The City of Chicago v. O'brien

Decision Date27 September 1884
Citation53 Am.Rep. 640,1884 WL 9984,111 Ill. 532
PartiesTHE CITY OF CHICAGOv.THOMAS O'BRIEN.
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. GEORGE GARDNER, Judge, presiding.

This was an action by the city of Chicago, against Thomas O'Brien, for a violation of the ordinance hereinafter set out. The judgment of the circuit court of Cook county was in favor of O'Brien, and that judgment was affirmed in the Appellate Court for the First District.

The cause was, by agreement of parties, submitted to the court, without the intervention of a jury, upon the following agreed state of facts: That the said defendant was, at the time hereinafter mentioned, the occupant of the premises known as No. 203 Centre avenue, which said premises were and are within the corporate limits of the said city of Chicago; that the said O'Brien, on, to-wit, the 18th day of February, 1884, and for a long time previous thereto, allowed the snow which had fallen, and the ice formed therefrom on a portion of the sidewalk hereinafter mentioned, to accumulate upon the sidewalk in front of said premises to the depth of from six to ten inches, and neglected and refused, and still neglects and refuses, to clear or cause the same to be cleared from said sidewalk, and where the said snow had so congealed that it could not be removed without injury to the said sidewalk, the said O'Brien neglected and refused, and still neglects and refuses, to strew the same with ashes or sand; that prior to the said 18th day of February, 1884, the city council of the city of Chicago had duly passed, and the same had been duly and properly approved and published, according to law and the statute in such case made and provided, the following ordinance, (Municipal Code, sec. 1955,) to-wit:

“Every owner or occupant of any house or other building, and the owner or proprietor, lessee or persons entitled to the possession of any vacant lot, and every person having the charge of any church, jail, or public hall or public building in this city, shall during the winter and during the time snow shall continue on the ground, by nine o'clock in the morning, when necessary, clear the sidewalk and gutters in front of such house or other building, and in front of such lot, from snow and ice, and keep them conveniently free therefrom during the day; or shall, in case the snow and ice are so congealed that they can not be removed without injury to the pavement, cause the said snow and ice to be strewed with ashes or sand; and shall also, at all times, keep such sidewalk clear and free from all dirt, filth, or other obstructions or incumbrances, so as to allow citizens to use the said sidewalks in an easy and commodious manner; and every person neglecting to comply with this section, shall incur a penalty of five dollars for each neglect or refusal.”

And it is further agreed that said sidewalk is a part of one of the public streets or highways of said city.

Mr. GEO. MILLS ROGERS, and Mr. M. R. M. WALLACE, for the appellant:

The ordinance can be most properly upheld under the general police powers vested in the city. Railroad Co. v. Dill, 22 Ill. 265; Bonsall v. Mayor, 19 Ohio, 418; Paxon v. Sweet, 13 N. J. 196; Washington v. Mayor, 1 Swan, 177; Mayor v. Maberry, 6 Humph. 368; Woodbridge v. City of Detroit, 8 Mich. 274; White v. Mayor, 2 Swan, 364; City of Boston v. Shaw, 1 Metc. 107; City of Lowell v. Hadley, 8 Id. 180; Lowell v. French, 6 Cush. 223; Commonwealth v. Goddard, Thatcher's C. C. 420; Kirby v. Boylston Market Association, 14 Gray, 249; Goddard's case, 16 Pick. 504; Vandyke v. Cincinnati, 1 Disney, 532; Cooley's Const. Lim. (5th ed.) 727.

Unless the General Assembly was prohibited by the constitution from granting such powers as have been enumerated, to the city, then such powers are not unconstitutional. Cooley's Const. Lim. (5th ed.) 106, 107, 218; Railroad Co. v. Dill, 22 Ill. 265; Washington v. Mayor, 1 Swan, 177; Paxon v. Sweet, 13 N. J. 196; Woodbridge v. City of Detroit, 8 Mich. 274; In matter of Dorrance street, 4 R. I. 230; Deblois v. Baker, Id. 445.

In the following cases a distinction is recognized between the street or carriageway and the sidewalk: Hart v. Brooklyn, 36 Barb. 226; Woodbridge v. City of Detroit, 8 Mich. 274; Goddard's case, 16 Pick. 504; Cooley's Const. Lim. (5th ed.) 631.

A distinction is made between local improvements and repair as to mode of making same. Simple repairs are not in the nature of a local improvement. Matter of Fulton street, 29 How. Pr. 429; People v. Brooklyn, 21 Barb. 484. Messrs. C. C. & C. L. BONNEY, and Mr. LYMAN M. PAINE, for the appellee:

The claim that the ordinance rests on the police power, is in conflict with the decisions of this court. Ottawa v. Spencer, 40 Ill. 213; Gridley v. City of Bloomington, 88 Id. 557; Carter v. Chicago, 57 Id. 286.

The ordinance does not provide for local improvements, and the burdens to which they relate must be borne by uniform taxation. Const. art. 9, sec. 9.

Mr. CHIEF JUSTICE SCHOLFIELD delivered the opinion of the Court:

It is conceded by counsel for appellant that this court, in Gridley v. City of Bloomington, 88 Ill. 554, decided the only question involved in this case, (namely, the validity of the ordinance under which the suit is prosecuted,) against appellant; but they contend that decision is based upon incorrect grounds, and should therefore be overruled. They contend that the ordinance is but a proper police regulation, and that, as such, it should be sustained. In support of this position they cite Bonsall et ux. v. Mayor, etc. 19 Ohio, 418, Paxon v. Sweet, 13 N. J. (1 Green,) 196, Mayor, etc. v. Maberry, 6 Humph. 368, Washington v. Mayor, etc. 1 Swan, (Tenn.) 177, Woodbridge v. City of Detroit, 8 Mich. 274, and other cases.

In City of Chicago v. Larned, 34 Ill. 203,--a case very elaborately argued by able counsel,--the principle involved in the decisions of these cases was carefully considered, and it was held they could not apply here,--that they were decided under constitutions so materially different from ours, that the same line of reasoning is not applicable to both. And in City of Ottawa v. Spencer, 40 Ill. 211, which was a proceeding to charge the adjacent lot owner with the cost of building a sidewalk, the same question was again before the court, and it was then insisted, as it is now, that the charges may be sustained as within the police power, but the position was held untenable. In passing upon this point, it was there said: “It is also urged that this may be referred to the police power of the State, which has been delegated to the city, and may therefore be properly exercised;...

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