{ "id": 5258831, "name": "City of Marion v. Martin W. Robertson", "name_abbreviation": "City of Marion v. Robertson", "decision_date": "1899-09-05", "docket_number": "", "first_page": "113", "last_page": "116", "citations": [ { "type": "official", "cite": "84 Ill. App. 113" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "21 Ill. 205", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2599996 ], "opinion_index": -1, "case_paths": [ "/ill/21/0205-01" ] }, { "cite": "149 Ill. 626", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5471753 ], "opinion_index": -1, "case_paths": [ "/ill/149/0626-01" ] }, { "cite": "25 Ill. 317", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 443648 ], "opinion_index": -1, "case_paths": [ "/ill/25/0317-01" ] }, { "cite": "170 Ill. 413", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "128 Ill. 230", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "50 Ill. 41", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 } ], "analysis": { "cardinality": 401, "char_count": 7273, "ocr_confidence": 0.554, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.15702807383750944 }, "sha256": "cbd47eaf54fe53a46ffaba4a713d33b70854d66548e4827e0f0110ca4f5f19d9", "simhash": "1:1ee2f7644b32be21", "word_count": 1245 }, "last_updated": "2023-07-14T19:05:11.837712+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "City of Marion v. Martin W. Robertson." ], "opinions": [ { "text": "Me. Justice Worthington\ndelivered the opinion of the court.\nThis was a suit to recover a fine for the violation of a city ordinance, commenced before a justice, where a fine was imposed. Upon appeal to the Circuit Court an objection to the introduction of the ordinance in evidence was maintained, and the jury instructed to find for appellee. The question involved in the appeal is the validity of the ordinance.\nThe complaint charges appellee with \u201cviolation of Sections 1 to 6 of Ordinance 17 of the city of Marion, * * by erecting a part of a building in said city within less than. 170 feet of the public square; * * * the outer walls thereof are neither brick nor stone.\u201d\nThe only evidence offered was Ordinance No. 17, Sections 1 to 6, inclusive, and Section 1 of Ordinance No. 40, which is an amendment of Section 2 of Ordinance No. 17.\nIt does not appear from the complaint nor from the evidence what material .appellee used in erecting \u201c a part of a building.\u201d The sole charge is that \u201c the outer walls are neither brick nor stone.\u201d This being a suit to recover a penalty, a clear violation of a valid ordinance must be proven.\nThe sixty-first and sixty-second clauses of Section 82, Chapter 24, of the Revised Statutes (Hurd\u2019s edition), entitled \u201c Cities, Villages and Towns,\u201d conferring powers on municipal corporations, reads as follows:\n\u201c Sixty-first.\u2014To prescribe the thickness, strength and manner of constructing stone, brick and other buildings, and construction of fire escapes therein.\n\u201c Sixty-second.\u2014The city council and the president and trustees in villages, for the purpose of guarding against the calamities of fire, shall have power to prescribe the limits within which wooden buildings shall not be erected or placed or repaired, without permission, and to direct that all and any new buildings within the fire limits, when the same shall have been damaged by fire, decay or otherwise, to the extent of fifty per cent of the value, shall be torn down or removed, and to prescribe the manner of ascertaining such damage.\u201d\nThe sections of Ordinance No. 17, as amended by Ordinance No. 40, offered, material to be considered, is as follows:\n\u201c No building or structure of any kind or description shall be erected or constructed on any lot or block, or any fraction of any lot or block, fronting or joining the public square, or within 170 feet of the public square, nor shall there be erected or constructed any building or structure of any kind on any street or alley within 170 feet of the public square, unless such hidlding or structure, or the outside walls thereof, shall he composed of stone or brick, and all buildings which may hereafter be erected within the limits above mentioned shall have outside walls of not less than twelve inches in thickness, and if any building shall be more than one story in height above the basement, the wall above the second story, except front and rear walls, shall extend at least twelve inches above the roof.\u201d\nIt is conceded by appellant that the portion of section 2 which prohibits the erection of any building, \u201c unless such building or structure or the outside walls thereof shall be composed of brick or stone,\u201d is broader than is authorized by sections 61 and 62 of chapter 24, cited swpra. This being so, that portion of the ordinance is ultra vires and invalid. But appellant insists that other sections of the ordinance are authorized and valid and that appellee might be convicted for their violation. This might be true if the complaint charged him with the violation of these sections. But it does not. It charges appellee with erecting a portion of a building whose \u201c outer walls are neither brick nor stone.\u201d In other words, the complaint charges appellee with violating a section of an ordinance that the city council had no authority to pass. Judgment affirmed.", "type": "majority", "author": "Me. Justice Worthington" } ], "attorneys": [ "Clemens & Warder, attorneys for appellant.", "Young & Morris and A. J. Kimmel, attorneys for appellee." ], "corrections": "", "head_matter": "City of Marion v. Martin W. Robertson.\n1. Cities and Villages\u2014Validity of Ordinances.\u2014Cities and villages incorporated under the general law have no power to pass an ordinance providing that no building or structure of any kind shall be erected on any lot fronting or joining the public square, or on any street or alley within 170 feet thereof, unless such building or structure or the outside walls thereof shall be composed of stone or brick. And that all buildings erected within such limits shall have outside walls of not less than twelve inches in thickness, and if more than one story in height above the basement, the wall above the second story, except front and rear walls, to at least twelve inches above the roof.\n2. Same\u2014Ordinances Ultra Vires.\u2014An ordinance of a city incorporated under the general law which prohibits the erection of a building, unless such building or the outside walls thereof shall be composed of brick or stone, is broader than is authorised by Sections 61 and 62 of Chapter 24, R. S., and is ultra vires.\nSuit to Recover a Fine for a violation of a city ordinance. Trial in the Circuit Court of Williamson County, on appeal from a justice of the peace; the Hon. Alonzo K. Vickers, Judge, presiding. Verdict and judgment for defendant; appeal by plaintiff. Heard in this court at the February term, 1899.\nAffirmed.\nOpinion filed September 5, 1899.\nClemens & Warder, attorneys for appellant.\nThe ordinance may be too comprehensive in its provisions and cover cases which the city has no power to control, but that is no reason why the court should refuse to enforce it in cases over which the power of the city is unquestionable. Kettering v. The City of Jacksonville, 50 Ill. 41; Donnersberger v. Pendergrast, 128 Ill. 230; Walker v. The People, 170 Ill. 413; City of Quincy v. Warfield, 25 Ill. 317; White v. City of Alton, 149 Ill. 626.\nYoung & Morris and A. J. Kimmel, attorneys for appellee.\nThe legislature confers the right on cities and villages to establish fire limits, within which wooden buildings shall not be erected or repaired. Subsection 62 of Sec. 62, Art. V, Chap. 24, R. S. 1897.\nThe powers of public corporations are either expressed or implied; express powers are the legislative act under which they exist, conferred and expressed in terms. Cooley\u2019s Const. Lim. (3d Ed.) 194.\nThe power of municipal corporations to make by-laws is controlled by the Constitution of the United States and of the State which creates them, and must be in harmony with the general laws of the State and the provisions of the charter; if in conflict with either, the by-law must give way. Cooley\u2019s Const. Lim. (3d Ed.) 198, 199.\nMunicipal by-laws must also be reasonable; whenever they appear not to be so the court must, as a matter of law, declare them void. Ibid. 200. Petersburg v. Metzker, 21 Ill. 205.\nBy the act relating to municipal institutions the corporation of Toronto was authorized to pass by-laws, among other things, to prevent the erection of wooden buildings within such parts of the city as the corporation might define. The city council accordingly passed a by-law defining what were termed the fire limits of the city, and prohibiting the erection of any building within such limits other than of stone, brick, iron or other material of an incombustible nature. Held, that the by-law was void. The Attorney General v. Campbell, 19 Grant\u2019s Ch. Rep. 1872, 1873, p. 299." }, "file_name": "0113-01", "first_page_order": 121, "last_page_order": 124 }