Schott v. People of State

• Decision Date: 30 June 1878
• Citation: 89 Ill. 195,1878 WL 10001
• Parties: CHRISTIAN SCHOTTv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

89 Ill. 195

1878 WL 10001 (Ill.)

CHRISTIAN SCHOTT

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

June Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Madison county; the Hon. WILLIAM H. SNYDER, Judge, presiding,

Messrs. G. B. & F. W. BURNETT, for the appellant.

Messrs. METCALF & BRADSHAW, for the People.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

Appellant was convicted and adjudged to pay a fine of $2 and costs of suit, for permitting a dog to run at large within the corporate limits of the town of Highland, contrary to the provisions of an ordinance of said town.

The alleged ordinance is claimed to be authorized by § 10 of “An act to incorporate the town of Highland, in Madison county,” approved February 16, 1865, (Private Laws of 1865, Vol. 2, p. 476,) which is as follows:

“Sec. 10. The president and trustees shall have power for the abatement of nuisances and suppression of gaming and bawdy houses in said town, and to provide by ordinance what shall be deemed a nuisance: Provided, the ordinance declaring what shall be deemed a nuisance shall contain no provision on any other matter or subject, and before the same shall be of force, it shall be submitted to the voters of said town for their approval or rejection, in such manner as provided by ordinance, and if adopted by a majority of voters voting for or against the same, it shall be in force from and after the same is so adopted.” The 17th section of the act provides, that “no by-law or ordinance shall be in force until twenty days after the passage of the same, or such later period as may be fixed in any by-law or ordinance; and it shall be the duty of the town clerk to post up copies of all ordinances and by-laws affecting the public, under his certificate and the seal of the corporation, immediately after the passage of the same; and at least ten days before the same take effect, there shall be posted up one copy of the same in the most public place in the district. * * * *”

The 6th section divides the town into four districts.

There was no proof offered tending to establish that the ordinance had been submitted to the voters of the town for their approval or rejection; and the only evidence of publication was the testimony of John Weber, who said that “he saw two notices put up in at least two places in the town; thought they were put up in three places, but was not positive.”

When the ordinance was objected to by appellant, as competent evidence, it devolved upon the people to show, or offer to show, that the town had authority to pass it. City of Alton, v. Hartford Fire Insurance Company, 72 Ill. 328. And inasmuch as the charter provides that before such ordinances shall be in force, they shall be submitted to the voters of the town for their approval or rejection, it was indispensable to its validity that it should be shown that this ordinance had been so submitted. Municipal corporations exercise only delegated and limited powers, and, in the absence of express statutory provisions to that effect, courts are authorized to indulge in no presumptions in favor of the validity of their ordinances. If in conformity with the express or necessarily implied grant in the charter, they are valid--otherwise not.

We think the language ...