26 Ill. App. 296 | Ill. App. Ct. | 1887
This suit was commenced November 15, 1886, before the police magistrate against appellee for the violation of an ordinance of the city approved November 23, 1885, and duly published, as follows: “ All fences made and constructed on any street or alley within the limits of Mason City, in whole or in part of barbed wire, is (are) hereby declared to be a nuisance (nuisances), and any person or persons who shall build such fence or neglect or refuse to remove such fence, or such part thereof as is made of barbed wire, after this ordinance shall take effect, shall be fined in any sum not less than §5 nor more than §25.” It was tried, on appeal, by the court without a jury, and the finding and judgment were for the defendant.
There is no disagreement as to the facts; Mason City is about one mile square, with a population of nearly 2,000. Its center of business and population corresponds very nearly with that of its area. Cattle are allowed to run at large in it.
Appellee owned the lots composing the east half of the block at its northwest corner,, excepting only the one at the north end. As a body they faced two streets and were inclosed, a year or two before the passage of the ordinance, by a barbed wire fence set back about afoot from the street line. There was no sidewalk along them until about four months before the commencement of this suit, when a narrow one of plank was laid on the east front. This sidewalk and the streets along the lots are very little used.
The only question made in the court below and here respects the validity of the ordinance. The city is incorporated under the general law, and the discussion has taken a wide range upon the express powers over streets and to declare nuisances thereby given, and the general police power of cities. We conceive it would be of but little, if any, use to follow it at length or to review the authorities so numerously cited on both sides. A majority of the court are of opinion that this ordinance in its application to the appellee and his lots- is clearly unreasonable and, therefore, beyond the power of the City Council to pass. The writer does not concur therein.
Judgment affirmed.
