Municipal corporations-extent of powers.

mu

The first contention of the appellant is that the city had no authority from the Legislature to enact an ordinance licensing and regulating a dry cleaning business. It is well settled and generally understood that a nicipality possesses only such powers as the legislature has expressly conferred upon it, or such as are necessarily incident to the powers expressly granted, and no authority need be cited upon that question. In the various subsections of ¶ 65 (Smith-Hurd's Rev. Stat. Stat. 1925, chap. 24, p. 312) will be found no express power conferred upon municipalities to license and regulate the dry cleaning business. Express powers are conferred upon municipalities to guard against fire, prevent dangerous constructions, and to regulate and prevent the carrying on of manufactories dangerous in promotion of fires, to cause all dangerous buildings to be made safe, to provide fire prevention equipment and the use of the same, to regulate and prevent storage of gunpowder, tar, pitch, resin, coal oil, benzine, turpentine, hemp, cotton, nitroglycerine, petroleum, and other combustible or explosive material, and to enforce all necessary police ordinances.

The powers conferred on municipalities by the Cities and Villages Act (Smith-Hurd's Rev. Stat. 1925, chap. 24) to prevent fires and to regulate the construction of buildings and the handling and storage of inflammable materials would authorize the passage of the dry cleaning ordinance, if the establishment and conduct of that business created greater dangers of fire than the storage and handling of those liquids in other lines of business. John Plant, chief of the bureau of fire protection, testified, and the mas

ter found, that dry cleaning as conducted creates danger of fires. He testified there were more fires in dry cleaning establishments than in any other business where large quantities of inflammable liquids are used. The record warrants the conclusion that the business creates greater danger of fire than other businesses using large quantities of inflammable liquids, and justifies classifying the dry cleaning business as a special subject of regulation to prevent fires, and the power to adopt reasonable and proper ordinances for that pur- -power to regupose is a necessary ing establishincident to the ex- ments.

late dry clean

a power expressly nicipal power. granted to it by the

legislature or necessarily incident to a power so granted. In order to justify an ordinance requiring a license to engage in a particular occupation as a proper exercise of the police power, it must appear that -when the requirement of

justified.

-ordinances

flammables.

controlling in- and use of tanks for the handling and storage of volatile inflammable liquids therein, pumps, or devices for the removal and conveyance of the contents of such tanks, and where, in a building in which such liquids are stored, a business is conducted in connection with which such liquids are used, the regulation may include provision for the lighting and ventilation of the building, the manner of construction, and may require the persons in charge of such volatile inflammable liquids, and of the handling and using thereof, and of the room in which, and the equipment with which they are used, to be competent persons, and may provide for the examination of such persons and the inspection of the places, instrumentalities, methods, and means of storing and using such volatile inflammable liquids. The ordinance in question contained provisions of this character.

If the requirements of an ordinance regulating the construction and use of buildings

Courts-inter

ordinance.

ference with for the protection of the lives and safety of citizens as well as their property against fire are adapted to the purpose of securing such protection, the court cannot interfere with their enforcement, unless they are manifestly unreasonable. The extent to which the public safety

requires the construction of buildings and the conduct of business therein to be regulated and the method of such regulation, where such regulation is committed by the legislature to a city, are questions which are left to the judgment and discretion of the city council to determine, and, unless the exercise of such judgment and discretion is manifestly unreasonable, the courts will not interfere with it. A court will not hold an ordinance void as unreasonable, where there is room for a fair differ- -refusal to inence of opinion on terfere with the question, even

ordinance.

Hart

though the correctness of the legislative judgment may be doubtful, and the court may regard the ordinance as not the best which might be adopted for the purpose. man v. Chicago, 282 Ill. 511, 118 N. E. 731; Chicago v. Mandel Bros. 264 Ill. 206, 106 N. E. 181; Chicago v. Washingtonian Home, 289 Ill. 206, 6 A.L.R. 1584, 124 N. E. 416.

The appellant contends that the proper remedy is by injunction; that, where an entire ordinance is void, and many persons are threatened with attempted enforcement of it, a court of equity may, to avoid a multiplicity of suits, enjoin the enforcement of the ordinance. In our opinion, the case is not one for the exercise of the powers of a court of equity. The whole ordinance is not void, but only paragraph (b) of § 1416 is invalid. The situation is not essentially different from the situation in Grace Missionary Church v. Zion, 300 Ill. 513, 133 N.

It cannot be questioned that the state, under its police power, has the right to regulate any and all kinds of business, and to protect the public health, morals, and welfare, subject to the restrictions of reasonable classification. 6 R. C. L. 217.

An extended search has disclosed but few cases dealing specifically with the question under annotation.

The reported case (KLEVER SHAMPAY KARPET KLEANERS V. CHICAGO, ante, 103), affirming (1925) 238 Ill. App. 291, holds, it is to be noted, that city having statutory authority to enact ordinances designed to guard against fire, and to regulate the storage of combustible and explosive material, as well as to enforce all necessary police ordinances, has authority reasonably to license and regulate the business of dry cleaning, the business being one creating greater danger of fire than other businesses using large quantities of inflammable liquids; and that an ordinance providing for the licensing and regulation of such business-among other things, requiring the persons in charge to be competent persons, and making provision for the methods of installation and use of tanks for the handling and storage of volatile and inflammable liquids, as well as regulating the matter of the construction, lighting, and ventilation

of the building in which the business is carried on, etc.-is valid as a proper exercise of the police power thus delegated to city (except as to certain provision hereinafter to be noted). The lower court, in its opinion, refers to the earlier case of Fishbain v. Chicago (1925) 237 Ill. App. 631, a memorandum decision from the report of which the facts do not appear, as having held that the city had power to enact reasonable regulations in regard to the business of dry cleaning.

A provision (in a statute defining and regulating the business of dry cleaning and dyeing in cities of the first and second class) to the effect that no one shall advertise as dry cleaner and dyer, or either, as defined by preceding section, until he shall have made application to the state fire marshal for permission to engage in such business and paid inspection fee of $25, cannot be sustained as to one who does dry cleaning and dyeing through another, to whom the clothing received by him is transmitted for doing the work, on the ground that it was enacted to prevent false advertising, since (1) an advertisement that one is a cleaner and dyer is not necessarily false or misleading merely because he does the work through another, and not at an establishment owned and conducted

by him, and (2) a statute against false advertising should be general in its character, and cannot be sustained where it is confined to one particular business, to the exclusion of all others. Ware v. Ammon (1925) 212 Ky. 152, 278 S. W. 593.

Such statutory provision cannot be sustained, as to such person, as a police measure, but is unreasonable and void as applied to him and others similarly situated, because bearing no relation to public health, morals, safety, or welfare. Ibid. In this case, it was insisted that the provision in question was essential to the enforcement of the act, the validity of whose several other provisions was not disputed. As to this the court said: “It is true that, if all persons who advertise as dry cleaners and dyers pay the inspection fee, the fire marshal will have before him a list of those engaged in the business, and the task of inspection will be rendered less difficult. It must not be overlooked, however, that the act is confined to cities of the first and second class. Necessarily, the number of those engaged in the business is limited, and the very fact that they advertise will afford the fire marshal and his assistants a ready means of determining whether or not they are conducting their business in violation of the statute. In the light of these facts, it is at once apparent that the requirement in question is not reasonably appropriate or necessary for the enforcement of the act, and equally apparent that the exaction of an inspection fee of $25 merely for advertising one's business, coupled with the severe penalties that follow its nonpayment, is too burdensome a contribution to require of one whose business is not dangerous, in order that the act may be enforced as to others who come within its provisions." (In this case, it is to be noted, no other provision of the act, which is very comprehensive and elaborate, was attacked, and the provision in question only in so far as it applied to one who conducted no dry cleaning or dyeing establishment himself, but did the work through another to whom the clothing was transmitted, after

wards receiving the clothing back for delivery to his customers. While the question was not discussed, the case may be taken as recognizing the business of dry cleaning and dyeing as proper subject for regulation under the police power, in the interest of public safety, etc., provided, of course, such regulation is not unduly oppressive.)

Provision of ordinance requiring that every building in which dry cleaning is carried on shall be detached at least 50 feet from any other building is unreasonable, as being, in effect, prohibitive against maintaining KLEVER the business in the city. SHAMPAY KARPET KLEANERS V. CHICAGO (reported herewith) ante, 103, affirming (1925) 238 Ill. App. 291, supra, in which the court declared the provision unconstitutional, as depriving the owner of property without due process of law and without compensation.

Under ordinance providing that no dry cleaning business shall be installed or maintained within the city except under permit of the city council, and that plans and specifications, giving full details as to location, construction, and operation thereof, must be filed with the city council, together with an application to conduct such business, and further providing that if the plans and specifications submitted comply with the rules of the ordinance, "then the city council shall approve them and issue the necessary permit," the issuance of a permit to applicant whose plans and specifications, filed in accordance with the requirements of the ordinance, comply with the rules of the ordinance, is not discretionary with the city council, but mandatory, especially where other sections of the ordinance (as those requiring the building to be of noncombustible material, regulating the height of the building, its distance. from other buildings, the protection of the steam or hot water pipes, the location of vent openings and flues, the installation of machinery, the operation of the plant, etc., and other minute regulations calculated to prevent danger to surrounding buildings

and annoyance to their occupants; providing for a substantial penalty in case of violation of detailed statement or specifications or plans submitted and approved, together with correction thereof within a reasonable time; and further providing for the revocation of permits) amply protect the public. Colorado Springs v. Street (1927) — Colo. —, 254 Pac. 440. Said the court: "The plaintiff contends that § 783 is mandatory, and that the council had no discretionary power to refuse to approve the plans and specifications and issue the permit. The defendants, on the other hand, contend that the word 'shall' in that section, should be construed as 'may,' and that the council had a right to refuse the permit, if in the opinion of the council, reasonably exercised, the conduct of the business in the proposed location would be detrimental to the public health, safety, and welfare. The defendants further contend that, because of the fact that the location of the proposed business adjoins a thickly populated residential district, the conduct of such business would be detrimental to the public health, safety, and welfare. . . . The presumption is that the word 'shall,' in a statute or ordinance, is mandatory, but where it is necessary, in order to give effect to the legislative intent, to construe the word as 'may,' such construction is adopted. . . . No such legislative intent appears in the present case. Section 783 provides that under the circumstances stated the city council shall issue the permit. Other sections amply protect the public."

Under above ordinance, issuance of permit, upon compliance with conditions stated, is mandatory upon city council, notwithstanding subsequent section of ordinance authorizing council, in its discretion, to grant a permit, without regard to the provisions or regulations of any other section of the ordinance, whenever in the opinion of the council such permit may be safely granted. Ibid. (The remainder of the opinion in this case is concerned with the right of applicant to recover, in mandamus proceeding, damages suffered by reason of the

city council's wrongful refusal to issue permit, including burden of proof, measure of damages, recovery of costs, etc.-all questions with which the present annotation is not concerned.)

In People ex rel. Wohl v. Leo (1919) 109 Misc. 448, 178 N. Y. Supp. 851, affirmed without opinion in (1922) 201 App. Div. 857, 192 N. Y. Supp. 945, it was held that a two-story structure planned and constructed throughout for a dyeing and cleaning establishment, but the second floor of which had been used as a dwelling by setting up partitions therein of a temporary character, may be used in its entirety -the second floor as well as the first, to which the business of dyeing and cleaning had been confined-for dyeing and cleaning purposes, under city zoning resolution permitting not only the continuance of any "use" existing in any building at the time of the passage of the resolution, but also the change or extension of such "use" to any part of the building, provided no structural alterations should be made in the building, etc. Said the court: "The meaning of the word 'use' is not confined to describing the act of using, but may also be employed to describe that property of a thing which renders it suitable for a purpose. It seems to me that it is in this latter meaning that the word 'use' is employed in § 6 of the resolution. The use of a building designed and constructed for business is for business, and its use for business exists, where the plan of the building is not structurally changed, although it may be actually occupied as a dwelling. In such a case the building remains available for business, notwithstanding its temporary use for a purpose for which it was not designed. The plaster-board partitioning of the second floor of relator's building was temporary in its character, and it was constructed so as to admit of its easy removal. The inherent plan and structure of the second floor was not altered, and its availability for business remained. The floor could be readily rendered available for business purposes without structural changes in the building, by simply knocking down the light partitions." L. S. E.