delivered the opinion of the court.
Hartman v. City of Chicago, 198 Ill. App. 372 (1916)
March 27, 1916
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Illinois Appellate Court
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Gen. No. 21,720
198 Ill. App. 372
A. B. Hartman, Defendant in Error, v. City of Chicago and Charles Bostrom, Commissioner, Plaintiffs in Error.
Gen. No. 21,720.
(Not to he reported in full.)
Error to the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in this court at the October term, 1915.
Reversed and remanded.
Opinion filed March 27, 1916.
Statement of the Case.
Mandamus by A. B. Hartman, relator, against the City of Chicago and Charles Bostrom, commissioner of buildings of the City of Chicago, respondents, to compel respondents to approve plans for a certain building and to issue a permit authorizing its erection. From a judgment in favor of relator, respondents bring error.
According to these plans, metal covering was to be used for the walls and ceilings of the building, without any plaster on the inner side between such metal and the wall or ceiling, which was violative of the provisions of section 605 of the 1911 Chicago Code. The respondents interposed to this petition a general demurrer, which was not disposed of. The finding part of the final order and judgment was as follows:
“This cause coming on to be heard upon the demurrer, of respondents to the petition of petitioner and after arguments of counsel and being fully advised in the premises, the court doth find that section 605 of the building ordinances of the City of Chicago as amended and passed and in force on and after March 9, 1914, is unreasonable and void as to each and all of the provisions thereof requiring lathing and plaster above and behind metal covered ceilings and walls in buildings erected in said city.”
The order continued by awarding a mandamus *373against the City of Chicago and its building commissioner, as prayed in Hartman’s petition.
Abstract of the Decision.
1. Mandamus, § 172 * —when final order awarding writ may not be entered. In proceedings for mandamus, a final order awarding the writ cannot be entered by the court until a general demurrer to the petition has been disposed of..
2. Mandamus, § 150*—when respondent may elect to abide by demurrer or answer petition. After the disposition of a general demurrer to petition for writ of mandamus to compel a city and its building commissioner to issue a building permit to relator, respondents may elect to abide by their demurrer or answer the petition.
3. Mandamus, § 162*—when reasonableness of building ordinance question of fact in action to compel issuance of building permit. Where, after the disposition of a general demurrer to a petition for writ of mandamus to compel a city and its building commissioner to issue a building permit, respondent elects to abide by his demurrer, the question of the reasonableness of an ordinance requiring lathing and plaster above and behind metal covered ceilings and walls in such city may become a question of fact.
4. Mandamus, § 169*—when validity of building ordinance presumed. In proceedings for mandamus to compel a city and its building commissioner to issue a building permit, a building ordinance requiring lathing and plaster above and behind metal covered ceilings and walls in buildings erected in such city will be presumed to have been passed in the exercise of the police power, and it will be assumed, until the contrary appears, that it is reasonable and the determination of the city council on that subject held to be conclusive.
Samuel A. Ettelson and Richard S. Folsom, for plaintiffs in error; Leon Hornstein, of counsel.
A. G. Dicus, for defendant in error.