Opinion of the Court. sold, at about $15,000. But we are satisfied from the evidence that was much more than the property could have been sold for at that time. The witnesses say the real estate market was "flat" at that time; that there was no market for the property at that price at the time; that this property was not marketable; that there was no demand for such property. In August, 1881, when there had been great appreciation in prices over those in 1877, the property sold for but $12,000. And at the time of the sale, too, under the trust deed, there were some $2000 unpaid taxes against the land. The nonpayment of taxes was not assigned in the notice of sale as a ground therefor, yet it seems to have been a reason for making the sale. Hoyt knew But were the alleged irregularities in the sale established by proof, we are of opinion that the laches which appears in this case is too great to entitle the complainant to maintain this bill. The sale took place August 16, 1877. that the papers had been placed in the hands of attorneys for foreclosure. On June 23, 1877, he paid to such attorneys $102 on account of interest. Publication of notice of sale was made on June 23. Admittedly, as early as October or November, 1877, Hoyt knew that the sale had been made, yet he does not file his bill until September 5, 1881. The excuse made for this delay is, that Hoyt had, since the sale, been in the possession of the premises, and he delayed as he did, in filing his bill, because he hoped the Pawtucket Institution for Savings would have accepted the amount justly due it, with interest, and set aside the sale, and that said institution had, from time to time, held out inducements to him, and led him to believe they would accept the amount of said indebtedness. All that the proof shows in this regard is, that on November 3, 1879, Hoyt wrote and sent to the Institution for Savings a letter, saying that he would like to make some arrangement whereby he could again obtain perfect title to the property, the letter complaining of the action Opinion of the Court. of the attorneys in foreclosing without notice to him, stating there was no interest due at the time under an express understanding with them, and that when the last interest payment was made it was agreed that instead of paying interest in advance he might pay at the expiration of six months, and saying if it could be arranged amicably he would like to hear from them in the matter. The following letter was sent in reply: "W. H. HOYT: "PAWTUCKET, R. I., November 6, 1879. "Dear Sir-Yours of the 3d inst. at hand. We will write to our agent, Mr. Hurlbut, in regard to the subject matter of your letter. You call on him. We are willing and ready to dispose of our estates in Chicago if our claims are paid. We are also willing to retain on mortgage a fair proportion of the purchase money. "Very respectfully, THOMAS MOIES, Treasurer." Upon the receipt of that letter, Hoyt, on November 10, 1879, had a conversation with Hurlbut, wherein Hurlbut told him that the Pawtucket institution would accept the money that the property had cost it, as it did not want it. Hurlbut states that was the substance of the conversation, and was the fact, that no offers were made of payment of money. The above is all that the proof shows as having in any way taken place between Hoyt and the Pawtucket institution, between the time of the sale (August 16, 1876,) and the filing of the bill,-September 5, 1881. Although Hoyt states there were other communications between them upon the subject, this is denied by the Pawtucket institution and by Hurlbut. The Pawtucket institution was left to pay the taxes on the property, and paid upwards of $3000 of taxes subsequent to the sale. A fair opportunity was offered to Hoyt to come in and redeem by paying what the property had sold for, or even a part of it, and securing the remainder by mortgage Separate opinion by Mr. Justice SCHOLFIELD. on the same premises. But he did not avail himself of the offer. His conduct would indicate that he did not regard it for his interest to redeem in the then condition of real estate values, but when, from the lapse of time, the appreciation of prices made it a desirable object to do so, he then moved to have the sale set aside. In the case of such avoidable sales there should not be afforded the opportunity of speculation on chances. It is not permissible for a party to lie by and await events, and have the power, at any time in the future, to let the sale stand, or avoid it, according as it may be found then for his interest to do. There should be promptitude of action within a reasonable time. (Hamilton v. Lubukee, 51 Ill. 415; Bush v. Sherman, 80 id. 160; McHany v. Schenk, 88 id. 357.) In Bush v. Sherman,—a case of such a sale of property in Chicago,-a delay of more than four years in filing a bill was held too late, although the mortgagor was, a large portion of the time, in the rebel lines when there was no intercourse between the two sections of the Union. The proof shows no sufficient excuse for the delay in the present case, and we regard it as too great. The decree dismissing the bill will be affirmed. Decree affirmed. SCOTT, Ch. J., and WALKER, J.: We are unable to concur in the doctrine and conclusion announced by this opinion. Mr. JUSTICE SCHOLFIELD: My first impression of this case was in favor of reversing the decree below. On further investigation I am satisfied to affirm the decree on the last ground expressed in the opinion,-laches in filing the bill. In no view was the sale absolutely void. The most favorable view, under the facts, to plaintiff in error, is, he might elect to avoid it within a reasonable time. That reasonable time, in my opinion, is to be measured by the peculiar circumstances then existing. He ought not to be allowed delay to specu Syllabus. late upon the probabilities of the future market, and redeem, or not, as might seem to him most profitable. Nor ought he to be allowed thereby to add burdens upon the bank in the shape of additional unpaid taxes and assessments. Mr. JUSTICE DICKEY: I Concur in the views of Mr. Justice SCHOLFIELD. 110 400 110 400 126 415 110 400 44a 410 110 400 51a 446 110 400 163 65 110 400 86a 678 110 400 214 7635 214 $636 WILLIAM HARMON v. THE CITY OF CHICAGO. Filed at Ottawa June 13, 1884. 1. ORDINANCE-without a penalty-effect upon prosecution under another ordinance for the same offence. A section of a city ordinance which declares certain acts within the city to be a public nuisance, but provides no penalty for an infraction of its provisions, is no evidence in a prosecution for the same acts made punishable by another section or ordinance complete in itself. 2. SAME and ordinance to suppress a nuisance, and providing a penalty-validity. An ordinance of the city of Chicago that "the owner or owners of any boat or locomotive engine, and the person or persons employed, as engineer or otherwise, in the working of the engine or engines in said boat, or in operating such locomotive, and the proprietor, lessee and occupant of any building, who shall permit or allow dense smoke to issue or be emitted from the smoke-stack of any such boat or locomotive, or the chimney of any building, within the corporate limits, shall be deemed and held guilty of creating a nuisance, and shall, for every such offence, be fined in a sum not less than five nor more than fifty dollars:" Held, to be valid and enforcible. 3. NUISANCE-smoke in a city-whether a nuisance-and whether a nuisance must be so declared. If the effect of dense smoke emitted from a smoke-stack or chimney is detrimental to certain classes of property and business within the limits of a city, and is a personal annoyance to the public at large within the city, it is a public nuisance, whether so declared by ordinance or not. Unless such in fact, the act of so declaring it will not make it a public nuisance. Syllabus. 4. CONFLICT OF LAWS-smoke from tug-boats in Chicago river-prohibition by a city ordinance-whether a regulation of commerce. An ordinance of the city of Chicago, making the owners, etc., of tug-boats, engines, etc., liable for allowing the emission of dense smoke from their smoke-stacks, is not in violation of section 8, article 1, of the Federal constitution, which declares that "Congress shall have power to regulate commerce," etc. Such a regulation by the city does not impose any restraint on the use of such vessels, although engaged in general commerce, other than is consistent with law. Controlling the use of tug-boats in towing in and out vessels from the harbor, is in no sense in conflict with the power existing in Congress to regulate commerce with foreign nations and among the several States. 5. SAME-as to State and Federal jurisdiction. Where a conflict may arise between a State and the general government as to legislation committed to Congress, Federal authority must always prevail, for the reason that legislation in pursuance of the Constitution of the United States is the supreme law of the land. In some instances the State and general government may exercise concurrent jurisdiction in certain matters, and until the general government sees proper to act, State legislation is warranted, and the power of the State over such subjects is plenary. 6. The existence of a power in Congress to control harbors, and the towing in and out merchant vessels engaged in commerce with foreign nations and with the several States, does not of itself prevent local legislation for the security of property, and the health, comfort and convenience of the people in a municipality. It is only repugnant and interfering State legislation that must give way to the paramount laws of Congress constitutionally enacted. 7. POLICE POWER OF THE STATE-to what it extends-and to whom it may be delegated. A State has all power necessary for the protection of the property, health and comfort of the public, and it may delegate this power to local municipalities in such measure as may be deemed desirable for the best interests of the public; and the State may resume it again when deemed expedient. 8. JUDICIAL NOTICE—as to organization of city of Chicago-location of Chicago river—and denseness of population. This court will take judicial notice of the fact that the city of Chicago is organized under the general "Act to provide for the incorporation of cities and villages," in force July 1, 1882; and also that the Chicago river is situated in the midst of the city, where a dense population exists, and near which much of the business of the city is transacted. APPEAL from the Appellate Court for the First District;heard in that court on appeal from the Criminal Court of Cook county; the Hon. KIRK HAWES, Judge, presiding. 26-110 ILL. |