Joseph Chamberlain v. City of Litchfield , 56 Ill. App. 652 ( 1895 )

Mr. Justice Pleasants

delivered the opinion of the Court.

Oh a trial by jury upon appeal from a justice of the peace, appellants were found guilty of the violation of an alleged ordinance of the city of Litchfield, as follows :

Be it ordained, etc. Section 1. That after the 20th day of May, A. D. 1893, it shall be unlawful for the owner of, or any person having control over any cow or cows, cattle, horses, mare or mules, to drive or permit the same to be driven upon any of the public streets of the city, along which the residents thereof shall have improved the same by the constructing in whole or in part along and outside the sidewalks thereof, of grass plats, boulevards or terraces, unless such cow or cows, horse, mare or mule shall be under the care and control of some competent person and secured by-rope, halter, harness or other suitable and sufficient device to properly control the same.

Section 2 prescribes for its violation a fine of not less than three nor more than one hundred dollars.

When plaintiff’s case in chief was closed, defendants moved the court to exclude the evidence and instruct the jury to find them not guilty, which was refused; and upon the rendition of the verdict of guilty, a motion for a new trial was also refused and judgment rendered imposing a fine of three dollars upon each and for the costs.

The evidence shows that in June, 1893, the defendants drove two fatted cows down Union avenue, a boulevarded street of Litchfield, to a slaughter house east of it; that Chamberlain rode a horse, leading another, and Simpson closely followed the cows, on foot, carrying in his hand only a stick; that the cows were loose, without a halter, rope or anything that could be called a device for properly controlling them, in any way attached to them, or, so far as appeared, in possession of the drivers; and that the cows did at times get upon the sidewalks and grass plats of the avenue.

The points urged against the judgment are that the ordinance was admitted in evidence without sufficient proof of its publication; that it was not a valid ordinance; that the venue was not proved; and that the court excluded all evidence offered to prove that defendants, from experience, were competent to drive, handle and control cattle; that these cows were actually under their control, were gentle and did not injure the walks or grass.

It is perhaps a sufficient answer to all of these except the one last stated, that to the introduction of the ordinance no specific objection was made.

The evidence so offered was a certified copy of the ordinance and the certificate thereto attached, which was as follows:

State of Illinois, Montgomery County, City of Litchfield.

I, W. L. Bateman, City Clerk of the City of Litchfield, in the county and State aforesaid, do hereby Certify that the foregoing is a true and authentic copy of ordinance No. 649, entitled “ An ordinance concerning misdemeanors in relation to animals upon improved streets,” passed and approved May 4, A. D. 1893, recorded on page 143 of records “ D,” of ordinances of said city, and that the same was duly published according to law.

In witness whereof I have hereto affixed my hand and the seal of said city, this 23d day of April, A. D. 1894.

W. L. Bateman,

[Seal.] City Clerk.

We think this, without specific objections, was prima facie evidence of its passage and due publication. Lindsay v. Chicago, 115 Ill. 120; Moss v. Village of Oakland, 88 Ill. 109.

Was the act here charged sufficiently shown to have been committed within the corporate limits of the city of Litchfield, in the county of Montgomery, and State of Illinois % It is claimed that this question is settled by the case of Dougherty v. The People, 118 Ill. 160. There the venue was Cook county, and the court said the witnesses “ refer to streets ” and localities by name, without indicating further, however, in what county or even in what city they are; nor do they mention any fact or circumstances showing by necessary inference that such street or localities must be in the city of Chicago, or elsewhere in Cook county.” In the latter case of Sullivan v. The People, 122 Ill. 385, in speaking of the contention that it did not affirmatively appear that the offense was committed in that county, the court said it was a misapprehension of the evidence, and that when all of it was considered that fact did appear. “ The prosecuting witness testified that she lived on Emerson avenue, formerly called Ashley street, and that the offense was committed in her house. One of the witnesses for the defense testified that she lived near the prosecuting witness * * * and that she had lived on Emerson avenue twenty years and in Chicago twenty-seven.” The necessary inference is that the period of her residence on Emerson avenue was included in the twenty-seven years she lived in Chicago, and hence that Emerson avenue must have been in Chicago. The court then proceeds: “ This evidence, considered in connection with the affirmative fact which appears from the record, that the trial was had in Cook county, where it is alleged the offense was perpetrated, is sufficient to support the finding of the jury that the offense was committed in the county of Cook. Of course this court will take judicial notice that Chicago is in Cook county. Proof that a crime was committed in Chicago, is proof that it was committed in Cook county. On the whole record considered, not the slightest doubt remains that the offense of which defendant was convicted was committed in the county alleged in the indictment.”

Here the record shows the case was tried before a justice of the peace, and on appeal in Montgomery county, the certificate of the city clerk shows Litchfield to be in that county in the State of Illinois. The testimony of the defendant, Chamberlain, is that they drove the cows down Union avenue, that they had a horse apiece “ until they got up town,” when Simpson dismounted, and they all testify that Union avenue is a paved and boulevarded street of Litchfield. Simpson had dismounted and they were on that avenue and up town when the offense was committed. It can not be doubted, upon all the evidence in the record, that it was within the corporate limits of the city of Litchfield, in the county of Montgomery and State of Illinois.

But it is further argued that the ordinance is void, because it “ depends upon the will of the residents of any street whether they construct boulevards on such street or not, and therefore it depends upon their will whether the ordinance shall be a valid ordinance or not.” This is the language of counsel. We think the inference is a non segruitur. It is not the validity but the application of the ordinance that so depends, and it is but the common case of laws regulating voluntary action. Guild v. City of Chicago, 82 Ill. 476, and cases there cited. They are none the less valid or reasonable because they do not apply to those who do not choose to bring themselves within their provisions, nor because there may be some who can not. The protection of this ordinance is provided for and offered to the residents of all the streets of Litchfield ali ke and upon the same conditions. It was ordained by the proper authorities, and is either valid or invalid, whether the residents of all or of some only, or of none of the streets “ will avail themselves of it.” And we perceive nothing unreasonable in it.

As to the excluded evidence we hold that none of the facts sought to be proved thereby, nor all together, were material without proof; also that on the occasion in question the cows were secured by rope, halter, harness, or other suitable and sufficient device to properly control them. Manifestly, it was upon the understanding that no such proof was expected or intended to be made, that the evidence offered was objected to and the objection sustained. We further hold that whether a stick or whip in the hands of a driver, walking or riding behind them, was or was not such a “ device ” for controlling them as was contemplated by the ordinance, was not a question for the jury. If any other was expected to be shown, it should have been so stated to the court or the proof offered. Neither was done, nor has it been intimated here that any such proof would or could have been made; and if such was the fact, as we may now assume, the ruling was correct, and the judgment will be affirmed.