Poyer v. Village of Des Plaines , 18 Ill. App. 225 ( 1886 )

Wilson, J.

The plaintiff introduced evidence tending to-prove that on July 31, 1883, a picnic was held on defendant’s grounds, with his consent, and that a large number of disorderly persons were assembled in and about said grounds, conducting themselves in a riotous manner, drinking, gambling, firing guns, etc., to the great annoyance of the citizens of the village. On the other hand the defendant introduced evidence tending to prove that the grounds were never rented for pub-lie picnics ; that they were only rented for Sunday school and church societies, or societies of that nature; that on the day in question they were rented to a society known as the Columbkills Church Society, for the holding of their annual society picnic; and that there was no drinking or disorderly conduct except such as might have been caused by intoxicating drinks sold in saloons licensed by the village.

By the first section of the ordinance all public picnics and open air dances within the limits of the village are declared to be nuisances, and by section two it is declared to constitute a nuisance for any person to use, or rent to be used, any ground for public picnic purposes or open air dances, or to allow the use of such property for any purpose by which disorderly persons are gathered in or about said village.

By giving the first instruction for the plaintiff, and refusing the first and second instructions for the defendant, the court, in effect, declared all public picnics and open air dances, regardless of their character, to be nuisances, and that it was immaterial whether they were conducted in a quiet and orderly manner or otherwise ; it being sufficient to show that the defendant permitted a public picnic or open air dance to be held.

To this view we are unwilling to assent. It would be a startling proposition that under this general grant of power authorizing cities and villages to declare what shall be nuisances, they could prevent the people from assembling in a peaceable and orderly manner, on suitable occasions, to indulge in healthful recreations and innocent amusements. It is difficult to perceive why dancing in the open air is per se any more reprehensible or more of a nuisance than playing at leap frog or lawn tennis. The groves and green woods are nature’s own temples, to which the people have the right to repair with the consent of the owner, for rational sports and social intercourse, provided they do not disturb the public peace nor encroach upon private rights. The framers of the constitution inserted in that instrument a clause making inviolate the right of the people to assemble in a peaceable manner to consult for the common good, to make known their opinions to their representatives, and to apply for redress of their grievances. And it may well be supposed they would have added the right to assemble for open air amusements had any one imagined that the power to deny the exercise of such right would ever be asserted by a municipal corporation.

The question now presented is not whether municipal corporations may not declare riotous and disorderly gatherings to be nuisances, for in respect to such gatherings the ordinance is only declaratory of the common law. Thus in Rex v. Moore, 3 Barn. & Adol. 184, (23 Eng. Com. L., 188,) where the indictment charged the defendant with keeping certain grounds for the use -of persons to practice rifle-shooting, and permitted idle and disorderly persons armed with guns to meet there, etc., Lord Tenterden said: “If a person collects together a crowd of .people to the annoyance of his neighbors, that is a nuisance for which he is answerable. And this is an old principle.”

In the present case the ordinance declares all public picnics and open air dances nuisances, however quiet and orderly they may be. In Wood on Nuisances, § 27, it is said, “The question is not whether an act has been declared to be, but does it come within the idea of a nuisance ? ”

Judge Dillon in his work on Municipal Corporations (3d Ed.) § 374, in speaking of nuisances and of the power of municipal authorities to prevent and abate them, says, “ This authority may be constitutionally conferred on the incorporated place, and it authorizes its council to act against that which comes within the legal notion of a nuisance; but such power, conferred in general terms, can not be taken to authorize the extra judicial condemnation of that as a nuisance which in its nature, situation or use is not such,” citing numerous authorities.

Under the English Municipal Corporation Act, where the powers conferred are similar to those conferred by our statute, it is held that the power to suppress nuisances is confined to the suppression and prohibition of acts which, if done, must necessarily and inevitably cause a nuisance, and does, not empower the council to impose penalties for the doing of things which may or may not he a nuisance according to circumstances. Addison on Torts, 54, citing Everett v. Grapes, 3 T. R. (N. S.) Q. B. 669 ; Wanstead Local Board v. Hill, 13 C. B. (N. S.) 479 ; and see also Darst v. People, 51 Ill. 288; Welch v. Stowell, 2 Doug. (Mich.) 332 ; Yates v. City of Milwaukee, 10 Wall. 497 ; in which Mr. Justice Miller said, “ The mere declaration by the city council that a certain structure was an encroachment or obstruction, did not make it a nuisance unless it in fact had that character.”

It is unnecessary to cite other cases to the same effect.

In North Chicago City Ry. Co. v. Lake View, 105 Ill. 207, cited by appellant’s counsel, the town passed an ordinance declaring the use .of steam as a motive power m operating the company’s railway along one of the public streets of the town to be a nuisance. The Supreme Court held the ordinance valid, but say, “We do not at all question the proposition that under a general grant of power like the one in question, town authorities have no power to pass an ordinance declaring a thing a nuisance which is clearly not one. The adoption of such an ordinance would not be a legitimate exercise of the power granted, but on the contrary would be an abuse of it.” There the thing complained of as a nuisance could by no means be said to be clearly not one. On the contrary it is to say the least doubtful whether the running of steam cars along the public streets of a village is not per se a nuisance; and the court' adds, “ But in doubtful cases, where a thing may or may not be a nuisance, depending upon a variety of circumstances, requiring judgment and discretion on the part of ^town authorities in exercising their legislative functions, their action under such circumstances would be conclusive of the question.”

Our conclusion is that so much of the ordinance as declares all public picnics and open air dances, regardless of their character, to be a nuisance, is invalid; and that the court erred in refusing to so instruct the jury. Whether the gathering on July 31st was of such a character as to bring it within the second clause of the ordinance which declares the use of the grounds for the assembling of disorderly persons, etc., to be a nuisance, was a question of fact for the jury, to be decided according to the evidence, under proper instructions by the court.

For the errors indicated, the judgment below is reversed and the cause remanded for a new trial.

Reversed and remanded.