Roberts v. Ogle

30 Ill. 459

• Court: Illinois Supreme Court
• Decided: January 15, 1863
• Status: Published

Opinion

Caton, C. J.

The town of Carrollton was by its charter authorized to declare what should be nuisances, and to provide for the abatement thereof by ordinance. An ordinance-was passed, declaring swine running at large within the corporate limits to be nuisances, and providing for the abatement thereof. The court instructed, “ that under the laws of the State of Illinois, the owners of stock have the right to turn them upon the common- range of the county, and the corporation of the town of Carrollton has no right to pass an ordinance to impair that right; and that the ordinance, under which the defendant justifies the taking of the plaintiff’s hogs, is null and void, so far as it regards persons residing without the limits of the corporation.” This instruction was erroneous. Admitting the right of common to be as stated, it is not such a right as is not within legislative control. It may be abridged or destroyed, wherever and whenever the law-making power may think the public good may require it. If the legislature has the constitutional authority to confer this power upon the corporation, then the corporation had authority to pass this ordinance. The right to have hogs at large, in the corporate limits, is of no higher order than the right to have spirituous liquors within the same limits, and in the case of Goddard v. Jacksonville, 15 Ill. 588, we held that it was competent to the legislature to authorize the corporation to destroy such right by declaring liquor a nuisance there. The ordinance was valid, and the instruction erroneous.

The judgment is reversed, and the cause remanded.

Judgment reversed.