Sings v. City of Joliet

• Decision Date: 15 December 1908
• Citation: 86 N.E. 663,237 Ill. 300
• Parties: SINGS et al. v. CITY OF JOLIET.
• Court: Illinois Supreme Court

237 Ill. 300

86 N.E. 663

SINGS et al.

v.CITY OF JOLIET.

Supreme Court of Illinois.

Dec. 15, 1908.

Error to Circuit Court, Will County; Frank L. Hooper, Judge.

Action by Mary Sings and others against the City of Joliet. Judgment for defendant on demurrer to the complaint, and plaintiffs bring error. Reversed, and remanded, with directions.Arthur B. Cowing (E. C. Hall, of counsel), for plaintiffs in error.

Robert W. Martin (T. F. Donovan, of counsel), for defendant in error.

On July 11, 1906, Mary Sings, Edith G. Evans, America Miller, Alcyone Lewis, Arvilla A. Withrow, and William Bissell, plaintiffs in error, brought an action in the circuit court of Will county against the city of Joliet, defendant in error, for damages for the destruction by defendant in error of an apartment house and its contents owned by plaintiffs in error in said city.

The declaration contains four counts.

The first two will not be set out for a reason which appears from the opinion which follows.

The third count alleges: That on July 11, 1901, the plaintiffs in error were the owners and in possession of a certain lot located in the city of Joliet and a two-story frame building, with appurtenances thereto, located thereon. That at the time aforesaid, and for a long time prior thereto, they had occupied the said frame building as a home and for tenement purposes. That defendant in error at said time, acting by means of the common council, contriving unlawfully to injure the plaintiffs in error in their possession, use, occupation, and enjoyment of said premises, on July 8, 1901, passed and enacted a certain ordinance, which, with the title thereof, is in words and figures following:

‘An ordinance to condemn as a nuisance the wooden building known as the Bissell House, situate on lot 1, in block 6, in that part of the city known as East Joliet, and to authorize and direct the destruction of the same and its contents.

‘Be it ordained by the city council:

‘Section 1. That whereas a certain building known as the Bissell House, situate on lot 1, in block 6, of that part of the city of Joliet known as East Joliet, in the city of Joliet, county of Will and state of Illinois, for some time past has been, and still is, occupied by a large number of persons, all of whom are more or less exposed to, infected by and suffering with the dread contagious and infectious disease known as smallpox; and whereas, the said Bissell House is now thoroughly impregnated with the germs of said disease; and whereas, the said Bissell House is, by reason of its old age, present state of deterioration and otherwise in such condition that it cannot be successfully disinfected so as to wholly destroy the said germs, in consequence of which it is extremely dangerous and detrimental to the health of the citizens and residents of the said city of Joliet, and that necessity exists for prompt action to prevent the spread of such contagious disease; therefore, and by reason of all of which, the said Bissell House is hereby declared to be a public nuisance and condemned to destruction as such, as hereinafter provided.

‘Sec. 2. It shall be the duty of the health commissioner of said city to remove all occupants of said Bissell House to the pest house, or some other place temporarily to be used as a place of isolation, within three days after the adoption and going into effect of this ordinance.

‘Sec. 3. That after the removal of the said occupants, as aforesaid, the superintendent of streets, health commissioner and fire marshal of said city shall tear down, or cause to be torn down, the said Bissell House. They shall, moreover, wholly destroy, by fire, all of the débris and contents of said Bissell House impregnated or exposed to impregnation with the germs of said disease and not capable of a thorough and successful disinfection.’

That defendant in error, by virtue of said ordinance, declared said premises, the building, and houses thereon by reason of infectious diseases therein, to wit, smallpox, to be a public nuisance, without any authoritative investigation beforehand or the finding of any jury that the same was so infected as to be inimical or a menace to the welfare of the public, and when the same was not then and there incapable of disinfection and was not a nuisance or menace to the public. That defendant in error, without notice to plaintiffs in error, or compensation paid to them, or any finding or award of damages to plaintiffs in error, or any offer by said city to reimburse them, proceeded to and did condemn said buildings to be destroyed, etc. That defendant in error, acting by its servants and officers and by virtue of the authority of said ordinance, entered upon said premises without leave or license and against the will of plaintiffs in error, and without compensation to them, and destroyed the said building and its appurtenances with fire, to the damage of plaintiffs.

The fourth count, in addition to the allegations of the third count, alleges the value of the annual rental on the building to be $600; that it was lawfully erected and maintained for dwelling and tenement house purposes, and was not a nuisance nor dangerous to the public health; that it was unnecessarily and arbitrarily condemned and destroyed by the city under said ordinance, without notice to plaintiffs and without legal proceedings first being had or compensation being paid to them, as required by law and the Constitution; that the said city, by eminent domain or some other proceeding, should have had the protection of some court or its order before taking and destroying such property; and that it was the duty of said city not to utterly destroy said property, but to undertake to, and to, fumigate and disinfect the same, and save and keep from destruction so much thereof as might be of value or use in the construction of another building. The ad damnum was placed at $5,000.

To the declaration defendant in error filed a demurrer, which was sustained by the court on January 10, 1908. Plaintiffs in error elected to stand by their...