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ILLINOIS SUPREME COURT. | denying a writ of mandamus to compel de

fendants to issue a permit authorizing the PEOPLE OF THE STATE OF ILLINOIS erection of a public garage. Affirmed. EX REL. HENRY BUSCHING, Appt.,

The facts are stated in the opinion.

Messrs. Miller, Gorham, & Wales, for HENRY ERICSSON, City Building Com

appellant: missioner, et al.

The city couneil has no power to prohibit (263 Ill. 368, 105 N. E. 315.)

the erection of a garage within certain

localities, on the ground that it is a Municipal corporation power to regu- nuisance, when in fact it is not. late garages.

People ex rel. Lincoln Ice Co. v. Chicago, 1. Power to forbid the construction of a 260 Ill. 150, 102 N. E. 1039; Laugel v. public garage in a city block without the Bushnell, 197 Ill. 20, 58 L.R.A. 266, 63 N. consent of a majority of the property own- E. 1086; People ex rel. Goldberg v. Busse, ers is conferred upon a municipal corpora- 240 Inl. 338, 88 N. E. 831; Carthage v. tion by statutory authority to direct the location and regulate the use and construc- Munsell, 203 III

. 474, 67 N. E. 831; North tion of garages, inter alia, within the city Chicago City R. Co. v. Lake View, 105 II. limits.

207, 44 Am. Rep. 788; Sings v. Joliet, 237 Constitutional law requirements for Ill. 300, 22 L.R.A.(N.S.) 1128, 127 Am. St. operation of garage validity.

Rep. 323, 86 N. E. 663. 2. The police power extends to the for- The fact that express power is given the bidding of the construction of a public city by statute to regulate the location of garage within a city block without consent garages does not validate this ordinance, as of a majority of the owners of property in the statute is contrary to the Constitution such block, without depriving the one seek of the state of Illinois and to the 14th ing to do so of any right of liberty or prop- Amendment to the Constitution of the erty.

United States. Municipal corporation ordinance reasonableness.

Chicago v. Netcher, 183 Ill. 104, 48 L.R.A. 3. A police ordinance passed by a mu- | 261, 75 Am. St. Rep. 93, 55 N. E. 707; Peonicipal corporation under general authority ple ex rel. Lincoln Ice Co. v. Chicago, 260 from the legislature, which does not pre- ill. 150, 102 N. E. 1039; People ex rel. Goldseribe its details, must be reasonable. berg v. Busse, 240 Ill. 338, 88 N. E. 831; Same - exclusion of garages author- Ex parte Whitwell, 98 Cal. 73, 19 L.R.A. ity.

727, 35 Am. St. Rep. 152, 32 Pac. 870; 4. Power to direct the location and regu. Stockton Laundry Case, 26 Fed. 611; Re late the use and construction of garages Sam Kee, 31 Fed. 680; Haller Sign Works does not authorize a municipal corporation v. Physical Culture Training School, 249 to forbid their location within the city 111. 436, 34 L.R.A. (N.S.) 998, 94 N. E. limits. Same consent of property owners

920; Yick Wo v. Hopkins, 118 U. S. 356, reasonableness.

30 L. ed. 220, 6 Sup. Ct. Rep. 1064; People 5. Requiring one who desires to operate ex rel. Friend v. Chicago, 261 111. 16, 49 a public garage in or within 100 feet of a L.R.A.(N.S.) 438, 103 N. E. 609, Ann. Cas. city block in which two thirds of the build-1915A, 292. ings on both sides of the street are used The regulation must be reasonable, and exclusively for residences, to secure con- certain provisions of this ordinance are unsent from a majority of the property own reasonable, arbitrary, and discriminatory. ers, is not unreasonable.

Chicago & A. R. Co. v. Carlinville, 200 Same - location near church.

Ill. 314, 60 L.R.A. 391, 93 Am. St. Rep. 190, 6. Forbidding the location of a public 65 N. E. 730; Chicago v. Gunning System, garage within 200 feet of a church is not 214 II. 628, 70 L.R.A. 230, 73 N. E. 1035, unreasonable.

2 Ann. Cas. 892; State ex rel. Omaha Gas Parties - who may attack ordinance.

7. The one seeking to locate a public Co. v. Withnell, 78 Neb. 33, 8 L.R.A. (N.S.) garage near a church cannot attack the ordi. 978, 126 Am. St. Rep. 586, 110 N. W. 680; nance forbidding it because it also forbids People ex rel. Lincoln Ice Co. v. Chicago, such location near a public school without 260 Ill. 150, 102 N. E. 1039. forbidding it near a private one.

An ordinance may be valid generally, yet

unreasonable, and therefore invalid as ap. (April 23, 1914.)

plied to a certain situation or structure.

Carthage v. Munsell, 203 Ill. 474, 67 N. A PPEAL by relator from a judgment of E. 831; North Chicago City R. Co. v. Lake

the Circuit Court for Cook County View, 105 III. 207, 44 Am. Rep. 788; ChiNote. — As to prohibition or regulation cago v. Gunning System, 214 Ill. 628, 70 of garages, see note to Re McIntosh, ante, L.R.A. 230, 73 N. E. 1035, 2 Ann. Cas. 892;

Chicago & A. R, Co. v. Carlinville, 200 Ill.

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603.

314, 60 L.R.A. 391, 93 Am. St. Rep. 190, 65, Improv. Co. v. Bancroft, 209 Mass. 217, 34 N. E. 730; Evison v. Chicago, St. P. M. & L.R.A. (N.S.) 730, 95 N. E. 216, Ann. Cas. 0. R. Co. 45 Minn. 370, 11 L.R.A. 434, 48 1912B, 450; St. Louis v. Fischer, 167 Mo. N. W. 6; Burg v. Chicago, R. I. & P. R. Co. 654, 64 L.R.A. 679, 99 Am. St. Rep. 614, 90 Iowa, 106, 48 Am. St. Rep. 419, 57 N. 67 S. W. 872; Ex parte Lacey, 108 Cal. W. 680; State, Pennsylvania R. Co., Prose. 326, 38 L.R.A. 640, 49 Am. St. Rep. 93, 41 cutor, v. Jersey City, 47 N. J. L. 286; State, i Pac. 411. Nicoulin, Prosecutor, v. Lowery, 49 N. J. The city has express power to enact the L. 394, 8 Atl. 513; Skinker v. Heman, 64 ordinance in uestion, wherefore its reasonMo. App. 441; Wells v. Mt. Olivet, 126 Ky. ableness cannot be questioned by the courts 131, 11 L.R.A.(N.S.) 1080, 102 S. W. 1182; | if it is in fact constitutional. Houston & T. C. R. Co. v. Dallas, 98 Tex. Chicago & A. R. Co. v. Carlinville, 200 396, 70 L.R.A. 850, 84 S. W. 648; Brenham Ill. 314, 60 L.R.A. 391, 93 Am. St. Rep. v. Holle, Tex. Civ. App. — 153 S. W. 190, 65 N. E. 730; Chicago v. Gunning 345.

System,'214 Ill. 628, 70 L.R.A. 230, 73 N. Messrs. Loring R. Hoover and Leon | E. 1035, 2 Ann. Cas. 892; Block v. Chicago, Hornstein, with Mr. William H. Sexton, 239 Ill. 251, 130 Am. St. Rep. 219, 87 N. E. for appellees:

1011; Chicago v. Ripley, 249 Ill. 466, 34 The control of the location of garages is L.R.A. (N.S.) 1186, 94 N. E. 931, Ann. Cas. a proper subject of regulation under the 1912A, 160. police power.

Sherman v. Levingston, 128 N. Y. Supp. Cooke, Ch. J., delivered the opinion of 581; Diocese of Trenton v. Toman, 74 N. J. the court: Eq. 702, 70 Atl. 606; Stein v. Lyon, 91 App. The relator, Henry Busching, applied to Div. 593, 87 N. Y. Supp. 125; 3 McQuillin, the building commissioner of the city of Mun. Corp. $ 911; O'Hara v. Nelson, 71 N. Chicago for a permit authorizing him to J. Eq. 161, 63 Atl. 836; North Chicago City erect a public garage at 871-877 Chestnut R. Co. v. Lake View, 105 Ill. 207, 44 Am. place, between Chestnut street and DelaRep. 788.

ware place, in the city of Chicago. As he Restricting the location of garages, as the had not complied with an ordinance of the ordinance in question does, tends to pro- city of Chicago regulating the location of mote the public health, safety, and wel- garages, the building commissioner refused fare, and is not an interference with the to issue the permit. Busching then filed a property rights guaranteed by the state petition for a writ of mandamus in the cir. and Federal Constitutions.

cuit court of Cook county against the city Chicago v. Netcher, 18j Ill. 104, 48 L.R.A. of Chicago, the building commissioner, and 261, 75 Am. St. Re; 93, 55 N. E. 707; Ex the city plan examiner to require them to parte Whitwell, 98 Cal. 73, 19 L.R.A. 727, issue the permit. On a hearing before the 35 Am. St. Rep. 152, 32 Pac. 870; Gund-court the writ was denied, and the peti. ling v. Chicago, 177 U. S. 183, 44 L. ed. 725, tion dismissed. This appeal has been per20 Sup. Ct. l.ep. 633; Haller Sign Works fected from that judgment, the trial court v. Physical Culture Training School, 249 having certified that the validity of an Ill. 436, 34 L.R.A. (N.S.) 998, 94 N. E. 920; ordinance was involved. Chicago v. Gunning System, 214 Ill. 628, 70 The only question presented for our deL.R.A. 230, 73 N. E. 1035, 2 Ann. Cas. 892; termination is the validity of the following People ex rel. Friend v. Chicago, 261 Ill. ordinance: "It shall be unlawful for any 16, 49 L.R.A. (N.S.) 438, 103 N. E. 609, person, firm, or corporation to locate, build, Ann. Cas. 1915A, 292; Noyes v. Cushing, construct, or maintain any garage within 209 Mass. 123, 95 N. E. 83; United States 200 feet of any building used as and for ex rel. Early v. Richards, 35 App. D. C. a hospital, church, or public or parochial 540; Evans v. Foss, 194 Mass. 513, 9 L.R.A. school, or the grounds thereof, and it shall (N.S.) 1039, 80 N. E. 587, 11 Ann. Cas. be unlawful for any person, firm, or corpo171; Hibberd v. Edwards, 235 Pa. 454, 84 ration to locate, build, construct, or mainAtl. 437; Chicago v. Stratton, 162 Ill. 494, tain any garage in the city in any block in 35 L.R.A. 84, 53 Am. St. Rep. 325, 44 N. E. which two thirds of the buildings on both 853; Meyers v. Baker, 120 Ill. 567, 60 Am. sides of the street are used exclusively for Rep. 580, 12 N. E. 79; W. C. Ritchie & Co. residence purposes, or within 100 feet of v. Wayman, 244 Ill. 509, 27 L.R.A. (N.S.) any such street in any such block, without 994, 91 N. E. 695; Densmore v. Evergreen securing the written consent of a majority Camp, No. 147, W. W. 61 Wash. 230, 31 of the property owners, according to frontL.R.A. (N.S.) 608, 112 Pac. 255, Ann. Cas. age, on both sides of the street, as provided 1912B, 1206; Rowland v. Miller, 139 N. Y. by the ordinances of the city of Chicago." 93, 22 L.R.A. 182, 34 N. E. 765; Gilbert v. Another section of the Code of the city Showerman, 23 Mich. 448; Riverbank' of Chicago defines the word "garage” to mean any building where automobiles, auto vasion of the property rights of the incars, or any similar self-propelled vehicles dividual, it is the duty of the court to deare let for hire or are kept ready for use clare it void. In the recent case of People upon the payment of fees for such services. ex rel. Friend v. Chicago, 261 III. 16, 49

The invalidity of the ordinance is urged L.R.A. (N.S.) 438, 103 N. E. 609, Ann. Cas. upon two grounds: (1) That the city has 1915A, 292, we thus announced the same no power to legislate upon this subject and rule: "Even if the municipality is clothed thus deprive its citizens of their rights with the whole police power of the state, under the state and Federal Constitutions; ( it would still not have the power to deprive and (2) that if it be held that the city has a citizen of valuable property rights under the power to legislate upon this subject the guise of prohibiting or regulating some the ordinance is void for unreasonableness. business or occupation that has no tendency

The city is given express authority by whatever to injure the public health or pubthe statute to legislate upon this subject. lic morals or interfere with the general Clause 82 of g 1 of article 5 of the cities welfare. An act of the legislature which and villages act (Hurd's Rev. Stat. 1913, deprives the citizen of his liberty or propchap. 24, $ 62) is as follows: The city coun-erty rights cannot be sustained under the cil shall have the power “to direct the loca- police power unless the public health, comtion and regulate the use and construction fort, safety, or welfare demands such enactof breweries, distilleries, livery, boarding or ment (Ruhstrat v. People, 185 Ill. 133, 49 sale stables, blacksmith shops, foundries, L.R.A. 181, 76 Am. St. Rep. 30, 57 N. E. 41, machine shops, garages, laundries, and bath- 12 Am. Crim. Rep. 453; Bailey v. People, 190 ing beaches, within the limits of the city Ill. 28, 54 L.R.A. 838, 83 Am. St. Rep. 116, 60 or village." If the ordinance is invalid it N. E. 98; Bessette v. People, 193 Ill. 334, 56 must be for the reason that this clause of L.R.A. 558, 62 N. E. 215), and there must be the cities and villages act is invalid in so some logical connection between the object far as it authorizes the municipality to to be accomplished by such legislation and direct the location and regulate the use and the means prescribed to accomplish that end. construction of garages.

The owner of property has the constitutionIt is conceded that a garage is not a al right to make any use of it he desires, nuisance per se, and it is contended on the so long as he does not endanger or threaten part of appellant that it was incumbent the safety, health, and comfort or general upon appellees to prove that this particular welfare of the public. This right cannot be garage would, in fact, become a nuisance wholly taken away or limited by the state before the building commissioner would be except in so far as it may become necesjustified in refusing to issue a permit to sary for individual rights to yield to the construct the building. We have often been higher and greater law of the best interest called upon to determine when our legis of the public.” Many other cases have anlative bodies are authorized to interfere nounced this rule in substantially the same with the business of the citizen by virtue language; but it will not be necessary to of the police power vested in the state and refer to each of them. its municipalities. In Chicago v. Netcher, Testing the statute here involved by these 183 Ill. 104, 48 L.R.A. 261, 75 Am. St. Rep. rules, it becomes necessary to determine 93, 55 N. E. 707, we thus announced the whether it has for its object the preservation rule as to when such interference or regu- of the public health, morals, comfort, lation was authorized in cases such as the safety, or welfare, or whether, under the one under consideration: “In order to sus- guise of police regulation, it is an invasion tain legislative interference with the busi- of the property rights of the individual. If ness of the citizen by virtue of the police it is not such an invasion, then individual power, it is necessary that the act should rights must yield to the higher rights of have some reasonable relation to the sub- the public. jects included in such power. If it is Conceding, as the parties do, that the claimed that the statute or ordinance is re business of conducting a public garage does ferable to the police power, the court must not constitute a nuisance per se, it is a be able to see that it tends, in some degree, matter of common knowledge that the autoward the prevention of offenses or the tomobile propelled by the use of gasolene is preservation of the public health, morals, a large and sometimes noisy machine, which safety, or welfare. It must be apparent frequently, when in operation, emits an ofthat some such end is the one actually in- fensive odor. Automobiles go in and out tended, and that there is some connection of public garages at all hours of the day between the provisions of the law and such and night, producing noises which must purpose. If it is manifest that the statute necessarily interfere with the comfort and or ordinance has no such object, but, under welfare of those in the immediate vicinity. the guise of a police regulation, is an in-'In the starting of these machines and in. the testing and repair of their engines a municipal legislation are prescribed by the considerable noise is unavoidable. Gasolene legislature, an ordinance passed in pursuand oil are used in places of this kind, and ance of such power cannot be held invalid it is necessary to keep a considerable quan- by the courts as being unreasonable; but, tity of gasolene constantly on hand, which when the details of such legislation are not is transferred to the tanks of automobiles prescribed, an ordinance passed in pursuance propelled by this means. In making this of such power must be a reasonable exertransfer, a portion of it necessarily becomes cise thereof or it will be pronounced invapor, thus creating a menace both be- | valid. Lake View v. Tate, 130 Ill. 247, 6 cause of the odor of the fumes and their in- L.R.A. 268, 22 N. E. 791; Hawes v. Chicago, flammable character. The power of the 158 Ill. 653, 30 L.R.A. 225, 42 N. E. 373; legislature to regulate such a business is in Wice v. Chicago & N. W. R. Co. 193 111. 351, no way dependent upon the question 56 L.R.A. 268, 61 N. E. 1084. It is said whether it is a nuisance per se. It is of in the Tate Case, on page 252: 'Where the such a character that it becomes a nuisance power to legislate on a given subject is conwhen conducted in particular localities and ferred, and the mode of its exercise is not under certain conditions, and it is clearly prescribed, then the ordinance passed in within the province of the legislature, in pursuance thereof must be a reasonable exerthe exercise of the police power, to author- cise of the power, or it will be pronounced ize the municipalities c' the state to direct invalid.' In Hawes v. Chicago, 158 Ill. 653, the location of public garages.

30 L.R.A. 225, 42 N. E. 373, Mr. Justice While the identical question involved | Baker, in speaking for the court, in dishere was not there raised, this same stat/cussing the question when a

court may ute, as applied to a livery stable, was held rightfully hold an ordinance unreasonable valid in Chicago v. Stratton, 162 Ill. 494, on page 658 said: 'Where the power to 35 L.R.A. 84, 53 Am. St. Rep. 325, 44 N. E. legislate on a given subject is conferred on 853. Since that time it has been amended a municipal corporation, yet if the details so as to include garages. The act is not of such legislation are not prescribed by the subject to the objection made, and, as the legislature, there the ordinance passed in ordinance was passed by the express au- pursuance of such power must be a reasonthority conferred by this statute, it is valid | able exercise thereof or it will be prounless unreasonable in its requirements. nounced invalid.'”

Appellees contend that as the ordinance We do not agree with counsel for apwas passed under the express authority pellant that under this statute the city is given by this section of the statute, the given the power to prohibit the location of courts will not inquire into the reasonable a garage anywhere within its corporate ness of the provisions of the ordinance. This limits. Such legislation by the city authoristatute, in general terms, empowers the ties would be so unreasonable as to render municipalities of the state to direct the lo- it invalid. Under this statute the city uncation and regulate the use and construc-doubtedly has the power, if it should see tion of garages. It gives no detail as to fit, to prohibit the location of a garage in the manner in which this direction and a strictly residential district, and it necesregulation shall be exercised. Under those sarily follows that an ordinance permitting circumstances, the city availing itself of the location and maintenance of a garage this statute must be reasonable in the terms in residential districts under the condi. which it imposes by its ordinances. In dis- tions prescribed by this ordinance cannot be cussing this question in Chicago & A. R. said to be unreasonable. The requirement Co. v. Carlinville, 200 Ill. 314, 60 L.R.A. that the person desiring to constructor 391, 93 Am. St. Rep. 190, 65 N. E. 730, we maintain a garage in any block in which said: “The books and reported cases seem two thirds of the buildings on both sides to agree that courts may declare void an of the street are used exclusively for resiordinance passed by a city or village by vir-i dences, shall procure the written consent tue of its implied powers, if, in the opin- of a majority of the property owners, acion of the court, it is unreasonable; but cording to frontage, on both sides of the when the ordinance is passed by express street, is not unreasonable. authority conferred upon the municipality, In this case the court held, as a ques. by the legislature such power is not so clear, tion of fact, that Chestnut place was not a and there is conflict of authority upon that residence street, and appellant contends proposition. Burg v. Chicago, R. I. & P. that it is unreasonable to require him to R. Co. 90 Iowa, 106, 48 Am. St. Rep. 419, secure frontage consent from the residents 57 N. W. 680. The rule adopted in this in that block on Chestnut street and Delastate is that, where the ordinance is passed ware place; these two streets being within in pursuance of power expressly conferred 100 feet of the place where it was proposed by the legislature, and the details of such' to erect the building. For the reason stated

A

in Chicago v. Stratton, supra, we are of, to compulsory physical treatment when she the opinion that this is not an unreason- might have been released without danger to able requirement.

herself, is entitled to damages as for false The place where it was proposed to erect imprisonment, although the hospital authis structure is also within 200 feet of a

thorities acted in good faith and the patient church, and it is contended that this pro- / justified such action.

contracted to be subject to the rules, which vision of the ordinance is an unreasonable

amount of damages Appeal

false restriction. The conduct of the affairs of a

imprisonment. church, with its various meetings and as- 2. The amount allowed by a jury as comsemblies in carrying out the purposes for pensatory damages for false imprisonment which it is organized, is of such a character approved by the trial judge is not reviewthat a city is warranted in making such a able on appeal. restriction. The conduct of the business of

(February 24, 1915.) a public garage would be as offensive to the members of a church as it would be to the occupants of a private residence, and would

of the Superior Court for Buncombe affect their comfort and welfare to the County in plaintiff's favor in an action same extent.

brought to recover damages for unlawful It is urged that the ordinance is in. detention in the defendant hospital and for valid because it does not include private

alleged wilful and malicious assault and

Affirmed. schools and other institutions similar to

neglect by defendants. those mentioned in the ordinance. This is a question which does not concern appellant

Statement by Clark, Ch. J.:

This was an action to recover damages on or affect his rights. Whether some institution not named in the ordinance in the account of the unlawful detention of the class of hospitals, churches, or public or

plaintiff by the defendants in the defendant parochial schools should be included is not hospital, operated by the defendant Carroll,

and for assaults committed on her and neg. involved here. Other reasons are suggested for the inva

lect of her while in the hospital, which acts lidity of the ordinance which are not in

are alleged to have been wrongful, and comvolved, and for that reason will not be noted.

mitted wilfully, wantonly, and ma iciously

by the defendants. The ordinance is valid, and the judgment

The defendants denied that any wrongful of the Circuit Court is affirmed.

acts were committed by them, as alleged by Petition for hearing denied June 4, 1914. entered herself as a patient and agreed to

the plaintiff, but aver that she regularly be governed by the rules and regulations of the hospital; that she was nervous, and not

capable mentally of caring for herself, and NORTH CAROLINA SUPREME

that what was done was in accordance with COURT.

the rules and regulations of the institution, BEATRICE COOK

and denied that she was assaulted or neg

lected while under their care. HIGHLAND HOSPITAL et al., Appts., The jury found for their verdict that the

defendants wrongfully imprisoned the plain(168 N. C. 250, 84 S. E. 352.)

tiff and restrained her of her liberty, as Hospital

alleged in the complaint, and that this was compulsory detention of patient liability.

done wantonly, wilfully, and maliciously by 1. patient of full age who is detained the defendants, who also wantonly, wilfully, in a hospital against her will, denied com. and maliciously assaulted her, as alleged in munication with her friends, and subjected 'the complaint, and awarded compensatory Note. - Liability for detaining patient | petitioned for his discharge, and was thereat hospital against his will. fore likely to become a public charge if dis

charged, and because the master of his vesFew authorities have discussed this par- sel had ordered his detention until he could ticular question, and no case precisely in be returned to the port from which he came. point with Cook v. HIGHLAND HOSPITAL, has The court stated that if this seaman desired been found.

to leave the hospital, he had the right to Where an alien seaman was placed in do so, no matter how imprudent was the a hospital by the British consul to be step, and regardless of how his health might treated for frostbite received while in serv- be affected thereby, and in spite of the conice, it was held in Re Carlsen, 130 Fed. sul's disapproval. The court also stated 379, that the hospital authorities were not that since the proper immigration official justified in restraining him of his liberty was not a party to the habeas corpus probecause he was not fully cured when he ceeding to obtain the release of this sea

V.

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