Sheridan v. Colvin , 78 Ill. 237 ( 1875 )

Mr. Justice McAllister

delivered the opinion of the Court:

Elaborate printed arguments have been filed by the counsel for the respective parties in this case, and able and exhaustive oral arguments delivered at bar, all of which, having been considered, we are prepared to give our conclusions.

It is not claimed by counsel for appellants, that the validity of the new organization of the city, under the general act of 1872, can be, in any respect, drawn in question in this suit. Such a question can be determined only by a direct proceeding, in the nature of a quo warranto. Assuming, then, that the city of Chicago became incorporated under that act, by virtue of the election held April 23, 1875, the provisions of the act of 1872 thereby became its charter, to which we must look for the extent of its corporate authority, with such limitations as may be found to arise from the provisions of section 6 of the act.

With these preliminary observations, we will proceed to state, as briefly as possible, our views and conclusions.

The case resolves its.elf into three principal questions, viz: (1.) Had the city council the power, under the provisions of the act of 1872, to pass the ordinance in question ? (2.) What is the nature of the power thereby sought to be exercised ? (3.) Had the court of chancery jurisdiction to interfere with its exercise?

These questions will be considered in the order stated.

First, then, as to the power. That question can properly be determined only by a consideration of the legal status of the police commissioners at the time of the new incorporation of the city, and reference to the several provisions of the act of 1872, pertinent to the subject. We have, however, no concern with the legal status of the police commissioners, any farther than relates to their functions as city officers. How, the act creating the board of police, declares that “the said board shall assume and exercise the entire control of the police force of said city, and shall possess full power and authority over the police organization, government, appointments and discipline within said city.” By the same law that board also had the custody of all property belonging to the police department.

Such was the authority vested in the board of police, composed of appellants, at the time of the new incorporation of the city, under the act of 1872, and it amounted to an exclusive control over the police force of the city. But it has not been, and can not be, denied, that these functions and their continuance with these municipal officers, were entirely subject to legislative control. The legislature could, in its discretion, provide for the creation of another officer, and for taking these functions from the board of police and bestowing them upon that officer. Appellants’ counsel concede this, but insist that the legislature has not done so. Let us see whether this be so or not. Upon this point we would say, that, in our opinion, from a consideration of the whole scope and purpose of the act, as well as the provisions of section 3, the new incorporation did not, ipso facto, repeal the act creating and defining the powers and duties of the po’- > *> missioners, or abolish their office in toto. That section says: “If a majority of the votes cast at such election shall be ‘For city organization under general law/ such city shall thenceforth be deemed to be organized under this act; and the city officers then in office shall, thereupon, exercise the powers conferred upon like officers in this act, until their successors shall be elected and qualified.”

This clause, taken in connection with one in section 6, evinces the legislative intent, in respect to the manner in which re-incorporation should be effected. The latter is as follows : “And from the time of such organization or change of organization, the provisions of this act shall be applicable to said cities and villages, and all laws in conflict therewith shall no longer be applicable. But all laws or parts of laws not inconsistent with the provisions of this act shall continue in force, and applicable to any such city or village, the same as if such change of organization had not been made.”

There is a plain difference between a legislative declaration, that an inconsistent prior law shall not be applicable to certain municipal corporations, and one, that it is repealed. The legal effect of that provision is, that, if the law creating the board of police, or any prior statute relating to a corporation reorganized under the act of 1872, shall be found in conflict or inconsistent with any of the provisions of that act, such inconsistent law shall no longer have any applicability within the territorial limits of such new organization. If such inconsistent law originally applied beyond such territorial limits, it may continue to do so, but not within them. The act of 1872, like much of our legislation, is wanting in that complete mechanism requisite to the exact fitting of one part with every other part, so as to make one harmonious whole. But the intention of the legislature to provide a general sys- . tern of local municipal government required by the policy of the constitution prohibiting the passage or alteration of city charters by special law, and to enable existing corporations to effect changes in their organic law with as little disturbance. as possible, is very apparent from the whole act. The powers confided to the local legislative department of such new corporations are broad and plenary, especially as respects the police department, the only matter now before us; and one object of the clauses from the 6th section above quoted, clearly was, to remove all obstacles arising from prior laws, to the exercise of such powers.

The first subdivision of section 62, article 5, of the act of 1872, gives the city council the control of all the finances and property of the corporation. This, of course, would include the property belonging to the police department, the entire custody of which, by prior laws, was given to the board of police.

Subdivision 66 of the same section gives the power to regulate the police of the city, and pass and enforce all necessary police ordinances. Sixty-eight, to prescribe the duties and powers of a superintendent of police, policemen and watchmen.

By section 73 it is provided that “the city council may, in its discretion, from time to time, provide by ordinance for the election by the legal voters, or appointment by the mayor, with the approval of the city council, of a city collector, a city marshal, a superintendent of streets, a corporation counsel, a city comptroller, or any or either of them, and such other officers as may by said council be deemed necessary or expedient.” This section further provides: “ The city marshal shall perform such duties as shall be prescribed by the city council, for the preservation of the public peace and the observance and enforcement of the ordinances and laws.”

Section 74 provides that “all officers of any city, except where herein otherwise provided, shall be appointed by the mayor, (and vacancies in all offices except the mayor and aldermen shall be filled by like appointment,) by and with the advice and consent of the city council. The city council may, by ordinance not inconsistent with the provisions of this act, prescribe the duties and define the powers of all such officers, together with the term of any such officer, provided the term shall not exceed two years.”

It seems.to us clear, beyond doubt, that, by these several provisions, ample authority is conferred upon the city council to not only provide for the appointment of a city marshal, and vest him with the entire control of the police force, but to reorganize that department, as purports to be done by the ordinance in question. If the council had the power to pass the ordinance, it must have the power to carry it into effect; and if it had the power to pass and enforce it, then the effect must be to take the functions given the board of police, by the act of their creation, away from that board, and confer them upon the officers named in the ordinance. The continued possession, therefore, by the board of police of an exclusive authority over the police force, is utterly inconsistent with the exercise of the plenary power over the subject matter conferred upon the city council by the act of 1872, and by force of the 6th section of that act, the prior law can no longer be applicable.

The last section of the ordinance, it is conceded by appellees’ counsel, is too broad. But that can not affect the other provisions of the ordinance, because they are in no respect dependent upon it. It may be regarded as applying to appellants only as city officers, in which view it might be sustained. For, authority in the city council to take away their functions as city officers, which we think the council has, is virtually to deprive them of their offices, so far as they were such city officers.

The second question is, what is the nature of the power sought to be exercised, in passing the ordinance under consideration ? To that question there can be but one answer, and we shall not stop to discuss it. The power is legislative and discretionary.

The third and last question is: Had the court of chancery jurisdiction to interfere with the exercise of that power? We are clearly of opinion that it had not. The subject is purely political. The only title to relief shown by the bill is that arising from the mere fact of complainants being police commissioners, vested, as it is alleged, with the entire control of the police force, etc. The bill does not go upon, the theory of any property right, but is an application to a court of equity to restrain the city council and other officers of the city from carrying said ordinance into effect, on the ground that it will deprive them of the functions of their office. It is elementary law, that the subject matter of the jurisdiction of the court of chancery is civil property. The court is conversant only with questions of property and the maintenance of civil rights. Injury to property, whether actual or prospective, is the foundation on which the jurisdiction rests. The court has no jurisdiction in matters ' merely criminal or merely immoral, which do not affect any right to property. • Nor do matters of a political character come within the jurisdiction of the court of chancery. Nor has the court of chancery jurisdiction to interfere with the public duties of any department of government, except under special circumstances, and where necessary for the protection of rights of property. Kerr on Injunctions, pp. 1 and 2.

In the case of Sherlock v. The Village of Winnetka, 59 Ill. 398, this court said : “ There are some acts which a municipal corporation, while acting within the limits of its charter, may do, without being subject to the supervision of any court. Such acts are those done under its legislative and discretionary powers.” Willard’s Eq. Jur. 405.

Again, in High on Injunctions, the author says: “A court of equity is not a proper tribunal for determining disputed questions concerning the appointment of public officers, or their right to hold office, such questions being purely of a legal nature, and cognizable only by courts of law. Thus, equity will not interfere, by injunction, to restrain persons from exercising the functions of public offices, on the ground of the illegality of the law under which their appointments were made, but will leave that question to be determined by a legal forum, and a temporary injunction granted pendente lite, and, until the question of the validity of the law under which defendants claim their office can be determined, will be dissolved.” Delahanty v. Warner et al. 75 Ill. 185.

We are of opinion that the demurrer to appellants’ bill was properly sustained, and that the decree of the court below should be affirmed.

Decree affirmed.