King v. Davenport

• Decision Date: 21 March 1881
• Citation: 98 Ill. 305,38 Am.Rep. 89,1881 WL 10481
• Parties: JOSEPH O. KING et al.v.BAZZIL DAVENPORT, Exor.
• Court: Illinois Supreme Court

98 Ill. 305

1881 WL 10481 (Ill.)

38 Am.Rep. 89

JOSEPH O. KING et al.

v.BAZZIL DAVENPORT, Exor.

Supreme Court of Illinois.

Filed at Springfield Mar. 21, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Third District;--heard in that court on appeal from the Circuit Court of Morgan county; the Hon. CYRUS EPLER, Judge, presiding.

Messrs. BROWN, KIRBY & RUSSELL, and Mr. C. H. DUMMER, for the appellants:

1. While as a general rule a municipal corporation can not by ordinance declare a forfeiture of property without due process of law, in which the right of trial by jury is allowed, yet it may declare such a forfeiture, if authorized by the legislature, and it is a reasonable exercise of the police power of the State.

The establishment of limits within the denser portions of cities and villages, within which buildings constructed of inflammable materials shall not be erected or repaired, may also, in some cases, be equivalent to destruction of private property; but regulations for this purpose have been sustained, notwithstanding this result. Cooley's Cons. Lim., p. 594; Respublica v. Duguet, 2 Yeates, 493; Wadleigh v. Gilman, 3 Fairfield, 403; Brady v. N. W. Ins. Co. 11 Mich. 425; Hart v. The Mayor, etc., of Albany, 9 Wendell, 571; 2 Kent's Com. 340; Thorp v. Rutland & Burlington Ry. Co.,27 Verm. 149; 3 Blackstone's Com. 6; Slaughter House Cases, 16 Wall. 36; 3 Black, 5.

2. It is not a valid objection that the Jacksonville ordinance provided a penalty for its violation, and that the city is therefore precluded from resorting to the remedy of removal. 9 Wend. 539.

As to the right to prescribe reasonable police regulations, see T. W. & W. Ry. Co. v. City of Jacksonville, 67 Ill. 40; Baker v. Boston, 12 Pick. 193; Austin v. Murray, 16 Id. 126; Vanderbilt v. Adams, 7 Cow. 349; Stuyvesant v. Mayor of New York, 7 Cow. 588.

The party injured by such regulations is presumed to be compensated by sharing in their advantages. Dore v. Gray, 2 T. R. 358; Governor, etc. v. Meredith, 4 Id. 794.

Messrs. MORRISON, WHITLOCK & LIPPINCOTT, for the appellee:

1. If the ordinance is to be construed as authorizing the officers of the city to determine whether and when a reasonable notice to remove has been given, and thereupon remove such building, without first having a judicial determination as to whether such building has been raised or repaired, then it is void, because the charter does not authorize its passage. To create such a tribunal the power must be expressly given. Kirk v. Norville, 1 T. R. 124; Wood on Nuisances, 770; City of Salem v. Boston R. R. Co., 98 Mass. 481.

All the powers not expressly granted by the charter, or necessary to carry out its powers are treated as denied; nothing is taken by implication. Leavenworth v. Norton, 1 Kan. 432; Webster v. Harwentin, 32 Conn. 131; Atley v. Edgercomb, 53 Me. 447; Harper v. Rany, 14 Id. 375; Kirk v. Norville, supra.

There is no grant in this charter to the city giving the power to pass an ordinance directing a ministerial officer of the city to decide for himself when he shall enter upon the premises of the citizen and destroy or damage it, and such a power would be judicial in its nature. City of Salem v. Boston R. R. Co. 98 Mass. 481.

Such a power can not be sanctioned unless conferred in express terms. Chicago v. Laflin, 49 Ill. 177; Yates v. Milwaukee, 10 Wall. 497.

2. The ordinance was unconstitutional and void, in not providing any mode of ascertaining the existence of the alleged fact on which is based the right to remove, abate, or destroy the property of the citizen. Yates v. Milwaukee, 10 Wall. 497; Winfield v. People, 14 Mich. 41; Everts v. Council Bluffs, 46 Iowa, 46; Babcock v. City of Buffalo, 56 N. Y. 262; Chicago v. Laflin, 49 Ill. 177; Underwood v. Green, 42 N. Y. 142; Wood on Nuisances, 773.

A city must exercise these police powers in a reasonable manner and not arbitrarily. Wood on Nuisances, 776; T. W. & W. R. R. Co. v. Jacksonville, 67 Ill. 37; Lake View v. Rose Hill Cemetery, 70 Id. 191.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

The city of Jacksonville, in this State, having power, by ordinance, to establish fire limits and to declare the building or repairing of buildings with combustible materials within the fire limits a nuisance, its city council did, by ordinance, establish fire limits, and enacted that any building built or repaired with other than fire-proof material, or any roof or gutter placed on any building, the outer surface of which was made with materials other than fire-proof, if within the fire limits, and done without permission, should be deemed a nuisance, and that if the offender, upon reasonable notice, failed to remove such wooden building, or wooden part of such building, the city marshal, upon the written direction of the mayor, should “remove or tear down such building, or such part thereof as may be necessary.” The ordinance further provided, that the offender should be subject to a fine of $100 for each week he failed to remove such wooden building, or wooden part thereof, and that if the city caused the removal, the expense of the removal might be recovered of the offender. The plaintiff's testatrix violated this ordinance by taking off an old and out of repair shingle roof from her building, situated within the fire limits, and putting thereon, without permission, a new shingle roof. She failing to remove the same upon due notice, the roof was removed by the city marshal, in conformity with the ordinance.

She brought this suit of trespass against the mayor and marshal of the city for the removing of the roof, and dying since the bringing of the suit, her executor was substituted as plaintiff. The defendants justified under the ordinance, and on trial by the court, without a jury, judgment was rendered against them for $175, which, on appeal to the Appellate Court for the Third District, was affirmed, and then the present appeal taken, the proper certificate having been made to authorize it.

The sole question here presented is upon the validity of the ordinance.

By its charter the following legislative power is delegated to the city of Jacksonville:

“The city council, for the purpose of guarding against the calamities of fire, shall have power to prohibit the erection, placing or repairing of wooden buildings within the limits prescribed by them, without their permission, and direct and prescribe that all buildings within the limits prescribed shall be made or constructed of fire-proof materials, and to prohibit the rebuilding of wooden buildings; to declare all dilapidated buildings to be nuisances, and to direct the same to be removed, repaired or abated, in such manner as they shall prescribe and direct; to declare all wooden buildings which they may deem dangerous to contiguous buildings, or in causing or promoting fires, to be nuisances, and to require and cause the same to be removed or abated in such manner as they shall prescribe. And, generally, to establish such regulations for the prevention and extinguishment of fires as the city council may deem expedient.

The city council shall have power to pass, publish, and repeal all ordinances, rules and police regulations, not contrary to the constitution and laws of the United States and of this State, * * * or proper to carry into effect the powers vested by this act in the corporation; to determine what shall be a nuisance and provide for the punishment, removal and abatement of the same; and also to punish violations of its ordinances by fines, penalties and imprisonment,” etc.

“To define and declare what shall be nuisances, and authorize and direct the summary abatement thereof.”

There is here given ample authority, we think, for the passage of the ordinance in question.

The inquiry then must be, whether the enactment of such a law is within the competency of legislative power. Unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of powder, the application of steam power to propel cars, the building with combustible materials, and the burial of the dead, may all, says Chancellor KENT, be interdicted by law in the midst of dense masses of population, on the general and rational principle that every person ought so to use his property as not to injure his neighbors, and that private interests must be made subservient to the general interests of the community. 2 Kent Com. 340. The right to restrain owners of land in towns from erecting wooden buildings, except under certain restrictions, has never been doubted, or if it has been, the doubt has long since been removed. Commonwealth v. Tewksbury, 11 Metc. 58. Such regulation is but “a just restraint of an injurious use of property, which the legislature have authority to make.” Id. 59. But the particular respect in which the ordinance is assailed, is, that it authorizes the abatement of the nuisance summarily, without any prior adjudication of the right to exercise the power.

The summary abatement of nuisances is a remedy which has ever existed in the law, and its exercise is not regarded as in conflict with constitutional provisions for the protection of the rights of private property. Blackstone, in his classification of remedies by the act of a party, says, “the fourth species of remedy by the mere act of the party injured, is the abatement or removal of nuisances,”--3 Black. Com. 5,--and that “the reason why the law allows this private and summary method of doing one's self justice is because injuries of this kind, which obstruct or annoy, such things as are of daily convenience for use, require an immediate remedy, and can not wait the slow progress of the ordinary forms of justice.”

Hart v. Mayor, etc. of Albany, 9 Wend. 571, was the case of an injunction to restrain the city authorities from removing a boat or ark, which Hart had built in the basin at Albany, which the authorities were proceeding to remove under the city ordinance. The power to do ...