are satisfied, from a preponderance of the testimony, that Smith was such superior they must conclude he was not."

12. "The plaintiff cannot recover in this case on the ground that the injury to him was caused by the negligence of Smith, the starter, unless the jury believe, from the evidence, that the plaintiff and the said Smith were not fellow-servants of the defendant, the West Chicago Street Railroad Company. Fellow-servants are servants of the same master engaged in the same line of the master's business, and who are habitually associated with each other in their usual duties in such a way that they can exercise an influence upon each other promotive of proper caution."

Taken as a series the instructions properly directed the jury as to the law on this branch of the case. It was a question of fact for the jury whether or not Smith was a fellow-servant with the plaintiff and acting as such, or whether he stood in the relation of the representative of the common master, clothed with authority to direct and command the plaintiff in respect to the circumstances that combined to cause the injury, in view of the instructions of the court defining to the jury the meaning, in law, of those terms. This court has had occasion in several cases to consider the general doctrine announced in these instructions, and which, in the main, we do not understand counsel to question. Without extending this opinion further in its discussion, reference is made to the following cases: Chicago Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill. 573; Chicago and Alton Railroad Co. v. May, 108 id. 288; Mobile and Ohio Railroad Co. v. Massey, 152 id. 144; Chicago and Eastern Illinois Railroad Co. v. Kneirim, id. 458; Wenona Coal Co. v. Holmquist, id. 581; Mobile and Ohio Railroad Co. v. Godfrey, 155 id. 78; Pullman Palace Car Co. v. Laack, 143 id. 242. See, also, Chicago, Milwaukee and St. Paul Railway Co. v. Ross, 112 U. S. 377.

Finding no error in the record the judgment of the Appellate Court will be affirmed. Judgment affirmed.

494:33 LRA 473 38 LRA 651

162 494 162 542

162 494 186 1317

162 494 195 1471

THE CITY OF CHICAGO

v.

C. J. STRATTON et al.

Filed at Ottawa May 12, 1896-Rehearing denied October 13, 1896.

1. MUNICIPAL CORPORATIONS-prohibiting erection of livery stable without consent of property owners—validity of ordinance. A municipal ordinance declaring it unlawful to locate, build or keep a livery stable in any block in which two-thirds of the buildings are residences unless the owners of a majority of the lots consent in writing, is not invalid as a delegation by the city council to the property owners of the legislative power conferred upon the council, as it is a prohibition of the location of such stables, which may be avoided under the condition of such consent.

2. SAME-construction of power of city to direct location of livery stables. A statute empowering a city to direct the location of livery stables includes the power to prohibit or forbid the location of stables within residence districts; and in making such prohibition, such conditions and restrictions in relation to such districts may be imposed as the city council may see fit.*

City of Chicago v. Stratton, 58 Ill. App. 539, reversed.

APPEAL from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook county; the Hon. FRANCIS ADAMS, Judge, presiding.

This suit was brought under a section of the building ordinance of the city of Chicago, and is to recover the penalty for a violation of the ordinance. The section of the ordinance is as follows:

"Sec. 49. It shall not be lawful for any person to locate, build, construct or keep in any block in which twothirds of the buildings are devoted to exclusive residence purposes, a livery, boarding or sales stable, gas house, gas reservoir, paint, oil or varnish works, within two hun

*The question as to consent of neighbors as a condition of obtaining a license or permit is included in the note on delegation of power as to licenses, franchises and buildings, in City of St. Louis v. Russell, (Mo.) 20 L. R. A. 721.

dred 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, gas house, gas reservoir, paint, oil or varnish works therein. Such written consent of the property owners shall be filed with the commissioner of buildings before a permit be granted for the construction or keeping of such livery stable, gas house, gas reservoir, paint, oil or varnish works."

It is conceded by the appellees that they are engaged in keeping a livery, boarding and sales stable at Nos. 211 and 213 Evanston avenue, in the city of Chicago; that they were so engaged on the 7th day of June, 1894, at said place, and that they did not procure the consent of the owners of a majority of the lots in such block fronting or abutting on the street before the erection of said building. The building which they were occupying on the 7th day of June, 1894, for that purpose, was constructed under a building permit to erect a two-story and basement brick carriage repository and stable in the rear, which was issued July 28, 1893. Instead of building a stable in the rear, it appears that the horses, some thirty or more, were kept in the basement. The building is back about fifty-nine feet from the street and has a plank drive-way running from the entrance of the stable, which is about six feet above the ground, down to Evanston avenue. The livery stable and drive-way are so near to a residence building on the adjoining lot that carriages driving out and in shake the whole building. On the 7th day of June, 1894, there were thirty-one buildings in the block in which this livery stable is located, twenty-eight of which were devoted to exclusive residence purposes. No petition has ever been signed by a majority of the property owners, as required by the ordinance governing the location and keeping of livery stables in the city of Chicago.

This suit was originally brought before a justice of the peace, where judgment was entered against the defendants, and was by the defendants appealed to the circuit court of Cook county. Upon the trial before the court, a jury having been waived, certain propositions of law, in pursuance of the statute, were offered on behalf of the plaintiff, presenting the question of the legality of the ordinance in question, which the court was requested to hold as the law governing the case, but the court held the section of the ordinance to be invalid and entered a finding for the defendants. Motion for a new trial having been overruled, the court entered judgment upon the finding. The case was taken by appeal to the Appellate Court, where the judgment of the court below was affirmed. The plaintiff now brings the case to this court by appeal.

The assignment of error chiefly relied upon is, that the court below refused to hold as law the following propositions of law submitted on behalf of the plaintiff, the city of Chicago:

2. "The court is requested to hold as a proposition of law, that the provisions of section 49 of the building ordinance of the city of Chicago, passed March 13, 1893, wherein it is ordained 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 unless the owners of a majority of the lots in such block fronting or abutting on the street consent, in writing, to the location of such livery stable, is not, under the laws of the said State of Illinois, a delegation of legislative power by the common council of said city of Chicago to the property owners of such block.

3. "The court is requested to hold, as a proposition of law, that section 49 of the building ordinance of the city of Chicago, passed by the common council of said city on the 13th day of March, A. D. 1893, is lawful, valid and

binding upon the defendants in this case, and that under the evidence the plaintiff is entitled to recover.

4. "If the court find, from the evidence, that on the 6th day of June, 1894, the defendants were engaged in keeping a livery, boarding and sales stable within the limits of the city of Chicago, and that the said defendants have not, at any time, procured, in writing, the consent of the owners of a majority of the lots in the block in which said livery stable is located, fronting or abutting on the street upon which the same is located, in pursuance of the requirements of section 49 of the certain building ordinance of the city of Chicago passed by the common council of said city on the 13th day of March, A. D. 1893, and if the court further finds, from the evidence, that two-thirds of the buildings in the block in which said livery stable is located are devoted to exclusive residence purposes, then the court is requested to hold, as a proposition of law, that the defendants have been guilty of a violation of said section 49 of said ordinance, and the plaintiff is entitled to recover in this suit the penalty provided in said ordinance for the violation thereof."

FARSON & GREENFIELD, for appellant:

Cities and villages are expressly authorized to direct the location of livery stables. 3 Starr & Cur. 191, par. 82. An express power granted by the legislature to a municipal corporation carries with it everything necessary to make it efficient. Huston v. Clark, 112 Ill. 349; People v. Drainage Comrs. 143 id. 421; Alcorn v. Hamer, 38 Miss. 753.

Statutes of this State and ordinances of a similar character have been recognized by this court and held to be good in Meyer v. Baker, 120 Ill. 567, People v. Cregier, 138 id. 401, and Griswold v. Brega, 160 id. 490. The same principle has been upheld in other States. Boyd v. Bryant, 35 Ark. 70; State v. Cooke, 24 Minn. 247.