The Town of Lake View v. Letz

• Decision Date: 30 April 1867
• Citation: 1867 WL 5102,44 Ill. 81
• Parties: THE TOWN OF LAKE VIEWv.FREDERICK LETZ et al.
• Court: Illinois Supreme Court

44 Ill. 81

1867 WL 5102 (Ill.)

THE TOWN OF LAKE VIEW

v.FREDERICK LETZ et al.

Supreme Court of Illinois.

April Term, 1867.

WRIT OF ERROR to the Superior Court of Chicago.

The facts in this case are sufficiently stated in the opinion.

Messrs. GOUDY & CHANDLER, for the plaintiff in error.

Messrs. GALLUP & PEABODY, for the defendants in error. Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

The town of Lake View was incorporated by a special act of the legislature in 1857; and, by another act, approved February 16, 1865, the supervisor, assessor and commissioners of highways were declared a board of trustees. Various powers for municipal government were conferred upon them, and among others the power “to abate and remove nuisances, and punish the authors thereof by penalties, fines and imprisonment, and to authorize and direct the summary abatement thereof.” Assuming to act under the authority here given, the board of trustees passed an ordinance in April, 1866, forbidding any cemetery to be opened in the town without the permission of the trustees, and providing a penalty for a violation of the ordinance.

This is a bill in chancery brought by the town to enjoin the defendants from establishing a cemetery, which it is alleged, they were about to establish within the limits of the town. On the hearing the Superior Court dismissed the bill.

The decree of the Superior Court was proper. The act of the legislature authorizing the board of trustees “to abate and remove nuisances,” gave them no power to pass an ordinance forbidding the establishment of a cemetery. Conceding that the power to “abate and remove,” should be construed as including the power to prevent, yet this preventive power could only be exercised in reference to those things that are nuisances in themselves, and necessarily so. There are some things which in their nature are nuisances, and which the law recognizes as such. There are others which may or may not be so, their character in this respect depending on circumstances. Now, the town of Lake View is a rural township, containing about eleven sections or square miles of territory. It is therefore impossible to hold, that a cemetery, anywhere within the limits of the town, must be necessarily a nuisance, and can be prohibited in advance as such. A cemetery may be so placed as to be injurious to the public health, and therefore a nuisance. It may, on the other hand, be so located and arranged, so planted with trees and flowering shrubs, intersected with drives and walks, and decorated with monumental marbles, as to be not less beautiful than a public landscape garden, and as free from all reasonable objection. The power to prohibit the establishment of cemeteries except by the authority of the trustees cannot be considered as falling within the power to abate and remove nuisances.

Neither, for the same reason, did...