a part of the state in the exercise of police power,

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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 & Provision Co. v. Chicago, 88 Ill. 221, 30 Am. Rep. 545, 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 1 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 busi

ness in said town at a point nearer than 1 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 power."

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 ex rel. Bull v. La Salle County, and Mercer County v. Wolff, supra, had to do with the general power of a county to determine the character, size, and location of a county courthouse 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 ¶ 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 on the part of the Superior Court of Cook County to overrule plaintiff in error's demurrer to the bill. The decree of the court is therefore reversed, and the cause remanded, with directions to sustain the demurrer.

ANNOTATION.

Applicability of municipal building

In the reported case (COOK COUNTY v. CHICAGO, ante, 442) it is held that under the Cities and Villages Act granting the police power to cities and villages, and giving the latter power "to cause all such buildings and inclosures as may be in a dangerous state to be put in a safe condition," a county must comply with the fire regulations of a municipal corporation within the limits of which it erects a county building.

In Kentucky Inst. V. Louisville (1906) 123 Ky. 767, 8 L.R.A. (N.S.) 553, 97 S. W. 402, the court held that a city ordinance requiring all buildings of a certain class to have fire escapes was not applicable to an

regulation to state or county buildings.

eleemosynary institution for the blind, which was established and maintained, and was completed, under the control of the state, direct control of said institution being in the hands of a board of visitors appointed by the governor with the advice and consent of the senate, the ultimate control by statute being vested in the state. The court says: "An act granting a charter for a municipal government will not be deemed a cession of the legislature's prerogative to govern for itself the institutions of the state which may be located within such municipality, unless it may be clearly gathered from the latter act that such was the legislative intent. The

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state will not be presumed to have waived its right to regulate its own property by ceding to the city the right generally to pass ordinances of a police nature regulating property within its bounds."

Ordinances regulating the construction, altering, and repairing of buildings within a city have no application to a public school building proposed to be erected, or in process of erection, for the state by the board of normal school regents, under special legislative authority, according to plans adopted by it and approved by the governor. Milwaukee v. McGregor (1909) 140 Wis. 35, 121 N. W. 642, 17 Ann. Cas. 1002.

In Board of Education v. St. Louis (1916) 267 Mo. 356, 184 S. W. 975, where, in compliance with the state Constitution requiring the general assembly to establish and maintain free public schools, school districts were created by statute, the supervision and government of which were vested by statute in boards of education charged with the care of the public school buildings, and with the responsibility for their ventilation, warming, sanitary condition, and proper repair, the court held that the board of education was not subject to the ordinances and regulations of the city in respect to the manner of construction of water-closets and vents therefrom in a public school building. It will be noticed in this case that the state itself had dealt with the subject of the construction and management of this property, which was held and used by its agents, and necessarily in such a case the decision of the court could not have been otherwise.

In Salt Lake City v. Board of Education (1918) 52 Utah, 540, 175 Pac. 654, it was held that ordinances based on a law vesting in the city commission power to define and prescribe fire limits, and to prescribe building regulations applicable within those limits, did not confer on the city power to impose building restrictions or regulations upon the board of education in the erection of school buildings, the control of the public school system be

ing vested in the legislature, which placed the control of the public schools in cities of the first and second class, in boards of education, which were empowered by statute to construct and erect school buildings and "to do all things needful for the maintenance, prosperity, and success of the schools, and the promotion of education." The court says: "A careful reading of the constitutional provisions and statutes relating to education clearly shows that the entire public school system (which includes the common schools as well as the university and the other state schools) remains entirely within the control of the state legislature, and hence within the control of the state, except where certain powers are delegated to the several boards of education, as herein indicated. From a consideration of all the various provisions relating to our public schools, therefore, we are forced to the conclusion that it was not intended to invest cities with any power over school buildings except in case such buildings should become a menace and a danger, as before stated, and that school boards are not required to ob-, tain permission from the cities." The court was of the opinion, however, that a city regulation requiring the connection of school buildings with the fire department, by telephone or otherwise, was a valid one, and enforceable against the board of education after the completion and occupancy of the school.

But in Pasadena School Dist. v. Pasadena (1913) 166 Cal. 7, 47 L.R.A. (N.S.) 892, 134 Pac. 985, Ann. Cas. 1915B, 1039, it was held that a municipal corporation may, under its constitutional power to make and enforce within its limits all such local police, sanitary, and other regulations as are not in conflict with general laws, subject a school district, embracing all the territory within the municipality and a large extent of contiguous territory, to its regulatory building ordinances and Building Code, in the exercise of its police power, notwithstanding the school district was created under a general law of the state, and its trustees were invested with power to

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