314, 60 L.R.A. 391, 93 Am. St. Rep. 190, 65 N. E. 730; Evison v. Chicago, St. P. M. & O. R. Co. 45 Minn. 370, 11 L.R.A. 434, 48 N. W. 6; Burg v. Chicago, R. I. & P. R. Co. 90 Iowa, 106, 48 Am. St. Rep. 419, 57 N. W. 680; State, Pennsylvania R. Co., Prosecutor, v. Jersey City, 47 N. J. L. 286; State, Nicoulin, Prosecutor, v. Lowery, 49 N. J. L. 394, 8 Atl. 513; Skinker v. Heman, 64 Mo. App. 441; Wells v. Mt. Olivet, 126 Ky. 131, 11 L.R.A. (N.S.) 1080, 102 S. W. 1182; Houston & T. C. R. Co. v. Dallas, 98 Tex. 396, 70 L.R.A. 850, 84 S. W. 648; Brenham v. Holle, Tex. Civ. App. 153 S. W.

345.

Messrs. Loring R. Hoover and Leon Hornstein, with Mr. William H. Sexton, for appellees:

The control of the location of garages is a proper subject of regulation under the police power.

Sherman v. Levingston, 128 N. Y. Supp. 581; Diocese of Trenton v. Toman, 74 N. J. Eq. 702, 70 Atl. 606; Stein v. Lyon, 91 App. Div. 593, 87 N. Y. Supp. 125; 3 McQuillin, Mun. Corp. § 911; O'Hara v. Nelson, 71 N. J. Eq. 161, 63 Atl. 836; North Chicago City R. Co. v. Lake View, 105 Ill. 207, 44 Am. Rep. 788.

Restricting the location of garages, as the ordinance in question does, tends to promote the public health, safety, and welfare, and is not an interference with the property rights guaranteed by the state and Federal Constitutions.

Improv. Co. v. Bancroft, 209 Mass. 217, 34 L.R.A. (N.S.) 730, 95 N. E. 216, Ann. Cas. 1912B, 450; St. Louis v. Fischer, 167 Mo. 654, 64 L.R.A. 679, 99 Am. St. Rep. 614, 67 S. W. 872; Ex parte Lacey, 108 Cal. 326, 38 L.R.A. 640, 49 Am. St. Rep. 93, 41 Pac. 411.

The city has express power to enact the ordinance in question, wherefore its reasonableness cannot be questioned by the courts if it is in fact constitutional.

Chicago & A. R. Co. v. Carlinville, 200 Ill. 314, 60 L.R.A. 391, 93 Am. St. Rep. 190, 65 N. E. 730; Chicago v. Gunning System, 214 Ill. 628, 70 L.R.A. 230, 73 N. E. 1035, 2 Ann. Cas. 892; Block v. Chicago, 239 Ill. 251, 130 Am. St. Rep. 219, 87 N. E. 1011; Chicago v. Ripley, 249 Ill. 466, 34 L.R.A. (N.S.) 1186, 94 N. E. 931, Ann. Cas. 1912A, 160.

Cooke, Ch. J., delivered the opinion of the court:

The relator, Henry Busching, applied to the building commissioner of the city of Chicago for a permit authorizing him to erect a public garage at 871-877 Chestnut place, between Chestnut street and Delaware place, in the city of Chicago. As he had not complied with an ordinance of the city of Chicago regulating the location of garages, the building commissioner refused to issue the permit. Busching then filed a petition for a writ of mandamus in the circuit court of Cook county against the city Chicago v. Netcher, 18. 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 petiling 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 L.R.A. 230, 73 N. E. 1035, 2 Ann. Cas. 892; People ex rel. Friend v. Chicago, 261 Ill. 16, 49 L.R.A. (N.S.) 438, 103 N. E. 609, Ann. Cas. 1915A, 292; Noyes v. Cushing, 209 Mass. 123, 95 N. E. 83; United States ex rel. Early v. Richards, 35 App. D. C. 540; Evans v. Foss, 194 Mass. 513, 9 L.R.A. (N.S.) 1039, 80 N. E. 587, 11 Ann. Cas. 171; Hibberd v. Edwards, 235 Pa. 454, 84 Atl. 437; Chicago v. Stratton, 162 Ill. 494, 35 L.R.A. 84, 53 Am. St. Rep. 325, 44 N. E. 853; Meyers v. Baker, 120 Ill. 567, 60 Am. Rep. 580, 12 N. E. 79; W. C. Ritchie & Co. v. Wayman, 244 Ill. 509, 27 L.R.A. (N.S.) 994, 91 N. E. 695; Densmore v. Evergreen Camp, No. 147, W. W. 61 Wash. 230, 31 L.R.A. (N.S.) 608, 112 Pac. 255, Ann. Cas. 1912B, 1206; Rowland v. Miller, 139 N. Y. 93, 22 L.R.A. 182, 34 N. E. 765; Gilbert v. Showerman, 23 Mich. 448; Riverbank

The only question presented for our determination is the validity of the following ordinance: "It shall be unlawful for any person, firm, or corporation to locate, build, construct, or maintain any garage within 200 feet of any building used as and for a hospital, church, or public or parochial school, or the grounds thereof, and it shall be unlawful for any person, firm, or corporation to locate, build, construct, or maintain any garage in the city in any block in which two thirds of the buildings on both sides of the street are used exclusively for residence purposes, or within 100 feet of any such street in any such block, without securing the written consent of a majority of the property owners, according to frontage, on both sides of the street, as provided by the ordinances of the city of Chicago."

Another section of the Code of the city of Chicago defines the word "garage" to

the testing and repair of their engines a considerable noise is unavoidable. Gasolene and oil are used in places of this kind, and it is necessary to keep a considerable quantity of gasolene constantly on hand, which is transferred to the tanks of automobiles propelled by this means. In making this transfer, a portion of it necessarily becomes vapor, thus creating a menace both be cause of the odor of the fumes and their inflammable character. The power of the legislature to regulate such a business is in no way dependent upon the question whether it is a nuisance per se. It is of such a character that it becomes a nuisance when conducted in particular localities and under certain conditions, and it is clearly within the province of the legislature, in the exercise of the police power, to authorize the municipalities c the state to direct the location of public garages.

municipal legislation are prescribed by the legislature, an ordinance passed in pursuance of such power cannot be held invalid by the courts as being unreasonable; but, when the details of such legislation are not prescribed, an ordinance passed in pursuance of such power must be a reasonable exercise thereof or it will be pronounced invalid. Lake View v. Tate, 130 Ill. 247, 6 L.R.A. 268, 22 N. E. 791; Hawes v. Chicago, 158 Ill. 653, 30 L.R.A. 225, 42 N. E. 373; Wice v. Chicago & N. W. R. Co. 193 Ill. 351, 56 L.R.A. 268, 61 N. E. 1084. It is said in the Tate Case, on page 252: 'Where the power to legislate on a given subject is conferred, and the mode of its exercise is not prescribed, then the ordinance passed in pursuance thereof must be a reasonable exercise of the power, or it will be pronounced invalid.' In Hawes v. Chicago, 158 Ill. 653, 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 was passed under the express authority given by this section of the statute, the courts will not inquire into the reasonableness of the provisions of the ordinance. This statute, in general terms, empowers the municipalities of the state to direct the location and regulate the use and construction of garages. It gives no detail as to the manner in which this direction and regulation shall be exercised. Under those circumstances, the city availing itself of this statute must be reasonable in the terms which it imposes by its ordinances. In discussing this question in Chicago & A. R. Co. v. Carlinville, 200 Ill. 314, 60 L.R.A. 391, 93 Am. St. Rep. 190, 65 N. E. 730, we said: "The books and reported cases seem to agree that courts may declare void an ordinance passed by a city or village by virtue of its implied powers, if, in the opinion of the court, it is unreasonable; but when the ordinance is passed by express authority conferred upon the municipality, by the legislature such power is not so clear, and there is conflict of authority upon that proposition. Burg v. Chicago, R. I. & P. R. Co. 90 Iowa, 106, 48 Am. St. Rep. 419, 57 N. W. 680. The rule adopted in this state is that, where the ordinance is passed in pursuance of power expressly conferred by the legislature, and the details of such

We do not agree with counsel for appellant that under this statute the city is given the power to prohibit the location of a garage anywhere within its corporate limits. Such legislation by the city authorities would be so unreasonable as to render it invalid. Under this statute the city undoubtedly has the power, if it should see fit, to prohibit the location of a garage in a strictly residential district, and it necessarily follows that an ordinance permitting the location and maintenance of a garage in residential districts under the conditions prescribed by this ordinance cannot be said to be unreasonable. The requirement that the person desiring to construct or maintain a garage in any block in which two thirds of the buildings on both sides of the street are used exclusively for resi dences, shall procure the written consent of a majority of the property owners, according to frontage, on both sides of the street, is not unreasonable.

In this case the court held, as a ques tion of fact, that Chestnut place was not a residence street, and appellant contends that it is unreasonable to require him to secure frontage consent from the residents in that block on Chestnut street and Delaware place; these two streets being within 100 feet of the place where it was proposed to erect the building. For the reason stated

in Chicago v. Stratton, supra, we are of the opinion that this is not an unreasonable requirement.

The place where it was proposed to erect

this structure is also within 200 feet of a

church, and it is contended that this pro

vision of the ordinance is an unreasonable restriction. The conduct of the affairs of a church, with its various meetings and assemblies in carrying out the purposes for which it is organized, is of such a character that a city is warranted in making such a restriction. The conduct of the business of 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 affect their comfort and welfare to the

same extent.

It is urged that the ordinance is invalid because it does not include private

PPEAL by defendants from a judgment A of the Superior Court for Buncombe County in plaintiff's favor in an action brought to recover damages for unlawful detention in the defendant hospital and for alleged wilful and malicious assault and neglect by defendants.

Affirmed.

Statement by Clark, Ch. J.:

This was an action to recover damages on account of the unlawful detention of the plaintiff by the defendants in the defendant and for assaults committed on her and neghospital, operated by the defendant Carroll,

schools and other institutions similar to those mentioned in the ordinance. This is a question which does not concern appellant or affect his rights. Whether some institution not named in the ordinance in the class of hospitals, churches, or public or parochial schools should be included is not Other reasons are suggested for the invalect of her while in the hospital, which acts lidity of the ordinance which are not involved, and for that reason will not be noted. The ordinance is valid, and the judgment

involved here.

of the Circuit Court is affirmed.

are alleged to have been wrongful, and committed wilfully, wantonly, and maliciously by the defendants.

The defendants denied that any wrongful acts were committed by them, as alleged by the plaintiff, but aver that she regularly

Petition for hearing denied June 4, 1914. entered herself as a patient and agreed to

NORTH CAROLINA SUPREME
COURT.

BEATRICE COOK

V.

HIGHLAND HOSPITAL et al., Appts.,

(168 N. C. 250, 84 S. E. 352.)

Hospital compulsory

detention

of

be governed by the rules and regulations of the hospital; that she was nervous, and not capable mentally of caring for herself, and that what was done was in accordance with the rules and regulations of the institution, and denied that she was assaulted or neglected while under their care.

The jury found for their verdict that the defendants wrongfully imprisoned the plaintiff and restrained her of her liberty, as alleged in the complaint, and that this was done wantonly, wilfully, and maliciously by 1. A 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

patient liability.

- Liability for detaining patient | petitioned for his discharge, and was thereat hospital against his will.

Few authorities have discussed this particular question, and no case precisely in point with COOK V. HIGHLAND HOSPITAL, has been found.

Where an alien seaman was placed in a hospital by the British consul to be treated for frostbite received while in service, it was held in Re Carlsen, 130 Fed. 379, that the hospital authorities were not justified in restraining him of his liberty because he was not fully cured when he

fore likely to become a public charge if discharged, and because the master of his vessel had ordered his detention until he could be returned to the port from which he came. The court stated that if this seaman desired to leave the hospital, he had the right to do so, no matter how imprudent was the step, and regardless of how his health might be affected thereby, and in spite of the consul's disapproval. The court also stated that since the proper immigration official was not a party to the habeas corpus proceeding to obtain the release of this sea