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Same - consent of property owners reasonableness.

5. Requiring one who desires to operate a public garage in or within 100 feet of a city block in which two thirds of the buildings on both sides of the street are used exclusively for residences, to secure consent from a majority of the property own ers, is not unreasonable.

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location near church.

6. Forbidding the location of a public garage within 200 feet of a church is not

unreasonable.

Parties who may attack ordinance.

7. The one seeking to locate a public garage near a church cannot attack the ordinance forbidding it because it also forbids such location near a public school without forbidding it near a private one.

A

(April 23, 1914.)

PPEAL by relator from a judgment of the Circuit Court for Cook County

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As to prohibition or regulation of garages, see note to Re McIntosh, ante,

603.

denying a writ of mandamus to compel defendants to issue a permit authorizing the erection of a public garage. Affirmed.

The facts are stated in the opinion. Messrs. Miller, Gorham, & Wales, for appellant:

The city council has no power to prohibit the erection of a garage within certain localities, on the ground that it is a nuisance, when in fact it is not.

People ex rel. Lincoln Ice Co. v. Chicago, 260 Ill. 150, 102 N. E. 1039; Laugel v. Bushnell, 197 Ill. 20, 58 L.R.A. 266, 63 N. E. 1086; People ex rel. Goldberg v. Busse, 240 Ill. 338, 88 N. E. 831; Carthage v. Munsell, 203 Ill. 474, 67 N. E. 831; North Chicago City R. Co. v. Lake View, 105 Ill. 207, 44 Am. Rep. 788; Sings v. Joliet, 237 Ill. 300, 22 L.R.A. (N.S.) 1128, 127 Am. St. Rep. 323, 86 N. E. 663.

The fact that express power is given the city by statute to regulate the location of garages does not validate this ordinance, as the statute is contrary to the Constitution of the state of Illinois and to the 14th Amendment to the Constitution of the United States.

Chicago v. Netcher, 183 Ill. 104, 48 L.R.A. 261, 75 Am. St. Rep. 93, 55 N. E. 707; People ex rel. Lincoln Ice Co. v. Chicago, 260 Ill. 150, 102 N. E. 1039; People ex rel. Goldberg v. Busse, 240 Ill. 338, 88 N. E. 831; Ex parte Whitwell, 98 Cal. 73, 19 L.R.A. 727, 35 Am. St. Rep. 152, 32 Pac. 870; Stockton Laundry Case, 26 Fed. 611; Re Sam Kee, 31 Fed. 680; Haller Sign Works v. Physical Culture Training School, 249 Ill. 436, 34 L.R.A. (N.S.) 998, 94 N. E. 920; Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064; People ex rel. Friend v. Chicago, 261 Ill. 16, 49 L.R.A. (N.S.) 438, 103 N. E. 609, Ann. Cas. 1915A, 292.

The regulation must be reasonable, and certain provisions of this ordinance are unreasonable, arbitrary, and discriminatory.

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; State ex rel. Omaha Gas

Co. v. Withnell, 78 Neb. 33, 8 L.R.A. (N.S.) 978, 126 Am. St. Rep. 586, 110 N. W. 680; People ex rel. Lincoln Ice Co. v. Chicago, 260 Ill. 150, 102 N. E. 1039.

An ordinance may be valid generally, yet unreasonable, and therefore invalid as applied to a certain situation or structure.

Carthage v. Munsell, 203 Ill. 474, 67 N. E. 831; North Chicago City R. Co. v. Lake View, 105 Ill. 207, 44 Am. Rep. 788; Chicago v. Gunning System, 214 Ill. 628, 70 L.R.A. 230, 73 N. E. 1035, 2 Ann. Cas. 892; Chicago & A. R. Co. v. Carlinville, 200 Ill.

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.

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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.

Chicago v. Netcher, 18. Ill. 104, 48 L.R.A. 261, 75 Am. St. Re, 93, 55 N. E. 707; Ex parte Whitwell, 98 Cal. 73, 19 L.R.A. 727, 35 Am. St. Rep. 152, 32 Pac. 870; Gundling v. Chicago, 177 U. S. 183, 44 L. ed. 725, 20 Sup. Ct. 1.ep. 633; Haller Sign Works v. Physical Culture Training School, 249 Ill. 436, 34 L.R.A. (N.S.) 998, 94 N. E. 920; 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

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 of Chicago, the building commissioner, and the city plan examiner to require them to issue the permit. On a hearing before the court the writ was denied, and the petition dismissed. This appeal has been perfected from that judgment, the trial court having certified that the validity of an ordinance was involved.

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

mean any building where automobiles, auto cars, or any similar self-propelled vehicles are let for hire or are kept ready for use upon the payment of fees for such services. The invalidity of the ordinance is urged upon two grounds: (1) That the city has no power to legislate upon this subject and thus deprive its citizens of their rights under the state and Federal Constitutions; and (2) that if it be held that the city has the power to legislate upon this subject the ordinance is void for unreasonableness. The city is given express authority by the statute to legislate upon this subject. Clause 82 of § 1 of article 5 of the cities and villages act (Hurd's Rev. Stat. 1913, chap. 24, § 62) is as follows: The city council shall have the power "to direct the location and regulate the use and construction of breweries, distilleries, livery, boarding or sale stables, blacksmith shops, foundries, machine shops, garages, laundries, and bathing beaches, within the limits of the city | or village." If the ordinance is invalid it must be for the reason that this clause of the cities and villages act is invalid in so far as it authorizes the municipality to direct the location and regulate the use and construction of garages.

It is conceded that a garage is not a nuisance per se, and it is contended on the part of appellant that it was incumbent upon appellees to prove that this particular garage would, in fact, become a nuisance before the building commissioner would be justified in refusing to issue a permit to construct the building. We have often been called upon to determine when our legis lative bodies are authorized to interfere with the business of the citizen by virtue of the police power vested in the state and its municipalities. In Chicago v. Netcher, 183 Ill. 104, 48 L.R.A. 261, 75 Am. St. Rep. 93, 55 N. E. 707, we thus announced the rule as to when such interference or regulation was authorized in cases such as the one under consideration: "In order to sustain legislative interference with the business of the citizen by virtue of the police power, it is necessary that the act should have some reasonable relation to the subjects included in such power. If it is claimed that the statute or ordinance is referable to the police power, the court must be able to see that it tends, in some degree, toward the prevention of offenses or the preservation of the public health, morals, safety, or welfare. It must be apparent that some such end is the one actually intended, and that there is some connection between the provisions of the law and such purpose. If it is manifest that the statute or ordinance has no such object, but, under the guise of a police regulation, is an in

vasion of the property rights of the individual, it is the duty of the court to declare it void. In the recent case of People ex rel. Friend v. Chicago, 261 Ill. 16, 49 L.R.A. (N.S.) 438, 103 N. E. 609, Ann. Cas. 1915A, 292, we thus announced the same rule: "Even if the municipality is clothed with the whole police power of the state, it would still not have the power to deprive a citizen of valuable property rights under the guise of prohibiting or regulating some business or occupation that has no tendency whatever to injure the public health or public morals or interfere with the general welfare. An act of the legislature which deprives the citizen of his liberty or property rights cannot be sustained under the police power unless the public health, comfort, safety, or welfare demands such enactment (Ruhstrat v. People, 185 Ill. 133, 49 L.R.A. 181, 76 Am. St. Rep. 30, 57 N. E. 41, 12 Am. Crim. Rep. 453; Bailey v. People, 190 Ill. 28, 54 L.R.A. 838, 83 Am. St. Rep. 116, 60 N. E. 98; Bessette v. People, 193 Ill. 334, 56 L.R.A. 558, 62 N. E. 215), and there must be some logical connection between the object to be accomplished by such legislation and the means prescribed to accomplish that end. The owner of property has the constitutional right to make any use of it he desires, so long as he does not endanger or threaten the safety, health, and comfort or general welfare of the public. This right cannot be wholly taken away or limited by the state except in so far as it may become necessary for individual rights to yield to the higher and greater law of the best interest of the public." Many other cases have announced this rule in substantially the same language; but it will not be necessary to refer to each of them.

Testing the statute here involved by these rules, it becomes necessary to determine whether it has for its object the preservation of the public health, morals, comfort, safety, or welfare, or whether, under the guise of police regulation, it is an invasion of the property rights of the individual. If it is not such an invasion, then individual rights must yield to the higher rights of the public.

Conceding, as the parties do, that the business of conducting a public garage does not constitute a nuisance per se, it is a matter of common knowledge that the automobile propelled by the use of gasolene is a large and sometimes noisy machine, which frequently, when in operation, emits an offensive odor. Automobiles go in and out of public garages at all hours of the day and night, producing noises which must necessarily interfere with the comfort and welfare of those in the immediate vicinity. In the starting of these machines and in

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 because 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 Baker, in speaking for the court, in discourt may

While the identical question involved here was not there raised, this same stat-cussing the question when a ute, as applied to a livery stable, was held valid in Chicago v. Stratton, 162 Ill. 494, 35 L.R.A. 84, 53 Am. St. Rep. 325, 44 N. E. 853. Since that time it has been amended

so as to include garages. The act is not subject to the objection made, and, as the ordinance was passed by the express authority conferred by this statute, it is valid unless unreasonable in its requirements.

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

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rightfully hold an ordinance unreasonable on page 658 said: 'Where the power to legislate on a given subject is conferred on a municipal corporation, yet if the details of such legislation are not prescribed by the legislature, there the ordinance passed in pursuance of such power must be a reasonable exercise thereof or it will be pronounced invalid.'"

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 residences, 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 | to compulsory physical treatment when she 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.

might have been released without danger to herself, is entitled to damages as for false imprisonment, although the hospital authorities acted in good faith and the patient contracted to be subject to the rules, which justified such action.

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PPEAL by defendants from a judgment 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,

It is urged that the ordinance is invalid because it does not include private 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 are alleged to have been wrongful, and comlidity of the ordinance which are not inmitted wilfully, wantonly, and maliciously volved, and for that reason will not be noted. by the defendants. The ordinance is valid, and the judgment of the Circuit Court is affirmed.

involved here.

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

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patient liability. 1. A patient of full age who is detained in a hospital against her will, denied communication with her friends, and subjected Note. - Liability for detaining patient at 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

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 the defendants, who also wantonly, wilfully, and maliciously assaulted her, as alleged in the complaint, and awarded compensatory | petitioned for his discharge, and was therefore 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

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