Mr. Presiding Justice Brown
delivered the opinion of the court.
In considering the present writ of error two questions present themselves: First. Were the bills properly dismissed by the court below for want of equity on the dissolution of the preliminary injunction? Second. If they were not, and the cause must be remanded for a trial on the issues made by the bills, answer and replications, should an injunction pendente lite be ordered?
In finding an answer to the first question, it is plain that we must look at the face of the bill and supplemental bill and, as we think, of the proposed amendment. That on this question we should not consider the answers and affidavits which were presented on the motion of the city to dissolve the injunction, follows from the fact that the bill being for a permanent injunction solely, the motion to dissolve, so far as it was based on the sufficiency of the allegations of the bills, was properly treated as a demurrer to the same. The chancellor below was justified in dismissing the bills as well as dissolving, the injunction, if he properly held the allegations in: sufficient and incapable of amendment. This is precisely what he did hold, as shown by his order. But he would not have been so justified simply because he held on the bills, answers and affidavits that the preponderance of evidence on the motion to dissolve the injunction was with the defendants. In that case, if he found that the allegations of the bill and supplemental bill were sufficient if sustained to justify the interference of the court, he might indeed properly have dissolved the preliminary injunction, but he should have retained the bills for a final hearing. We think too that under such circumstances he should have allowed, and that it would have been an abuse of his discretion not to have allowed, the amendment offered by the complainant.
We do not think he would have refused it in any such case, fie held that even if received it would have been futile to alter the status of complaint before the court, and treated the bill and supplemental bill as though they had been amended as proposed and then demurred to.
We shall do the same in disposing of the first question raised. The only alternative to this view would be to consider that the cause came on for final hearing on March 10, 1905. After a careful consideration of the history of the cause and the terms of the order, we do not think that such a claim, even if it were made by the defendants in error, which it does not clearly seem to be, could be sustained. The order might perhaps have been less ambiguously worded and might have been made clearer by punctuation, but we do not think that the cause is recited as “coming on to be heard” upon the bill, answer and replication and on supplemental bill, and answer and replication and on affidavits and other evidence on argument, but that it is recited as “coming on to be heard on the motion of the defendant to dissolve the injunction heretofore granted herein,” which motion was based upon the original bill of complaint, answer and replication, supplemental bill, answer and replication, affidavits, other evidence and arguments.
The order is read by us as though a large portion of the first clause was parenthetical, and as follows:
“This cause coming on to be heard on motion of the defendants to dissolve the injunction heretofore granted herein (upon the original bill of complaint and the answer of the defendants thereto and the replication to said cause, and upon complainant’s supplemental bill of complaint, the answer of defendants thereto, and the replication to said answer, and certain affidavits filed and read in support thereof, and in opposition to said motion, together with certain other evidence and upon argument of counsel), the court being fully advised in the premises doth find there is no equity in the original bill of complaint and the supplemental bill of complaint filed herein, and that the said bills are incapable of the amendment so as to obtain the relief prayed for.
“It is therefore ordered, adjudged and decreed that said motion of the defendants to dissolve said injunction be and the same is hereby sustained, and the said injunction is hereby dissolved.
“It is further ordered, adjudged and decreed that said original bill of complaint and said supplemental bill of complaint as amended be and the same are hereby dismissed for want of equity,” etc.
The bill, supplemental bill and amendment are fully abstracted in the statement prefixed hereto. Together with much that seems to us immaterial, they contain allegations which raise fairly enough, and even without the proposed amendment, in our opinion, raise fairly enough the question of the power of the city council of Chicago to pass the ordinances of January 18, January 25, and November 21, 1904, respectively. They raise also the question of the reasonableness or unreasonableness and consequent validity or invalidity of these ordinances as applied to the plaintiff in error’s building. To a certain extent they raise also a question of the proper construction of these amending ordinances as applied to and construed with other sections of the so-called building ordinance of the city of Chicago not specifically therein mentioned as amended. '
Questions are also raised in argument as to whether the ordinances were intended, or at least can be construed to affect buildings erected prior as well as subsequent to their passage, and as they are somewhat ambiguously worded in that regard, what they mean as to “aggregate seating capacity.” Do those words in the amending ordinance of November 21 mean “aggregate seating capacity” in each room or hall, or on each floor, or in the entire building?
The counsel for the plaintiff in error attributes to the city the construction most unfavorable to the interests of the plaintiff in error. They say that the city holds and is trying to enforce the construction-that the ordinances require changes in their building already erected in compliance with ordinances in force when it was so erected; also the construction that the said ordinances delegate to the commissioner of buildings the power of determining whether the immediate safety of the occupants of a given building is concerned, without interference with his determination by the courts, and the construction that the “aggregate seating capacity,” spoken of in the ordinance of November 21, 1904, means the aggregate seating capacity of all the rooms in the building together. This construction of the ordinance on the last point was repudiated by counsel for the city in oral argument before the court. He declared that the construction placed by the city on the words in question made them refer to the capacity together of all the rooms or halls on each several floor of the building. We do not think the ambiguity of importance in our consideration of this case, and shall ignore any question arising from it. Whatever construction should be given to these words, it would still remain true that the bills, alleged that the halls of the plaintiff in error would have to be closed and unoccupied unless there was "made a very expensive reconstruction of the building, which would not add to its safety or convenience, and this is the gist and weight of their complaint. In the view we take of the case also, the necessity of such a reconstruction at the expense alleged in the bills, and under the other circumstances therein set forth, would be equally as valid an objection to the ordinances as the forced disuse of the halls entirely.
Nor is it necessary for us to pass on the question whether by their terms the ordinances complained of affect buildings already built, or apply merely to buildings thereafter to be constructed. We may say, however, that the complainant in its bills adopts the “retrospective” construction, and it is quite evident that the council’s intention was to apply the rules laid down by the ordinances to old and new buildings alike. But however that may be, the complaint here is of an attempted enforcement of the ordinances as applying to a building alleged to have been constructed and completed in accordance with all the ordinances in force at the time of its completion, and the relief asked is against such an attempt. We shall treat the ordinances, therefore, as intended to apply to past as well as future constructions; but in all that we may hereafter have to say of them it should be noted that its application is entiiWy in relation to their validity and effect so far as they apply to buildings already completed. 'As to their bearing, under any combination of circumstances that may arise, on buildings not completed at the time of their passage, we are not to be understood as expressing any opinion.
The remaining question of construction is in effect whether after the passage of the three amending ordinances involved, on January 18, 1904, January 25, 1904, and November 21, 1904, respectively, section 160 of the building ordinance of the city of Chicago, adopted March 28, 1898, was still in force, and limited and controlled these amending ' ordinances. The section in question is as follows:
“Sec. 160. Excepting in cases where the immediate safety of the occupants of buildings is concerned, nothing in this chapter shall be considered as requiring alteration in the construction or equipment of buildings existing at the time of the passage of the ordinance, and at the time complying with the ordinance at that time in force.”
This was part of the building ordinance which was passed by the council on March 28, 1898, and this section, although other parts of the ordinance had undergone various minor, changes by amendment, was in full force and effect when the amending ordinance of January 18, 1904, was passed. That ordinance explicitly declares itself to be an amendment to “the ordinance of March 28, 1898, and subsequent amendments,” and explicitly also repeals sections .164 to 197 of that ordinance. But it does not repeal or modify section 160. The amending ordinance of January 25, 1904, merely changes certain provisions of that of January 18. The ordinance of November 21, 1904, also declares itself to be an amendment to the ordinance of March 28, 1898, and all subsequent amendments thereto, stating the amendment to be, striking out “of the ordinance” (of March 28, 1898) “all of that portion of the amending ordinance passed January 18, 1904, and all subsequent amendments thereto pertaining to and regulating buildings of class IV,” and striking out “of said ordinance of March 28, 1898, sections 164 to 197, both inclusive, which said sections are hereby repealed. ’ ’
This leaves no doubt that during the pendency of this suit, and on March 10, 1905, when the decree in this cause was entered, section 160 of the city building ordinance of March 28, 1898, was in force, and limited .and construed the amending sections of January 18 and 25 and November 21, 1904. This indeed, although not distinctly admitted in the argument for the city, is not denied.
The point is made by the plaintiff in error, that as section 160 thus exempts its building from the operation of the amending ordinance, unless “the immediate safety of the qccupants of the building is concerned,” therefore, in the absence of a determination by the council itself that the immediate safety of occupants is thus concerned, the action of the building commissioner and chief of police as executive officers of the city of Chicago, interfering with its use of its building, is illegal. To permit these officers so to interfere, counsel say is tantamount to consenting to a delegation to them of power that is vested solely in the city council, or else justifying an arrogation to themselves of powers which have not been delegated. -
In the precise form in which this question is raised we do not deem it necessary to pass on it. The building ordinance in force when the bill was filed, itself purported to give the commissioner of buildings the duty of construing it, and enforcing it by the aid of the police department, and there might be emergencies when it would seem unwise and unreasonable not to leave to his decision what “immediate safety” required or could dispense with. However that maybe, it is sufficient for us to say that in this case we cannot assent to the proposition which seems to us necessarily involved in the dismissal of the complainant’s bills, that the decision of the commissioner is final and irreversible by the courts. The ordinance did not authorize interference «with this building, assuming the allegations of the bills in relation to its being constructed in compliance with ordinance existing at the time of its completion to be true, unless the immediate safety of its occupants was concerned. That was a question of fact. Even assuming that the commissioner of buildings had the right to pass on it originally, nevertheless when these bills were filed, the plaintiff in error was at liberty to controvert his decision and have the court decide the question on evidence.' The bills, original and supplemental, contained allegations that the immediate safety of the occupants of the building was in no way concerned, and, as we have indicated in passing on the dismissal of the bills, we must take these allegations as true. Their force and effect in connection with the answers of the defendants and the evidence presented on the motion to dissolve the injunction, we will advert to hereafter. We think, therefore, on this ground alone, that the court below erred in dismissing the bills. The question whether the immediate safety of the occupants of the building was concerned, was one on which plaintiff in error was entitled to a final hearing upon evidence. If the determination were in its favor, it would have been, entitled to the relief sought.
We deem it proper, however, to proceed further in our discussion of this cause. If we assumed even that the authority to decide whether or not the immediate safety of the occupants of the building in question could be and was by the ordinance properly delegated to the building commissioner, and that his decision, moreover, could be and was by the ordinance made irreversible by the court, we should be brought to the questions: First, did the city council have power to pass any ordinance affecting the alteration or reconstruction of buildings, which, when completed, conformed to the ordinances then in force? And second, if such power existed, were the particular ordinances involved here within its power to pass and apply to the plaintiff in error’s building, or were they, by reason of being unreasonable, invalid?
If the council had power to pass any ordinance concerning changes or additions to buildings already constructed and conforming to the ordinances of the time of construction, it derived it from clause 61 of section 1 of article V of the Cities and Villages Act, as follows: “The city council in cities * * * shall also have power * * Sixty-first, to prescribe the thickness, strength and manner, of constructing stone, brick and other buildings, and construction of fire escapes therein;” or from clause’ 66 of the same section, which gives the city council the power “to pass and enforce all necessary police ordinances.”
Clause 58 of this section, which gives the council power “to regulate places of amusement,” is mentioned also in the argument of defendant in error as a source of the power claimed to exist, but we think it plain that it has nothing to do with the case here presented.
The halls and assembly rooms of the plaintiff in error are alleged to be, and plainly appear from the record to be, lodge and meeting rooms of permanent and fixed societies who are tenants of the plaintiff in error. These rooms are not open to the general public, the public is not invited to them, and they are not, from their nature, properly subject to the same degree of public powers and supervision as are theaters, concert halls and such places of public amusement. This distinction must be kept in mind, and we must not be understood in this opinion to pass on the power of the city council under the special provision of clause 58 of the general language of clause 66 to make regulations, which the executive officers should enforce concerning the construction or arrangements of such places. They belong to an entirely different category of rooms or buildings, and the questions involved in their regulation are not before us.
It seems plain to us that, clause 61 before quoted does not include the power to order a reconstruction or alteration of a building already built in compliance with existing ordinances.
The canons of construction of statutory grants of power to municipal corporations require us to hold that no power can be implied to interfere with private property which the fair meaning of the language used does not express, and that a power to make retroactive legislation will not be inferred when the words used may as well be construed to refer to prospective regulations. Indeed the city does not insist strongly upon any right gained by this clause, but lays the weight of its argument on its general police power given to it by clause 66.
Counsel for plaintiff in error argue with force that the legislature having delegated specific power to the city council in relation to the construction of buildings that authority cannot be enlarged under the general police power, the presumption being that what is not expressed is intended to be excluded. The conclusion, however, is not satisfactory to us, and we must decline to place our decision on it. The police power of the state is incapable of exact definition or limitation, but must be passed on by the courts as occasion arises, and while there is great importance to be attached to the distinction plainly to be made between the general police power of a sovereign state and the delegated police powers of' a municipality, which are to be strictly construed as against private right, yet the police powers of a city should be, and unquestionably are, in Illinois, broad. This is not only claimed by the defendants in error, but is admitted by the plaintiff in error.
We can easily conceive of circumstances and changes in physical, social or municipal conditions which might so require, to a certain extent, and in reasonable degree, in the case of buildings already constructed, alteration or addition, as to make the compelling of such alteration or addition a matter falling within the police power. We do not wish to hamper or prevent such action by an avoidable and unnecessary general limitation of the police power. Bach case of its attempted exercise in a new direction must stand or fall by its. own circumstances. But certain limitations of it are plain. The exercise of the police power, when it interferes with private property, in the interest of the public welfare or public safety must at least be reasonable.
“The difference between what is .and what is not reasonable frequently constitutes the dividing line between a valid and void enactment by the legislature in the exercise of its police power,” said Judge Peckham, speaking for the Court of Appeals of New York in the case of the Health Department of New York v. The Rector, Church Wardens and Vestrymen of Trinity Church, 145 N. Y. 32, cited by both parties to this controversy.
In Rideout v. Knox, 148 Mass. 368, the question was whether a statute was constitutional as falling within the police power of the commonwealth, which rendered illegal, fences unnecessarily exceeding six feet in height, and already maliciously erected for the annoyance of neighbors. Judge Holmes, now of the Supreme Court of the United States, in rendering the opinion, said: “It may be assumed that under our constitution the legislature would not have power to prohibit putting up or maintaining stores or houses with malicious intent, and thus to make a large part of the property of the commonwealth dependent on what a jury might find to have been the past or to be the present motives of the owner. But it does not follow that the rule is the same for a boundary fence unnecessarily built more than six feet high. It may be said that the difference is only one of degree; most differences are when nicely analyzed. At any rate, difference in degree is one of the distinctions by which the right of the legislature to exercise the police power is determined. Some small limitations of previously existing rights incident to property may be imposed for the sake of preventing a manifest evil; larger ones could not be, except by the exercise of the right of eminent domain.”
It is not necessary to analyze or discuss the wealth of authority- furnished us by each side of this litigation.
Even in those cases which go farthest in upholding the police power as against the rights of private property, and do so with reference, not to the delegated authority of -a municipality, but to the inherent power of the state itself, there can be nothing found contradicting the proposition that a police interference with private property rights for the public welfare and social good, without compensation, must be reasonable and justified by the existing conditions. This is expressed most clearly by Judge Peckham (also now of the Supreme Court of the United States) in his opinion in Health Department v. Rector, etc., supra.
We find nothing to the contrary, but much in confirmation of it in the numerous Illinois cases cited by counsel here.
We do not think that on the face of these bills the ordinances complained of in them, construed as giving the commissioner of buildings the power claimed for him, are reasonable as applied to the plaintiff in error’s building. It is asserted that the building was built in accordance with all laws and municipal regulations at the time of its construction, that it is absolutely fire-proof and safe; that for the thirteen years of its use no person was ever injured by fire therein, or because of any inadequacy of means of exit or stairways; that the number of people occupying the halls and assembly rooms, when they are so occupied, is not nearly as great as the number - of those occupying the other rooms at other times of the day, but absent from the building when the halls are occupied; that there are ample elevator and stairway facilities; that to comply with the ordinances, if they can be complied with at all, so as to allow the use of these rooms for the purposes for which they were made, and for which they have been used for more than a decade, would cost at least $200,000, and result in a defaced but no safer building; and that the closing of the rooms and giving up their use for the purposes for which they are fitted and were made, would entail a loss of almost $50,000 a year upon the plaintiff in error, .and the loss of the value of $18,000 worth of personal property.
If this municipal legislation so construed can be enforced under these circumstances, so can any other like regulation which might be made as to buildings only recently completed, in which millions of dollars have been invested. Although believed absolutely safe, and although conforming in every respect to the requirements of the city as they were built, the council, under the advice of architects or engineers of more advanced or at least different ideas, could, through executive officers of the city, compel their practical demolition and reconstruction. Men do not hold their property by any such insecure and dangerous tenure. These bills should not have been dismissed, but the amendment should have been allowed and the case brought to a final hearing.
It is not necessary to dwell long upon the question whether the injunction pendente lite should have been allowed to stand. Ordinarily the discretion of the chancellor below, who, theoretically at least, acted in the matter of the injunction on the sworn answers and the affidavits presented, as well as upon the bills, would not be overruled, but it seems plain to us that the position taken by him was that the action of the commissioner of buildings under the ordinance could not be interfered with, even were the allegations of the bills and amendment proven, and that his dissolution of the injunction was in reality rather the result of his belief that the bills were demurrable, and not amendable, than from any weighing of the evidence presented.
Despite the answers and affidavits offered by the defendants in error, no serious immediate danger seems to us to threaten the public, and no advantage is seen by us to exist in immediate action, if it should ultimately be determined that the ordinances are " enforceable, commensurate with the loss which might by it unjustifiably fall on the plaintiff in error, if they are held invalid. The allegations of danger in the present use of the building in the answers are somewhat general and speculative, and could be made of almost any large building. Those concerning the cost of the required changes are direct contradictions of the bills, and should be brought to the test of evidence.
We, therefore, reverse the judgment and remand the cause for further procedings not inconsistent with this opinion, directing also that the amendment to the supplemental bill offered on March 9, 1905, be allowed, and that an injunction pendente lite be allowed on the execution of a suitable bond, preventing, until the final hearing of the cause by the Circuit Court, interference by the defendants in error with the use and occupation by the complainant or its tenants, of the rooms in the Masonic Temple described in the bill and supplemental bill of complaint for, lawful and legitimate purposes.
Reversed and remanded with directions.
Mr. Justice Holdom took no part in the consideration and decision of this cause, being a stockholder in the plaintiff in error corporation.