Laugel v. City of Bushnell

• Decision Date: 16 April 1902
• Citation: 197 Ill. 20,63 N.E. 1086
• Parties: LAUGEL v. CITY OF BUSHNELL.
• Court: Illinois Supreme Court

197 Ill. 20

63 N.E. 1086

LAUGEL

v.CITY OF BUSHNELL.¹

Supreme Court of Illinois.

April 16, 1902.

Error to appellate court, Third district.

Action by the city of Bushnell against J. E. Laugel. Judgment of the appellate court (96 Ill. App. 618) affirmed. Judgment for plaintiff, and defendant brings error. Affirmed.

Truman Plantz, Appollos W. O'Harra, and David Chambers, for plaintiff in error.

T. J. Sparks and W. M. Crossthwait, for defendant in error.

BOGGS, J.

The appellate court for the Third district affirmed the judgment of the circuit court of McDonough county adjudging the plaintiff in error to be guilty of maintaining a nuisance, in violation of an ordinance of the city of Bushnell, and sentencing him to pay a fine in accordance with the provisions of the ordinance. This writ of error challenges the correctness of the conclusion reached by the appellate court. The ordinance said to have been violated is as follows: ‘Be it ordained by the city council of the city of Bushnell: Section 1. That any place in said city of Bushnell where hop ale, hop mead, malt mead, cider or other like drinks are kept for sale, are sold or given away, either directly or indirectly, in any quantity whatever, is hereby declared to be a nuisance, and the owner, keeper, lessee or occupant of the premises who shall neglect or refuse to abate such nuisance after being notified so to do by the city marshal of said city, shall, on conviction thereof, forfeit and pay to said city a sum not less than ten dollars not more than one hundred dollars for each and every day he shall refuse or neglect to remove or abate the same.’ In the circuit court the parties waived a jury, and submitted the cause to the court for decision. When the ordinance was offered in evidence counsel for the plaintiff in error objected to the introduction thereof, assigning as the ground of objection ‘that the city had no power to pass it.’ But the court overruled the objection, and the plaintiff in error excepted. This ruling, and the action of the court in refusing to hold as correct propositions of law Nos. 1, 2, and 3, presented in behalf of the plaintiff in error to be held as the law of the case, constitute the chief grounds of complaint in this court, and together raise the same question. Said propositions are as follows: (1) ‘The ordinance offered in evidence is void.’ (Refused.) (2) ‘The city council has no power to declare by ordinance that where hop ale, hop mead, malt mead, cider, or other like drinks are kept for sale, are sold or given away, either directly or indirectly, in any quantity whatever, is a public nuisance.’ (Refused.) (3) ‘No city council of any city in this state organized under the general law has the power or authority to declare, by ordinance or otherwise, that where hop ale, hop mead, malt mead, cider, or other like drinks are kept for sale, are sold, or given away, either directly or indirectly, in any quantity whatever, to be a public nuisance, regardless of the character of such drinks or the ingredients thereof.’ (Refused.)

The argument of counsel for plaintiff in error is correct that the authority which the governing bodies of cities and villages may exercise by virtue of subdivision 75 of section 62 of article 5 of chapter 24 of the Revised Statutes, entitled ‘Cities,’ etc., ‘to declare what shall be a nuisance and to abate the same and to impose fines upon persons who may continue or suffer nuisances to exist,’ is not as broad and unrestricted as the language of the grant of power would indicate. If interpreted according to its literal wording, the act invests the councils of cities and the trustees of villages with ample power to conclusively declare any and every trade, occupation, calling, or thing to be a nuisance and to abate it as such. The possession of such unlimited power would subordinateevery business interest, however lawful, to the uncontrolled will of municipal authorities, and its exercise would result in unjustifiable invasion of private right. We do not conceive it to be the law that city councils or boards of village trustees may conclusively declare that to be a nuisance which a court, acting upon its experience and knowledge of human affairs, would say is not so in fact. That which, however, is a nuisance because of its nature or inherent qualities, or because it is forbidden by law, may be denounced or declared a nuisance by an ordinance, and such denunciation will be deemed conclusive. There are other things, trades, occupations, and callings which, because of their nature or inherent qualities, may or may not be nuisances in fact. As to this class we said in North Chicago City Ry. Co. v. Town of Lake View, 105 Ill. 207, 44 Am. Rep. 788, ‘that, if it be doubtful whether a thing is in its nature a nuisance,-that is, whether it is in fact a nuisance,-the determination of the question requiring judgment and discretion on the part of the village authorities in exercising their legislative functions under the power delegated by the enactment we are considering, the action of such authoirites should be deemed conclusive of the question.’

It is thought the doctrine thus announced as to the power of city councils is in conflict with the holdings of ths court in the later case of Village of Des Plaines v. Poyer, 123 Ill. 348, 14 N. E. 677,5 Am. St. Rep. 524, and should therefore be regarded as overruled. But in the still later case of Harmison v. City of Lewistown, 153 Ill. 313, 38 N. E. 628,46 Am. St. Rep. 893, the doctrine of the case of North Chicago City Ry. Co. v. Town of Lake View was reaffirmed. In the Lake View Case, we held that the city council or board of trustees were not clothed by the enactment in question with power to declare that a nuisance which is not so in fact, and we further said: ‘There are some things which are in their nature nuisances and which the law recognizes as such. There are others which may or may not be, their character in this respect depending on circumstances, and in the latter instance it is manifestly beyond the power of the village to declare in advance that those things are a nuisance. The question when a thing may or may not be a nuisance must be settled as one of fact, and not of law.’

The supposed conflict in the expressions of the court in the two cases is apparent only. It is true that in the Lake View Case is was said that the question when a thing may or may not be a nuisance must...