County of Peoria v. Capitelli , 144 Ill. App. 3d 14 ( 1986 )

JUSTICE HEIPLE,

dissenting:

I dissent.

The majority states the appropriate standard for assessing the constitutionality of the exercise of powers by a non-home-rule unit. A non-home-rule unit can only exercise those powers expressly delegated by the legislature and those that arise by necessary implication therefrom. Heidenreich v. Ronske (1962), 26 Ill. 2d 360.

The majority finds that two separate statutory sections implicitly authorize counties to regulate cats running at large. However, this finding conveniently overlooks the fact that there is an express delegation of authority relative to domestic animals running at large. This provision reads as follows:

“The county board of each county may regulate and prohibit the running at large of dogs in unincorporated areas of the county which have been subdivided for residential purposes ***.” Ill. Rev. Stat. 1983, ch. 34, par. 427a.

The statute makes no mention of the power to regulate cats. Moreover, there can be no logical implication of authority to regulate cats running at large from the delegation of authority to regulate dogs running at large. If the legislature had intended to delegate such authority, the statute would have read “dogs and cats” or “dogs and other domesticated, four-legged animals.” Furthermore, the known propensities of the different species explains the decision to regulate. one and not the other. Unlike dogs, cats running at large rarely attack or bite without provocation. Cats do not form vicious, destructive packs. Cats are not large enough to overpower small children. Cats seldom damage lawns, shrubbery, and gardens. Hence, the concerns underlying the delegation of authority to counties to keep dogs restrained do not necessarily extend to less harmful animals.

The statutory sections relied upon by the majority are ineffective to imply the power to regulate cats running at large. The statute pertaining to strays is irrelevant. The legislature empowered counties to regulate strays, not animals running at large. While the statute does not define the term “stray,” the distinction between strays and at large animals is obvious. A stray either has no owner or the identity of the owner cannot be ascertained. An at large animal is owned or subject to human control, but has temporarily ventured outside his immediate area of restraint. Proof of this distinction is inherent in the instant case; the owner had to be found to be fined. The public health and safety concerns engendered by strays are directly addressed in the Impounding and Disposition of Stray Animals Act (Ill. Rev. Stat. 1983, ch. llV-lz, par. 128 et seq.). There is nothing in that or other statutes which suggests that animals running at large need to be regulated so closely.

The more controversial question is whether the nonlimitation provision of the Animal Control Act carries with it an implication of authority to regulate all domestic animals running at large. Section 24 of the Act states as follows:

“Nothing in this Act shall be held to limit in any manner the power or any municipality or other political subdivision to prohibit animals from running at large, nor shall anything in this Act be construed to, in any manner, limit the power of any municipality or other political subdivision to further control and regulate dogs, cats or other animals in such municipality or other political subdivision including a requirement of inoculation against rabies.” Ill. Rev. Stat. 1983, ch. 8, par. 374.

At first blush, this seems to support the power of the county to prohibit the running at large of cats. Section 24 of the Animal Control Act is not, however, a grant of authority, express or implied. The relevant grant of authority is section 25.17a of “An Act to revise the law in relation to Counties” (Ill. Rev. Stat. 1983, ch. 34, par. 427a). It is simple, direct and unambiguous. The power to regulate dogs running at large is specifically delegated. As I have already noted, this provision does not support an implication of authority to regulate cats running at large. Neither will section 24 support such an implication. If the powers of non-home-rule units are to be limited to those delegated by legislation, then where there is an express legislative delegation relative to the subject matter to be regulated, only the delegating regulation should be analyzed to determine whether there is implied authority. As such, section 24 cannot serve as a basis for a delegation of implied authority where the actual delegating statute does not allow for such an implication.

Parenthetically, and also worth noting, are the comments of Governor Adlai E. Stevenson which he offered to explain his veto of a 1949 act of the General Assembly that would have barred owners from allowing their cats to run at large:

“I cannot agree that it should be the declared public policy of Illinois that a cat visiting a neighbor’s yard or crossing the highway is a public nuisance. It is the nature of cats to do a certain amount of unescorted roaming. Many live with their owners in apartments or other restricted premises, and I doubt if we want to make their every brief foray an opportunity for a small-game hunt by zealous citizens with traps or otherwise.

I am afraid this bill could only create discord, recrimination, and enmity.

Also consider the owner’s dilemma: To escort a cat abroad on a leash is against the nature of a cat, and to permit it to venture forth for exercise unattended into a night of new dangers is against the nature of the owner.

Moreover, cats perform useful service, particularly in rural areas, in combatting rodents—work they necessarily perform alone and without regard for property lines.

We are all interested in protecting certain varieties of birds. That cats destroy some birds, I well know, but I believe this legislation would further but little the worthy cause to which its proponents give such unselfish effort. The problem of cat versus bird is as old as time. If we attempt to resolve it by legislation, who knows but what we may be called upon to take sides as well in the age-old problems of dog versus cat, bird versus bird, or even bird versus worm.”

The judgment of conviction in this case should be reversed.