« SebelumnyaLanjutkan »
(311 Ill. 234, 14% N. E. 512.) Browning v. Springfield, 17 Ill. 143, to make and enforce, within its lim63 Am. Dec. 345; Waltham v. Kem- its, police, sanitary, and other regper, 55 Ill. 346, 8 Am. Rep. 652; ulations not in conflict with the genWhite v. Bond County, 58 Ill. 297, eral laws. The school district con11 Am. Rep. 65; Symonds v. Claytended that as it was an independCounty, 71 Ill. 355; Hollenbeck v. ent governmental agency of the Winnebago County, 95 Ill. 148, 35 state, created under the general law, Am. Rep. 151. In the last-cited case by which school property within the attention is called to the fact that district was committed to its concounties are clothed with but few trol, its property was not subject to corporate powers, and these are not control by the police regulations of of a private character, but rather a the city. The argument was that, part of the political government of since by general law the managethe state; that a county can, how- ment and control of school property ever, sue and be sued, and has the was given to such districts, includpower to purchase and hold real es- ing the power to build schoolhouses, tate; that the county board has pow- which were required to be approved er to manage county funds and by the county superintendent of county business, settle accounts schools and the school board, there against the county, and collect taxes was to be inferred, as necessary to for county purposes. It is the duty the application of such power, poof the county to erect or otherwise lice power in the school district to provide, when necessary and fi- regulate sanitation and fire protecnances will justify it, and to keep in tion within the district, and that repair, a suitable courthouse, jail, such power, being derived from a and other necessary county build- general law, could not be interfered ings. These, with a few other sim- with by the municipality. It was ilar provisions, constitute the duties not there contended that any genand powers delegated to the county eral law existed which expressly and county boards by the legisla- conferred police powers upon the ture. There is no delegation of po- school district. It was there held lice power to the counties and town- that, school districts being quasi ships of the state, and it would seem municipal corporations, their powclear, therefore, that by the delega- ers were limited to the express tion of the police power to cities, vil grants of power given by the legislages, and incorporated towns the lature; that, since the Constitution legislature intended that the exer- had given to the city the right to cise of that power over the property impose reasonable police regulaand inhabitants within the limits of tions, a school district desiring to the city or village should be by that build a school building within the municipality, subject, of course, to limits of the city was subject to such the right of the state of which it regulations. In answer to the arguis never devested—to exercise the ment that if the power of the city police power.
authorities be sustained the effect In Pasadena School Dist. v. Pasa- would be to deprive the state of its dena, 166 Cal. 7, 47 L.R.A.(N.S.) power to regulate the building of 892, 134 Pac. 985, Ann. Cas. 1915B, schools, it was held that while the. 1039, the question arose as to wheth- state, in the exercise of its police er or not the school district, a quasi power, undoubtedly might provide municipal corporation, was gov- a complete system of regulation for erned by the fire and building ordi- the protection of public health, safenances of the city of Pasadena, a ty, and comfort in the erection of municipal corporation, and whether the school buildings of the state, it was required to pay fees for in- such had not been done, and that it spection. Under the Constitution of was not intended by the legislature that state, power is conferred upon to empower the trustees of school each county, city, town, or township districts to exercise such police pow
er; that a school district which em- use his own property so as not to braces territory included in a dense- injure others was binding upon the ly populated city, or whose terri
county; that in the exercise of the tory, as such, is exclusively within police power the city controlled the the city, should be made subject to matter of nuisances; and the fact reasonable regulations for the bene- that the plaintiff in error was aufit of the entire city concerning fire thorized and directed by the county protection; that the legislature rec- court to erect the hitching posts did ognized that in the matter of public not prevent the city from enforcing safety school districts should be sub- its ordinance against him. ject to the same building regulations In Coulterville v. Gillen, 72 Ill. as governed others erecting struc- 599, an action was brought against tures in the city, and that the only Gillen to recover a penalty for vioway it could be relieved from such lation of an ordinance of the incorcontrol would be by general law. porated village against the sale of
In Kentucky Inst. v. Louisville, intoxicating liquors. The defense 123 Ky. 767, 8 L.R.A.(N.S.) 553, 97 was that the county had issued a S. W. 402, it was held that the state grocery license to the defendant of Kentucky was not subject to the authorizing him to sell spirituous police powers of the city of Louis- liquors in Coulterville for one year, ville in the matter of erection and under a statute in existence at that control of buildings for the state in- time. The act also provided that stitution for the blind; that the giv- the president and trustees of incoring of the police power by the legis- porated towns should have the exlature to the municipality did not clusive privilege of granting litake that power from the state it- censes to grocers within their inself.
corporated limits, and it was held In Samuels v. Nashville, 3 Sneed, that the license issued by the coun298, the plaintiff in error was sued ty was not a defense, for the reason to recover a fine for erecting horse that the county had no authority to racks around the courthouse in the interfere with the village in the city of Nashville, contrary to an or- matter. dinance of the city. The defense In Bowers v. Wright, 4 W. N. C. was that plaintiff in error was act- 460, a statute had been passed coning under the order of the county ferring upon the board of educacourt of the county of Davidson to
tion of the city of Philadelphia put the posts and hitch racks in the
power to erect a schoolhouse and courthouse square for the hitching
build the same, provided "all matof horses. The question in the case
ters in connection with the erection was one of paramount authority be
of said schoolhouse shall be under tween county and city. The argument was used that the public
the direction of said board of pubsquare belongs to the county and is lic education." By another statute under the control of the county
power was granted to the board of court, and therefore not subject to building inspectors of the city of the police regulations of the city. Philadelphia to control the matter It was there held, however, that of granting permits for the erecownership of the square was not tion of buildings, and the question material; that, regardless of who was whether the board of education owned the land, the county could was required to obtain a permit not exercise its power so as to in- from the board of building inspecflict a nuisance upon the citizens of tors before erecting a school buildthe city; that the power to prevent ing. It was there held that the or abate a nuisance must abide in board was so required, and that it the local authorities, where neces- was subject to the police power sity for self-preservation exists; vested in the city, and could not that the rule that everyone must build a schoolhouse which did not
to the coun
COOK COUNTY v. CHICAGO.
-1 comply with the regulations of the
may be mandamused to require it to building inspectors.
make the county jail safe and saniIn Llano v. Llano County, 5 Tex. tary, and put it in a condition that Civ. App. 132, 23 S. W. 1008, it would not jeopardize the lives or was held that the city may, under health of the prisoners. the police power, prevent the coun- The powers granted to ty from so using a courthouse ties under the general law do not insquare as to create a nuisance. clude the police power. That power
In People ex rel. Bull v. La Salle is granted to cities and villages unCounty, 84. III. 303, 25 Am. Rep. der the act concerning their incor461, it was held that mandamus poration, and by that statute it exwill lie to compel the county board tends to all buildings within its limto construct a jail. It was said, its. The county is not required to however, that the kind of jail to be build a courthouse within the limits provided must necessarily be left of any city, but may build it elseto the discretion of the board, the where if directed so to do by the court there saying: "They have
“They have people, or may maintain or condemn the sole power to determine the land of its own volition without a size, cost, and quality of the mate- vote of the people. Mercer County rial of which it shall be construct- V. Wolff, supra. When the county ed, and the various other matters in builds a courthouse within the limits relation to the construction of the of a city, it may be held that in so same.”
doing it acts voluntarily. No good It was held that the court had no
reason, therefore, is authority to compel the county to perceived why
corporationsmake the county jail sanitary. No should not be made fire regulatons question of the police power of the
amenable to the reacity arose in that
sonable police reg
as to county. ist In Mercer County V. Wolff, 237 ulations imposed by the city in the Ill. 74, 86 N. E. 708, it was held that interest of the general welfare. the duty resting on the board of It is urged that the county is an supervisors to erect a county jail is
arm of imperative, but that the board has been committed the control of the a discretion as to the kind, cost, size, county buildings, and that it is not, and other conditions of the building. therefore, subject to the police pow
Counties are quasi public munici- er of the city. While the county is pal corporations created for the T an agency of the state, it is likewise Couatie?.)ient local governa't only the
purpose of conven- a creature of the state, vested with creation.
ment, and exist, on- by the state. It is not correct, ly for public purposes connected therefore, to say that the county is with the administration of the state a part of the state in the exercise of government. Millikin v. Edgar police power, County, 142 Ill. 528, 18 L.R.A. 447, The police power of the state has 32 N. E. 493; Wetherell v., Devine, been said to be the law of overruling 116 Ill. 631, 6 N. E. 24; Marion necessity, for the preservation of County v. Lear, 108, III. 343. The the general welfare. In Chicago duty to erect a county jail rests upon Packing & Provision Co. v. Chicago, the relation of the county to the 88 Ill. 221, 30 Am. Rep. 545, it was state
. Its use concerns the public held, as we have seen, that the city at large, for the whole state is in- has the right to require that slaughterested in the enforcement of the ter and packing houses be mainlaw in each county, and the county tained not less than 1 mile from the acts in the building of the jail as an city limits, even though the town of agency of the state. In Jasper Lake, which was an incorporated County v, Persons, 155 Ga. 277, 116 town, had given a permit to the S. E. 538, it was held that a county packing company to operate its busi
ness in said town at a point nearer of a power to the latter which than 1 mile from the city limits of the former is expected to observe. Chicago. This court there said: What was said in the cases of Peo“Did they (the legislature] intend ple ex rel. Bull v. La Salle County, that the city should be annoyed and and Mercer County v. Wolff, supra, injured in health and comfort by had to do with the general power the exercise of the power of a of a county to determine the characcorporation with a comparatively ter, size, and location of a county sparse population, and to submit to
courthouse and a jail. The matter have imposed on them such nui- of the police power or the obligation sances as the town of Lake might of the county to observe the reasonimpose by licensing them? We can- able exercise of that power delegatnot suppose the general assembly so ed to cities in which county builddisregardful of the health and com- ings are located was not there disfort of such great numbers of peo- cussed. We are of the opinion that ple, but, on the contrary, we must in enacting | 63 of article 5 of the suppose it was intended that the Cities and Villages Act, and in uspeople of Chicago, and other cities ing the language, "and to cause all under like circumstances, should such buildings and inclosures as have the means of protecting them- may be in a dangerous state to be selves against
against such intolerable put in a safe condition,” the legislawrongs as might thus be inflicted ture intended to confer upon the city upon them. We must conclude that council such power over all of the the general assembly, rather than buildings erected within the city as subject our large cities to such haz- the words there indicate, including ards from smaller municipalities in those of the county or other municitheir immediate vicinity, would palities located therein. have repealed the charters of the It was error on the part of the latter, or at least have curtailed Superior Court of Cook County to their power."
overrule plaintiff in error's demurWe are of the opinion that the rer to the bill. The decree of the police power delegated to the city court is therefore reversed, and the must be construed, as between the cause remanded, with directions to county and the city, as a delegation sustain the demurrer.
Applicability of municipal building regulation to state or county buildings.
In the reported case (COOK COUNTY eleemosynary institution for the blind, v. CHICAGO, ante, 442) it is held that which was established and maintained, under the Cities and Villages Act and was completed, under the control granting the police power to cities and of the state, direct control of said villages, and giving the latter power institution being in the hands of a "to cause all such buildings and in- board of visitors appointed by the closures as may be in a dangerous governor with the advice and consent state to be put in a safe condition," of the senate, the ultimate control by a county must comply with the fire statute being vested in the state. The regulations of a municipal corporation court says:
“An act granting a within the limits of which it erects a charter for a municipal government county building.
will not be deemed a cession of the In Kentucky Inst. Louisville legislature's prerogative to govern for (1906) 123 Ky. 767, 8 L.R.A.(N.S.) itself the institutions of the state 553, 97 S. W. 402, the court held that which may be located within such a city ordinance requiring all build- municipality, unless it may be clearly ings of a certain class to have fire gathered from the latter act that such escapes was not applicable to an was the legislative intent.
state will not be presumed to have ing vested in the legislature, which waived its right to regulate its own placed the control of the public schools property by ceding to the city the in cities of the first and second class, right generally to pass ordinances of in boards of education, which were ema police nature regulating property powered by statute to construct and within its bounds."
erect school buildings and “to do all Ordinances regulating the construc- things needful for the maintenance, tion, altering, and repairing of build- prosperity, and success of the schools, ings within a city have no application and the promotion of education.” The to a public school building proposed court says: "A careful reading of the to be erected, or in process of erection, constitutional provisions and statutes for the state by the board of normal relating to education clearly shows school regents, under special legis- that the entire public school system lative authority, according to plang (which includes the common schools adopted by it and approved by the as well as the university and the other governor. Milwaukee v. McGregor state schools) remains entirely within (1909) 140 Wis. 35, 121 N. W. 642, 17 the control of the state legislature, Ann, Cas. 1002.
and hence within the control of the In Board of Education v. St. Louis state, except where certain powers (1916) 267 Mo. 356, 184 S. W. 975, are delegated to the several boards of where, in compliance with the state education, as herein indicated. Constitution requiring the general From a consideration of all the variassembly to establish and maintain ous provisions relating to our public free public schools, school districts schools, therefore, we are forced to the were created by statute, the super- conclusion that it was not intended vision and government of which were to invest cities with any power over vested by statute in boards of educa- school buildings except in case such tion charged with the care of the pub- buildings should become a menace and lic school buildings, and with the a danger, as before stated, and that responsibility for their ventilation, school boards are not required to ob-, warming, sanitary condition, and tain permission from the cities.” The proper repair, the court held that the court was of the opinion, however, that board of education was not subject a city regulation requiring the conto the ordinances and regulations of nection of school buildings with the the city in respect to the manner of fire department, by telephone or otherconstruction of water-closets and wise, was a valid one, and enforceable vents therefrom in a public school against the board of education after building. It will be noticed in this the completion and occupancy of the case that the state itself had dealt school. with the subject of the construction But in Pasadena School Dist. v.' and management of this property, Pasadena (1913) 166 Cal. 7, 47 L.R.A. which was held and used by its agents, (N.S.) 892, 134 Pac. 985, Ann. Cas. and necessarily in such a case the 1915B, 1039, it was held that a municidecision of the court could not have pal corporation may, under its constibeen otherwise.
tutional power to make and enforce In Salt Lake City v. Board of Educa- within its limits all such local police, tion (1918) 52 Utah, 540, 175 Pac. sanitary, and other regulations as are 654, it was held that ordinances based not in conflict with general laws, subon a law vesting in the city commis- ject a school district, embracing all sion power to define and prescribe fire the territory within the municipality limits, and to prescribe building regu- and a large extent of contiguous terrilations applicable within those limits, tory, to its regulatory building ordidid not confer on the city power to im- nances and Building Code, in the exerpose building restrictions or regula- cise of its police power, notwithstandtions upon the board of education in ing the school district was created unthe erection of school buildings, the der a general law of the state, and its control of the public school system be- trustees were invested with power to