Nazworthy v. City of Sullivan

Mr. Presiding Justice Boggs delivered the opinion op the Court. The structure or the ruins of a structure described in the plea, situated, as it was, upon one of the principal streets of the city, unfit for human habitation or other lawful use, devoted to no use or purpose, a resort for tramps and disorderly persons, was a source of serious discomfort and annoyance to the public and of actual danger to useful and valuable property of the community within the range of its influence. It was within every definition of the term a public nuisance. It. can not be said that it was the use made of the building that was the ground of offense for it was not devoted by the owner or with his consent to any use and was unfit for use. The primary cause of public annoyance and danger was the decayed, dilapidated, ruined and abandoned condition of the building. Tramps frequented it because of its character, nature and condition. The city was vested with ample power to declare it a nuisance and to abate it as such. Subdivision 75, Sec. 63, Art. 5, Chap. 24, R. S. The statute which clothed the city with this authority did not prescribe any particular mode through or by which the power should be exercised by the city, but declared its prerogative “ to pass all ordinances, rules and regulations necessary to carry into effect the powers given.” Subdivision 95, Section 63, Article 5, Chapter 24, Bevised Statutes. An ordinance is necessary when a city designs to prescribe a general and permanent rule to have future operation and effect as a local law. Such corporations are authorized by our general statute to declare anything a nuisance which is in fact in its nature so, and to abate it, and it is not indispensable under this statute that the power should be exercised only in pursuance of an ordinance. When an act, such as the abatement of a thing, which in its nature is in fact a public nuisance, is to be done, a city, if authorized by the statute to do the act, may proceed by resolution of the city council. In such cases a resolution is as effective as an ordinance. 17 Amer. & Eng. Ency. of Law, 236; 4th Ed. Dillon on Municipal Corporations, note to page 384. It is urged that the demolition of the building was illegal and unjustifiable. If the nuisance consisted of the use made of the structure, clearly the law would not justify the destruction of the building, but the cause of the offense should alone be removed. As we have seen, it was the nature, character and condition of the ruins of the building which created the nuisance. Hence the demolition of the structure itself was justifiable under the general grant of power given the city by the statute. Beach on Public Corporations, Vol. 2, Sec. 1022, and cases cited, Note 142. But it is urged that the city had no power to demolish the building except in pursuance of the judgment of a court in the course of a legal proceeding instituted for that purpose. The doctrine announced by our Supreme Court in King et al. v. Davenport, Ex’r, 98 Ill. 305, is here in point. It was there said: “ But the particular respect in which the ordinance is assailed is that it authorizes the abatement of the nuisance summarily and without prior adjudication of the right to exercise it.” The summary abatement of nuisances is a remedy which has ever existed in the law, and its exercise is not regarded as in conflict with constitutional provisions for the protection of the rights of personal property.” Formal legal proceedings and trial by jury are often inappropriate, and wholly inadequate in cases where public safety demands an immediate remedy. Counsel for appellant cite and rely with confidence upon the opinion of the Supreme Court of the United States in Yates v. Milwaukee, 10 Wall. 505, in support of the position that the city could not lawfully order the structure to be torn down. We have examined the case. All that is there ruled is that the mere declaration of a city council that a given structure is a nuisance, does not constitute it a nuisance in fact and subject it to removal by a person aggrieved or by the city itself. In the case at bar the defendants (appellees) did not seek to shield themselves behind the mere declaration of the city council that the structure constituted a nuisance, but plead and specified in detail, facts from which the unlawful character of the building appeared. The appellant by his demurrer admitted the truth of these facts and in legal effect conceded that he had created and was maintaining a nuisance, and had refused to abate it after reasonable notice so todo, and submitted to the court for its judgment as a point in law, whether the city had proceeded lawfully in abating it. We are' of opinion that the facts set forth in the plea constituted a justification for the acts charged in the declaration. The judgment of the Circuit Court is afiirmed.