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Sings v. Joliet

Supreme Court of Illinois

December 15, 1908.

No Number in Original

Opinion

 [*308]   [**665]  Mr. JUSTICE SCOTT delivered the opinion of the court:

We regard the first and second counts as fatally defective. It is unnecessary to discuss them in view of our conclusions as to the sufficiency of the remaining [***13]  counts. In what is hereinafter said regarding the narr., reference is had only to the third and fourth counts

] Section 2 of article 2 of the constitution of the State provides that no person shall be deprived of property without due process of law. Plaintffs in error insist that when that clause is given proper meaning it appears therefrom that the city was without lawful authority to pass the ordinance made a part of the declaration and to do the acts charged by that pleading.

] The 75th section of paragraph 62, chapter 24, Hurd's Revised Statutes of 1907, provides that the city council shall have power "to declare what shall be a nuisance and to abate the same; and to impose fines upon parties who may create, continue or suffer nuisances to exist." By the 78th paragraph of the same section the council is authorized to do all acts and make all regulations necessary or expedient for the promotion of health or the suppression of disease. The position of the city is, that it had authority to do everything charged against it by the declaration under and by virtue of these two sections and under and by virtue of its general police power.

Plaintiffs in error first object that [***14]  the city was without power to pass an ordinance which had application only to the property involved in this suit; that the power given to declare a nuisance must be exercised by an ordinance general in its character, operating uniformly upon all persons and upon all property of the same character within the city. While the precise steps necessary to be taken by the city in declaring a thing to be a nuisance have never been pointed out by this court, we are of opinion that the city, in the exercise of its police power, if the emergency existed, as it appears to have existed from the recitals of the ordinance,  [*309]  had the power to declare the existence of the nuisance by the ordinance which it passed, provided the location and condition of the building were such that the method ordained was the only one which could in reason be used that would be effective in preventing the spread of the disease. Many cases can readily be imagined in which the city must proceed in a manner exceedingly summary, both to declare and to abate a nuisance, and in such case the passage of an ordinance such as that here involved would seem to be a declaration sufficiently formal.

It is then said [***15]  that ] the power of the city to declare what shall be a nuisance is not an arbitrary one. To that proposition there can be no dissent. In the case of Laugel v. City of Bushnell, 197 Ill. 20, it is said (p. 26): "Nuisances may thus be classified: First, those which in their nature are nuisances per se or are so denounced by the common law or by statute; second, those which in their nature are not nuisances but may become so by reason of their locality, surroundings or the manner in which they may be conducted, managed, etc.; third, those which in their nature may be nuisances but as to which there may be honest differences of opinion in impartial minds." It is apparent that if the building in this case was a nuisance it fell within the second classification, and the city had the power to declare it to be a nuisance if it was in fact so. If the conditions recited in the ordinance existed and if the building was so located as that persons in the city could not by the city authorities, in the exercise of reasonable precaution, be excluded from the building or prevented from approaching so near thereunto as to be in danger of contagion therefrom, it would appear that the building [***16]  was, in fact, a nuisance and that it might lawfully be abated.

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237 Ill. 300 *; 86 N.E. 663 **; 1908 Ill. LEXIS 2620 ***

MARY SINGS et al. Plaintiffs in Error, vs. THE CITY OF JOLIET, Defendant in Error.

Prior History:  [***1]  WRIT OF ERROR to the Circuit Court of Will county; the Hon. FRANK L. HOOPER, Judge, presiding.

Disposition: Reversed and remanded, with directions. 

CORE TERMS

nuisance, declare, ordinance, destroyed, city council, police power, counts, abate

Constitutional Law, Substantive Due Process, Scope, Criminal Law & Procedure, Nuisances, Public Health Nuisances, Penalties, Governments, Local Governments, General Overview, Administrative Boards, Duties & Powers, Ordinances & Regulations, Police Power, Real Property Law, Torts, Nuisance