« ForrigeFortsett »
(148 N.E.) power. People v. Wilson, 64 Ill. 195, 16 Am., person, and there was no occasion for the isRep. 528; People v. Panchire, 311 Ill. 622, suance of a warrant for his arrest. 143 N. E. 476. Although section 25 of the The order of the circuit court will be afProhibition Act (Smith's Stat. 1923, p. 839) |firmed. prescribes the limitations within which pun
Order affirmed. ishment for the violation of any injunction granted pursuant to the act shall be imposed, yet the effect of these limitations upon
(317 Ill. 264) the court's inherent power to protect itself RIPPINGER et al. v. NIEDERST. will not be considered unless the record
(No. 16609.) shows that the court, in fixing the punishment, was governed by them. Nothing in (Supreme Court of Illinois. April 24, 1925. this record shows that the court in its deter
Rehearing Denied June 10, 1925.) mination was restrained by these limitations. The punishment imposed upon plaintiff in . Dedication 20(3)—Alley held public al
ley, when used by public for 15 years. error was neither unusual nor severe. It was justified under any view of the law.
Though sufficiency of dedication of a pubConsideration of his fourth contention is
lic alley was questioned, where it had been in
discriminately used by public for more than 15 therefore unnecessary.
years as a public highway, it constituted a  Plaintiff in error next insists that the public alley. Prohibition Act is special or class legislation violative of his constitutional rights. The 2. Livery stable and garage keepers Ow41/2act applies to all persons in this state who
Ordinance held to require consent of majority maintain nuisances of the character defined.
of owners on both streets into which alley It does not discriminate between persons in
opened for erection of garage; "street." the same situation. A law which has a ration
Under ordinance providing that property al basis, and which operates equally and uni- abutting on public alley will be considered as formly upon all who are similarly situated, fronting on street to which such alley leads,
and requiring consent of a majority of propis valid and does not constitute an arbitrary erty owners according to frontage on both sides or undue classification, Christy v. Elliott, of strect” before building permit for a garage 216 Ill. 31, 74 N. E. 1035, 1 L. R. A. (N. S.) will issue, it is necessary, where alley opens 215, 108 Am. St. Rep. 196, 3 Ann. Cas. 487; | into two streets, to procure consent of owners Claffy v. Chicago Dock Co., 249 Ill. 210, 94 on both streets; "street" including more than N. E. 551; People v. Schenck, 257 III. 384, one street, in view of Smith-Hurd Rev. St. 100 N. E. 994, 44 L. R. A. (N. S.) 46 Ann. 1923, c. 131, § 1, cl. 3. Cas. 1914A, 1129.
[Ed. Note.-For other definitions, see Words (9, 10] In the bill of complaint the prop- and Phrases, First and Second Series, Street. ] erty upon which the nuisance existed was par. 3. Statutes em 143 — Unconstitutionality of ticularly described, the public and common amendatory act held to leave former law in character of the nuisance was specifically
force; ordinance valid whether passed before stated, and its maintenance by the plaintiff in or after invalid amendment. error was positively charged. Likewise the
The unconstitutionality of Laws 1919, p. issuance of the preliminary injunction and 285, amending Cities and Villages Act, art. 5, service of the writ upon the plaintiff in er- § 1, cl. 82, leaves in force that clause as enror and his acts in violation of the injunc- acted in 1911 (Laws 1911, p. 179), authorizing tion were directly stated in the petition by cities to regulate the construction of garages, which the contempt proceedings were insti- and ordinance requiring consents of property tuted. Both were sufficient, and the sixth owners to erection in block where two-thirds contention of the plaintiff in error is without of buildings are used as residences is constitu
tional, whether passed before or after 1919. merit.
 Personal service of the temporary in- 4. Statutes @mw 168–Unconstitutional statute junction writ was had upon the plaintiff in does not repeal former law by implication. error. Upon his motions the hearing on the An unconstitutional statute does not repeal question whether the preliminary injunction a former law or part of law by implication. should remain in effect or be dissolved was postponed from May 31, 1924, to the first day 5. Injunction Cm113—Bill for injunction, to of the ensuing October term. The citation
prevent erection of public garage in residen
tial district, held not barred by laches. issued upon the petition to adjudge the plaintiff in error in contempt of court was Bill for injunction, to prevent erection of also served upon him personally. The hear- public garage in residential district, held not ing on that petition was postponed upon his barred by laches, where, on filing of complaint motion. Finally, at the hearing the plaintiff with building commissioner against its con
struction, work ceased, and, on failure of nein error appeared in person, produced a wit- gotiations and resumption of operations, ownness, and also testified in his own behalf. ers again protested and work was stopped Obviously the court had jurisdiction of his pending an opinion as to validity of frontage
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
consents, and, on holding that they were suffi- , issued to the appellee by the commissioner cient, property owners immediately filed bill for of buildings of the city of Chicago, and that injunction.
such permit is void because it is not in com6. Injunction Cm114(2)—Complainants not de- pliance with the ordinance governing the
nied recovery because all of parties not en- matter, in that the frontage consent retitled to recover.
quired by the ordinance was not secured. Property owners, in suit for injunction to Appellee answered, denying the allegations restrain erection of a public garage, would not of the bill, and averring that the complainbe denied a recovery because city building com- ants have been guilty of laches. A hearing missioner, who joined as complainant to uphold was had on the issues presented, and at the validity of ordinance requiring consents of close thereof the appellee sought and proproperty owners, might be estopped to deny
By his validity of permit, where he appeared only in cured leave to amend his answer. his official capacity representing city, and was
amended answer he alleged that the city orwithout actual interest in controversy.
dinance, requiring frontage consents for the
construction of a public garage, was uncon7. Estoppel 62(5)-City not estopped by stitutional and void. Upon filing this answer act of agent beyond his authority.
the building commissioner of the city of ChiCity is not estopped by an act of its agent cago, who had been made a party defendbeyond authority conferred on him.
ant by the complainants and had filed an
answer disclaiming an interest in the controAppeal from Superior Court, Cook Coun- versy, sought and procured leave to withty; Oscar Hebel, Judge.
draw his answer and to be made a party Bill for injunction by Catherine Rippinger complainant, on the ground that the amendand others against George L. Niederst. ment to the defendant's answer, which chalFrom decree of dismissal, complainants ap lenged the validity of the ordinance, devel. peal. Reversed and remanded, with direc-oped an interest in the commissioner, reptions.
resenting the city of Chicago, which was Francis X. Busch, Corporation Counsel, contrary to the interest of the appellee, and William L. Sullivan, and Bennison F. Bartel, that it was to the interest of the city that all of Chicago (Tolman, Sexton & Chandler, the ordinance be sustained. The chancellor of Chicago, of counsel), for appellants.
found all issues of fact and law in the bill Abram L. Myers, of Chicago (Lloyd c. and the original answer in favor of the apWhitman, of Chicago, of counsel), for ap- pellants, but found the frontage consent orpellee.
dinance unconstitutional and void, dismissed
the bill for want of equity, certified that the STONE, J. The appellants, other than the validity of a municipal ordinance is involved, building commissioner of the city of Chi- and granted an appeal to this court. cago, filed a bill against the appellee pray
The appellants urge here that the building ing for an injunction restraining the erec- ordinance referred to is valid. The appellee tion of a public garage in approximately the has assigned cross-errors, contending that middle of a block in the city of Chicago the court erred in finding other issues of bounded by Ellis avenue on the east, Forty- fact and law in favor of appellants, but Second place on the south, Drexel boulevard states in his brief that the principal question on the west, and by the right of way of an in the case is as to the validity of the ordielevated railroad (formerly
While his counsel argue the ques. street) on the north. The tract of land upon tions of fact involved, we are convinced, on which the appellee sought to build the ga- a review of the record, that the findings of rage in question lies on the west side of the fact are sustained by the record, and therepublic alleyway which passes in a general fore, upon consideration of the case, we will north and south direction through approxi- state the facts as found by the chancellor mately the center of this block. This tract is and as in our opinion the record shows them bounded on the north, west, and south by a to be. 20-foot alleyway, which opens into the north
 The ordinance in question appears in and south alley of the block. The bill avers the Municipal Code of the city of Chicago as that the block has been zoned as a residence revised in 1922, and section 242 thereof dedistrict, and that more than two-thirds of fines a public garage. Section 246 provides: the property on both sides of the streets sur "No person, firm or corporation shall locate, rounding it is occupied exclusively for resi- build, construct or maintain any public garage dence purposes; that the construction of the * in the city on any lot in any block in garage by the appellee would depreciate the which two-thirds of the buildings on both sides fair cash market value of the property and of the street are used exclusively for residence cause damages not susceptible of exact com
* without the written consent putation, thus preventing adequate remedy to frontage on both sides of the street; pro
of a majority of the property owners according at law, and would cause a multiplicity of vided. that all lots which abut only on a pubsuits. The bill avers that a permit had been lic alley or court shall be considered as front
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
(148 N.E.) ing on the street to which such alley or court , cording to frontage on Forty-Second place leads. Such written consents shall be obtained only, and made no attempt to secure the and filed with the commissioner of buildings consent of property owners on Ellis avenue, before a permit is issued for the construction for the reason that, as there and here conof any such building, or before a license is issued for the operation of any public garage in tended, the only street to which the alley adany existing building; provided, that in deter- jacent to this property leads is Forty-Second mining whether two-thirds of the buildings on place, and that, since the ordinance refers both sides of such street are used exclusively only to "the street” and not to the streets to for residence purposes, any building fronting which the alley leads, the frontage consent , on another street and located upon a corner requirement of the ordinance was complied lot shall not be considered; and, provided, fur- with by securing frontage consents on Fortyther, that the word 'block,' as used in this section, shall not be held to mean a square, but Second place. The appellants, on the other shall be held to embrace only that part of the hand, contend that it is necessary to have street in question which lies between the two the consent of a majority of the property nearest intersecting streets."
owners according to frontage on Ellis ave
nue as well as on Forty-Second place. It The bill avers, and the record shows, that seems absurd to say that an alley which, in Forty-First street, which formerly bounded fact, opens into two streets does not lead this block on the north, is now occupied by into such streets. An alley that is not a a railroad, which by an ordinance of the city blind alley necessarily leads to more than of Chicago of March 16, 1903, was required one place, and the alley in this case leads to to, and did, elevate its tracks along the north Ellis avenue as well as to Forty-Second place. boundary of this block, thereby occupying the To hold that the word “street,” as used in street and cutting off traffic from the alley in the ordinance, requires frontage consents on this block across Forty-First street. Prior
one street only is to render the operation of to that time, for a number of years the street the ordinance uncertain and impracticable, had been used by the railroad company, but as it contains no language specifying which traffic in this alley north and south crossed street is to furnish the necessary frontage Forty-First street. In the elevation of the consent. It is settled in this state, both by road a solid embankment, with concrete re- statute and the decisions of this court, that taining walls, was erected. Paragraph 10 of words importing the singular may be extendthe ordinance of March 16, 1903, required ed and applied to several persons or things, that the railroad dedicate as a public alley and words importing the plural number may the south 12 feet of its right of way between include the singular. Smith's Stat. c. 131, $ Ellis avenue and the alley running north and 1, cl. 3; Arnold & Murdock Co. v. Industrial south through this block, so that one coming Board, 277 Ill. 295, 115 N. E. 137. It was from the south in the alley could, by turning necessary under this ordinance to procure east across this 12-foot strip, reach Ellis ave- the consent of the owners of a majority of nue. The sufficiency of the dedication of this the frontage on both Ellis avenue and Forty12-foot strip is questioned. The evidence am- Second place where they bound the block in ply shows, however, that it has been indis- question. Therefore, if this ordinance be criminately used by the public for more than valid, the frontage consent was not sufficient, 15 years as a public highway, and its char- and the permit issued thereon was void. acter as a public alley can no longer be a mat- This brings us to the principal question inter of doubt. It leads to Ellis avenue from volved in the case. the point where the railroad embankment [3, 4] The appellee contends that the orcrosses the north and south alley and must dinance is void for the reason that clause be held to be a continuation of that alley. 82 of section 1 of article 5 of the Cities and To say, as urged, that it is not a continuation Villages Act, as amended in 1919, under auof the original public alley, but is a distinct thority of which this ordinance was passed, and separate alley, leading from the original has been declared invalid by this court. The alley to Ellis avenue, is a refinement of dis- appellants contend that the unconstitutioncrimination which we are unable to follow. ality of clause 82 in effect revived that clause
 As we have seen, section 246 of the as it existed prior to the amendment of 1919, Municipal Code as revised in 1922 provides and that the attempt to amend it at that time that, in cases where a public garage is sought was void and of no effect and did not in any to be built on property abutting only on a way change the clause as it existed prior to public alley or court, such property “shall the amendment. It is further urged that, be considered as fronting on the street to while the provision of the ordinance requirwhich such alley or court leads.” That sec- ing frontage consent appears in the revision tion requires that consent of a majority of of the City Code of 1922, after the amendthe property owners, according to frontage ment of clause 82, such provision was also on both sides of the street, must be secured in all prior ordinances subsequent to 1911, before such permit will issue. The record and was therefore first enacted under clause shows that the appellee procured the con- S2 of said section as in force prior to the sent of a majority of the property owners ac- amendment of 1919, and is for either of these
reasons valid, notwithstanding the invalidity of Cook county. The act of 1871 provided of clause 82 of said section 1 as amended in in one section for the salaries of judges of 1919. Clause 82 of section 1 as amended is the circuit and superior courts of Cook counas follows:
ty and the state's attorney of that county. "To control the location and regulate the use
It was in that case held that, where there and construction of breweries, distilleries, live is an attempted repeal of an act by a statute ery, boarding or sale sta es, wagon repair which is void, the previous act remains in shops, blacksmith shops, foundries, machine force. It was said of the acts under conshops, public garages, private garages and sta- sideration: bles designed for the use of five or more vehicles, hangars, laundries, bathing beaches,
“If the amendatory act is valid in any of its brick yards, planing mills, four mills, box fac provisions, it cannot be said that some partories, lead factories, steel factories, iron fac- ticular provision of the act of 1871 is still in tories, ice plants, either for the manufacturing
force. The provisions for the salaries of the or storing of ice, factories or other manufac judges and state's attorney were contained in turing establishments using machinery
a single section of the act of 1871, and, if this emitting offensive or noxious fumes, odors, or amendatory act is valid with the exception of noises, and storage warehouses, within the lim- section 2, there is no act in force under which its of the city or village; provided that this the state's attorney is entitled to any salary clause shall not be construed to require the whatever from the county of Cook." removal of any of the above enumerated buildings fom any location which they may lawfully
In that case the amendatory act was valid occupy at the time of the passage of any ordi- in part and amended the section to the exnance hereunder.” Laws of 1919, p. 285.
tent covered by its valid portion. The ex
istence of the valid portion of the amendatory This clause, prior to the amendment of act operating on a single section of the origi1919, was as follows:
nal act disposed of the original act, and sub"To direct the location and regulate the use stituted for it the valid portions of the amenand construction of breweries, distilleries, liv- datory act. That case is not on all fours ery, boarding or sale stables, blacksmith shops, with the case at bar. While clause 82 of foundries, machine shops, garages, laundries and bathing beaches, within the limits of the section 1 is a clause of one section as it is city or village." Laws of 1911, p. 179.
written in the statute, yet it is evident
that it is so written as a matter of convenClause 82, as amended in 1919, was held ience, to avoid repetition of the first sentence unconstitutional and void on the ground that of section 1, designating city councils and the proviso in it makes penal an act done presidents and boards of trustees of villages by one person but imposes no penalty for the as the recipients of the power described in same act done under like circumstances by the various clauses. In the Healy Case, the another. It was also held that, the proviso one section of the original act was indivisibeing void, the entire clause was void because ble. The distinction between the situation it cannot be assumed that the Legislature in that case and that in this case seems would have passed the clause without the clear. proviso. People v. Kaul, 302 Ill. 317, 134 N. Section 1 under consideration is by no E. 740. The appellants contend that the ef- means indivisible. The section contains 100 fect of the Kaul Case is to leave in force separate and distinct clauses, the amendment clause 82 as amended in 1911, while appellees of any one of which may be accomplished contend that the effect of the invalidity of without affecting other clauses. So far as this clause was not to revive clause 82 as clause 82 is concerned, the amendatory act it existed under the 1911 act, but to leave of 1919 was in no part valid, for the reason section 1 of the act without a clause 82, and that the proviso added to that clause caused therefore without any provision authorizing the entire clause to fall. An amendment is the regulation of the erection of garages. In a change. If there is nothing valid in the support of their contention they cite Cook change, it cannot be said that a change has County v. Healy, 222 Ill. 310, 78 N. E. 623, taken place. A fortiori, if there be no and People v. Fisher, 274 Ill. 116, 113 N. change, that which is sought to be changed E. 47.
remains as it was. The amendatory act of In Cook County v. Ilealy the statutes un- ' 1919 contained no repealing clause, and an der consideration were the act of 1871 (Acts unconstitutional statute does not repeal a 1871-72, p. 454), concerning the salaries of former law or part of law by implication. judges and state's attorneys, and that of People v. Fox, 294 Ill. 263, 128 N. E. 505; 1901 (Laws 1901, p. 207) amending it. The People v. Butler Street Foundry Co., 201 act of 1871 contained but two sections. The 111. 236, 66 N. E. 349; 1 Lewis' Sutherland amendatory act of 1901 was in three sections. on Stat. Const. $ 245. The rule laid down Section 2 thereof was held to be unconstitu- , in People v. Fisher, supra, cited by the aptional upon the ground of material altera- i pellee, has to do with the effect of a statute tion of the same between its passage and its revising the subject-matter of a former statsignature by the Governor. This section pro-, ute where it is intended as a substitute for vided for the salary of the state's attorney | it, and is not authority for the appellee's
(148 N.E.) contention that the effect of the unconstitu- , lion counsel of the city of Chicago as to the tionality of clause 82, as amended in 1919, is validity of the frontage consents. An opinto leave section 1 without a clause 82. We ion was rendered holding such consents suffiare of the opinion that the ineffectual at-cient, and the appellants immediately filed tempt to amend clause 82 left that clause in the bill in this case. The evidence shows force as it was enacted in 1911, and that the due diligence on the part of the appellants. city of Chicago had authority to pass the [6,7] It is also contended by the appellee ordinance assailed here.
that the building commissioner, having isBut the appellee urges that, even though sued the permit herein, is estopped to deny clause 82 as it existed prior to the amend the validity of it, and is not entitled to a ment of 1919 be held valid, the ordinance decree, and that, since he as a party comin this case was not passed until 1922, and plainant is not so entitled, none of the parcannot be held to be valid. Under the view ties complainant are entitled to recover, for we have expressed concerning the existence the reason that all parties who join in a suit of clause 82 as enacted in 1911, it is imma- must be entitled to recover or none terial whether the ordinance in question was Counsel for the appellee cite in support of passed before or after the amendatory act this position the case of Girard v. Lehigh of 1919. That act never having been in ef- Stone Co., 280 Ill. 479, 117 N. E. 698. It fect so far as that clause is concerned, clause is the rule, as stated in that case, that, if 82, as enacted in 1911, was in effect, and un- any one or more of the complainants in a suit der it the ordinance in question was author- in equity fail to maintain a case against the ized. It was error on the part of the chan- defendant, the remainder of the parties, in cellor, therefore, to hold this ordinance un- order to maintain their suit, must by leave constitutional and void.
of court amend their bill by striking out  It is contended by the appellee, on the names of such cocomplainants who have cross-errors assigned, that the appellants in no cause of action. That rule presupposes this case were guilty of laches and so are parties complainant who have not the right estopped. A large portion of the brief of to a decree. In this case, unless there be counsel is devoted to this proposition. The an estoppel against the building commissionevidence in the record upon which this con er, it cannot be said that he is one not entention is based is practically undisputed. titled to a decree. Other cases cited by the It shows that the appellee procured the appellee as authority for the contention that building permit in question on November 19, the building commissioner is estopped are 1923, and began building operations. He those where parties, acting on permission planned a building containing a number of given by the city, have proceeded to the erecautomobile stalls or storage rooms for rent. tion of an expensive building or other strucComplaints were filed with the building com- ture and the city has thereafter attempted to missioner against the construction of the prevent its use. Such is not the case at garage. The work ceased. A meeting was bar, as action was taken as soon as the aparranged between the property owners and pellee started the construction of his buildthe appellee. A number of such owners met ing. with the appellee. It was proposed that the By his original answer the building comproperty owners buy the appellee's property missioner disavowed any interest in the case and pay him therefor the cost of the proper- and submitted himself to the jurisdiction of ty plus 10 per cent. of such cost and the the court under whatever decree the court amount of expense to which he had been put should enter. When, however, the appellee in procuring materials and having work done attacked the constitutionality of the ordion the garage up to that time. There was nance a new issue arose, making the situa. an agreement to this effect later entered in- tions of the parties in the cause somewhat to, though not reduced to writing. Although unusual. The building commissioner apparthere is a conflict in the evidence as to the ently felt it was his duty, as a party to the details of the negotiations, an understanding proceeding, to defend the legality of the orwas reached between the parties looking to dinance involved. Under the ordinance the the purchase of this property by the prop- building commissioner had no authority to erty owners in the block. While these nego- issue a building permit without the consents tiations were in progress, the contractors required by the ordinance. He appears in who were to build the garage placed a me- this cause only in his official capacity, as chanic's lien on the property, thus prevent- representing the city. The estoppel, if such ing the clearing of the title, and eventually existed, would be an estoppel against the the agreement failed. Nothing further was city by reason of the action of its agent, the done toward the building of the garage, how- building commissioner. The permit was inever, until in September, 1924, when build- valid and the commissioner had no authority ing operations were resumed. As soon as whatever to issue it, and to hold that the the work was recommenced the property actual parties in interest here could not in owners again protested, and the work was such a case recover because a cocomplainstopped pending an opinion by the corpora- / ant without actual interest could be estopped