Kimbrough, J.
(orally):1
Before attempting to pass upon the question raised by this objection, it seems almost a necessity that I tender to counsel on both sides of this case my hearty thanks for the very able and exhaustive presentation of the law applicable to this case. Never, in my experience at the bar, or upon the bench, have I seen a court more favored by the labor of counsel than I have been in this matter. The vast number of cases which have been cited, not only the decisions of the courts of this state, but practically of nearly all the states of the union, as well as the decisions of the federal courts, have been cited, explained, the salient points pointed out, and everything that would aid the court to a correct solution of the question, has been done by counsel. It seems to me needless to say to attorneys possessing the ability of the attorneys on both sides of this case, that the court cannot consider anything except legal questions. We have nothing to do with moral guilt; and moral guilt may exist in contradistinguishment from legal guilt. I will illustrate what I mean, because it may have application to the principles involved here. If I should see my friend, Col. Buckingham, with a broken leg, helpless by the roadside, and I was going upon a journey to my own business and he should call upon me to bring to him a surgeon, and I excused myself, and passed on, without rendering him that assistance, and leaving him on the highway to die, I would unquestionably be guilty — morally guilty — ■ of murder. But can anybody say I would be guilty of legal murder? No duty is enjoined on me by the law towards him. My punishment would be the just censure and reproach of my f ellowmen, but I would not be legally accountable. I may know that my neighbor is starving, or that his family are dying for want of physicians and care. I may go on my way offering him no assistance, refusing to administer to their wants, and not be legally responsible for that act. In order to make me responsible, there would have to be a legal duty enjoined upon me to render or minister to their relief. If I occupied the position of overseer of the poor, if a duty was enjoined upon me by law, and probably if I stood in any contract relationship with them, whereby I owed them a duty even by contract, more especially if that duty was enjoined upon me by law, and I then neglected to minister to their want and to offer them the assistance that the exigencies of the ease required, I believe -that I would be legally guilty.
It is also proper, I think, to say, that I did not know the nature of this indictment, even whether it was founded on some alleged violation of a common law duty, or that it was founded on an ordinance of the' city of Chicago, until some time about the middle of last week, when a copy of the opinion of Judge Kavanagh1 came into my possession. I never saw the indictment. The only knowledge I had of it until the case was called here, and one counsel handed to me this printed copy of the ordinance, was the information that I gleaned from the printed opinion, — the copy of the opinion of Judge Kavanagh in this ease. I read that opinion three times before this case was called for trial, thinking that probably I had not thought of all of the points on which the Judge ruled when he refused to quash the indictment in this case. Of the many points that have been raised herein on this objection, two points at least occurred to me then. Having some little familiarity with the municipal law, gained in the practice, and in filling the office of corporation counsel of this little city, the first thing that I looked for in that ordinance was to see wherein any duty was enjoined in expressed language upon this defendant, and I must confess, however much I may have desired-to have found it, I did not possess sufficient intellect to ascertain wherein that duty is enjoined. I believe the state’s attorney will bear me out when I say that I asked him if they had no other law upon which to found this prosecution than that which is cited and relied on in that opinion. That was only upon my own impression of the law governing this case, made without any investigation of the authorities, and only-upon my own recollection of the principles of law which I thought underlaid this indictment. The next question was whether or not it could be the law of the state of Illinois that two men, doing exactly the same act, performing the same service, and guilty of precisely the same negligence, absolutely alike in every respect, brick for brick, shingle or slate for shingle, — everything entering into the construction of a building, everything relating to the equipment of the building, and everything lacking that was to be provided, being precisely the same by both men; that one of those men might not be guilty of anything, and the other man be liable to imprisonment in the penitentiary for the term of his natural life.
These two questions occurred to me upon examining this opinion of Judge Kavanagh, although one of them was not alluded to in the opinion, and so far as the opinion discloses, not argued before him, — i. e., whether or not this ordinance was void because it assumed an authority which had not been delegated to the city by the statute: So firmly grounded was I in the opinion that the city council had no power except that which was expressly delegated to it, and that every ordinance that the city council might assume to pass would have to rest upon some special grant of power to the city, contained in the statute itself, that I could not for a moment believe, and I cannot yet, that there can be any question as to the law upon that subject. Unless that authority is conferred, unless the state has surrendered so much of its sovereignty in express language, and conferred the power upon the city council to legislate in the manner in which it has assumed to legislate, there is no binding force or validity in its enactment.
An ordinance which is commonly called a fire limits ordinance is authorized by one of the sections, or clauses, or rather, of the general section covering the powers of city councils; but I am inclined to agree with counsel for the defense that the limitations contained in this clause, or rather the expression of the powers that the city council have, which are made in that clause, are to the exclusion of other powers not therein expressed. And when it says that the city council may pass a fire limits ordinance in which there shall be no wooden buildings erected, and the further provision of that section or clause which allows the city to condemn a building that is destroyed by fire or use, or otherwise, to the extent of fifty per cent of its value, that that clause cannot be extended beyond the three things embraced within it. That the clause giving to the city council the right to regulate buildings, the preceding clause, as I recollect it, is not by its terms nor has it any clause within that section, — at least none that have been pointed out to me, and I am aware of none, — that gives them the right to circumscribe the territorial limits in which they shall apply.1
While I was carried away, partly, by the splendid argument of Mr. Buckingham, a better argument than I thought •any man could have made on that side of the controversy under the law as it stands, and as I understand it, I took home with me from the state’s attorney’s office the volume of the supreme court reports which contained the decision that he relied on, rendered by Justice Field of the supreme court. (Barbier v. Connelly, 113 U. S. 27.) And it seems to me at least clear that those decisions were based upon the tire ordinance of San Francisco, or the board of supervisors, as they are called, and that .contained power, and that the ■constitution and statutes of the state of California gave to the board of supervisors of the city and county of San Francisco, the power to enact any ordinance that is not in conflict with the laws of the state of California. Of course no one will contend — no lawyer I believe — that the decisions cited are conclusive upon this question. What is there said is what is commonly called by lawyers, “dictum.” The question involved in that case was the federal question as to whether or not the ordinance violated the constitution of the United States in its 14th amendment.
I will be frank to say that the very thing Mr. Calhoun stated in his closing remarks has been in my mind for hours and that if it was within my power to bring back to life and put the bloom of youth and call life into the cheeks of these young girls, two of whom I personally knew, by incarcerating the defendant in this case in the penitentiary for the term of" his natural life, I believe I would do it; but I cannot.
After ascertaining the precise question that was involved in this indictment, — or the questions rather, — (and it is not. necessary to suggest that there are other questions which could not be properly raised upon this motion to suppress the introduction of the ordinances, such as the proximate cause of this death, whether or not there could be any legal violation here, by the mere violation of the city ordinance where-there was no element of wilfullness or wantonness alleged, not questions that are properly brought within the objection made to the introduction of these ordinances as evidence), I have been confronted with this question of law. The people-are denied the right of appeal. In no stage, from the finding of the indictment until the last act in the case has been performed, have the people any right to note an exception or pray an appeal. If the court rules here against the interest, of the state, or the rights of the state, that is a finality. Our-legislature has never seen fit to confer upon the people the-right to take an appeal in a criminal case; and while I have always leaned to the idea it would be desirable to have such, a statute that would at least enable the state to test the validity of its indictments, and to test all those questions which might properly be raised in arrest of judgment after a conviction, going tb the sufficiency of the indictment, our people-have been so jealous in guarding the liberty of the citizen, that they have never permitted the state to take an appeal in. any case. And the only way in which the state or the people can ever have any right to be heard in the supreme court of the state upon this question would be after there had been a trial, a conviction, a motion in arrest of judgment, that mdtion overruled, and the case taken to the supreme court by the defendant himself. In order to help the state to get such an opportunity, in order to get a judicial decision of the question involved here, this court, believing as I do that the law is as I have stated, would have to stultify himself, render a judgment ■ contrary to his honest convictions as to what the law of the land is, let the case go to final judgment, overrule a motion in arrest of judgment, which I believe would be properly taken, and then allow the defendant to go on and show that I was wrong, as I knew I was wrong, or believed I was wrong, when I did it. Certainly I cannot be asked to so stultify myself and violate my oath.
The rule of construction is that when an offense is claimed to be a violation of a penal statute, that offense must be so plainly stated in the law that he who runs may read. Laws are made for the government of all the people. The man who works in 'the ditch as well as the trained lawyer and advocate are equally amenable to the law; and that law ought to be so expressed that every citizen may know his duty, and pursue it. And while I know that the decision I am making will be what is called unpopular in the great city of which we are so proud, within our borders, that much will be said in condemnation of it, the fact remains that under the law there is no legal liability, in my judgment, set forth in this indictment, or that can be set forth in any indictment framed upon this ordinance of the city of Chicago.
"While it is outside of the record, it has been stated here and is perhaps an ascertained fact, known to us all, that the great city of Chicago itself has recognized the truth of this statement in the revision-of its ordinances.
I read the opinion of Judge Green,1 and he there expressed the same opinion that I had formed last week, before I saw the ordinance, and had seen nothing except the opinion of Judge Kavanagh,1 that in his' judgment no indictment could he framed upon this ordinance which would he good.
Judge Landis, of the United States court, sitting in Chicago, as I understand it, has taken the same view, — that this ordinance does not point out any duty.2 Judge Kohlsaat, I am also informed, has taken the same view of the question.3 And I agree with those Judges in the view which they take of this ordinance. And while it was contended in the splendid argument made hy Mr. Buckingham that the rule of construction in the state of Rhode Island was different from the rule of construction which prevails in the state of Illinois, one of which he claims is strict, and the other is liberal no authority was produced in support of that statement, and it is my judgment and opinion and recollection that he is in error in that statement; that the rule of construction which prevails in the state of Rhode Island is practically the same as that which prevails in the state of Illinois; and that the interpretation put upon the act of the legislature of Rhode Island, which is more nearly analogous to the provisions of the ordinance which has been cited than any other act or ordinance which has been referred to in any of the books,4 is in harmony with the views I have expressed, and is the one which was followed by Judge Landis,5 Judge Kohlsaat6 and Judge Green.7
Indeed, Judge Kavanagh, in his opinion,8 expressly states that not only those decisions, but the decision of the United States court, in the case relating to the census,9 and other cases in courts of high authority were contrary to the views which he expressed in his opinion overruling the motion to quash. The language of the statute which was read here on Wednesday afternoon, if I remember rightly, of the United States, made it the duty of the Census Bureau to obtain the information that was desired by the government with respect to corporations; but failed to specify what officer of the corporation should give the information that might be required by the census official. U. S. v. Mitchell, 58 Fed. 993. There one of th'e officers of the corporation had refused to give the information that was required, information that was deemed necessary^ by the government for the legislature, — that is, congress, — to have, in order that it might legislate for the general good, and he was indicted, and that indictment was quashed because the statute had failed to specify that it was the duty of the persons named or indicted to give the information required.
Of course, as I stated a moment ago, it would not be possible for me to review with any degree of accuracy all the decisions which have been rendered, — which have been read and offered for my consideration by both sides in this argument.
The other objections which have been urged with apparently more earnestness and sincerity than either of the two objections which I have taken to the ordinance, myself, may be good. I am inclined to agree, however, with the state that the objection which is made to the fire limits is not well taken.10 I am also inclined to agree with the state that the provision in the ordinance which conferred on the fire marshal, building commissioner and the board of underwriters of the city of Chicago, that power, is not void by reason of the fact that the board of underwriters was mentioned.11
Upon the question first raised and argued by Mr. Mayer, and argued by Mr. Calhoun in the opening of his argument, i. e., with respect to the use of the word “large” there is cast upon this ordinance, to say the least, an element of doubt.12 Outside of the confidence game case13 that was cited by Mr.
Keeslar, I do not recall any case where the act complained of would amount to a felony where any court has held that language so general in its terms as the word “large” has beem sustained, especially in a criminal proceeding. Those of us-who are accustomed to the country and the country life and to examining country witnesses well Imow that in the vernacular of the people, the speech of the people, the term “ordinary gait” or “moderate gait” is a term which we all understand. I venture that nine out of ten of the witnesses who take the stand in the trial of civil cases where the question of the speed of a horse or of a rider is involved would state that he was going at a “moderate gait;” if it was a little more than that at a “right smart gait.” We understand by that, I take it at least to be a gait anywhere from four to six miles an hour. Such ordinances have been sustained in Indiana.14 The policy ordinance which was referred to by Mr. Keeslar,15 while I am utterly ignorant of what the game of policy is, could not define it, could not give any person any idea as to what it is farther than it is a gambling game of some kind I take it is as well understood by those who belong to the gaming fraternity as the term “game of poker” or “game of euchre.”
In every ease nearly in which such ordinances have been sustained, there has been that evident difficulty of defining the offense charged. What constitutes disorderly conduct? Why, it is almost as varied as the various members of humanity themselves in a state of intoxication. No person can tell how to define the term “disorderly conduct” so as to cover every ease that might arise.16 So it is with the confidence game, and in nearly every instance'in which the books have sustained an ordinance or a statute where those general words and terms have been used, it will be found, I think, that the offense charged was one that was exceedingly difficult of definition. And in nearly every case — all that I recall, at least, ■except in the confidence game — for offenses that are analogous to our actions for debt and the violation of city ordinances. And while I am free to confess, while I consider the importance of this case, the hundreds and even thousands of homes that have been made desolate and unhappy — if that alone was the only question, I would be inclined to overrule this objection and admit the ordinance; but the fact that that ordinance does not impose a personal duty upon the defendant is a fact that I cannot get away from. It is not my own individual judgment but it is the judgment of other courts save Judge Kavanagh alone, where that question has been presented and where nothing but mere dollars and cents were involved, as I understand the suits before Judge Kohlsaat and before Judge Landis, were simply suits for civil damages. Much more then where the punishment is the severest punishment that can be inflicted upon a rational, right-minded man. To any man possessed of the higher instincts of humanity, to any man who loves honor, to any man who loves the good-will and opinion of his fellow man, death is far preferable to imprisonment for life, even the torture of Torquemada, the inquisition with the thumb-screw and rack, all the torture and physical agony to which humanity may be put — death upon the gallows or death by shooting, or death in the chair, are all to be welcomed rather than to be incarcerated in a penitentiary for the term of your natural life where every visitor in the penitentiary can see your shame and your humiliation. Par better is the grave. And when I consider that the possible consequences of this punishment might extend to life and believing as I do believe that this ordinance ■ is void in two respects — so far I mean as imposing any personal penalty upon Mr. Davis; because nowhere in it is the personal duty enjoined upon him to perform the things that are specified in the ordinance, even if it may be held that the ordinance covers the building in question ; and because the city of Chicago has not the power to say that a theater in one part of the city does not need any equipment for the protection of human life and that a theater in another part of the city must be provided with those equipments for the protection of human life. Are those provisions in that ordinance for the purpose of preventing the spread of fire or a conflagration, are they part of the Pire Limits’ Ordinance of the city of Chicago, or were they injected into that ordinance for the purpose of protecting and preserving human life? It does not seem to me that there can be any argument upon that question. They have been put into the ordinance for the purpose of affording protection for human life. Can it be said that human life is less sacred on Randolph street within the fire limits prescribed than it is on Clay street, so to speak, without the fire limits? May the 600 or 1,000 or 1,200 people who may live upon Clay street be incinerated and burned and the man in control of it who has been guilty of precisely the same neglect, who has been guilty of precisely the same moral turpitude, be free from punishment or censure and the other man be guilty of an offense that would imprison him in the penitentiary for the term of his natural life? Can that be the law in the state of Illinois ? I cannot believe that it is. I know that it ought not to be the law that two men doing precisely the same thing and guilty precisely of the same acts in the same city, in the same community, that one of them should be a murderer in common acceptation and the other not guilty of even an offense worthy of a fine. The legislature certainly never intended, and they have not in express language, I think, at least, ever granted to the city council of the city of Chicago any such authority; and in assuming to regulate buildings, the manner of their construction, the materials of which they may be erected, outside of the one question of wooden buildings within the fire limits, those laws should be applicable to all of the people, subject them all to the same penalties, give them the same privileges and the same rights. This certainly is a government of equal rights, equal privileges, equal duties and equal liabilities. There ought not to be any distinction whereby one man may be imprisoned and another man go scot free for the doing of the same thing. If it is not class legislation, what is it?
And without attempting to go further in the discussion of this question, because I recognize the utter impolicy of it, however much I might like to review all of these decisions and how much I might desire to let the public understand the exact reasons and the precise authorities on which I base those reasons, it is evident to all of you that it is not possible within the time, having the jury here in imprisonment, for me to take the necessary time to review the decisions and cite the authorities, and I shall content myself without any further comment upon it by sustaining the objection to the interjection of these ordinances.
Mr. Barbour: In view of the court’s decision, we ask the privilege of nollying?
Mr. Mayer: No, we object. We understand that that cannot be done.
Mr. Mann: No, we ask the jury be brought in.
Mr. Mayer: I have no disposition to ask for any order that will not be in full compliance with the spirit and effect which your Honor’s decision should have.
The Court: This question has arisen frequently in this court: It arose in the first case that it ever was my privilege to try, and I well remember that fact because it was my first criminal case, when the distinguished Judge Davis held that the party was entitled to a verdict if he demanded it — after the jury had been sworn he was entitled to a verdict.
Mr. Barbour: As I understand the rule, if the court please, it is different from your Honor’s experience. The calling of the jury and the swearing of the jury—
The Court: I think the legal effect of it is the same. It is a question for the defendant himself to determine.
Mr. Buckingham: There is no question about the jeopardy.
The Court: There is no doubt about that in my mind.
Mr. Mann: Now, we are entitled to a verdict if the court please.
Mr. Mayer: The state’s attorney of this county, your Honor, has very manfully and in a very honorable way agreed with us, and I address myself to the state’s attorney of this county and his able assistant Mr. Buckingham.
Mr. Barbour: • As far as I am concerned, I prefer to address myself to the court instead of anybody else.
Mr. Mann: He is the only one who is listening to you.
The Court: I hope, gentlemen, that none of the amenities that have prevailed in this case so far will be disturbed in any way.
Mr. Mann: No, there will be no fight.
Mr. Mayer: We ask that the jury be brought in and a verdict directed.
(The Court thereupon ordered that the jury be brought into court, and the jury returned to the court room, accompanied by the bailiff and the jurors resumed their seats in the jury-box.)
The Court: Gentlemen of the jury: Upon the conscience of this court must rest the responsibility of this case. Glad indeed would I have been if I could have shifted my responsibility upon your shoulders. During the last three days and a half the court has listened to a very able, learned and fair argument both by the representatives of the state and the representatives of the defendant as to the admissibility of the ordinances of the city of Chicago which are the foundation of this indictment. And after a careful consideration of those questions the court has decided that the ordinance did not impose any legal duty upon this defendant. The state will not introduce any further evidence and the law as stated to you by counsel upon your voir dire was that the presumption of the law was that every man is innocent until the contrary has been shown by the evidence. The state does not desire to offer any evidence before this jury, and under the law as given to you in your examination, it will be your duty to return a verdict of not guilty because there has been no evidence convincing you of guilt. What is your verdict, gentlemen? Is the verdict, guilty, or not guilty?
■ The Jurors: Not guilty.
The Court: The defendant will be discharged.
(Applause.)
The Court: That must be stopped instantly. This is a court of justice and the tribunal of the people, and no man has the right to censure or applaud its action unless for just cause.
(To the jury)
Gentlemen of the jury, you are discharged from any further consideration of the ease.