City of Chicago v. Stratton

Mr. Presiding Justice Waterman delivered the opinion of the Court. It is urged that the ordinance of the city is not a direction as to the location of livery stables, but a delegation of power to property owners to permit such location. The ordinance is a direction that no livery stable, gas house, etc., shall be located in any block in which two-thirds of the buildings “are devoted to exclusive residence purposes,” unless the owners of a majority of the lots in such block fronting or abutting on the street, shall consent. In effect the ordinance is, by non-action, a recognition that in other blocks, livery stables, etc., may be located, and in such residence blocks may be, upon consent of the required majority of lot owners. The ordinance refers the question of whether a livery stable shall be located in certain blocks to the owners of the lots in such block. Without the consent of such owners it is unlawful to there locate a livery stable; with such consent it is permissible. If the ordinance had stopped with forbidding the location of livery stables in such residence blocks, its legality would have been unquestioned; is it rendered invalid by the fact that the restriction designed for the protection of property owners may be removed by a majority of such owners? If the clause permitting a majority of the owners to do away with the restriction is invalid, does its fall carry with it the entire ordinance, or does the restriction remain, not subject to removal ? That public powers and trusts can not be delegated is well established. Dillon on Municipal Corporations, Sec. 96, 4th Ed.; Cooley’s Constitutional Limitations, 248; City of E. St. Louis v. Wehrung, 50 Ill. 28; Tregman v. Chicago, 78 Ill. 405-410. Ordinances as well as statutes of this nature, that is, providing that a restriction may be removed or that license to do acts shall not be given except upon the consent of the owners of specific property, have long been known in this State. Such ordinances and statutes differ from enactments, the taking effect of which is made to depend upon their ratification by vote of the people of a particular locality. In the case last mentioned the legislative body enacts a statute or ordinance, the going into effect of which as an operative law, is made to depend upon a contingency, viz., its approval by vote of the people of a locality for which the law is designed. The power to enact laws to go into effect upon a contingency has always been exercised; most grants of franchises are of this kind. Cooley’s Constitutional Limitations, 136; Brig Aurora v. United States, 7 Cranch 382. Such legislation is not a delegation of a trust or power; it is merely giving a cestui que trust an opportunity to say whether it desires to have the power exercised or accepts that offered. People v. Reynolds, 5 Gil. 1; People v. Hoffman, 116 Ill. 584; Home Ins. Co. v. Swigert, 104 Ill. 353; Bull v. Reid, 13 Grattan, 78; State v. Parker, 26 Vt. 357; Lathrop v. Stedman, 42 Conn. 583; Erlinger v. Beneau, 51 Ill. 94. There is a distinction between the power which city authorities exercise over the use to which private property may be put, and the control possessed by the city over the use of the public streets. The private property of citizens is not held in trust by the municipal authorities, while the streets are held in trust for the use and benefit of the entire public—for those who own no property as much as for those who have a great deal. To, in the case of public streets, parks and grounds, surrender or delegate the control over the trust, not to the people of a particular locality, but to the owners of certain property as such, and not to them per capita, but in proportion to their property ownership, so that the functions of government are to be exercised, privileges to be given or withheld, not by the people, but by the owners of specific property, the voting power of each being determined by the amount of property possessed, is quite different from merely giving to the owners of certain lots the right to say whether a general restrictive ordinance shall be extended to such property. A municipal corporation can exercise only such powers as are intrusted to it. The city of Chicago is nowhere empowered to delegate any of its powers; it may direct the location of livery stables; it can not delegate to certain property holders this power. Dillon on Municipal Corporations, Secs. 96, 716, 779; Tugman v. City of Chicago, 78 Ill. 405; Jackson v. Brush, 77 Ill. 59; State v. Trenton, 42 N. J. L. 42; People’s Railroad v. Memphis Railroad, 10 Wallace, 38-52. A delegation of power by a city is valid if expressly authorized by the legislature. City of Brooklyn v. Breslin et al., 57 N. Y. 591-594. We are of the opinion that the common council of the city of Chicago could not delegate to the owners of a majority of certain lots the power to determine whether in a particular locality the location of a livery stable should be unlawful. The keeping of a livery stable is a lawful and useful business; it may, by the city, be reasonably restricted to certain localities, but such right to restrict can not be delegated. Can the .invalid portion of the ordinance be separated from the remainder so as to leave the latter in force ? The ordinance in question makes, in the blocks under consideration, the keeping of a livery stable unlawful, unless the owners of a majority of certain lots consent, in writing, to such location. It is a penal enactment. Clearly, if the specified owners of a majority of lots should consent in writing to the keeping of a livery stable in such locality, the city could not, by the imposition of fines and penalties under this ordinance, prevent such location. It follows that the portion following the word “ unless ” is a necessary part of the ordinance. Hor do we think that it was the intent of the common ” council that this ordinance, without the provision following the word “ unless,” should stand as its direction as to where livery stables, etc., might be located. The judgment of the Circuit Court is affirmed. Gary, J. I agree to the foregoing with many misgivings. It is important that the question should be settled by the highest authority. Shepard, J., dissents.