Village of Carpentersville v. Fiala

• Decision Date: 05 August 1981
• Docket Number: No. 80-853,80-853
• Citation: 425 N.E.2d 33,54 Ill.Dec. 521,98 Ill.App.3d 1005
• Parties: , 54 Ill.Dec. 521 VILLAGE OF CARPENTERSVILLE, Plaintiff-Appellant, v. Joseph R. FIALA, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 33

425 N.E.2d 33

98 Ill.App.3d 1005, 54 Ill.Dec. 521

VILLAGE OF CARPENTERSVILLE, Plaintiff-Appellant, v. Joseph R. FIALA, Defendant-Appellee.

No. 80-853.

Appellate Court of Illinois, Second District.

Aug. 5, 1981.

Richard W. Husted, Elgin, for plaintiff-appellant.

Allen G. Skjoldager, Dundee, for defendant-appellee.

UNVERZAGT, Justice:

The defendant, Joseph R. Fiala, was charged by a complaint filed in the circuit court of Kane County with the violation of Section 15-23 of the Village Code of Carpentersville, in that he kept more than two adult dogs in or about his single-family residence. A hearing was held at which time two of the defendant's neighbors testified, one stating that the defendant was maintaining 15 large red dogs, which he believed to be Irish Setters, on his single-family premises. The other neighbor testified there were a large number of dogs maintained on defendant's premises, but he did not name any specific numbers. The defendant pleaded not guilty and admitted that there were more than two dogs on his premises, but that there were less than 15. It was also established that the premises in question were on a 60-foot by 100-foot lot, abutted by residences on similar-sized lots on both sides and to the rear. The court sua sponte found that the complaint should be dismissed, noting that it had held the ordinance unconstitutional two years before in a similar case. Plaintiff, the Village of Carpentersville (hereafter "Village"), appeals, contending that the trial court erred in finding the ordinance to be unconstitutional. We reverse.

The ordinance in question, Section 15-23 of the Village Code provides:

"No person shall permit more than two dogs to be or remain in or about any single-family residence, building or lot, or more than one dog in any single-family unit in any multiple housing building within the Village under his control at any one time. This section applies only to dogs required to be licensed under this Article or to dogs over the age of three months."

The Village argues the court improperly dismissed the cause, citing People v. Warren (1957), 11 Ill.2d 420, 143 N.E.2d 28, for the proposition that the only limitation upon the legislature in the exercise of its police power is that the statute must reasonably tend to correct some evil or to promote some interest of the State (or municipality) and not violate some positive mandate of the constitution. It points out that the interests implicitly promoted by the ordinance are the health, comfort and welfare of the public. It further argues that the legislative classification of dog owners by type of dwelling unit does not offend the concept of equal protection since the classifications are reasonably related to the purpose of the ordinance and are founded upon a real and substantial difference in situation. The Village asserts that single-family residences with front, side and rear yards can accommodate more dogs than a unit without those facilities in a multiple housing building, and that the ordinance is entitled to a presumption of constitutional validity which may be overcome by the challenging party only by clear and convincing evidence. (Thillens, Inc. v. Morey (1957), 11 Ill.2d 579, 591, 144 N.E.2d 735; City of Park Ridge v. Kussy (1940), 307 Ill.App. 324, 338, 30 N.E.2d 189.) Additionally, the power to protect the health and safety of the community is generally considered to be the most important police power possessed by a municipality. City of Des Plaines v. Gacs (1978), 65 Ill.App.3d 44, 47, 22 Ill.Dec. 82, 382 N.E.2d 402.

The defendant characterizes the ordinance as a zoning ordinance in that it prohibits the use of personal property (dogs) by class of real property usage, and contends that this classification is arbitrary, capricious and a denial of equal protection of the law. The defendant further contends the ordinance is invalid because there are no statutes which authorize or which evidence the legislative intent of the State of Illinois to regulate dogs. Defendant asserts that dogs are "compatible with any residential use of property" and, therefore, would not be subject to prohibition by the Village in a residential zone. Lastly, defendant urges that in the absence of any evidence of the existence of a nuisance, the ownership of dogs is a wholesome and useful activity and the ordinance in question bears no real or substantial relation to the health, safety or general welfare of the citizens of Carpentersville.

Contrary to defendant's assertion, there is ample statutory authority for the enactment of the ordinance in question. Under the Illinois Municipal Code, a municipality may enact any ordinance that it deems necessary for the promotion of health or the suppression of diseases. (Ill.Rev.Stat.1979, ch. 24, pars. 1-2-1, 11-20-5.) A municipality may also "pass and enforce all necessary police ordinances" (Ill.Rev.Stat.1979, ch. 24, par. 11-1-1), and may "define, prevent, and abate nuisances." (Ill.Rev.Stat.1979, ch. 24, par. 11-60-2.) As set forth in 7 McQuillin, Municipal Corporations § 24.284 (Third Edition Revised 1981):

"(T)he keeping of dogs may be a public nuisance by reason of their howling, barking and whining, the stench they cause, unsanitary conditions in which they are kept, or their disturbing of people in the reasonable use and enjoyment of property, where any of these factors cause annoyance, discomfort or injury to the health or welfare of persons. An ordinance may limit the number of dogs that may be kept * * *."

There is, therefore, adequate statutory authority to support the enactment of this ordinance by the Village.

We next consider whether the classifications contained in the ordinance are violative of equal protection. We note here that the defendant's characterization of the ordinance purely as a zoning ordinance is without merit. Although zoning is one of the police powers which may be exercised by a municipality, during oral argument before this court, it was established that the ordinance was part of the animal control ordinance of the Village which, inter alia, includes a leash law and regulates the keeping of large animals and reptiles. The limitation of dog ownership by reference to types of residences...