Appeal from the Municipal Court of Chicago; the Hon. F. EMMETT
MORRISSEY, Judge, presiding. Judgment reversed and cause remanded
MR. JUSTICE ROBSON DELIVERED THE OPINION OF THE COURT.
This is a quasi-criminal action brought by the plaintiff, the City of Chicago, against William B. Wernecke, the defendant, because of his alleged failure to rid certain premises in the City of Chicago of rats and properly seal all the rat holes, which is claimed to be a violation of a municipal ordinance. The court heard the case without a jury and found the defendant guilty of a violation of the ordinance and assessed a fine against him of $25 and $10 costs, from which the defendant appeals.
Defendant was prosecuted under chapter 99 of the Municipal Code of Chicago which has to do with nuisances. He limits his appeal to the sole issue that he is not one of the class of persons named therein whom the City of Chicago can hold responsible for failure to provide rat stoppages on a certain piece of property. Section 99-1 provides:
"It shall be the duty of the commissioner of buildings to serve notice, in writing, upon the owner, occupant, agent, or person in possession, or control of any lot, building, or premises in or upon which any nuisance may be found, or who may be the owner or cause of any such nuisance, requiring him to abate the same in such manner as he shall prescribe, within a reasonable time. It shall not be necessary in any case for the commissioner to specify in his notice the manner in which any nuisance shall be abated, unless he shall deem it advisable so to do. Such notice may be given or served by any officer who is so directed or deputed. If the person so notified shall neglect or refuse to comply with the requirements of such order by abating such nuisance within the time specified, such person shall be fined not less than five dollars nor more than fifty dollars for every such violation.
"It shall be the duty of the commissioner of buildings to proceed at once upon the expiration of the time specified in said notice to cause such nuisance to be abated; provided, however, that whenever the owner, occupant, agent or person in possession or control of any premises, in or upon which any nuisance may be found, is unknown or cannot be found, the commissioner of buildings shall proceed to abate such nuisance without notice. In either case the expense of such abatement shall be collected from the person who may have created, continued or suffered such nuisance to exist, in addition to any penalty or fine."
The record reveals that on or about March 10, 1952, defendant entered into a contract with Evelyn Lundquist which provided as follows:
"Contract between Evelyn Lundquist and Wm. B. Wernecke pertaining to the collection of Rents of the within mentioned properties owned by Evelyn Lundquist.
"Wm. B. Wernecke agrees to act as rent collector and agent for Evelyn Lundquist for the following properties;
"(A) Property known as 930 N. Wells St. and 210 W. Walton St., Chicago, Illinois.
"(B) Property known as 876 N. Wells St. and 209 W. Locust St., Chicago, Illinois.
"(C) Property known as 1653 N. Sedgwick St., Chicago, Illinois.
"Wm. B. Wernecke agrees that all sums of money will be delivered to the credit of Evelyn Lundquist and hereby acknowledges that he will have no power to make any repairs, alterations, or improvements upon any of the above mentioned properties. Wm. B. Wernecke further agrees that he will not attempt to convert any of the monies or proceeds of rents belonging to Evelyn Lundquist to the payment of coal or water bills, insurance premiums, painting, decorating, altering, improving, janitors fees or rubbish and garbage removal, without express written instructions and authorizations for each and every payment from Evelyn Lundquist.
"Evelyn Lundquist agrees to pay Wm. B. Wernecke a legal Chicago Real Estate Board Rate of commission for his services of collecting rent. The above mentioned rate to be paid upon the gross amount of rent received.
"Wm. B. Wernecke shall [prepare] an itemized statement of all rents received and deliver same to Evelyn Lundquist by the twelfth (12) day of each and every month; by the terms of this contract Wm. B. Wernecke shall not withhold his fee but shall send the entire gross sum to Evelyn Lundquist. Evelyn Lundquist agrees to mail Wm. B. Wernecke ...