text:
      (Recorder’s Court of Chicago.)

    People ex rel. William Green vs. Bradley, Deputy Sheriff, et al.
    (April 11, 1870.)
    1. Officers — De Pacto — Who Are. An officer de facto is one who has the reputation of being the officer he assumes to be and i yet is not a good officer in point of law.
    2. Same — Their Acts — When They Can Be Attacked. The official acts of a de facto officer are valid as to third persons who employ him until there has been a judicial determination that his title is bad in law, except in cases where the <Ze facto officer is himself sued for an injury inflicted on a third party, or where the third party knowing of the defective title should employ such an officer for a sinister purpose.
    3. Sheriffs — Absconding—Effect on Deputies. Where a sheriff absconds with no intention of returning, while the deputy may perform duties as sheriff, yet he does so with many limitations, - e. g. he cannot remove a jailor, because that is a discretion vested in the sheriff himself, and also many remedies given by law against the sheriff and his bondsmen are unavailing against the deputy in such a case.
    4. Same — Vacancy—Relation of Deputy and Coroner Thereto. Under the law of Illinois when the office of sheriff becomes vacant for any reason, the rights of the deputy are not extended beyond the term of his principal, but the coroner becomes the successor of the sheriff until the vacancy is filled by an election as required by law.
    5. Same — Succession of Coroner to Office of — Judicial Notice. When the occasion arises for the coroner to assume the sheriff’s office, it takes no judicial proceeding to determine his right. It is a question of fact and if the office actually becomes vacant, and the coroner’s right to the office is interfered with, he is entitled to the summary process of the courts, which always take judicial notice of their own officers.
    6. Same — Removal From County — Vacancy—Construction of Statute in Regard Thereto. The statute which provides “If any officer of a county shall remove from and permanently reside out of the same, his office shall be deemed vacant * * * ’’ means that the office of any county officer becomes vacant whenever he leaves the county with no present intent of returning, and it does not have to be shown that he has actually taken up a permanent residence somewhere else. Such a removal is equivalent to a voluntary resignation.
    7. Imprisonment — Right to Hold Prisoners Where Sheriff Has Absconded. The coroner and not the deputy sheriff is the person whose duty it is by the law of Illinois to hold a prisoner, where the sheriff has absconded.
    8. Habeas Corpus — Practice—Case Where Respondent Not Entitled to Hold Prisoner But Some Other Person Is.' A prisoner while entitled to habeas corpus under the Illinois statute when he is held by an officer not entitled to do so will not be discharged when this fact is shown but will be turned over to " the proper officer; so in the present case the prisoner will be taken out of the hands of the respondent, a deputy sheriff, whose principal has absconded, ana put into the hands of the coroner.

      Petition for habeas corpus. Heard before Judge McAllister. The facts are stated in the opinion.

      Francis Adams, for the relator.

      Sidney Smith, for Conrad Foetz, acting jailer.

      Charles H. Feed, state’s attorney.
   McAllister, J.:—

The habeas corpus act of this state contains the following provisions applicable to this case: “If it appear that the prisoner is in custody by virtue of process from any court legally constituted, he can be discharged only for some of the following causes:” enumerating seven distinct heads, under the fifth of which is this: “Or when the person having the custody of the prisoner under such process, is not the person empowered by law to detain him.” Our statute is. broader than that of any state or country of which I have any knowledge, and the provision just quoted was, no doubt, dictated by the spirit of an advanced civilization, and founded in a policy springing from the teachings of history: that it is far better than even persons guilty of crime should escape-than that they should be subjected to the power of irresponsible keepers.

The-theory of the relator’s counsel is, that respondent was at first but the mere bailiff of Gustav Fischer, late sheriff; that long anterior to relator’s commitment Fischer absconded from the state with the manifest intention of not returning to the same, which was a matter of public notoriety, and especially known to respondent; and that by the statutes of this state the coroner who had demanded the possession of the-jail, was ex officio sheriff, and the authority of the respondent superseded; and, that, therefore, he is not the person empowered by law to detain relator. The counsel for respondent replies that he is an officer de facto, and all his acts are valid and legal. As the habeas corpus act requires his discharge if' the prisoner is detained by a person not empowered by law to do so; and as it is essential to the very idea of an officer de facto that he is not a good officer in point of law, there is great difficulty in the question, and in fact there are other questions involved, which require for their investigation, time and befitting opportunity, which the prvssing and distracting nature of my duties will not allow.

It has been argued with much plausibility, that the expression, “the person empowered by law to detain him,” necessarily means a good officer in point of law — an officer de jure —such an officer as may enforce any necessary and proper discipline with' a legal justification on the part of the officer and without any for resistance on the part of the prisoner, and that, as the court is clothed with the power by the habeas corpus act to determine the main question, it may also determine all of the incidents.

As it will happen that persons assume to act, and are reported to be public officers, when they are not good officers in point of law, and third persons and the public will employ them, a rule of public policy, founded in consideration of preventing a failure of justice, has been adopted, and such third persons are presumed to be ignorant of the existence of the matters which in point of law render them not officers de jure —not legally invested with the office. While the acts of such de facto officers are held valid as to third persons, or the public, thus presumed to be ignorant of their defect of title, the same principle cannot apply when the officer de facto is himself sued for an injury to third persons; nor woud his acts be valid as to any third person, who, having full knowledge of his defect of title, should employ him for any sinister purpose. If Gustav Fischer had absconded with the manifest intention of never returning to this state, and that act, under the statutes of this state, rendered his office vacant, by force of the statute itself, and if respondent knew the fact, then, even conceding that he was an officer originally, and, as to third persons presumed to be ignorant of the fact, to be regarded an officer de facto, he could not, if indicted or sued for false imprisonment preclude inquiry into the facts which defeated his title. His acting as such would be prima facie evidence that he was such officer, but only prima facie and subject to be rebutted. Commonwealth v. Fowler, 10 Mass. 290; Courser v. Powers, 34 Vt. 517, 1 Am. Law Reg., New Series, 268.

The law on this subject is perfectly harmonious. It holds that when a person, under color of authority, acts and is reputed as a public officer, then as to all third persons, or strangers, as it is sometimes expressed, he will be deemed an officer de facto, as to such third persons or strangers his acts will be valid and cannot be impeached collaterally, unless there has been a direct proceeding against such de facto officer, or the person from whom he derives his authority, and in whose name he acts, in a court of competent jurisdiction, the facts judicially ascertained, and the proper judgment pronounced ; then as everybody within the sovereignty from which the court derives its powers is chargeable with notice of such judgment, the presumption of ignorance of the defect of title ceases and the acts of such reputed officer are not valid, even as to third persons or strangers. It has been frequently said in reference to the acts of the deputies and bailiffs of the absconded sheriff, that they are de facto officers, and everything is precisely as well as if the sheriff had not so absconded. In my judgment, this is a mistaken idea of the matter. Their acts are valid to the extent I have indicated. It would be just as proper to say that a limb with a severe wound, and a surgeon’s patch upon it, was just as good as a sound one. The very idea of a de facto officer is to cover a defect until soundness can be secured, and the unsoundness is implied in the term itself. The authoritative definition of such officer is that given by Ellenborough, C. J., in the case of King v. The Corporation of Bedford Level, 6 East, 363: “An officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law.” The only case relied upon by counsel for respondent is that of Ballance v. Loomis, et al., 22 Ill. 82, which, it is claimed, decides that the office of sheriff, although he may have absconded never to return remains the same in the hands of his deputies.

That was a ease where the deputies were the reputed deputies of the abscondent and acted as such in levying an execution, and the court held that, until the office of sheriff was declared vacant by a direct proceeding against him in a court of competent jurisdiction, or until an election was held and a successor elected and qualified, the acts of the deputies would be valid as to third persons who were presumed ignorant of the fact which superseded their authority. The supreme court do not say, in that case, that their acts were as valid as if the event had not happened — that they were good officers in point of law but say that “they were officers de facto, and while acting as such, their official acts will not be inquired into in a collateral proceeding, and all their acts must be held binding until the office of their principal was vacated by a direct proceeding. ’ ’ This is familiar law, and all it paeans is, that third persons are not chargeable with knowledge of the defect of title, and are presumed to be ignorant of it until such direct proceeding is had. “But where it) is for the benefit of strangers or the public who are presumed to be ignorant of such defect of title, it is good.” — Cro. Eliz., 69; King v. Lyle, Andrews R. 163; Hipsbey v. Tuche, 2 Levinz, 184; Rodman v. Harcourt et al., 4 B. Monroe, 233.

But when our supreme court held deputies Lo be officers de facto when the sheriff had absconded, it used the term understandingly, and it is in effect saying that they were persons who had-the reputation of being the officers they assumed to be, “and yet were not good officers in point of law.”

It will be apparent that in such case the public are deprived of very important rights in not having a sheriff or one who ex officio performs his duties and is subject to his liabilities. A deputy sheriff may perform the duties which the sheriff is required to perform. But there are many limitations. He cannot appoint a bailiff any further than to do a particular act. Hunt v. Burrel et al., 5 Johns. 173. He cannot remove a jailor, because that is the exercise of a discretion vested alone in the sheriff. Neither could he appoint one. If, therefore, the jailor were ever so negligent, cruel, or oppressive, Mr. Bradley could not remove him. The summary remedy given by the statute to a party to an execution, against the sheriff or coroner for not paying over moneys collected cannot be enforced against the deputy. So as to the same remedy given to the county court or auditor of the state for not paying over taxes collected. He (the sheriff) is identified in contemplation of law with all his under officers, and is directly responsible in the first instance for all their acts done in the execution of process. ’ ’ 2 Greenleaf, Ev. sec. 480, and note 1.

The case of Paddock v. Cameron, 8 Cowen, 211, is much in point in showing how the public are exposed under this state of things, and who ought to perform the duties of sheriff. The statutes of New York were in many respects precisely like ours. This was an action on tlie ease against the defendant, as under sheriff of the county of Warren, for a false return to a writ of fi. fa. It appeared on the trial, that the defendant was the under sheriff of Dudley Parlin, Esq., who (instead of absconding with a harlot) was, at the fall election of 1823, elected a member of assembly, and his office, therefore, vacated by statute, on the 1st of January, 1824. The defendant exercised the office of sheriff until a new one was elected in March, 1824. The fi. fa. was delivered to the defendant on the 23d day of January, 1824. A verdict was found for the defendant. A motion was made for a new trial on several grounds, and opposed on the ground, among others, that the defendant’s office of under sheriff expired with that of Mr. Parlin, the sheriff. Woodworth, J., delivering the opinion of the court, said: “I do not consider it necessary' to examine the question whether the evidence sufficiently establishes the fact of a false return; being of opinion that this action does not lie against the under sheriff. The general rule is, that an action will not lie against an under sheriff, for a breach of duty in his office, although he may, as well as any other agent, make himself personally responsible by a special undertaking. Cameron v. Reynolds, Cowp. 403; Tuttle v. Love, 7 Johns, 472. The inquiry then is, whether a case like the present is provided for by the statute? (1 R. L. 418, 420, see. 5.) By this act, it is declared that the sheriff shall appoint an under sheriff, and in case of the death of the sheriff, the under sheriff shall in all things execute the office of sheriff until another sheriff shall be appointed; * * *

“The act farther provides that if there be no under sheriff at the time of the death of the sheriff, or if such under sheriff shall die, or remove out of the county, or become incapable of executing the office before another sheriff shall be appointed, in every such case the coroner or coroners shall, in all things, execute the office of sheriff, until a sheriff shall be appointed and take upon himself the office. The act specifies only the natural death of the sheriff. That did not happen; and consequently, the defendant derived'no authority, under this statute, to take the place of the sheriff. Whether the county, on the election of Mr. Farlin to the legislature, were left without any person to discharge the duties of sheriff, is not material to the point before us. It is enough that the defendant had no authority to act. I incline, however, to the opinion that, by a reasonable construction of the statute, the right to discharge the duties of sheriff devolved on the coroners; inasmuch as one of the contingencies upon which this right depends is, that the under sheriff becomes incapable of executing the office. This event has taken place. Motion denied. ’ ’

And if there is any remedy against the bondsmen of the absconded sheriff, under the circumstances, what it is, is a matter of doubt and difficulty. And there is still another injury to the public. No one taking a false oath as to qualification of bail, before the deputy de facto, can be punished for perjury. We had just such a case last term, and the state’s attorney, under direction of the court, dismissed the prosecution. On the authority of Rex v. Verenet, 3 Camp. 432, 1 Hawk P. C. ch. 69, sec. 4, holding that where the action of an officer was made the foundation of an affirmative criminal proceeding, although Mr. Bradley’s acting as deputy was prima facie evidence, yet it might be rebutted, and his strict legal title inquired into. The truth is, that when the gearing is substantially disarranged, the harmony of the machinery must necessarily be broken.

We now recur directly to the question: Is the respondent the person empowered by law to detain the prisoner? And this, upon the theory of relator’s counsel, requires us to consider the question whether- the contingency has happened which renders the coroner ex officio sheriff, and, if it has, whether the court is compelled to discharge the prisoner irrespective of his guilt or innocence. These are grave questions, and in which the public have great interest. After a careful examination of the statutes, I am satisfied that the contingency has happened which would authorize the county clerk to notify the governor of the fact of a vacancy in the office of sheriff, and, if that be so, what is the relation of the coroner to the office of sheriff? It is the manifest purpose of the several statutes on this subject to give us a complete system for the regulation of so important an office as that of sheriff, and to preserve the county from the inconvenience of an interregnum in the office, and which necessarily abrogates a part of the common law. And it is to be observed that there is only one case in which a deputy sheriff has his powers extended beyond that of his principal, and that is the case of death; in all others these powers devolve upon the coroner. The offices of sheriff and coroner are intimately blended. The very title of the statute is “Sheriffs and Coroners.” Their official bonds are defined in the same section, and the coroner’s first bond is conditioned for the faithful discharge of all the duties required or to be required of him by law, as sheriff, or coroner, and his official oath is for both offices. Writs are to be directed to him when the sheriff is interested, and he is to take possession of the jail when the sheriff is a prisoner in it. Then, in the eighteenth section of the same act is this provision: “In case a vacancy in the office of sheriff, by death, resignation, removal, or otherwise, the coroner shall do and perform all the duties pertaining to the office of sheriff, receive the proper fees and emoluments, and be liable to the same penalties and proceedings as if he were sheriff, until such vacancy shall be filled by the election and qualification of a new sheriff.”

The object of this provision is, that the courts may always have a known chief executive officer; that parties to suits, taxpayers, the county and the state, may always have the benefit of those stringent remedies provided by law for the security of private and public moneys. And, we may ask, can any legal mind, contemplating all of these statutes, perceiving their objects and purposes, arrive at the conclusion' that the coroner cannot, when the contingency happens that by any provisions of law render the office of sheriff vacant, and the same becomes practically vacant, assume the duties of sheriff, without first having a direct proceeding against the sheriff, by information in the nature of a quo warranto, and have a court of competent jurisdiction to declare it vacant, requiring months, if not years of time? Conceding that jurisdiction could be obtained of an absconded sheriff, whose whereabouts were unknown (which is extremely doubtful, 44 Ill. 458), is any such idea fairly within the intention of the statute ? In my judgment it is not. Because, then, the statute should read, “In ease of a vacancy in the office of sheriff by removal of the incumbent,” which would mean by direct proceeding. But this statute includes a vacancy by death (when there could be no judgment), by resignation, by removal, or otherwise, which includes every species of vacancy. It matters not that a fact is to be found. It would be so in case of death. It is easy to determine that a man is dead if we see his corpse; but suppose he dies at sea, or in a distant land among strangers. Then the fact is as difficult of proof as resignation or removing out of the county with intention to permanently reside out of the same. There is no regulation by statute as to how the sheriff shall resign his office. Every civil officer has the right to resign his office whenever he pleases. United States v. Wright, 1 McLean 509. He may resign it by parol. Suppose Gustav Fischer had decided to leave this state and go back to Germany to spend the rest of his life, and, before leaving, had taken deputy Bradley and respondent Folz to the office of the county clerk, and there told the clerk that hi resigned his office, delivered his farewell address to his constituents, and left. Would it be necessary for the coroner to file an information to have the office vacated before he could assume its duties? Clearly not. Because it.would not, in that case, be a vacancy by resignation, but by removal of the incumbent by judgment. If it be asked how the coroner is to get possession of the jail and the office if the deputies resist, I answer, by the summary power of the courts, who are bound to take judicial notice as to who is their chief executive officer. “The court will, ex- officio, take* notice of it. A court is presumed to know its own officers and all public officers in' civil affairs within its jurisdiction — certainly the sheriff of its own court.” Thompson v. Haskell, 21 Ill. 216. Then again: “Even if the court was not bound to take notice of the death of its chief executive officer, it was competent to receive proof of that fact and to decide upon such proof.” Timmerman v. Phelps, 27 Ill. 196. It is the duty of the courts to see that their process, both mesne and final, should be directed to their chief executive officer, and to do so they have all the power of determining who he is. Nobody ever contemplated the contingency of a mere deputy setting up a right to any office. “A deputy has no interest in the office, but is only the shadow of the" officer in whose name he does all things.” Jac. Law Diet, title “Deputy.” ■ Suppose a new sheriff should be elected, and this bailiff or a deputy still refuses to surrender the office, and demand that the office of his principal should be first vacated by a direct proceeding, which could be kept off till the term expired, would the courts still place their process into his hands, and recognize his returns in the name of Gustav Fischer?

The statute provides that “If any officer of a county shall remove from and permanently reside out of the same, his office shall be deemed vacant, and such vacancy shall he filled as in other cases.” “Deemed vacant,” by whom? Not necessarily only by a court; but the meaning may be ascertained by the context, “and such vacancy shall he filled as in other cases.” How is a vacancy to be filled in other eases? The statute furnishes the answer, ‘ ‘ That whenever a vacancy shall happen in the office of sheriff, etc., by death, resignation, or removal of the incumbent, it shall be the duty of the clerk of the county immediately to notify the governor of the fact, and it shall be the duty of the governor to issue a writ of election to fill such vacancy. ’ ’

And here we may also remark that if it had been the intention of the legislature to confine the county clerk to only the case of a removal by direct proceeding, the words removal of the incumbent would have sufficed; but the words by death, by resignation, are also included, which render such a construction unreasonable and against the plain meaning of the statute. Then, to make the system complete, and to secure to the courts a chief executive officer, and to protect private parties and the public, comes in the other provision, making the coroner ex officio sheriff “until such vacancy shall be filled by the election and qualification of a new sheriff. ’ ’

Now, what is the fair meaning of the statute above quoted in reference to county officers removing out of the county? The object is apparent, and that was simply to secure the residence of county officers, not only in the state, but in the county where they were elected, that they might be subject to the penalties and proceedings provided by law, and I am satisfied, from a careful consideration of these objects, that if a county officer absconds from the state with the intention (which is to be inferred from the circumstances) of never returning to it, then the contingency has happened which renders his office vacant, and the public are not bound to wait until he becomes permanently settled elsewhere. Suppose he commits a murder and manages to escape to Canada, are the authorities of the county bound to wait until his haunted conscience will permit him to find a resting-place ? Why should there be such tenderness exhibited towards an absconding public officer who has proved so wickedly recreant to a sacred public trust — to his duties to family and society ? The evidence in this case leaves no shade of doubt in any reasonable mind, and, indeed, it is a matter of public notoriety, that Gustav Fischer, on the 15th day of December last, absconded from this state under such circumstances as preclude the idea of his ever returning to it. Suppose he had been a defaulter to the amount of fifty or a hundred thousand dollars and absconded, or suppose he had committed a highway robbery and escaped, would there be any doubt of his intention of keeping away from here? For the sake of the public morals,.I forbear the rehearsal of the evidence in this case. He had thoroughly outraged and ruptured his family relation. He had squandered his means upon a harlot, with whom he eloped, and was hopelessly insolvent. He told various false and conflicting stories, as to where and for what purpose he was going. He obtained large sums of money by fraud. He dev ceived and defrauded his best friends into signing his papey, and thus betrayed their confidence. His return to this state is simply impossible, if he is sane, and he is, it is to be so presumed.

The effect of such voluntary removal is a virtual or constructive resignation of his office. In Ferguson v. Lee, 9 Wend. 258, where there was a simiar statute, a deputy sheriff removed into another county. Savage, Ch. J., says: “In this case Haddock, who had made the levy as under sheriff of Herkimer, had, intermediate the'1 levy and sale, removed to Oneida county. This was a virtual resignation of his office; it was a voluntary withdrawal from the county, which, by the statute, vacated his office.” Not by the judgment of the court on information in the nature of a quo warranto; but “by the statute.”

In the case of the State v. Allen, 21 Indiana, 521, the court says: ‘An office may be vacated, be abandoned, which is constructive resignation. An office may be resigned by parol, and, of course, acts may speak .that resignation.” Also, Bernard v. Hoboken, 27 N. J. L. 412.

That the respondent knew the facts which constitute such virtual resignation is manifested by the very clearest evidence, viz., the sealed articles of agreement of the 26th of January, 1870. I have not space to present an analysis of these articles, but suffice it to say they are virtual administration of the estate of Gustav Fischer, and are based upon a clear assumption that he had absconded not to return. They recite the fact of his having left, and of the refusal of his bondsmen to be further bound; they are tri partite. The parties of the first part are twenty-three creditors of Fischer, among whom is respondent, representing $34,128.90' of indebtedness against him. The parties of the second part are the bondsmen, and of the third part T. M. Bradley and W. F. Wentworth. They assume to take possesion and control, not only of the office, hut of all of Fischer’s estate, Schedules of assets and liabilities, formal enough for the probate court, are carefully prepared and made a part of the articles signed by Bradley Wentworth and John Mattocks. Among the items of assets is the folowing: “Estimate of office for ten months, $15,000.” Bradley is to be the chief administrative agent. This may be an ingenious manner of collecting bad debts, but it manifests some indifference to the rights of the public and the law of. the land, and looks very much as if it was against public policy. But these are the very parties who now insist that nothing has happened which warrants a court in finding that Fischer has absconded with the intention of not returning. Mr. Bradley says he did not sign these articles. But he did sign the schedules. He is named in them as a party, and had them in his possession at the time of the hearing.

Whom, then, is the court, under the evidence and authority of our supreme court, to regard as its chief executive officer? Gustav Fischer, who has absconded and had his estate extra judicially administered upon by the very parties who resist this application; or is it the coroner, whom the law designates as the; proper officer to perform the duties of the office, and be liable to the penalties and proceedings as if he were sheriff, until one shall be elected? I have no hesitation in saying it is the latter.

Respondent cannot be considered an officer de facto, because he is not a general public officer, but the mere agent and special officer of the late sheriff. In Dake v. Sykes, 7 Term, 117, Lawrence, J., says: “The admission of the under sheriff may affect the high sheriff, because he is the general officer of the sheriff; but I do not think that the bailiff is his general officer. When a warrant is granted him, he becomes the special officer of the sheriff, and I have always understood it to be necessary to produce the warrant to show the relation.” Crocker on Sheriffs, 11. He takes no oath and is required to give no bond.' King v. Bedford Level, 6 East, 356.

The court is required in this proceeding to determine who is the person empowered by law to detain the prisoner; and to do so it is necessary to determine whether the former relations between him and Fischer have not been dissolved. I am satisfied that they have been. ■ If the court has no power to determine this question in this way, then an unauthorized keeper of a jail could always keep possession. Proceedings quo warranto would not lie against him, because he is a mere agent or special officer. If the relation has Been dissolved, then he has no authority. Boardman v. Holliday, 10 Paige, 223; Edmunds v. Barton, 31 New York, 495. The practice is where a prisoner is detained by one not authorized by law to detain him, and there is another person who is, to remand him to the custody of the one so authorized. The prisoner is accordingly remanded to the custody of the coroner.


source: Caselaw Access Project

author: Tuley, J.:—

license: Public Domain

text:
      (Circuit Court of Cook County. In Chancery.)

    The North Chicago City Railway Co. vs. The Town of Lake.
    (1880.)
    1. Equity — Jurisdiction of — Preventing Enforcement of Void Ordinance. Equity has jurisdiction to restrain the enforcement of a void municipal ordinance imposing duties upon a street railway company where the damage is unascertainable and irreparable and the rights and convenience of the public are involved.
    2. Estoppel — When Municipal Corporation Not Estopped to Revoke License. No equitable estoppel arises to prevent a municipal corporation passing an ordinance revoking a former license from the fact that the licensee, a street railway company, has expended a large amount of money and helped build up the municipality, while acting under the license.
    3. Ordinances — Must Be General in Nature. An ordinance is invalid which on its face is aimed at and applicable to one cor- ' poration, and no other corporation or company whatsoever.
    4. Nuisances — Power of Municipality to Declare — Province of Courts. The mere declaration of a municipality that the use of steam power by a street railway company is a nuisance does not make it such, as it is not per se a nuisance. Whether it is under the circumstances a nuisance is a subject for judicial inquiry and determination.
    5. Ordinances — Unreasonableness—How to be Shown. The unreasonableness of an ordinance should be shown upon proofs and not upon affidavits.
    6. Townships — Effect of General Township Act of 1874 Upon Former Special Township Acts — Quaere. Whether the general law of 1874 regarding townships did not repeal the former special act giving certain officials of the town of Lake View the right to act as a board of trustees for that town, — quaere.
    7. Municipal Corporations — Void Ordinances — Liability for Enforcement of. A municipal corporation is not liable for the damage which may result from the enforcement of a void ordinance.
    8. Same — Where and How to be Tested — Nature of Injunction. The ordinance in this case should be tested in a court of law, not, however, by daily or hourly arrests which may destroy complainant’s property with no chance of redress, but the town will be restrained from bringing more than three law suits until a final decision is reached as to the validity of the ordinance.
    Motion for an injunction. Heard before Judge M. F. Tuley. The facts are stated in the opinion.
    W. C. Goudy, for complainant.

      M. W. Robinson, for defendant.
   Tuley, J.:—

This is a bill filed to restrain the town of Lake from arresting, or causing to be arrested, the engineers, conductors, etc., of the railway company’s cars propelled by steam in the town of Lake, under a certain ordinance passed by the trustees of said town in October, 1880, declaring that the use of steam motive power to propel any street ear upon or along any highway in the town after the 15th of October, 1880, should be deemed a nuisance and that any engineer, conductor, etc. of any such car using steam power should be considered and adjudged guilty of committing a nuisance.

The bill alleges that the company acquired the right to lay down its tracks and to use steam thereon by the lawful consent of the supervisor, James H. Bees, given in 1861 and 1863, when the town was sparsely inhabited, and that the company at great expense laid down and has maintained its railway through certain highways, extending from the North Chicago city limits to the Graceland cemetery, which was tlie objective point in the construction of the said railway in said town.

It is alleged that the railway is so constructed that horse power cannot be used, and that the enforcement of the ordinance would destroy the property of said company in said highways and produce irreparable injury. The ordinance is attacked as illegal and as an abuse of discretion by the corporate authorities.

The question as to the jurisdiction of a court of chancery to grant an injunction against corporate authority to enjoin the enforcement of the town ordinance is raised by the defendant and is one of considerable difficulty upon the authorities. It is an objection which I always receive favorably and duly consider, as I believe that I am not at all inclined to draw to this court any unwarranted or doubt Eul jurisdiction. I am of the opinion that this court has jurisdiction for the following, among other reasons. There is a large amount of property involved which will suffer a damage that can never be accurately ascertained by reason of the enforcement of the ordinance. The amount of travel that will be lost or the effect that discontinuing the connection of the Lake View tracks with the city tracks will' have upon the travel on the railway within the city can not be determined by any known rules. In other words, the injury is to some extent irreparable. Again, where the party to be injured is a common carrier of persons and the rights and conveniences of transit of the public are involved, a court of equity should interfere to prevent the enforcement of a void ordinance. While it is true that the invalidity of the ordinance itself would be no ground for equitable interposition, I think the invalidity taken in connection with the grounds before stated do malee a ease giving jurisdiction to a court of equity.

The complainant contends that the company having exercised the franchise for so many years and having invested a large amount of money upon the strength of the license given it by the supervisor and having by so doing largely contributed to building up the town, there is an equitable estoppel upon the corporation and it "should now be enjoined from enforcing an ordinance which will cause the company such great loss. I can perceive no force in the argument as to an equitable estoppel against a municipal corporation. I think the only question is this: Is there good grounds for doubting whether the passage of the ordinance and the enforcement of it is a valid exercise of corporate power ? The ordinance is a very peculiar one, bearing evidence upon its face, I think, that it is .designed and intended to apply to the complainant railway only. Section one named the railway and prohibited the use by it of steam motive power and section three prescribes penalties for .so doing. Section two, while apparently general, yet when taken in connection with sections one and three, it is apparent that the entire ordinance is aimed at the complainant company and no other company or corporation. It needs no authority to be cited to show that the corporate authorities can not pass ordinances applicable upon their face to a single individual or corporation. All ordinances must be general in their character and must apply alike to all persons and corporations within the corporate limits, all, at least, of the like class, or they are invalid.

The ordinance is claimed to be bad also because in derogation of the grant made by the supervisor to the complainant. This position is not tenable. There appears no grant which will interfere with a valid exercise by the town of the power to regulate the use of streets. It is claimed that the ordinance is void as it undertakes to declare what shall be a nuisance and declares that to be a nuisance, to-wit, the use of steam power, which is not a nuisance per se. What is or is not a nuisance as to the use of steam power must necessarily depend upon the facts in each particular case. The use of steam power may possibly be a nuisance in one neighborhood and not in another. The mere declaration by ordinance that the use of steam power is a nuisance cannot make it such. Whether it is a nuisance must necessarily,. in a case of this character, be the subject of judicial inquiry and of judicial decision.

The ordinance is also claimed to be .unreasonable because it is unnecessary; that but few could derive benefit from it, while a great many would be inconvenienced and injured by it. This is a question which should be determined upon proofs, not upon affidavits. I doubt very much, taking the allegations of the bill in that regard as true, whether there is shown any wanton, wilful or oppressive exercise of the discretion and-power by law vested in the trustees.

The bill attacks the power of the officials of the town of Lake View to act as a board of trustees and pass any ordinances whatever. If that question can be raised in this case, in this collateral manner, it would of itself give strong grounds for the granting of this temporary injunction. It is a very serious question and one that should be determined at the earliest possible moment. The town supervisor, assessor and commissioners of highways, by special act before the adoption of the constitution of 1870, had power conferred' on them to act as a board of trustees. The new constitution commands the legislature to provide by general law for township organization," and prohibits special legislation in township matters. It is contended that the legislature having in 1874 passed a general law in regard to township organization, all special laws on that subject, among them that conferring the powers of .a board of trustees upon the town officers of Lake View, stood repealed because they are inconsistent with the general law. The judicial mind will see at a glance that there is much force in the position. It is not necessary now for me to pass upon the point.

If the town of Lake'View would be responsible for the damages which would result from the enforcement of this ordinance, I should feel inclined to refuse this injunction, but under the late decision in the case of City of Chicago v. Turner, 80 Ill. 419, there would be no liability attaching to" the town if the ordinance is invalid.

The company ought not to be forced to seek indemnity from petty police officers or impecunious town constables for the great losses it will suffer by the enforcement of this ordinance. ' I am of the opinion that this ordinance should be tested in a court of law, but not by daily or hourly arrests which would destroy complainant’s property and largely inconvenience the traveling public. The town should be permitted to bring at least three suits to test this ordinance, if it should insist upon the enforcement, but should be restrained from any further interference with complainant’s railway and its present use thereof, until there is a final decision by the law courts as to the validity of the ordinance, and until the further order of this court.

Let the order for an injunction be so drawn.

NOTE.

The same ordinance was before the supreme court in North Chicago City Ry. Co. v. Town of Lake View, 105 Ill. 207, and it was there held that the town of Lake View had the power to declare the use of steam power in the streets a nuisance and the courts could not go behind this declaration. — Ed.


author: Chytraus, J. Chytraus, J.

text:
      (Superior Court of Cook County.)
    The People of the State of Illinois ex rel. William A. Bartlett, A. Lincoln Shute and Robert J. Bennett vs. Edward F. Dunne, as Mayor of the City of Chicago, and Michael Kenna.
    (January 8, 1907.)
    (January 30, 1907.)
    Pleading — Irrelevant, Impertinent and Immaterial Matter— Motion to Strike. Where a pleading contains improper, irrelevant, or impertinent matter, the proper practice is to file a motion to strike.
    Motion to -Strike — Petition fob Mandamus. Where a petition for mandamus contains irrelevant, argumentative and repugnant matter, and matters of evidence, none of which enabled the petitioners to introduce any evidence which could not be introduced in the case without such allegations, a motion to strike should be sustained.,»
    Petition for mandamus. Motions of defendants to strike out certain portions thereof. Motion of relators to strike motions to strike from files. The portions of the petition to which the motions to strike were addressed appear in italics in the statement of facts. Heard before Judge Axel Chytraus.
    Gen. No. 258,128, Term No. 16,128.

      Messrs Church, McMurdy & Sherman, and Walter J. Miller, for relators.

      Levy Mayer and J. Hamilton Lewis, corporation counsel, and Daniel P. Murphy, assistant corporation counsel, for respondents.
    Statement op Pacts.
    The petition alleged the following:
    Your petitioner, the People of the State of Illinois, upon the relation of William A. Bartlett, A. Lincoln Shut© and Robert J. Bennett humbly complaining, represents unto your honors,
    I.
    That the relators above named are citizens of the city of Chicago, in the county of Cook and state of Illinois; that .they have resided in said city for more than one year last past, and that they are all interested in the peace and good name of said city and in the maintenance of law and order therein and in the cultivation thereby of a more general respect for the law, and that in particular they are interested in securing the observance of and obedience to the laws of the state requiring the closing, on the first day of the week, commonly called Sunday, of all tippling houses and places -where liquor is sold or given ato ay.

      H.
    That heretofore, to-wit: at the regular election for mayor of the city of Chicago held in said city on the 4th day of April, A. D. 1905, Edward F. Dunne was duly elected as. mayor of said city for the full term of two years; that after-wards, to-wit: on the 10th day of April, 1905, the said Edward F. Dunne took the oath of office, as mayor of said city, prescribed by section 4 of article VI of chapter 24, of the Revised Statutes of this state, and duly qualified as such mayor, and thereupon then and there entered upon .the discharge of the duties of said office, and ever since has been and is now the mayor of said city.
    III.
    That there were heretofore duly enacted by the city council of the city of Chicago, certain ordinances of said city, hereinafter more particularly mentioned, which at the time said Edward F. Dunne assumed his office as said mayor were and still are in full force and effect in said city and which, now form a part of the official compilation of the ordinances: oi said city made under the authority of the city council, known and designated as the Revised Municipal Code of Chicago of 1905, adopted by ordinance passed by said council March 20, 1905, and then and there duly approved by the-then mayor of said city and afterward, to-wit: April 15, 1905, printed and published in book form by and under the authority of the .said city council of said city; which ordinances, as hereinafter referred to, will be designated by the section numbers of said Revised Code, to-wit:

      Section 1731. Establishes an executive depaA'tment of the municipal government of said city which shall be known as the department of police and shall embrace the general superintendent of police, an assistant general superintendent of police, a secretary of the department of police, a private secretary to said general superintendent, one inspector of police for each police division, one captain of police for each police district and such number of lieutenants, detective ser

      :geants, patrol sergeants, desk sergeants, patrolmen and other employees as may be provided by ordinance.

      Section 1732. Creates the office of general superintendent ■of police to be appointed by the mayor by and with the advice and consent of the city council.

      Section 1737: Prescribes that the general superintendent shall devote his whole time to the municipal affairs of the city, to preserve the peace, order, safety and cleanliness thereof and to this end shall execute and enforce all ordinances and orders of the city council and the orders of the mayor.

      ■ Section 1740: Provides that said general superintendent shall from time to time divide the city into police divisions, districts and precincts and assign inspectors, captains and lieutenants of police respectively, to such divisions, districts ■and precincts and that all regulations and orders of the department of police shall be promulgated through the general superintendent.

      That in pursuance of the foregoing ordinances general superintendents of police have from time to time been appointed by the respective mayors of the City of Chicago, the other ■officers and members of the said police force prescribed thereby have also been appointed, the said city divided into police divisions, districts and precincts, to-wit: five divisions, fifteen districts and forty-four precincts, and a large police force established and created, including a general superintendent, an assistant general superintendent and five inspectors, fifteen captains, forty-four lieutenants, assigned and distribtued in accordance with said ordinances, and a large number, to-wit: Three thousand sergeants, patrolmen and other officers and employees.

      That at the time the said Ediuard F. Dunne assumed the ■ duties of the office of mayor of the City of Chicago, as aforesaid, there was and still is in said city, engaged in the active performance of its duties therein, such police force as is above described, with a general superintendent and the various other officers, patrolmen and employees aforesaid, and that shortly after assuming the duties of the office of said mayor

      as aforesaid, the then general superintendent of police having resigned, the said Edward F.Dunne, in pursuance of the authority conferred upon him by said ordinance, did, by and with the advice and consent of the city council of said city, appoint a general superintendent of police, who ever since has been and now is holding and exercising the duties of said office under the direction of said mayor.

    IV.
    That before and at the time when said Edward F. Dunne assumed as aforesaid his duties as mayor of said city, there were and ever since have been and are now in fuJl force and effect in said city, certain other ordinances of said city, now comprising part of the said Revised Municipal Code of 1905, hereinabove mentioned, to-wit: (reference being made thereto by the section numbers of said code as aforesaid) :
    Section 1336, which provides for the granting by the mayor of said city, of licenses for the keeping of saloons or dram-shops within said city upon certain conditions therein prescribed.
    Section 1337, which prescribes among other things, that no license for the keeping of any saloon or dram-shop shall be granted unless the applicant for such license shall agree in such application to comply with all the regulations and conditions imposed by the laws of the state of Illinois, and the ordinances of the city in force at the time of making such application, or that may thereafter be passed, relating to or concerning in any manner saloons or dram-shops, the conduct, management and maintenance of same and the sale or disposal of intoxicating liquors, and shall also agree in such application that if, the mayor shall be satisfied that at any time during the period o'f such license any such liquor is being so sold, served or given away in such saloon or dram-shop contrary to and in violation of the agreements made in such application, in such case the mayor may forthwith revoke such license, and that the license fee paid therefor shall be lorfeited to the city.

      Section 1338, which is as follows: Every place where spirituous, malt, vinous or intoxicating liquor of any quantity whatsoever is sold, given away or otherwise disposed of in quantities of less than one gallon, whether consumed, or to be consumed, upon the premises or not, and whether sold, given away or disposed of in any grocery store, department store, liquor store or other place whatever, shall be deemed and is hereby defined to be a dram-shop, and is hereby required to be licensed in accordane with the provisions of this article, and that no person shall keep, conduct or maintain any such place unless he be licensed so to do, in accordance with and pursuant to the provisions of this article.
    (The words “this article” in the foregoing section, meaning article 1 of chapter XXXVI, of said code, of wihch seetions 1336, 1337, 1338, 1339, and 1340, are a part.)
    Section 1339, which provides that any person, on compliance with the aforesaid requirements and the payment in advance to the city collector of a license fee at the rate of five hundred dollars per annum, shall receive a license under the corporate seal and signed by the mayor and attested by the city clerk, which shall authorize the person or persons therein-named to keep a dram-shop or saloon and to sell, give away or barter intoxicating liquors in quantities less than one gal-Ion in the place designated in the license and for the period stated therein.
    Section 1340, which provides that the saloon license'year is divided into two periods as follows: from May 1 to October 31, inclusive, shall be known as the first period; from November 1 to April 30 shall be known as the second period, and that licenses may be issued for the full license year or for .the unexpired portion thereof, or for any period or the unexpired portion thereof.
    Section 1324, which is as follows: In all eases where licenses are required to be procured,' such licenses sh9.ll be granted by the mayor, attested by the city clerk, except where provision is expressly made for the granting of licenses by some other officer of the city. The mayor shall also have power to revoke for cause, any license granted by him.

      Y.
    Your petitioner says that on or about November 1, 1906, Michael Kenna was by the mayor of said city of Chicago granted two licenses for the keeping of a saloon or dram-shop within said city in one of which said privilege was granted for the premises known as number 279 South Clark street and in the other of which such privilege was granted for the premises known as number 300 South Clark street, both in said city of Chicago, from the period beginning November 1, 1906, and ending on April 30, 1907, and that under said licenses said Kenna has been keeping a saloon or dram-shop and tippling house at both of said places and which said licenses are still in force.
    YI.
    And your petitioner further shows that in the conduct and operating of said saloons or tippling houses by said Kenna ever since the issuance of said license the law of the state of Illinois, prohibiting the keeping open of tippling houses and other places where liquor is sold or given away, upon the first day of the week, commonly called Sunday (hereinafter referred to as the Sunday closing law, by which name said law is commonly known and designated) has been and is habitually, openly and notoriously violated and disregarded by him and that no pretense is made by him of obeying or observing scdd law, but said saloons are habitually kept open and in full operation, and intoxicating liquors are therein sold and dispensed as freely and openly on Sundays as upon other days of the weelc and that no attempt? whatever has been or is made by said Edward F. Dunne as mayor of said city, either by or through the said police department of said city or in any other way, to enforce or compel the observance of the said law or to prevent the violation thereof by said Kenna, or to punish or secure his punishment for violating the same, either by revocation of his licenses or in any other manner, and petitioner charges that it is the intention of said Kenna to conti/nue to and that he will dis

      regard and disobey said law in the operation by him, of said saloons as long as he is permitted by said mayor to do so.

    VII.

      And our petitioner shows and charges specifically that the said Edward F. Dunne, during the course of his campaign for election as mayor of said city, openly and publicly declared to the people of the City of Chicago, and especially to the voters thereof, that if elected to the office of mayor of said city he would not enforce the said Sunday closing. law, nor take any steps or measures to compel the observance thereof; that said declaration was made as a campaign pledge or promise after a similar declaration had been publicly made by his chief opponent, a rival candidate for said office; and that since that Edward F. Dunne has entered upon the duties of his said office he has on several occasions openly and publicly repeated said declaration either directly or by specific reference to his said previous declaration; that on several occasions since his election many citizens of Chicago, individually and as delegations or representatives of various civic organizations in said city interested in the welfare and good order thereof, have called upon him and requested him to enforce said Sunday closing law, and that on every such occasion he has refused to do so, either expressly or by reference to his said previous declaration; and'your petitioner shows in particular that heretofore, to-wit: on the 11th day of September, 1905, relator William A. Bartlett with several other citizens of Chicago called upon said mayor and requested him to take measures for enforcing said Sunday closing law and inquired of him as to his intentions in that behalf, and that said mayor in reply to such requests and inquiries, then and there referred to the said declaration made by him as aforesaid during his said pre-election campaigning, saying that he had then stated his position on the question clearly and that he saw no reason now why he should change his position.

    VIII.
    And your-petitioner shows and charges that the said mayor has had full notice and knowledge of the said open and notorious habitual violation of said Sunday closing law by the said Michael Kenna, that he has full and ample means through the police force of said city, of ascertaining and keeping informed of such violations of said law, and full power and authority to enforce the observance thereof by said Kenna and to punish and secure his prosecution and punishment for violating the same and that his failure to execute said law and to compel the observance thereof by said Kenna is not because of any lack of knowledge on his part of such violation of said law, nor because of any lack of means or power or authority on his part to compel the observance of said law by said Kenna or to punish and cause him to be punished for his said violations thereof but because, as your petitioner is informed and believes and charges and as clearly appears from his declaration aforesaid, it is his deliberate intention not to take a/ny action in the matter of compelling the observance of said law, or preventing its violation, or punishing or causing to be punished the violators thereof, and because he is willing and intends to permit said Kenna to continue openly and publicly to disregard and violate said law, and to habitually keep his saloons or tippling houses open on Sundays. And your petitioner alleges that, unless compelled by the mandate of this court to perform his duty in that regard, the mayor will hereafter continue to permit said Kenna wholly to disregard said Sunday closing law, and habitually to keep his said saloons open and to dispense liquors therein on Sundays, and will wholly fail and refuse to perform his duty in that regard or to take any steps ■or measures to compel obedience by said Kenna to the said Sunday closing law of this state or in any wise to prevent or punish or prosecute him for the violation thereof.

      That on the thirteenth day of December, 1906, the following notice and request in writing was given to said Edward F. Dunne as mayor as aforesaid, viz:

      “Chicago, December 13, 1906. *‘To the. Honorable Edward F. Dunne,

      “Mayor of the City of Chicago,

      “City Hall, City..

      *‘We respectfully call to your attention the fact that the

      saloons or dram-shops of Michael Kenna at Number 279 South Clark street and at Number 300 South Clark street, in said city of Chicago, are and have been for six weeks and. more last' past operated under licenses issued to said Kenna in his name; that ’said saloons or dram-shops are tippling houses; that said tippling houses are habitually kept open on Sunday and each and every Sunday contrary to the laws of Illinois.

      “As you are aware, the statute of this state imposes a penalty on everyone keeping such a place open on Sunday, thereby making the act unlawful, and we respectfully urge and request you, as mayor of this city, charged by law with the duty of seeing that the laws are obeyed, to enforce this statute against said Kenna and to compel his obedience• thereto by such means as are at your command.

      “In this regard we call your attention to the fact that in other cities where the Sunday closing law has been enforced, a large decrease in crime has been shown by the public records and a great change for the better in the matter of peace and good order has resulted.

      “We assume' to make this request, also, in behalf of the wives and families of the laboring classes, many of whom are now compelled to endure a life of hardship on account of the open Sunday saloon, which not only absorbs a large proportion of the weekly wage but also deprives them of the companionship of husband and father on the only day of the week on. which such companionship is possible.

      “A. Lincoln Shute,

      “Walter J. Miller,

      “Respectively the chairman and secretary of the Executive Committee of the Sunday Closing League.”

      but that notwithstanding said notice and request, both of said saloons were kept open on the next succeeding Sunday, to-wit: on the sixteenth day of December, 1906, and intoxicating liquors were freely and openly Sold and dispensed therein without interference by the said mayor or the police of said city.

      IX.

      And your petitioner further shows and' charges that not only does such failure and refusal on the part of the mayor constitute a neglect and violation by him of the duty imposed upon him by law, but that his declarations that he would not enforce the said Sunday closing law are in effect an invitation to the violation thereof, and greatly tend to promote and encourage in the community a spirit of lawlessness and of want of respect for the laws of the state and for those who as public officials are charged with the administration thereof, and that by reason of the premises, the peace, good order and morals of the city of Chicago are greatly impaired-.

    X.
    That because of the interest of said Michael Kenna in the event of this proceeding, he is made a party defendant thereto.
    Wherefore your petitioner prays that this court issue its writ of mandamus against the said defendant, Edward F. Dunne as mayor of the city of Chicago and his successors in office, enjoining and commanding him and them without delay, and by the use, so far as may be necessary for the purpose of every means, power and authority in that behalf conferred upon the mayor of said city by the law of this state or the ordinances of the city of Chicago to proceed, and thenceforth to continue to enforce against said Michael Kenna as the proprietor of said saloons at numbers 279 and 300 South Clark street in said city of Chicago the statute of this state.prohibiting the keeping open upon the first day of the week called Sunday, of tippling houses and other places where liquor is sold or given away (commonly called the Sunday closing law) by closing or compelling him to close and keep the same closed on each and every Sunday thereafter and in case of his refusal to obey the law in that behalf to secure his prosecution therefor and to punish such violation of said law by the revocation of his licenses; and that such other and further order may be made in the premises as the court shall deem just and necessary.

      The affidavits of the relators are attached to the petition.
    The respondents each filed a motion to strike from the petition those portions thereof which are indicated by italics. The grounds of the motions were as follows:
    (a) That each of said portions of said petition respectively consists of allegations of matters of evidence and does not present issuable allegations of fact.
    (b) That each of said portions of said petition respectively consists of allegations of items of evidence or of mere statements of evidence.
    (c) That each of said portions- of said petition respectively consists of inferences of law drawn from the facts or matters of evidence alleged.
    (d) That each of said portions of said petition respectively consists only of conclusions of law.
    (e) That each of said portions of said'petition respectively contains only an allegation or allegations of law.
    (f) That each of said portions of said petition respectively is irrelevant.
    (g) That each of said portions of said petition respectively is immaterial.
    (h) That each of said portions of said petition respectively is surplusage.
    (i) That each of said portions of said petition respectively is impertinent.
    Thereafter the relators filed a motion to strike from the files respondents’ motions to strike. On January 8, 1907 this motion was denied, the court rendering the following opinion:
   Chytraus, J.

(orally): — •

I am of the opinion now, as I have been all along, the proper practice is in. any state where the common law prevails, to reach matter that is immaterial or improper, is by motion to strike out. It is, in my judgment, 'the best and most orderly way by which to reduce pleadings to a single issue, or reduce questions to a single issue.

This case of the Chicago & Eastern Illinois Railroad Com pany v. O’Connor, 119 Ill. 586, while to an extent it sustains the contention of the petitioner here, yet I don’t think it is an authority in point. It appears that the supreme court there made a remark as to what the proper practice was, without reference to any -authority at all, and then the remark was very much modified by the language that follows, where the court says that there was no prejudice by the procedure followed. These other cases cited by Mr. Mayer, I think, are about of the same kind. I do not think in any one of them, so far as I have observed, the question was squarely before the court, that is, the particular proposition was not the one upon which the decision hinged. So I do not think that the old common-law practice has been changed or altered in respect to a motion to strike being the proper way in which to reach improper, irrelevant or impertinent matter, and the court holds accordingly, that is, the motion will be entertained. As to the merits of the motion in this particular case, I believe, and you gentlemen both agree, it will take some time to argue it, and you both want to be heard at length.

On the merits of respondents’ motions to strike the following opinion was rendered January 30, 1907.

Chytraus, J.

(orally):—

I believe in the strict enforcement of the rules of pleading, as I believe in the strict enforcement of the laws of our state. The courts have nothing to do with the policy or with the wisdom of the laws; and, I doubt if the court has anything to do with the rules of pleading. The rules of pleading that require him to strike from the record irrelevant, argumentative and repugnant matter, I think are good rules of pleading. If any one of these averments were necessary to enable this petitioner to introduce any evidence or any line of evidence competent in a case of this character, then as to such averment the motion to strike out should be overruled; but I fail to notice that any one of these averments that are objected to would enable the petitioners to introduce any evideuce that could not be introduced in the case without it; so I feel obliged here to sustain the motion to strike out.

I feel that' this is a ease of great importance, and may involve fundamental propositions and constitutional matters, and I do not want you gentlemen on either side to believe for a moment that I regard the matter lightly, because I do not. This point has been very ably argued by competent counsel ,on both sides and I am disposing of it in this way because I think that is the way .to dispose of matters; but, because I dispose of it immediately, I do not want you to think that I regard any of these matters trivial.

NOTE.

A motion to strike out is the proper method of ridding a pleading of impertinent, immaterial or irrelevant matter or that which is surplusage. Siever v. People, 45 Ill. 224, 227; Burnap v. Wight, 14 Ill. 301, 303; Stover Mfg. Co. v. Millane, 89 Ill. App. 532, 537; Consolidated Coal Co. v. Peers, 166 Ill. 361; 14 Ency. Pl. & Pr. 79 and note p. 80; 21 Ency. Pl. & Pr. 221. But see C. & E. I. R. R. Co. v. O’Connor, 119 Ill. 586. — Ed.


author: Chytraus, J.:—

text:
      (Superior Court of Cook County.)

    People of the State of Illinois ex rel. William A. Bartlett, A. Lincoln Shute and Robert J. Bennett vs. Edward F. Dunne, as Mayor of the City of Chicago, and Michael Kenna.
    (March 13, 1907.)
    1. Courts — Duty of Where Jurisdiction Doubtful. It is true that the court will not take jurisdiction if it should not, but it is equally true that it must take jurisdiction if' it should. The court has no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given.
    2. Statutes — Repeal by Implication. There must be a very clear implication and an inconsistency before the court can declare that a statute is repealed, where there is no express declaration to that efEeet.

      3. Sunday Closing Law — Repeal by Cities and Villages Act. The act which prohibits the opening of saloons and dramshops on Sunday was not repealed by the Cities and Villages Act which authorizes cities and villages organized under such act to regulate the liquor traffic.
    4. Repeal — Suspension of State Law. There is no difference between a repeal by implication and the suspension of a state law in a particular locality by the adoption óf a later law.
    5. Sunday Closing Law — In Force in Chicago. The state law prohibiting the sale of intoxicating liquors on the Sabbath day is applicable to and in force in the city of Chicago.
    :6. Practical Construction — As to Repeal of Law. The fact that the city authorities of a city for a number of years had permitted saloons to keep open on Sundays is not sufficient to establish that a state law prohibiting the opening of saloons was not in force in such city.
    7. Mandamus — To Compel Performance of Official Duty in Exercise of Police Power — Enforcement of Criminal Laws. Mandamus will not lie to compel the mayor of a city to perform his official duty generally when the duty involved is the exercise of the police power. In the exercise of the police power city officials are not acting on behalf of the city in its private corporate capacity.
    $. Same — Compelling Performance in a Particular Case. Nor will the writ of mandamus lie to compel the performance of the mayor’s duty in a particular case.
    :9. Same — General Public Duty — Not Enforceable by Mandamus— Interest of Relators. Where petitioners claim no special injury to their property rights nor to themselves, but come into court as members of the general public, having the same interest as the general public, and seek to compel the enforcement of a particular law, mandamus will be denied There must be some property interests involved or a specific duty to perform a single particular act, and not a general duty to enforce the law or the exercise of the police power. . The remedy for dereliction by an executive official lies with the people themselves.
    10. Same — To Compel Mayor to Enforce Sunday Closing Law. Mandamus will not lie to pompel a mayor of a city to enforce a state law prohibiting the opening of saloons on Sunday, either generally or as against a certain designated person.
    Petition for mandamus. The petition is set out in haec verba in People ex rel. v. Dunne, supra, in the decision of Judge Chytraus on the motions of respondents to strike out certain portions of the petition. The respondent Kenna filed a demurrer and the respondent Dunne filed an answer which alleged as follows:
    That he admits that certain ordinances of the city of Chicago are in force as set forth in said petition; that he admits the granting of a license for the keeping of a saloon or dram-shop to the co-defendant herein on the date and at the place and for the period, and that said co-defenant has been and still is keeping said saloon or dram-shop at said place, and that said license is still in full force and effect and unrevoked, all as set forth in said petition; that he admits, for the purpose of this answer only, that said co-defendant ever since the issuance of said license (but denies that it has been with the knowledge and consent of this defendant), has kept open said saloon and sold and dispensed intoxicating liquors therein upon Sundays, and intends to continue in the future to keep open his said saloon and to sell and dispense intoxicating liquors therein, upon every Sunday hereafter while said license is in force and effect, but this defendant denies that either this defendant, or said co-defendant, has constantly, openly and notoriously, or in any way whatsoever, violated or disregarded the law of the state of Illinois, referred to in said petition as the Sunday closing law, and denies that said co-defendant has constantly, notoriously or in any way, in violation of said Sunday closing law, kept open said saloon and sold and dispensed intoxicating liquors therein on Sunday.
    And this defendant avers that while this defendant has been mayor of said city he has enforced, and during his entire term of office.intends to enforce every law that is in force in said city to the best of his ability and power, and to the extent that the forces at his command will enable him so to do.
    And this defendant avers that said Sunday closing law is not now and never has been in force or effect in said city of Chicago since its incorporation in 1875 under, chapter 24 of the Revised Statutes of Illinois of 1874, known as “An act to provide for the incorporation of Cities and Villages.”

      And this defendant avers that in and by the said charter of said city, its city council has always expressly had and now has full power to license, regulate and prohibit the selling and giving away of any intoxicating, malt, vinous, mixed or fermented liquor; and that only in so far as granting licenses is concerned, has it been or is it requisite or necessary in said city to comply with the law of said state relative to-the granting of licenses.
    And this defendant avers that in and by its said charter, no law in conflict therewith applies to said city; that the provisions of said Sunday closing law are in conflict with said, charter, which was granted many years after the enactment of said -Sunday closing law.
    And this defendant avers that the legislature of said state has not licensed, regulated or prohibited, or attempted to-license, regulate or prohibit the selling or giving away of intoxicating, malt, vinous, mixed or fermented liquor in cities and villages organized under said chapter 24 of the Revised Statutes of the state of Illinois of 1874, except in so far as any such legislation may relate to the granting of licenses in said cities and villages.
    And this defendant avers that at all times since the organization of said city in 1837 (except from June 23, 1852, to-February 12, 1853), the legislature of said state has delegated to said city the right-to regulate the liquor traffic in said city on all of the days of the week, including Sunday; and said city has ever since its organization in 1837, except as aforesaid, exercised such power to regulate said liquor traffic on all the days of the week, including Sunday; that in the charter granted to said city in 1837, it was provided that its common council shall have the right and power to regulate the selling or giving away of any ardent or intoxicating spirits without any restriction or limitation as to Sunday; that in the next succeeding charter granted to said city in 1851, it was provided that its common council shall have like power without any lestriction or limitation as to Sunday, to license, regulate and restrain the selling or giving away of wines and other liquors, whether ardent, vinous or fermented; that in its next succeeding charter, granted in 1863, the common council of said city was given like power, unrestricted as aforesaid as to all days of the week, including Sunday, to license, regulate and restrain the selling or giving away of wines and other liquors, whether ardent, vinous or fermented, and that this same power remained and continued from 1863 unlimited in said city up to and including its incorporation, as aforesaid, in 1875, since which date continuously said city has had and has exercised such power similarly unrestricted as to all of the days of the week, including Sunday.
    And this defendant avers that beginning in 1837, and up to and including the present time (except from June 23, 1852, to February 12, 1853), the city or common council of said city has, pursuant to and under its charter, continuously asserted and exercised, and is now asserting and exercising the authority and power to regulate the selling or giving away of intoxicating liquors in said city on all of the days of the week; including Sunday.-
    And this defendant avers that said city from' a time long anterior to its incorporation in 1875, and continuously since, has under ordinances duly enacted by its city council always authorized and permitted' the sale of spirituous, vinous and fermented liquors within said city on all Sundays, provided only, that the one engaging in such sale of spirituous, vinous and fermented liquors on Sunday was and is required by said ordinances to keep closed on Sunday all doors opening out upon any street from such bar or room where such liquors are sold, and all windows opening upon any street from the bar or room where such liquors are sold on Sunday must be provided with blinds, shutters or curtains so as to obstruct the view from such streets into such room.
    And this defendant avers that from a time long anterior to 1875, and continuously since, under ordinances duly enacted by its city council, the mayor of said city has always granted, and this defendant still does grant licenses for the sale of spirituous, vinous and fermented liquors; that such licenses duly permit such sale on all of the days of the week, including Sunday, at the place designated in such license, provided always that the person receiving such license shall and will keep closed all doors opening out upon any street from the bar or room where such liquors are sold on Sunday, and that on Sunday all windows opening upon any street from such bar or room where such liquors are sold are provided with blinds, shutters or curtains so as to obstruct the view from such streets into such room.
    And this defendant avers that the co-defendant has complied with all of the laws and ordinances governing saloons or dram shops in said city on Sunday, and that the license referred to in said petition and which was granted to said co-defendant was granted to him pursuant to and in compliance with the laws and ordinances in force in said city at the time of the said grant, and that ever since the issuance-of said license to him, said co-defendant has complied with all its terms, governing or regulating saloons or dramshopson Sunday.
    And this defendant avers that at the time said license was granted to said co-defendant, there was in force and effect in said city, and there still is in force and effect therein, an ordinance duly enacted, which permits the sale of intoxicating liquors on Sundays, but provides that the keeper of the-saloon or dramshop shall keep closed on Sunday all doors opening out upon any street from the bar room or room orrooms where such saloon or dramshop is kept, and that all windows opening out upon any street from such bar room, or room or rooms shall on Sunday, except between the hours of' 1 o’clock a. m. and 5 o’clock a. m., be provided with blinds, shutters or curtains, placed and maintained in such a manner as to obstruct the view from such street into such barroom, or room or rooms; that said co-defendant .has complied with the said ordinance and has not violated any of the-provisions or conditions thereof, or of any law having reference to the keeping of a saloon or dramshop within said city on Sunday and the sale or giving away of intoxicating liquors therein or the conduct and management thereof on Sunday.
    And this defendant avers that all of the acts charged in said petition were had and done with the knowledge and permission, and under the full authority of the city council of .said city and the ordinances by it enacted, and under and by virtue of the license granted by the duly constituted authorities of said city in pursuance of said ordinances.
    And this defendant avers that for many years since the incorporation of said city in 1837, and particularly for more than thirty years continuously last past it has always been ■and now is the uniform and common understanding and belief of all of the mayors of said city and of its city council, and of its police authorities, and of all of its departments of government, that said Sunday closing law does not apply to and was not and is not in force in said city, and-that said -city has full and complete authority to regulate the sale and ■disposition of intoxicating liquors in said city on all of the days of the week, including Sunday; that during all of said •time all of the mayors and regularly constituted authorities of said city, including the legislative, executive and law departments thereof, have, by contemporaneous interpretation construed said Sunday closing law as having no force or -effect or application to or within said city, and that the regulation of the sale and disposition of and the permission to -sell intoxicating liquors on Sunday was and is a ma/tter wholly within the control of the city authorities of said city.
    And this defendant avers that at the date of the filing of •the petition herein, there were and there now are in full force in said city 7,239 saloon or dramshop licenses, which licenses were duly issued and granted by. this defendant under and pursuant to said ordinances; that each and all of said 7,239 licensees, as this defendant has been informed and he therefore avers, have conducted during the period of their said respective licenses and at the time of the filing of said petition, were conducting and now conduct saloons and dram-shops in said city on Sundays under and pursuant to their ■said respective licenses, and during said period prior to and at the time of the filing of said petition herein and continuously since, have been selling and disposing of intoxicating liquors on Sunday in their said respective saloons or dram-.shops, and intend to and will on all future Sundays during the period of their said respective licenses, all of which run during the period of the license granted to said co-defendant, sell, or dispose of intoxicating liquors, in their said respective saloons or dramshops.
    And this defendant avers that if said Sunday closing law is in force in said city, as alleged in said petition, it is and would be a physical impossibility for this defendant to have personal knowledge of or to personally investigate and ascertain the facts in each case, and judge of the sufficiency thereof; that this defendant is not empowered to revoke the license of any saloon or dramshop for an alleged violation of said Sunday closing law, unless the evidence of such violation, if there be any such violation, is clear and satisfactory to him.
    And this defendant avers that there are now pending in the circuit and superior courts of said county, at least forty-five petitions for mandamus instituted on or since December 21, 1906, against this defendant, to compel him to close up and revoke the licenses of at least thirty-one saloons or dram-shops and fourteen theaters because of alleged violation of said Sunday closing law, and that very many more similar proceedings are threatened to be instituted against him.
    And this defendant avers that the revocation of a saloon or dramshop license in said city, and the determination of whether or not the saloon or dramshop keeper has violated the law, are matters which rest wholly within the official discretion of this defendant.
    And this defendant claims and insists that this honorable court should not take or exercise jurisdiction to adjudicate the matters set forth in said petition, and should not grant a writ of mandamus as prayed for therein, and having fully answered the said petition, prays to be hence dismissed with his reasonable costs, etc.
    To this answer the relators interposed a demurrer.

      Messrs. Church, McMurdy & Sherman and Walter J. Miller, for relators.

      Levy Mayer, James Hamilton Lewis, corporation counsel, and Daniel P. Murphy, assistant corporation counsel, for respondents.
   Chytraus, J.:—

Counsel for the petitioner has particularly pressed upon the court the importance, the great importance, of the cause now pending befSre the court. While, in my judgment, every cause that comes into court is of importance, yet I fully agree with counsel for the petitioner in the importance of this, and the great importance, of this particular cause.

There is considerable earnestness, if not feeling, on the part of the parties to the controversy. On the one hand the parties are engaged in the laudable effort of suppressing vice, and they can see that by and through the means of this court they can attain their object. On the other hand, the parties can see that here is an effort at interference through the means of the court with personal liberty. Questions of this kind. invariably arouse feeling.

But the court has no right to participate in the feeling of the parties. The court has but to declare the law, and, when it is declared, enforce it.

I can do no better than to quote here the remarks of Chief Justice Marshall in that great ease of Cohens v. Virginia, 6 Wheaton, 264, when he was determining a case in which great feeling existed on both sides. He says (p. 404) : “It is most true that this court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them; all we can do is to exercise our best judgment and conscientiously to perform our duty.”

In the case at bar there are two main questions presented, and they are these: First whether the state statute regarding the closing of saloons has any application within the city of Chicago. The contention by the defense that the Sunday law has no application in Chicago they seek to fortify by the argument of contemporaneous or practical construction. I do not regard them as two separate cases; I regard them as two divisions of one proposition. The other one is, What is, the power and the duty of the court when relief of this sort, is sought against the executive • department of the government? While these questions, as I have already stated, are-questions of great importance, I have been aided by the able arguments of eminent counsel on both sides, and to me the answers are so clear that I do not think I need any further time to determine upon the principles of law applicable.

Ás to the first proposition. The term “suspension of the state law” is used. I do not see that the position of counsel is aided by the use of the term “suspension” rather than the term “repeal.” The contention of counsel for the defense amounts to this,' that the state law is repealed by the enactment of the charter, the cities and villages act, and the previous special acts applicable to the city of Chicago.

WAen the question of repeal by implication, as this would be, because there is no express provision for repeal, is urged, there must be a very clear implication, and there must be an inconsistency, in the first place. I agree with the argument of Brother Church on that proposition, and I can see no rule for holding that the city incorporation laws, either the special acts or the cities and villages act, repealed the Sunday closing law. It is my opinion that the Sunday closing law is in full force and effect within the limits of the- city of Chicago, as it is elsewhere in the state.

Contemporaneous construction. The term construction here, meaning practical construction, has been urged by the city authorities in permitting, not licensing, the saloons to keep open without any restriction as to the days they might be kept open. I don’t think that is a sufficient argument, and I cannot feel convinced by that argument that the law must be regarded as repealed.

We come next to what I regard as the most serious question in the case, and that question involves the construction by the court of the constitutional principles and the application thereto to the situation before us, — whether as a general proposition the executive of this city shall be compelled by mandamus of this court to perform his official duty when the duty involved is the exercise of the police power. In this connection I want it borne in mind that in the exercise of the police power city officials are not acting on behalf of this city in its private corporate capacity, but purely as executive officers exercising the police power in a geographical division, — a portion of the state; and the term “executive” embraces the mayor and the police department under his control. When I use the expression, “as a general proposition,” I use it advisedly and intentionally. Although the petition .purports to point out a particular instance or two, yet it is clear upon the record before us that it is designed to compel the exercise of a general duty within the general exercise of the police power.

This is made plainer when we inspect the petition before us. The petitioners come as certain persons who claim no special injury to their property or their property rights, nor, ■indeed, to themselves, but who come to a court of law as one .or two of a general public 'and as having the same interest, .and only the same interest, as the general public. By the petition it is sought to obtain from the court a writ to pre-vent the mayor, an executive official of a co-ordinate branch .of the state government, from committing what, if the petition is true — and in that connection I refer to the intent — is a crime under the laws of the state, namely, the palpable neglect in the performance of his official duties.

There are two classes of cases cited on behalf of the petitioners — at least I divide them into two classes — considered as a sufficient reply to the proposition that an executive officer may be mandamused by the courts. It will be found that those cases which have been cited divide themselves into cases where property interests have been involved, where there - has been a property right involved, or the other class, where the performance of a specific duty to do a single particular act has been involved — -that is, not a general duty to enforce 'the law or the exercise of the police power.

I may here advert to the case of the State of Mississippi v. Johnson, 4 Wall. 475. In that ease it was sought to compel the president of the United States, by means of a mandatory injunction, to execute the laws of the United States, being a suit on behalf of a state. The bill was filed as an original bill in the supreme court of the United States, but the relief asked for was denied. The opinion of the court, by Chief Justice Chase, refers to those instances of compelling the performance of a ministerial duty that are spoken of in the cases that have been cited. But the court says, referring to that class of cases (p. 499) : “The law required the performance of a single specific act; and that performance, it was held, might be required by mandamus.”

It appears to me that that is a very clear distinction. At the commencement here it was argued that the proceeding partakes of the nature of an equitable proceeding. No bill in equity lies to prevent the commission of a crime; no bill in equity lies against the city authorities to enforce the performance of duty on behalf of one who has no property rights involved nor any interest involved aside from that which he possessed in common with the general public. These rules of law, applicable in suits in equity, I consider applicable here. Neither courts of law nor courts of equity possess the power to supervise or control executive officials in the administration of the duties of their respective offices where no property rights are involved except in the instance I have referred to and the instance spoken of in the case I last cited. Where there is involved merely the general proposition, Shall the official or shall he not within the scope of his particular office exercise the police power of the state delegated to him under the law of the state ? courts must keep their hands off. The remedy for dereliction of duty by an executive official in this respect, if any there be, lies with the people themselves.

Under our form of government executives have, generally speaking, no right and no power to coerce the judiciary in the performance of the duties of that department; neither has the judiciary department the right nor the power to coerce the executives in the performance of their duties. Each department in exercising the governmental function assigned to it is co-ordinate and totally independent of the other. That the law has provided for the punishment of judicial malfeasance or misfeasance, but emphasizes this principle. Punishment for such guilt lies with the criminal courts. That such punishment may be inflicted does not extend the jurisdiction of the courts of equity or courts of law.

I suppose the proper order under the view expressed by the court here would be to sustain the demurrer to the petition and overrule the demurrer to the answer.

NOTE.

The above case is now pending in the appellate court under the title of People ex rel., etc. v. Fred A. Busse, Mayor, et al. — Ed.