der fire-escape was not provided or constructed in compliance with the statute aforesaid; that upon March 16, 1898, and at the beginning of the fire hereinafter mentioned, the plaintiff's intestate was employed as a salesman and was working on the seventh floor of the said building, and was rightfully in said premises; that upon the 16th of March, 1898, a fire was discovered in said building below the seventh story thereof, and that said fire spread rapidly through the entire building, by means whereof the elevators and stairways were enveloped in flame and smoke and the elevators rendered useless and the stairways impassable, and that the plaintiff's intestate was then and there suffocated by the smoke and fumes of said fire and fell to the ground dead; that said fire started and continued without fault or negligence of the plaintiff's intestate, and that the plaintiff's intestate was in the exercise of all due care and caution during all the time before mentioned; avers that the plaintiff's death was caused by reason of the negligence of the defendants aforesaid in not complying with the said statute and ordinance; that the plaintiff's intestate died leaving a father, a mother and a sister, his only next of kin."

The second count is the same as the first, except that it avers that the fire spread rapidly through the building and rendered the elevator and stairways impassable, and cut off access to the fire-escape at the west end of said building. The third count is the same as the second, and the fourth is the same as the first, except that it describes the defendants as being in possession and control of said building. The fifth count sets up the following facts: That in 1890 Simon Florsheim was the owner and lessee of the premises under a ninety-nine year lease, executed in the year 1886; that he built on this lot a seven-story brick building; that the statute, approved June 29, 1885, in force July 1, 1885, relative to fire-escapes, provided that all buildings more than four stories in height, except such as shall be used for private residences exclusively,

shall be provided with one or more metallic ladder or stair fire-escapes attached to the outer walls thereof and extending from or suitably near the ground to the uppermost story thereof, and so provided with platforms of such dimensions and in such proximity to one or more windows of each story above the first as to render access to such ladder or stairs from each such story easy and safe; that the number, location, material and construction of such fire-escapes shall be subject to the approval of the corporate authorities of cities organized under general or special laws, provided that all buildings more than two-stories in height, used for manufacturing purposes, etc., shall have at least one fire-escape for every fifty persons for which working, sleeping or living accommodations are provided above the second story; that this building had a capacity of more than one hundred persons, was used for manufacturing purposes, and had only one ladder fire-escape placed at the west end of the building; that in 1895 Florsheim assigned his lease to the defendant Frederick Ayer, and that afterwards, and before the fire, the Chicago Cottage Organ Company, a corporation, acquired an interest in said building, and that, at the time of the fire the company occupied a part of it; that the defendants did not comply with the provisions of said statute; that said statute was on July 1, 1897, repealed and on that date a new statute enacted in lieu thereof; that under the new statute it became and was the duty of said defendants to provide one or more metallic ladders or fire-escapes (setting up the foregoing statute of 1897); that plaintiff's intestate, at the time of the happening of the injuries, was working in said building and was rightfully upon the premises; that on March 16, 1898, while he was in the exercise of due care and caution, the building was destroyed by fire and he lost his life by reason of the negligence of the defendant. The sixth, seventh, eighth, ninth and tenth counts are the same, respectively, as the first, second, third, fourth and

fifth, except that neither of them avers that the building was used for manufacturing purposes.

LYNDEN EVANS, for appellant.

SMOOT & EYER, for appellee Frederick Ayer:

At common law there was no liability imposed upon the owner or occupant of a building to equip the same with fire-escapes or with means of exit in case of fire. Pauley v. Steam Gauge Co. 131 N. Y. 90; Schmalzreid v. White, 97 Tenn. 36; Jones v. Granite Mills, 126 Mass. 84; Keith v. Granite Mills, id. 90.

The Fire-escape act of Illinois adopted in 1897, requiring the erection of fire-escapes, is in derogation of the common law, is a penal statute, and must therefore be strictly construed. Statutes which are opposed to common rights and confer special privileges, or which prescribe the manner in which persons shall or shall not use their private property, must be strictly construed. Cadwallader v. Harris, 76 Ill. 370; Thompson v. Weller, 85 id. 197; Rothgerber v. Dupuy, 64 id. 452; Williams v. Vanderbilt, 145 id. 238; Belanger v. Hersey, 90 id. 70; West v. Railway Co. 63 id. 545; Louisville v. Webster, 108 id. 414; Sutherland on Stat. Const. secs. 333, 374.

The act of 1897 is unconstitutional because it is an unwarranted and unauthorized delegation of legislative power to the inspector of factories and to others. State v. Hudson County, 37 N. J. L. 12; O'Neill v. Insurance Co. 166 Pa. St. 72; Dowling v. Insurance Co. 92 Wis. 63; People v. Johnson, 95 Cal. 471; Slinger v. Henneman, 38 Wis. 504; Tillman v. Cocke, 56 Tenn. 429; 1 Dillon on Mun. Corp. (4th ed.) sec. 308; Sutherland on Stat. Const. secs. 68-70; Galesburg v. Hawkinson, 75 Ill. 152; State v. Hayes, 61 N. H. 264.

Even though it is assumed that the law is capable of enforcement, no one can be held liable for non-compliance there with until the inspector of factories has served the notice required by the act. And the service of such no

tice must be properly averred. The liability to erect the escapes is put upon one of several individuals named, in the disjunctive. There is no joint liability. Hence the inspector must determine who is to perform the duty and give the notice, before any one can be called upon to comply. Schott v. Harvey, 105 Pa. St. 222; Keeley v. O'Connor, 106 id. 321; Moeller v. Harvey, 16 Phila. 66; McCulloch v. Ayer, 96 Fed. Rep. 178; Grant v. Slater Mill Co. 14 R. I. 380; Maker v. Slater Mill Co. 15 id. 112.

The act is unconstitutional because it is not uniform in its operation. Chicago v. Trotter, 136 Ill. 430; Rich v. Naperville, 42 Ill. App. 222; Cicero Lumber Co. v. Cicero, 176 Ill. 9; Richmond v. Dudley, 129 Ind. 112; Cairo v. Coleman, 53 Ill. App. 680; Eureka v. Wilson, 48 Pac. Rep. 150.

SAMUEL S. PAGE, and FRANKLIN P. SNYDER, for appellee the Chicago Cottage Organ Company:

The alleged Fire-escape act of 1897 is unconstitutional and otherwise invalid because it delegates legislative and judicial power. O'Neill v. Insurance Co. 166 Pa. St. 72; Dowling v. Insurance Co. 92 Wis. 63; People v. Johnson, 95 Cal. 471; State v. Hudson Co. 37 N. Y. L. 12; Sutherland on Stat. Const. secs. 68, 69; Slinger v. Henneman, 38 Wis. 504; Tillman v. Cocke, 56 Tenn. 429; Galesburg v. Hawkinson, 75 Ill. 153; McCulloch v. Ayer, 96 Fed. Rep.178.

It is fatally incomplete, uncertain, vague and indefinite. It is impossible of execution, is not uniform in its operation, and is unreasonable and oppressive. Chicago v. Trotter, 136 Ill. 430; Rich v. Naperville, 42 Ill. App. 222; East St. Louis v. Wehrung, 50 Ill. 28; Yick Wo v. Hopkins, 118 U. S. 356; Richmond v. Dudley, 129 Ind. 112; Cicero Lumber Co. v. Cicero, 176 Ill. 9.

It is special legislation, contravenes the bill of rights, and affects the liberty and property of the citizen or deprives him of it without due process of law. The title of the act is too narrow, and the subjects mentioned in the act are not expressed in the title.

Mr. CHIEF JUSTICE WILKIN delivered the opinion of the court:

The argument in this case is mainly upon the constitutionality and validity of the act of 1897, and we shall confine our consideration of the case to that question. We see no substantial objection to at least some of the counts on the special demurrer.

The first objection made to the statute by counsel for appellees is, that it imposes legislative power upon the inspector of factories, in that it authorizes him to determine how many, and in what position, fire-escapes shall be placed, etc. It must be admitted that the act is loosely drawn, but the rule that it is the duty of courts to so construe statutes as to uphold their constitutionality and validity, if it can be reasonably done, is so well established that the citation of authorities is needless. In other words, if the proper construction of a statute is doubtful, courts must resolve the doubt in favor of the validity of the law. Statutes and city ordinances providing for fire-escapes are usually somewhat general in their enactments, and necessarily so, for the reason that it is impossible for the legislature to describe in detail how many fire-escapes shall be provided, how they shall be constructed and where they shall be located in order to serve the purpose of protecting the lives of occupants, in view of the varied location, construction and surroundings of buildings; and hence, so far as we have been able to ascertain, acts similar to the first section of this statute have been sustained in other States, though perhaps the question here raised has never been directly presented. Rose v. King, 49 Ohio St. 213; Willy v. Mulledy, 78 N. Y. 310; Pauley v. Steam Gauge and Lantern Co. 15 L. R. A. 194; Schott v. Harvey, 105 Pa. St. 222; Orin v. Steinkamp, 54 Ohio St. 284; Sewell v. Moore, 166 Pa. St. 570; Keely v. O'Conner, 106 id. 321; 2 Pa. Dist. Rep. 623.

The general rule is, that a statute must be complete when it leaves the legislature, -as to what the law is,—