North Chicago City Ry. Co. v. Town of Lake View.

Decision Date31 January 1883
Citation1882 WL 14341,105 Ill. 207,44 Am.Rep. 788
PartiesNORTH CHICAGO CITY RAILWAY COMPANYv.TOWN OF LAKE VIEW.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

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.

Mr. W. C. GOUDY, for the appellant:

The declaration by the board of trustees that the use of steam, etc., is a nuisance, is not sufficient evidence that it is a nuisance, and did not relieve the prosecution from proving that fact. Dillon on Municipal Corporations, (3d ed.) sec. 374; Yates v. Milwaukee, 10 Wall. 504; Chicago, Rock Island and Pacific R. R. Co. v. Joliet, 79 Ill. 44; State v. Jersey City, 5 Dutch. 170; Town of Lake View v. Letz, 44 Ill. 82; Lake View v. Rosehill Cemetery Co. 70 Id. 195.

A general power to define and declare nuisances, will not enable them to declare that a nuisance which was not a nuisance by the general law. Chicago, Rock Island and Pacific R. R. Co. v. Joliet, 79 Ill. 23; Everett v. Council Bluffs, 46 Iowa, 66; Pye v. Peterson, 45 Texas, 312; Darst v. People, 51 Ill. 256; Eubanks v. Ashley, 36 Id. 177. The corporate authorities had no power to pass the ordinance unless the prohibited act amounted to a nuisance. Dillon on Municipal Corporations, secs. 141, 89; Cook County v. McCrea, 93 Ill. 236; Sherlock v. Winnetka, 68 Id. 530; Culver v. Hatch, 18 Ohio, 523; Martel v. East St. Louis, 94 Ill. 67; People v. Village of Crotty, 93 Id. 180; Schott v. People, 89 Id. 195; Mix v. Ross, 57 Id. 121; Ex parte Burnett, 30 Ala. 461; Craig v. Burnett, 32 Id. 728; Hill v. Decatur, 22 Ga. 203.

The defendant was authorized to construct a railway in the public highways of Lake View, and operate it by steam. See charter, secs. 2, 5, 6, 10.

A railroad company is not a nuisance. Chicago, Rock Island and Pacific R. R. Co. v. Joliet, 79 Ill. 41; State v. Jersey City, 5 Dutch. 175; Randle v. Railroad Co. 65 Mo. 325; Hentz v. Railroad Co. 13 Barb. 656; Drake v. Hudson R. R. Co. 7 Id. 508; Hamilton v. Railroad Co. 9 Paige, 117; Railroad Co. v. Applegate, 8 Dana, 289; Chapman v. Railroad Co. 10 Id. 360; A. and P. R. R. Co. v. St. Louis, 66 Mo. 228; McComber v. Nichols, 34 Mich. 212; Kellinger v. Railroad Co. 50 N. Y. 206; Danville R. R. Co. v. Commonwealth, 73 Pa. St. 38; Struthers v. Railroad Co. 87 Id. 282; Fawn v. Railroad Co. 114 Mass. 350.

Acquiescence in the use of steam for over sixteen years will prevent the board of trustees from declaring such use to be a nuisance. Railroad Co. v. Patterson, 24 N. J. Eq. 158; Rossire v. Boston, 4 Allen, 57; Easton v. Railroad Co. 24 N. J. Eq. 49.

Mr. M. W. ROBINSON, for the appellee:

The town had express power to define and declare what should be nuisances, and many ordinances declaring similar things nuisances have been sustained. Roberts v. Ogle, 30 Ill. 459; Van Warner v. Albany, 15 Wend. 263; Goddard v. Jacksonville, 15 Ill. 588. Every unreasonable use of a public highway, by which others are hindered or annoyed in a like reasonable use of it, or in the rights incident thereto, is a public nuisance, and may be restrained as such. Wood on Nuisances, secs. 250, 290, 301, 740; 2 Dillon on Municipal Corporations, secs. 520, 538, 565; 2 Redfield on Railways, 578; Angell on Highways, secs. 223, 225; Hurd's Stat. 1881, ch. 38, sec. 221; Weick v. Lander, 75 Ill. 93; Davis v. Mayor, 14 N. Y. 524; Pierce on Railroads, 243, note 7.

In the following cases ordinances regulating the speed of locomotives and trains in incorporated cities and towns have been sustained: Whitson v. City of Franklin, 34 Ind. 392; 5 Hill, 209; Vearie v. Mayo, 45 Maine, 560; State v. Tupper, Dudley, (S. C.) 135; Branson v. Philadelphia, 47 Pa. St. 329; Philadelphia v. Lombard, 3 Grant's Cases, 403; Donnaher v. State, 8 Sm. & M. 649; Railroad Co. v. Richmond, 96 U. S. 521; Commonwealth v. Worcester, 3 Pick. 473; New York and Harlem R. R. Co. v. Mayor, etc. 1 Hilton, 562.

That which would be a nuisance, if done under authority of law is justifiable. 2 Redfield on Railways, 408; Wood on Nuisances, sec. 746; Pierce on Railroads, 243, 244.

Without the sanction of legislative authority, the use of steam motive power in a street is necessarily subject to municipal control. Davis v. Mayor, 4 Kern. 524; Toledo, Wabash and Western Ry. Co. v. Jacksonville, 67 Ill. 37; Northwestern Fertilizing Co. v. Hyde Park, 70 Id. 644; Ohio and Mississippi R. R. Co. v. McClelland, 25 Id. 140; Galena and Chicago Union R. R. Co. v. Appleby, 28 Id. 283; Dingman v. People, 51 Id. 278.

No authority to use steam power is given by the company's charter, expressly or by implication.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

This is an appeal from a judgment of the Appellate Court for the First District, affirming a conviction in the Criminal Court of Cook county of the North Chicago Railway Company, for using steam as a motive power in operating its railway along and over one of the public streets of the town of Lake View, in Cook county, contrary to the provisions of an ordinance of that town.

The fact of the company's using steam for the purpose of propelling its cars along the street in contravention of an ordinance of the town, is conceded, but the act is sought to be justified on two grounds, both of which are urged by counsel with much earnestness and apparent confidence. First, it is claimed the town had no authority to pass the ordinance declaring the use of steam for the purpose of propelling the company's cars along the street a nuisance, as was attempted to be done. In the next place, it is contended that the act complained of is authorized by the company's charter. We will consider these questions in the order stated.

Appellee is incorporated under the act of 1865, entitled “An act to incorporate a board of trustees for the town of Lake View, in Cook county,” and an act amendatory thereof, passed in 1867. By the 1st section of the original act the supervisor, assessor and commissioners of highways of the town of Lake View are declared to be, ex officio, a board of trustees for the said town of Lake View, and by other provisions of the two acts are clothed with the ordinary powers usually conferred upon other municipal corporations. By the 7th section of the amendatory act of 1867 it is expressly provided “the board of trustees shall have the control and supervision of the highways, streets, alleys, public grounds and parks in said town;” and by the 11th section it is further provided, “the board of trustees shall have power to define and declare what shall be deemed nuisances, and to prevent and abate the same, and provide for the punishment of offenders against any order or ordinance passed concerning the same, by fine or imprisonment, or both,” etc. These provisions, in the absence of any legislative grant authorizing the use of steam as a motive power for the purpose of propelling street cars, we are of opinion warranted the town in passing the ordinance in question.

We do not at all question the general proposition, which has been argued with so much elaboration by appellant's counsel, that under a general grant of power over nuisances, like the one in question, town authorities have no power to pass an ordinance declaring a thing a nuisance which in fact is clearly not one. The adoption of such an ordinance would not be a legitimate exercise of the power granted, but on the contrary, would be an abuse of it. But in doubtful cases, where a thing may or may not be a nuisance, depending upon a variety of circumstances requiring judgment and discretion on the part of the town authorities in exercising their legislative functions, under a general delegation of power like the one we are considering, their action, under such circumstances, would be conclusive of the question.

As already conceded, there are many innoxious useful things which the municipal authorities of a town or city could not lawfully, under a general grant of power like the one in question, declare nuisances,--such, for instance, as the exercise of certain trades and callings, as, that of a physician, druggist, and the like. In all such cases as these, courts, acting upon their own experience and knowledge of human affairs, would say, as matter of law, the exercise of these trades or callings, or things of like character, are not nuisances, and that any attempt to so declare them by the municipal authorities would be an unwarranted abuse of their power. On the other hand, there are many things which courts, without proof, will, on the same principle,...

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