Harmison v. City of Lewistown

38 N.E. 628, 153 Ill. 313

• Court: Illinois Supreme Court
• Decided: October 30, 1894
• Status: Published

Opinion

Mr. Justice Baker

delivered the opinion of the court:

This was a suit brought by the city of Lewistown, incorporated under the general laws of this State, against William H. Harmison and Prank Sheets, to recover a penalty for an alleged violation by them of section 2 of ordinance No. 14 of said city, by keeping and maintaining a slaughter-house within the corporate limits of said city, contrary to the provisions of such ordinance. The cause was tried before a jury in the Fulton circuit court, and they were found guilty, and adjudged to pay a fine of five dollars and costs. From that judgment they appealed to the Appellate Court, and from the judgment of affirmance in that court they bring the cause here by this further appeal.

The ordinance in question declares that a slaughterhouse shall be deemed and considered a public nuisance, and provides that any one who shall erect or maintain a slaughter-house within the limits of the city shall, upon conviction, be fined not less than five nor more than fifty dollars. The principal contention of appellants is, that the city council had no power to enact the ordinance in question.

Paragraph 75 of section 62, chapter 24, of the Revised Statutes of 1874, provides that the city council in cities, and the president and board of trustees in villages, incorporated under that act, 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.” Paragraph 83 of said section and chapter provides that they shall have power “to prohibit any offensive or unwholesome business or establishment within, or within one mile of the limits of, the corporation,” and paragraph 84 provides that they shall have power “to compel the owner of any grocery, cellar, soap or tallow chandlery, tannery, stable, pig-sty, privy, sewer, or other unwholesome or nauseous house or place, to cleanse, abate or remove the same, and to regulate the location thereof.”

In North Chicago City Railway Co. v. Lake View, 105 Ill. 207, which is a case exactly in point here, it was held that while, under a general' grant of power over nuisances, town authorities have no power to adopt an ordinance declaring a thing a nuisance which in fact is clearly not one, still, that in doubtful cases, where a thing might or might not be a nuisance, depending upon a variety of circumstances requiring judgment and discretion on the part of the town authorities in exercising their legislative functions, their action, under such circumstances, would be conclusive of the question.

In Huesing v. City of Rock Island et al. 128 Ill. 465, it was said: “Under paragraphs 83 and 84 of our Incorporation act, heretofore cited, we think power is conferred upon incorporated towns to prohibit slaughter-houses, or any unwholesome business or establishment, within the incorporation; and the common council of the town, by appropriate ordinance, may regulate the location of any unwholesome business, and may cleanse, abate or remove the same.”

By virtue of the statute above quoted, and in the light of the interpretation placed upon it by these decisions, we think power was conferred upon appellee to adopt the ordinance in question.

Appellants can not here assign for error the admission, over their objection, of said ordinance in evidence, for the objection was one that could have been avoided by other testimony, and appellants, in order to have the question of the admissibility of the ordinance considered here, should have entered a specific, instead of a general, objection to its admission. Sullivan v. People, 122 Ill. 385.

It is unnecessary to discuss the question whether or not the appellant Sheets was properly served with summons to appear in the justice court where the cause was originally tried, for, having joined in the appeal taken from the judgment there rendered to the circuit court, he thereby waived any objection to the service of the summons to appear before the justice. Wilson v. Roots, 119 Ill. 379.

Appellants cannot complain that the amount of the fine assessed against them is less than the minimum provided for by the ordinance. The error, if such it were, is in their favor.

Under the views herein expressed sustaining the validity of the ordinance, it would be mere repetition to discuss the instructions given and refused by the trial court. Suffice it to say, that we find no substantial error in the record, and the judgment of the Appellate Court is accordingly affirmed.

Judgment affirmed.