This position we regard as untenable. The act by which the title to the assigned estate is transferred from the assignor to the assignee is purely voluntary on the part of the former. Voluntary assignments for the benefit of creditors are transfers without compulsion of law. They are termed "voluntary" to distinguish them from such as are made by compulsion of law, as under statutes of bankruptcy and insolvency: Burrill on Assignments, secs. 2, 3. There can be no such thing as an involuntary assignment under our statute: Weber v. Mick, 131 Ill. 520. Therefore, those authorities which hold that if the lessee makes an involuntary assignment the leasehold will pass by operation of law have no application here. The authorities generally seem to sustain the position that when an assignment by the lessee is a voluntary one, the lease does not pass to his assignee by operation of law but by act of the party, and the distinction in this regard between voluntary and involuntary assignments is well defined: Wood on Landlord and Tenant, 716; Holland v. Cole, 1 Hurl. & C. 67; Rockford v. Hackman, 9 Hare, 474; Brandon v. Ashton, 21 Eng. Ch. 23. While language is found in some of the cases cited by counsel for appellee which seems to sustain their contention, yet when the real questions for decision in those cases are considered, they are not in conflict with those cited above.

But without reference to authorities cited by counsel on either side, it cannot be held an assignment, under our statute, passes the estate of the assignor to the assignee relieved of the condition that an assignment without the consent of the lessor shall entitle him to a forfeiture. All our decisions are to the effect that the transfer is by the voluntary act of the assignor in executing and delivering the deed of assignment. No process of law whatever 445 intervenes in order to vest the title in the assignee. In Davis v. Chicago Dock Co., 129 Ill. 187, we said: "The assignee, however, took no greater interest or better title than his assignors possessed. In his hands, the title was affected with every infirmity and subject to all the equities that existed in respect thereof in the hands of the grantor in the deed of assignment." And section 11 of the act is to that effect. It is there provided that the assignee shall have as full power and authority to dispose of all the estate, real and personal, assigned as the debtor or debtors had at the time of the assignment. Clearly, this language implies that he has no greater power or authority to dispose of property than had the debtor or debtors at the time the assignment was made. Hence, to hold the assignment operated to extinguish the condition would be to maintain the inconsistent,

not to say absurd, position, that while an assignment by the lessee would have been a violation of the condition, still the transfer of the lease by his assignee, who holds it subject to the same condition upon which he held it, will pass it free from the condition. We entertain no doubt that the voluntary assignment, under the law of this state, was a violation of the condition against assigning.

The other question is, Was there by the subsequent acts of the lessor a waiver of the right to declare the forfeiture? We think not. It is contended by appellee that receiving rent from the assignee after the assignment was a waiver of that right. It appears from the agreed state of facts in the record that upon the assignment being made and the assignee taking possession of the estate, which consisted of restaurant supplies and fixtures, in the leased premises, conversations took place between the president and general manager of appellant and the assignee and his attorney with reference to the assignee's occupancy of the premises, and both the assignee and his attorney stated to him that the rental stipulated in the lease would be paid by the assignee 448 during the time he occupied the premises. The assignee had not at that time declared his purpose to accept the lease nor did he do so until after the payment of the rent which it is claimed operated as a waiver of the condition. The rent paid was for a month, commencing December 13, 1894 (the date upon which the assignee took possession), and was not a payment of a month's rent according to the terms of the lease. Other facts appear in evidence from which it clearly appears that it was not the intention of either party that the payment of the rent by the assignee should be in any sense a recognition of his right to hold the property under the lease. We have already seen that the assignee had the right to accept or refuse the lease, and until he had made his election the lessor had a right to deal with him, as to the use of the property, without reference to the lease. The mere fact that its president arranged with him for the payment of rent during the time that he was using the property, without declaring his intention to accept it under the lease, in no way proved an intention to waive any condition of forfeiture. It was said in Cheney v. Batten, Cowp. 243, by Lord Mansfield, where the question was whether the acceptance of rent operated as a waiver upon the landlord: "The question, therefore, is, quo animo the rent was received and what the real intention of both parties was. If the truth of the case is that both parties intended the tenancy should continue, there is an end of the plaintiff's

title; if not, the landlord is not barred of his remedy by ejectment." This clear and concise statement of the law is in harmony with all the authorities. Under the facts of this case, we think it cannot be said that there was a waiver on the part of the lessor.

The judgment of the appellate court will be reversed.

LANDLORD AND TENANT-ASSIGNMENT OF LEASE.-An assignee in bankruptcy does not become tenant under a lease, so as to be personally answerable for rent, unless he takes possession of the premises, or otherwise elects to accept the term. But if he enters on the demised premises, or elects to accept them, he becomes a tenant and is liable for rents: Martin v. Black, 9 Paige, 641; 38 Am. Dec. 574, and note. The lessee's assignee of the term is not liable for rent where he is not in actual possession: Damainville v. Mann, 32 N. Y. 197; 88 Am. Dec. 324; but an assignee for the benefit of creditors of an insolvent lessee entering with the intent to occupy as assignee by virtue of the assignment, and so occupying, has no ground of complaint in being ordered to pay that quarter's rent out of moneys in his hands realized out of the assigned estate, instead of out of his own funds: Note to Childs v. Clark, 49 Am. Dec. 170. While there is no privity of contract between a lessor and an assignee of the term, there is a privity of estate rendering the assignee liable upon the covenants of the lease so long as he holds the term. This rule applies to assignees in bankruptcy and insolvency, providing they take possession: Bell v. American Protective League, 163 Mass. 558; 47 Am. St. Rep. 481.

LANDLORD AND TENANT-FORFEITURE - WAIVER.-The happening of a cause of forfeiture, in any lease, only renders the lease voidable. The forfeiture must be promptly enforced, and by some positive act on the part of the lessor: See monographic note to Guffy v. Hukill, 26 Am. St. Rep. 912, on forfeiture of lease for breach of condition by lessee. A forfeiture of a lease by a breach of a condition not to assign is not waived by acceptance of rent from the assignee, unless the landlord has knowledge of the assignment; but if he has such knowledge, his acceptance of rent from the assignee has been held to be a waiver of the forfeiture, although, when receiving the rent, the landlord protested against such effect being given to his act in accepting: See monographic note to Moses v. Loomis, 47 Am. St. Rep. 199, on waiver of forfeiture of lease. The assignment of leases, and the respective rights and liabilities of lessor, assignee, and assignor thereafter is the subject of a monographic note to Washington Natural Gas Co. v. Johnson, 10 Am. St. Rep. 557-565.

CHICAGO V. STRATTON.

[162 ILLINOIS, 494.]

CONSTITUTIONAL LAW-DELEGATION OF LEGISLATIVE POWER.-The constitutional maxim which prohibits the legislature from delegating its power to any other body or authority is not violated by vesting municipal corporations with certain powers of legislation as to matters purely of local concern, of which the parties immediately interested are supposed to be better judges than the legislature.

CONSTITUTIONAL LAW-STATUTES DEPENDING UPON A CONTINGENCY.-It is competent for the legislature to pass a law, the ultimate operation of which may, by its own terms, be made to depend upon a contingency. Hence, while it cannot delegate its power to make a law, it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend.

MUNICIPAL

CORPORATIONS-EXERCISE AND DELEGATION OF POWERS.-Powers conferred upon a municipal corporation must be exercised by the municipality; and, so far as they are legislative, cannot be delegated to others.

STATUTES-GRANT OF MEANS TO ACCOMPLISH END.A grant of legislative power to do a certain thing carries with it the power to use all necessary and proper means to accomplish the end: and the legislature may authorize others to do things which it might properly, but cannot conveniently or advantageously, do itself.

MUNICIPAL CORPORATIONS-POWER AS TO LOCATION OF LIVERY STABLES.—An express legislative grant of power to a municipality to direct the location of livery stables in its midst, includes the power to prohibit or forbid the location of stables within residence districts; and, in the exercise of this power, the city council may impose whatever conditions and restrictions it may see fit, in relation to such districts.

MUNICIPAL CORPORATIONS - ORDINANCES--DELEGATION OF POWER AS TO LOCATION OF LIVERY STABLES.-An ordinance of a city, which has statutory power to regulate the location of livery stables in its midst, making it unlawful to locate, build, or keep a livery stable in any block in which two-thirds of the buildings are residences, unless the owners of a majority of the lots consent in writing, is not a delegation of legislative power to the property owners of such block, but is simply a prohibition against the location of such stables, which is avoided by the happening of the contingency provided for, to wit, the consent of a majority of the lotowners in the block. The ordinance is, therefore, valid.

Suit to recover a penalty for the violation of an ordinance prohibiting the location of livery stables, in any block of the city of Chicago, in which two-thirds of the buildings were residences, without the consent of a majority of the lotowners in the block. It was conceded that the appellees, Stratton and others, kept a livery stable in Chicago; that there were thirty-one buildings in the block in which the stable was located, twenty-eight of which were devoted exclusively to residence purposes; and that no petition was ever signed by a majority of the property owners as required by the ordinance governing the location and keep

ing of livery stables in the city of Chicago. The suit was first brought before a justice of the peace, and judgment entered against the defendants, who appealed to the circuit court. That court held the section of the ordinance in question to be invalid, and entered judgment for the defendants. The appellate court, on appeal, affirmed this judgment, and the plaintiff appealed to the supreme court. The plaintiff, the city of Chicago, asked the supreme court to hold, as a matter of law, that the section of the ordinance in question, as given in the opinion, was not a delegation of legislative power by the common council of the city to the property owners; that the section named was lawful, valid, and binding upon the defendants; that under the evidence the plaintiff was entitled to recover; that if the court found that the consent required had not been obtained, and that two-thirds of the buildings in the block containing the stable were devoted exclusively to residence purposes, the defendants were guilty of a violation of the ordinance; and that the plaintiff, was, therefore, entitled to recover the penalty provided for in the ordinance.

Farson & Greenfield, William G. Beale, corporation counsel, and George A. Du Puy, assistant corporation counsel, for the appellant.

Samuel J. Howe, for the appellees.

499 MAGRUDER, J. The eighty-second paragraph of section 1 of article 5 of the city and village act, which has been adopted by the city of Chicago, provides that the city council in cities shall have the power "to direct the location and regulate the use and construction of . . . . livery stables . . . . within the limits of the city": 3 Starr and Curtis' Annotated Statutes, 191. The power to make laws, which the constitution confers upon the legislature, cannot be delegated by the legislature to any other body or authority. The constitutional maxim, which prohibits such delegation of legislative power, is not violated when municipal corporations are vested with certain powers of legislation, in view of the recognized propriety of conferring upon such municipal organizations the right to make local regulations, of the need of which they are supposed to be better judges than the legislature of the state. But such powers as are conferred upon municipal corporations must be executed by the municipality, and, so far as they are legislative, cannot be delegated to any subordinate or to any other authority. The same restriction which rests upon the legislature as to the legislative functions conferred upon it by the constitution rests upon a