City of Chicago v. O'Brien
111 Ill. 532
Ill.
1884
Check Treatment
Mr. Chief Justice Scholfield

delivered the opinion of the Court:

It is conceded by counsel for appellant that this court, in Gridley v. City of Bloomington, 88 Ill. 554, decided the only question involved in this case, (namely, the validity of the ordinance under which the suit is prosecuted,) against appellant ; but they contend that decision is based upon incorrect grounds, and should therefore be overruled. They contend that the ordinance is but a proper police regulation, and that, as such, it should be sustained. In support of this position they cite Bonsall et ux. v. Mayor, etc. 19 Ohio, 418, Paxon v. Sweet, 13 N. J. (1 Green,) 196, Mayor, etc. v. Mayberry, 6 Humph. 368, Washington v. Mayor, etc. 1 Swan, (Tenn.) 177, Woodbridge v. City of Detroit, 8 Mich. 274, and other cases.

In City of Chicago v. Larned, 34 Ill. 203, — a case very 'aborately argued by able counsel, — the principle involved i the decisions of these cases was carefully considered, and it as held they could not apply here, — that they were decided under constitutions so materially different from ours, that the same line of reasoning is not applicable to both. And in City of Ottawa v. Spencer, 40 Ill. 211, which was a proceeding to enlarge the adjacent lot owner with the cost of building a sidelvalk, the same question was again before the court, and it was then insisted, as it is now, that the charges may be sustained as within the police power, but the position was held untenable. In passing upon this point, it was there said: “It is also urged that this may be referred to the police power of the State, which has been delegated to the city, and may therefore be properly exercised; and in support of the proposition we are referred to the decisions of the Supreme Court of Tennessee: Mayor, etc. v. Maberry, 6 Humph. 368; Washington v. The Mayor and Aldermen of Nashville, 1 Swan, 177; White v. The Mayor and Aldermen of Nashville, 2 id. 364. These eases go to the length of sustaining the doctrine contended for by plaintiffs in error. They announce the doctrine that such improvements may be compelled under the general police power. If this be so, by an exercise of the same power we presume that the owner could be compelled to construct and keep in repair public roads, bridges and culverts fronting upon or running through his lands, or the owner of a city or village lot could be compelled to make and repair the street in front of his property. A sidewalk is a portion of a public highway, appropriated, it is true, to pedestrians alone, but still open and free to all persons desiring to use’and enjoy it as a public highway. It is as much a public highway in the mode of its use as the street itself. The difference in the manner of their use does not render one public, more than the other. They are both free to be properly used and enjoyed by the entire public, and are constructed alike for their use. That the legislature may afford the necessary power of constructing such improvements so essentially necessary to the comfort and convenience of the community, is apparent; but under our constitution we think the mode authorized in this case is not sanctioned, and that the principles announced in the case of Larned v. The City of Chicago fully govern; and control this case. ” j

Even the police power, comprehensive as it is, has Some limitations. It can not be held to sanction the taking of private property for public use without making just compensation therefor, however essential this might be, for the time, to the public health, safety, etc. And upon like principle, a purely public burden can not be laid upon a private individual, except as authorized in cases to exercise the right of eminent domain, or by virtue of proper proceedings to enforce special assessments or special taxation. The drainage of malarial swamps would surely largely contribute to promote the public health; but could it be contended that therefore the burden of such drainage may be laid upon some single person to be arbitrarily selected, or upon those who happen to own the adjacent dry land, in disregard of the principles applicable to special assessments and special taxation ? Undoubtedly, the allowing of ice and snow to remain upon a sidewalk may be declared a nuisance, but it must be a public nuisance, and one, too, not caused by the act of the adjacent property holder, but solely by the action of the elements. No one questions the right of the municipality to prevent such use of property and such action of the citizen as may be injurious to the public; but the adjacent lot owner has no ownership or control of the adjacent street, and this ordinance seeks to control the action of no one while on the street. The lot owner is held responsible solely and simply for the accident of owning property near the nuisance. He may have no more actual control of the street, or necessity to use it, than if his property were miles away; still, he is held responsible for a result he could not control, and to the production of which he did not even, theoretically contribute. The gist of the whole argument is merely that it is convenient to hold him responsible. It is not perceived why it would not be equally convenient to hold him responsible for the entire police government of so much of the street.

Counsel seem to wish to draw a distinction between the present case and the eases of City of Chicago v. Larned, and City of Ottawa v. Spencer, supra, upon the ground that it is here neither sought to construct nor repair a sidewalk, but simply to keep it in a passable condition. But the difference is in the extent and not in the character of the burden sought to be imposed. The principle is precisely the same in each case. The object is tó fit the streets, or so much as is occupied by sidewalks, for travel; and if the power to compel the j private person to accomplish this result exists at all, it must} extend to the necessary means in each case. It is impossible | to point out why the removal of a snow bank should rest on a different principle from that applicable to filling a hole or nailing down a board.

We are satisfied with the entire correctness of the ruling in Gridley v. City of Bloomington, supra, and being so satisfied, the judgment below must be affirmed.

Judgment affirmed.

Dickey, Sheldon and Craig, JJ., dissenting.