text:
    The Clark Teachers’ Agency et al., Appellees, v. City of Chicago and William Hale Thompson, Mayor, Appellants.
    Gen. No. 26,285.
    1. Appeal and error, § 1718

      —when question of validity of ordinance is waived on appeal. The question of the constitutionality of an ordinance cannot be passed upon by the Appellate Court, and on an appeal to such court such question is waived.
    2. Injunction, § 18*—when injunction is proper to enjoin enforcement of ordinance. A court of equity has jurisdiction of a suit to enjoin the enforcement of a city ordinance providing for licensing and regulation of private employment agencies, where there are 348 Such agencies in the city whose places of business will be closed up by the city officials and thereby their business substantially destroyed, on the ground that such determination will prevent a multiplicity of suits.
    3. Municipal corporations, § 45*—when ordinance is void. A city ordinance conflicting with a State law is void.
    4. Municipal corporations, § 45*—when ordinance as to employment agencies is void. Where a State act provided that persons complying with it might be granted a license to conduct a private employment agency upon payment of the fee prescribed in the act, an ordinance covering the same subject-matter and requiring the payment of an additional fee is void.
    5. Municipal corporations, § 41*—when grant of power to municipality is necessary. Where a State has not delegated' authority to municipalities to regulate private employment agencies, no such authority exists.
    6. Municipal corporations, § 41*—what are powers of municipal corporations. A-city or village has no inherent power to legislate on any matter unless the power is expressly delegated by the legislature or unless it is necessarily implied from the powers expressly granted.
    Interlocutory appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court.
    Affirmed.
    Opinion filed December 22, 1920.
    Samittel A. Ettelson, for appellants; Morton S. Oresst, of counsel.

      John W. Creekmur, Earl J. Smith and Donald J. DeWolfe, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal defendants seek to reverse an interlocutory order awarding a writ of injunction. Complainants moved that a temporary order be entered enjoining defendants from attempting to enforce an ordinance of the City of Chicago. The motion came on for hearing on the face of complainants’ amended bill and the order prayed for was entered, to reverse which defendants prosecute this appeal.

The record discloses that on March 29, 1920, the City Council of Chicago passed an ordinance providing for the licensing and regulation of private employment agencies in the city. This ordinance provided, in substance, that no person, firm, company, society, association or corporation should engage in the business of a domestic employment agency, commercial, theatrical or general employment agency, shipping agent, nurses’ registry, or any other employment agency or office within the City of Chicago for the purpose of procuring help or attempting to procure help or 'engagements without first obtaining a license. The ordinance further provided the method by which the license should be obtained, viz., by making a written application to the mayor, giving the name and address of the applicant, and the street and number of the place where it was proposed to conduct the business, and other information. It was also provided that upon receipt of such application, the mayor should cause to be investigated the character and responsibility of the applicant, and cause the premises in which it was proposed to conduct the business to be examined; that, if upon such investigation, it was found that the applicant was not a person of good character, or if the place was not a suitable one in which to carry on the proposed business, the application should be denied. > But if the applicant was found to be a proper person and of good character and the place suitable, then the license was to be issued upon payment of a license fee ranging from $5 to $75 per year, depending upon the number of persons that we're to be employed in the business. The ordinance further provided that all agencies licensed should keep books of record open at all reasonable hours for inspection by the city’s representative. It provided further that any person violating the ordinance should be fined not less than $50 nor more than $200 for every day of such violation and that each day should constitute a separate and distinct offense.

The complainants, 48 in number, on behalf of themselves and approximately 300 other persons engaged in the same line of business, filed this suit to enjoin the enforcement of the ordinance, and it is averred that all of these parties are now conducting employment agencies in Chicago under licenses obtained from the State Board of Commissioners of Labor under the provisions of an “Act relating to private employment agencies and to repeal parts of a certain Act relating thereto,” in force July 1, 1909 (Laws of 1909, p. 213, J. & A. U 5337 et seq.). The amended bill further averred that although complainants and the others had obtained licenses from the State to conduct employment agencies in Chicago, the City of Chicago had refused complainants the right to continue such businesses unless they procured a further license from the city in accordance with the ordinance; that the city, through its police officers, demanded that licenses be taken out under the ordinance and the fees paid, and threatened that unless this was done they would arrest complainants and close up their places of business.

Complainants contend that the ordinance is void, because (1) the power to pass such an ordinance was not delegated to the municipality, and (2) because the subject-matter of the ordinance is fully covered by the act of the legislature, and because the ordinance is in conflict with the Constitution of the United States and of this State. This question of constitutionality, of course, is not before us for the reason that we have no jurisdiction to pass on such a point, and the question has been waived by defendants bringing their case to this court.. Armour & Co. v. Industrial Board, 275 Ill. 328; McDonald v. City of Spring Valley, 285 Ill. 52.

Defendants contend that the order appealed from is wrong and should be reversed for the reason that a court of chancery has no jurisdiction over the subject-matter; that a common-law court is the proper forum in which to have the validity of an ordinance adjudicated. In support of this defendant cites the cases of City of Chicago v. Chicago City Ry. Co., 222 Ill. 560 and Kearney v. City of Canton, 273 Ill. 507. The reason given for the contention that the instant suit will lie and that a court of chancery has jurisdiction to declare the ordinance void is that such determination will prevent a multiplicity of suits. There are 348 private employment agencies conducted in the City of Chicago and it appears that all of them are affected alike by the ordinance ip question. It further appears that if the city officials are not-enjoined, they will close up all of these agencies and that their business is of such a character that if this is done it will be substantially destroyed. In these circumstances we think a court of chancery, to avoid a multiplicity of suits, has jurisdiction to settle the controversy at one hearing. City of Chicago v. Collins, 175 Ill. 445; Wilkie v. City of Chicago, 188 Ill. 444; Spiegler v. City of Chicago, 216 Ill. 114.

In City of Chicago v. Chicago City Ry. Co., 222 Ill. 560, it was held that a court of chancery had no jurisdiction to enjoin the enforcement of an ordinance passed by the City Council of Chicago to prevent the overcrowding of street cars. In that case there were but two complainants and the dispute was between them and, the city. The court there distinguished that case from the Collins, Wilkie and Spiegler cases.

The Kearney case was an appeal from a decree enjoining the enforcement of an ordinance on the ground- that it was void. The court there held that the demurrer to the bill should have been sustained. It is there said (p. 516): ‘‘No one could be injuriously affected by the ordinance except parties engaged in doing the thing it forbids. If no one does or has done any of the things prohibited, no one will be injured. * * * So far as appears from the bill, at the time the suit was begun none of the complainants were engaged in any business or doing any acts in violation of the ordinance. It is not alleged that any of the complainants have violated the ordinance and that suits against them for such violations have been instituted or threatened for such violations. * * * Under no circumstances will a court of equity entertain a bill to enjoin the enforcement of an alleged void ordinance on the ground, alone, that it is void, but those seeking to restrain its enforcement must allege facts showing their interests are affected by it. No case, so far as we are informed, has ever gone so far as to sustain a bill to determine in advance the validity of an ordinance at the instance of parties who desire to engage in a business or perform acts forbidden by the ordinance.” The court there also distinguished the Collins, Wilkie and Spiegler cases.

The Collins case was a bill filed by 373 complainants suing on behalf of themselves and between 200,000 and 300,000 others similarly situated, to enjoin the enforcement of an ordinance requiring an annual license fee. It was held that to prevent a multiplicity of suits equity had jurisdiction.

In the Wilkie case, 78 complainants filed a bill on behalf of themselves and about 900 others from whom the city, under an ordinance, was exacting a license fee for pursuing their occupation to enjoin the enforcement of the ordinance. The court held the .ordinance void, and that to prevent a multiplicity of suits a court of chancery would interfere.

In the Spiegler case it was held that a court of equity might interfere where there were 114 complainants suing on behalf of themselves and 3,000 or 4,000 other persons engaged in the same business, to enjoin the enforcement of an ordinance regulating their business, the ordinance being void.

The law as announced in these three cases was sufficient authority to warrant the court in the instant case in assuming jurisdiction. But it is contended on behalf of defendants that even if a court of chancery had jurisdiction of the subject-matter, the order appealed from was wrong for the reason that the ordinance is valid. In this connection it is claimed that the City Council is authorized to pass' ordinances for the “promotion of health or the suppression of disease” [paragraph 78, sec. 62, ch. 24, Rev. St., J. & A. ¶ 1334(78)] and that the ordinance in question provides for an inspection of the premises wherein it is proposed to conduct the agency to see that the place, from a sanitary point of view, is suitable. It is further argued that the ordinance is valid for the reason that the city has the right to investigate the character of persons about to engage in the employment agency business to see that the public is protected against dishonest persons; that the ordinance provides for such investigation, and that the agencies authorized shall keep books, records, etc., open for inspection by the city authorities, and that the license fee which ranges from $5 to $75 per annum is merely to cover the expense of such investigation and supervision.

We think none of these contentions is sustained by the record. For it must be borne in mind that several years before the passage of the ordinance the State legislature passed a comprehensive act covering this same subject-matter. The act, among other things, required any person or company desiring to con duel a private employment agency to make application to the State authorities giving the city, street and number of the place where it was proposed to carry on the business and requiring bond of them. It also provides that such persons shall keep registers showing the business done by them open for inspection by the State authorities, who are provided for by the act. We think the act covers all the matters mentioned in the ordinance and that it is clear that the requirements of the ordinance are unnecessary. Since the ordinance conflicts with the State law, it, of course, is void and must give way. Inasmuch as the State act provides that persons complying with it might be granted a license to conduct a private employment agency upon payment of the fee prescribed in the act, the City Council could not pass an ordinance covering the same subject-matter and requiring the payment of an additional fee. Wilkie v. City of Chicago, supra.

It might also be said that although the amended bill set up that the ordinance was void for the reason that it conflicted with the act of the legislature covering the same subject-matter, counsel for the city have not pointed out or attempted to point out that the act does not cover the same subject-matter as that covered by the ordinance. In fact, they make no reference to the State law at all. Furthermore, the State has not delegated authority to municipalities to regulate private employment agencies and, of course, in the absence of such delegation no such authority exists, for it has been repeatedly held that a city or village has no inherent power to legislate on any matter unless the power is expressly delegated by the legislature or unless it is necessarily implied from those powers expressly granted. City of Chicago v. M. & M. Hotel Co., 248 Ill. 264; City of Chicago v. O’Brien, 268 Ill. 228; Village of Westville v. Rainwater, 294 Ill. 409.

It follows that from what we have said the ordinance was void and that the order of the superior court of Cook county was proper. It will, therefore, l/e affirmed.

Order affirmed.

Taylor, P. J., and Thomson, J., concur.


source: Caselaw Access Project

author: Mr. Justice Thomson

license: Public Domain

text:
    George Hartenbauer, Appellee, v. Kathryn Brumbaugh, Appellant.
    Gen. No. 25,610.
    1. Landlord and tenant, § 267

      —what amounts to constructive eviction. Evidence establishing that a landlord knew of the existence of a house of ill fame conducted on the third floor of a building, and that such disorderly house was permitted to continue in spite of such knowledge by the landlord, amounts to a constructive eviction as to another tenant in the same building occupying a different apartment.
    2. Landlord and tenant, § 267*-—when landlord is liable for nuisance. If a tenant conducts leased premises as a house of ill fame, irrespective of his or her intentions when the lease was entered into, and the situation is Tprought to the attention of the landlord, who fails to avail himself of the remedy which the law affords him to stop such use of the premises, and permits the condition to continue, the maintenance of such public nuisance becomes the act of the landlord (Abatement and Injunction Act of 1915, Callaghan’s 1916 Stat. ¶ 3591[2] 1, and the act may be availed of by any law-abiding tenant of the landlord as a constructive eviction.

      3. Landlord and tenant, § 267

      —what constitutes constructive eviction of tenant. Constructive eviction exists where the premises leased are rendered useless to the tenant, or the tenant is deprived,- in whole or in part, of the possession or enjoyment of them, as a result of the wilful, wrongful act of the landlord, which act may be the wilful omission of a duty on the landlord’s part, or the commission of a wrongful act by him of a grave and permanent character.
    4. Landlord and tenant, § 267*—when tenant does not waive right to vacate for act of landlord. A tenant does not waive the right to vacate because of the existence of lewd conditions, by continuing to occupy the premises for a few months to give the landlord opportunity to remedy the conditions, especially where the evidence showed that about the time of the discovery of the conditions the tenant suffered a broken leg confining her to bed as long as she occupied the premises.
    Appeal from the Municipal Court of Chicago; the Hon. John A. Swanson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Reversed and remanded.
    Opinion filed December 22, 1920.
    Sonnenschein, Berkson, Lautman & Levinson, for appellant.
    W. Scott Hodges and Charles L. Makemson, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Thomson

delivered the opinion of the court.

The plaintiff, George Hartenhauer, was the owner of an apartment building and the defendant, Mrs. Brumbaugh, was one of his tenants. She had a written lease on the first floor apartment for a period of 2 years from November 1,1917. The plaintiff brought this suit against her to recover the rent stipulated in her lease, for the months of May to September, 1918, inclusive. The defendant admitted the execution of the lease and that she went into possession in November, 1917, and vacated in May, 1918, but she claimed a constructive eviction, in that the third apartment in the building in question was conducted by the tenant of that apartment as a house of ill fame, with the plaintiff’s knowledge, whereby he was responsible for creating or conducting a public nuisance; and further, that the common stairways, corridors, hallways and approaches to the apartments in said buildings, which were under the sole control of the plaintiff, were, to his knowledge, used in such a manner as to disturb the peace, quiet and enjoyment of the apartment occupied by the defendant. At the close of all the evidence the court directed the jury to find the issues for the plaintiff and assessed his damages at the full amount claimed, which was $332.50. Judgment followed for that amount, from which the defendant has perfected this appeal.

There were two apartments on the third floor which were leased by a woman tenant. "We are unable to tell from the record whether the trial court based his peremptory instruction for the plaintiff on his view of the facts or'the law. or both. The plaintiff contends that the defendant’s evidence failed to establish that the third floor tenant was conducting her premises (either one apartment or both) as a house of ill fame. If that view of the evidence was the basis of the court’s finding, we are of the opinion that such finding was against the manifest weight of the' evidence. It would serve no purpose to recite the evidence in detail in this opinion. It is sufficient to say that we have examined all the evidence with care and that, in our opinion, it establishes the conditions the defendant set forth in her affidavit of merits, both as to the third floor apartment and as to the conditions which existed in the hallways of the building, and that the evidence shows that the third floor tenant was conducting her premises as a house ..of ill fame, and, in our opinion, the evidence further established the fact that the plaintiff knew of this and by reason, of his failure to take appropriate action, he permitted that public nuisance to be maintained, as alleged by the defendant. In Allott v. Bowers, 168 Ill. App. 573, this court held that if a landlord permitted the apartment which he himself occupied to be used and frequented by drunken persons and to be used as a house of ill fame, his tenant occupying another apartment in the building would thereby have sufficient grounds for vacating such apartment without incurring any liability for rent for the period subsequent to the removal, upon the principle that if the landlord creates a nuisance, whether upon or near the premises, it will amount to an eviction, citing "Wood, Landlord and Tenant, pp. 803. We now hold that the tenant has the same right if the landlord permits such a nuisance to be maintained by another tenant, in premises leased from such landlord by the latter. In contending the contrary, the plaintiff relies upon Cougle v. Densmore, 57 Ill. App. 591, where it was held that before a tenant can impute lewdness of cotenants to the landlord, as an excuse for not paying rent, he must show enough to charge the landlord with knowledge that such cotenants took their lease with lewd intentions. That does not express the present law on that subject. The Abatement and Injunction Act passed by our legislature in 1915 [Callaghan’s 1916 Stat. ft 3591(2)] provides: “That all buildings and apartments, and all places, and the fixtures and movable contents thereof, used for purposes of lewdness, assignation or prostitution, are hereby declared to be public nuisances, and may be abated, as hereinafter provided. The owners, agents, and occupants of any such building or apartment, or of any such place shall be guilty of maintaining a public nuisance, and may be enjoined as hereinafter provided.” If a tenant, irrespective of his or her intentions when the lease is entered into, conducts the leased premises as a house of ill fame and this is brought to the attention of the landlord' and the latter fails to avail himself of the remedy which the law affords him to stop such use of his premises and get rid of the tenant in question, but, on the contrary, does nothing’ and permits the conditions to continue, the law makes the maintenance of such public nuisance the act of the landlord. Such an act may be availed of by any law-abiding tenant of the landlord as a' constructive eviction. In several jurisdictions it has been so held, even apart from such a statute as we have in Illinois. Paterson v. Bridges, 16 Ala. App. 54, 75 So. 260; Weiler v. Pancoast, 71 N. J. Law 414; Phyfe v. Dale, 72 N. Y. Misc. 383, 130 N. Y. Supp. 231; J. W. Cushman & Co. v. Thompson, 58 N. Y. Misc. 539, 109 N. Y. Supp. 757.

There will be a constructive eviction where the-premises leased are rendered useless to the tenant or the tenant is deprived, in whole or in part, of the possession or enjoyment of them, as a result of the wilful, wrongful act of the landlord, which act may be the wilful omission of a duty on his part or the commission of a wrongful act by him. To be the basis of an eviction, the omission of a duty on the part of the landlord or the wrongful act committed by him must be something of a grave and permanent character evidencing the intention on his part that the tenant shall be deprived of the enjoyment of the demised premises. It has been held that under a lease requiring the landlord to make repairs, there will be a constructive eviction if the tenant’s premises become filled with sewer gas, causing distress and illness to the tenant’s family, and such condition is permitted to remain, by the landlord, for want of proper repairs. Sloss v. Brockman, 171 Ill. App. 465. We think the presence of the habitues and frequenters of a house of ill fame, about the premises, can be considered no less the basis of a constructive eviction than sewer gas.

In the case of Cougle v. Densmore, supra, the court seems to have based its decision, at least in part, on the ground that the complaining tenant had the same access to the law as did the landlord by reason of the maintenance of the nuisance complained of. Such may not be said of our present laws, for while, in case of the maintenance of a house of ill fame in premises leased by a tenant," our Abatement and Injunction Act affords relief to any citizen, including the complaining tenant or the landlord, the remedy which is afforded the landlord is much the more direct and effective.

The. evidence shows that the conditions surrounding the third floor apartment became known to the plaintiff in the case at bar at least as early as January 1, 1918,, and that notwithstanding repeated complaints on the part of the defendant, to the landlord and his agents, the conditions had not been changed when the defendant vacated the premises. It is contended by the plaintiff that inasmuch as the defendant continued to occupy the premises during the period to which we have just referred, notwithstanding the existing conditions, she waived any right she may have had to vacate the premises by reason of these conditions. The contention is entirely without merit. In the first place, the tenant would waive no rights by waiting the period of a few months to give the landlord an opportunity to remedy the conditions and, in the next place, the evidence in the case at bar shows that early in January the defendant suffered a broken leg which kept her confined to her bed for several months and on, crutches as long as she occupied these premises.

The record shows, as the plaintiff points out, that the defendant herself testified that when she talked with the plaintiff’s agent on the third of January| about these conditions, that being occasioned by a raid that had been made by the police on the apartment in question, the agent told the defendant that! they would do their best to get rid of the undesirables. It also shows that the “undesirables” were not put out of the building and in the last conversation the defendant had with the plaintiff’s agent he called her attention to the fact that the undesirable tenant in question had two apartments in the building and he intimated that if she were put out there would be two apartments vacant. That may have had something to do with the inaction of the plaintiff, but, whatever the reason, we are of the opinion, as above stated, first, that the evidence established the fact that a house of ill fame was conducted on the third floor of this building and that this was known to the landlord and notwithstanding such knowledge he -permitted it to continue, and second, that this condition of affairs amounted to a constructive eviction.

It follows that the trial court erred in allowing the plaintiff’s motion for a peremptory instruction directing the jury to find the issues in his favor. It wiill, therefore, be necessary to reverse the judgment of the trial court. If, in ,the absence of further evidence, the defendant had presented a motion for a peremptory instruction, we are of the opinion that to have refused it would have been error. If the court had overruled plaintiff’s motion for a directed verdict, it may be he would have had evidence to offer in rebuttal. For that reason only we cannot reverse this judgment with a finding of fact.

The cause will, therefore, be remanded to the municipal court for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded.

Taylor, P. J., and O’Connor, J., concur.


author: Mr. Presiding Justice Barnes

text:
    Frederick C. Aldrich et al., Appellants, v. R. J. Ederer Company, Appellee.
    Gen. No. 25,501.
    1. Landlord and tenant, § 331

      —when equity will not preserve lien. A court of equity will not intervene to preserve a lien of a lessor upon money awarded as compensation to the lessees for a portion of the leased premises taken under condemnation proceedings, where it appears that there is no breach of the covenants of the lease, no, insolvency of the lessee or prospect of the same, no attempt to foreclose the equitable lien or ground therefor; no diminutions of the security but on the contrary probability of its enhancement in value.
    '2. Equity, § 1*—when equity will not intervene. Equity will not exercise its extraordinary jurisdiction when it will operate inequitably and oppressively.
    3. Receivers, § 4*—when receiver will not he appointed to preserve fund. Where a tenant has the legal right to a fund awarded as compensation for a portion of leased premises taken under condemnation proceedings, and will not receive its full rights under such proceedings until it has possession of the fund with the attendant right to use the same as it sees fit, and its damages from the deprivation of such right are greater than any which may result to the lessor by refusal of the prayer of a bill to have a receiver appointed for such fund, the bill will be dismissed for want of equity. ,
    Appeal from the Circuit Court of Cook comity; the Hon. Oscar M. Torrison, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919. •
    Affirmed.
    Opinion filed December 31, 1920.
    Moses, Rosenthal & Kennedy and I. B. Lipson, for appellants; S. Sidney Stein, I. B. Lipson and Henry Jackson Darby, of counsel.
    Custer & Cameron and George A. Mason, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This appeal is from the dismissal of the bill of complaint in the cause for want of equity. Its primary object is to preserve an equitable lien claimed by appellants, the complainants, upon money awarded as compensation to appellee, R J. Ederer Company, a corporation, a defendant to the bill, for a portion of premises taken under condemnation proceedings on the petition of the City of Chicago for the purpose of widening Michigan boulevard.

Said Ederer Company holds the premises in question under a lease from Mary O’Newell for a term of 99 years, beginning April 1, 1906, and ending March 31, 2005, at an annual rental of $6,300, and appellant, Frederick C. Aldrich, trustee, has succeeded to her interests and holds the same in trust for the other complainants to the bill.

The demised premises had a frontage of 79½ feet on the east side of said Michigan boulevard and' a depth of 124 feet. The entire lot was covered by a 4-story brick building occupied by the tenant. The west 61.50 feet, nearly one-half of the lot and building, were taken by the condemnation proceedings. The compensation awarded for damages for all interests was $142,880, and on proper issues taken and hearing to determine the distributive shares of said fund, the sum of $139,795.61 was awarded to the tenant, said Ederer Company, and $3,084.39 to said Aldrich, trustee. An assessment against the property not taken was fixed at $14,324, and after that amount with interest thereon was deducted from the amount of the total compensation, the balance, $128,502.15, was deposited with the county treasurer in payment of the judgment in the condemnation proceedings. On application of Aldrich, trustee, his distributive share was paid, and on the filing of this bill a temporary injunction was. granted against payment to said Ederer Company of its share of the award in the county treasurer’s hands, amounting ,to $125,417.76. Later, by consent of the "parties, said fund was deposited with the Northern Trust Company to abide the result of this suit.

Among other things covenanted and agreed to in the 99-year lease between the parties thereto is that the rent reserved, taxes, assessments, water rates, insurance, etc., “shall be, and they are hereby declared to be a valid and first lien upon any and all buildings that may be erected or placed on the said premises, and upon the interest of the lessee and its assigns in this lease and the premises hereby demised.”

The theory of the bill is that the compensation so awarded to the tenant is a money substitution for the part of the land and building taken, to which, as a part of the tenant’s interest in the lease, an equitable lien attached by virtue of said covenant, and if the award were paid to the lessee the lessor’s security would be pro tanto reduced, and that therefore appellant Aldrich, trustee, standing in the lessor’s Shoes, is entitled to the aid of a court of equity to preserve the lien that otherwise may be lost.

After' setting forth, in substance, the above stated facts and the provisions of the lease, including the one above referred to, and other matters that need not be specifically referred to, the bill alleges as material grounds for relief that the value of the land not taken will be fluctuating and uncertain during the unexpired term of the lease, that the portion not taken will be worth less than the entire lot, that the building on the premises will be so destroyed as to render it practically valueless, and if repaired by the tenant its value will be less than half that of the present building; that the financial ability of the tenant to comply with the covenants of the lease may be reduced or entirely destroyed by changes in market and business conditions affecting property values, etc., during the long unexpired term of the lease, so that the lessee may be unable to comply with the covenants and agreements of the lease; that if the award to said tenant is paid to it the security remaining to complainants will be lessened and impaired and insufficient for the payment of rentals and other moneys to become due under the lease, or for a breach thereof, even though defendant may erect a new building upon the premises and fully pay for the same; that the fund should be impounded and sequestered and held in trust in favor of said Aldrich, trustee, subject to an equitable lien in his favor, ‘ ‘ and a trustee, receiver, sequestrator or depositary” should be appointed by the court with directions to invest said sum from time to time and pay the issues, interest and profits thereof to said Aldrich, trustee, as required from time to time to satisfy all sums which may become payable by the lessee under the terms of the lease, paying the overplus, if any, to said lessee, its assigns, etc., and that said sums shall be held as security for the payment of the rentals and other sums which may become due from time to time under said lease, and that in the event of its termination by breach thereof that the unexpended portion of said sum shall revert to said Aldrich as trustee. The prayer for relief asks for. the appointment of a receiver or trustee under such directions and with such powers.

The answer denies the equities of the bill, admits the facts stated with regard to the condemnation proceedings, the existence and terms of the lease, that the lessee’s obligations thereunder continue without abatement therefrom by reason of the condemnation, and that the portion of the premises not taken is susceptible of occupation under the terms of the lease. It also sets forth facts tending to show the substantial character of defendant’s business, that the effect of the condemnation is to enhance the value of the premises not taken, and not to \ diminish the security under the lease, and that the tenant purposes to remodel and repair the portion of the building left, as early as possible, at a probable cost of $50,000, which it is able to meet. It is also pleaded as a defense that the fund is not impressed with a trust, and that the division of the award in the condemnation proceedings was a final adjudication of complainants’ claim to a lien upon the fund, and that complainants were estopped from asserting any further claim to the fund by accepting payment of their share of the award.

The main issues of fact in controversy were as to the value of the lessor’s security both before and after the condemnation proceedings. Evidence was introduced touching these matters, and also the financial responsibility of the tenant as bearing upon its equities in the case. It was shown that the average gross annual business conducted by the Ederer Company for the past 5 years exceeded a half million dollars, that it has tangible assets of $700,000 in value over and above its good will and obligations, that it is practically free from debt, that its business is of a stable, growing character, that it is amply able to fulfil its covenants under the lease, and in all probability will continue to be..

The evidence also tended strongly to show that not only is complainants’ security, so far as the value of the premises not taken is concerned, greater than at the time the lease was entered into, but the value thereof will greatly increase from year to year for many years to come.

So far, therefore, as complainants’ right to relief rests upon the claim that the value of their security has diminished as a result of the condemnation proceedings, the evidence does not support it. The facts present no danger of loss or deterioration of the security from any of the grounds which usually form the basis of equitable intervention such as neglect, waste, misconduct or insolvency of the tenant. As stated by Mr. Pomeroy:

“The element of danger is an important consideration; a remote or past danger will not suffice as a ground for the relief, but there must be a well grounded apprehension of immediate injury. Nor will the court act upon a possible danger only; the danger must be great and imminent and demanding immediate relief.” (Pom. Eq. Jur. [4th Ed.], sec. 1485; High on Receivers [4th Ed.], sec. 11.)

It is the very gist of complainants ’ bill that it seeks the protective arm of a court of equity merely to preserve an alleged lien on the fund in question against possible contingencies, on the happening of which the lessor’s security or the lessee’s ability to comply with the covenants of the lease at some future period before it expires may be diminished, and to that end to have the fund held in the hands of a receiver or trustee and administered by a court in chancery for the next 85 years. Counsel for the Ederer Company contend that the "primary object of the bill, as thus revealed, is in effect the appointment of a receiver alone, for which a bill cannot be maintained. (Story’s Eq. Jur. [14th Ed.], sec. 1170; 14 Cyc. p. 29.) But complainants assert that its primary object is to preserve their equitable lien, and that the appointment of a receiver or trustee or depositary is only the means to such an end. Practically the only equitable ground upon which complainants stand is that they will lose their lien unless it is in some way preserved. But where, as in the instant case, it appears that there is no breach of the covenants of the lease, no insolvency of the lessor or prospect of the same, no attempt to foreclose the equitable lien or ground therefor, no diminution of the security but, on the contrary, probability of its enhancement in value, and that there will be no necessity or occasion of resorting to additional security, except on the happening of mere possible conditions, of which there are now no reasonable indications, we think a court of equity will not intervene to preserve a lien under such a state of facts. It would be an extraordinary exercise of the court’s power to appoint a receiver for the purpose of administering the fund under such circumstances, and justifies the criticism that such appointment is in effect the primary object of the bill.

Nor, if an equitable hen exists, is any trust involved by reason thereof (5 Pom. Eq. Jur. [4th Ed.], sec. 1334), so that whatever name be given to the agent the court might appoint to hold, invest and apply the fund for the remaining years of the lease, as contemplated by the bill, his function would be merely that of a receiver.

But assuming the existence of such a lien and the abstract right to preserve the same, and the necessity for that purpose of resorting to a court of equity, “it is a general rule of equity not to exercise its extraordinary jurisdiction when it will operate inequitably or oppressively.” (5 Pom. Eq. Jur. [3rd Ed.], sec. 500.) The application of the principle to the case at bar is pertinently stated in Story’s Eq. Jur. Vol. 2 (14th Ed.), sec. 1153.

“But it is not. infrequent for a bill quia timet to ask for the appointment of a receiver against a party who is rightfully in possession, or who is entitled to the possession of the fund, or who has an interest in its due administration. In such cases courts of equity will pay a just respect to such legal and equitable rights and interests of the possessor of the fund, and will not withdraw it from him by the appointment of a receiver, unless the facts averred and established in proof show that there has been an abuse or is danger of abuse on his own part. For the rule of such courts is not to displace a bona fide possessor from any of the just rights attached to his title, unless there be some equitable ground for interference.”

The same principle is recognized in Lloyd v. Catlin Coal Co., 210 Ill. 460, where the court, speaking of the issuance of injunction writs, said:

“It is the duty of the court to consider the inconvenience and damage that will result to the defendant as well as the benefit to accrue to the complainant by the granting of the writ, and where the defendant’s damages and injuries will be greater by granting the writ than will be the complainant’s benefit by granting the writ, or greater than will be complainant’s damages by the refusal of it, the court will, in the exercise of a sound discretion, refuse the writ.”

In applying this principle to the instant case, it would seem that the only benefit to accrue to complainants is the preservation of the fund for the enforcement of its lien in case the exigency therefor arises, and if the prayer of the bill is not granted' it will lose such lien. On the other hand, if the prayer be granted, the tenant, which has lost one-half of the premises for which it will still have to pay rent under the lease, and which to. avail itself of the portion left must remodel the building at an expenditure of nearly one-half the compensation awarded to it, \ and which has been adjudicated to be the principal sufferer by. reason of the condemjnation, and entitled to the fund in question as just compensation for its damages, will be deprived of the possession and use of that which the law has given as a substitute for what was taken from it,- and" thus, in a measure, of the compensation the law contemplates it shall receive and enjoy as the result of the condemnation. Instead of being permitted to have possession of that for the use of which it continues to pay rent, the tenant, regardless of its proven ability to fulfil every obligation under the lease, would be restricted to only such interest from the fund as a depositary may obtain, which, in the ordinary course pf affairs we must presume is much less than could be obtained by the tenant’s own use of the fund, especially in a business as successfully conducted as the tenant’s. Legal interest alone on such fund would more than pay the rental of the premises.

As, therefore, ,the tenant has the legal title to a fund that is not impressed with a trust, and will not, in our judgment, receive its full rights under the condemnation proceedings until it has possession thereof with the attendant right to use the same as it sees fit, and as the damages and injuries from the deprivation of such right to use the fund aré apparently greater under the circumstance of the case than any damage that may result to complainants by. refusal of the prayer of the bill, and as complainants’ damages are entirely speculative, we think the bill was properly dismissed for want of equity.

In this view of the case we need not discuss the questions of res judicata and estoppel upon which the court below predicated its action. „ The decree will be affirmed.

Affirmed.

Gridley and Matchett, JJ., concur.