237 Ill. 300 | Ill. | 1908
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 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. Plaintiffs 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 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, 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 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 was, in fact, a nuisance and that it might lawfully be abated.
It is next insisted that before the property was actually destroyed the owners thereof were entitled to have a day in court, where the question whether the property was, in fact, a nuisance might be adjudicated before the building was destroyed. In the exercise of the police power the command “so use your own property as not to injure others,” and the maxim “the safety of the people is the supreme law,” are to be observed and given effect. (City of Chicago v. Gunning System, 214 Ill. 628.) If in every emergency the owner of the property the destruction of which is deemed necessary must be given a hearing, the exercise of the police power would in many instances be so delayed that serious injury to public health and other public interests would result. In King v. Davenport, 98 Ill. 305, in considering a like question, the following language was quoted with approval (p. 313) : “In the exercise of this [police] power the legislature may not only provide that certain kinds of property (either absolutely or when held in such a manner or under such circumstances as to be injurious, dangerous or noxious,) may be seized and confiscated upon legal process after notice and hearing, but may also, when necessary to insure the public safety, authorize them to be summarily destroyed by the municipal authorities without previous notice to the owner, as in the familiar cases of pulling down buildings to prevent the spreading of a conflagration or the impending fall of the buildings themselves, throwing overboard decaying or infected food, or abating other nuisances dangerous to health.”
Plaintiffs in error next argue that even if the city had the power to pass the ordinance and to proceed in the summary manner in which it did, they are entitled to maintain this suit and test the question whether or not the property was, in fact, a nuisance. To this the city first replies that the declaration of the council that the building was a nuisance finally determines that question. The law in this State gives no binding or final effect to the decision of the city council upon this question of fact. On the contrary, this question remains an open one, which may be adjudicated in this suit. Village of DesPlaines v. Poyer, 123 Ill. 348; Pearson v. Zehr, 138 id. 48.
Defendant in error then contends that if the building was not, in fact, a nuisance, the acts of the city council in passing the ordinance and destroying the building were, according to the declaration, ultra vires, and for such ultra vires acts the municipality cannot be held liable. It may be that if the thing which the city council did or expressly directed" to be done was wholly beyond the scope of the city’s power, as if, for instance, the city council, in the name of the city, should engage in the business of mining coal, and as a result of negligence in conducting the mine some individual should be injured, the doctrine of ultra vires would afford a defense to the municipality; but to declare and abate a nuisance is within the scope of the power conferred upon the city, and if the council, in the exercise of that power, destroys or expressly authorizes the destruction of property which, in fact, is not a nuisance, the municipality must be held liable for damages sustained by the owner. (Wood on Nuisances, sec. 740; Dillon on Mun. Corp.—4th ed.—sec. 972.) The city was not justified in destroying this property unless the statement of alleged facts contained in the ordinance was true, and then only if the property was so located and in such condition that the danger to public health therefrom could not be obviated by the use of some reasonable measures less drastic than the absolute destruction of the property.
The judgment of the circuit court will be reversed and the cause will be remanded, with directions to sustain the demurrer as to the first and second counts and to overrule it as to the third and fourth counts of the declaration.
Reversed and remanded, with directions.
