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Village of Northbrook v. Cannon

OPINION FILED JUNE 12, 1978.

THE VILLAGE OF NORTHBROOK, PLAINTIFF-APPELLEE,

v.

JOHN M. CANNON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD M. FIALA, Judge, presiding.

MR. JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 10, 1978.

Defendant was charged with permitting his dogs to run uncontrolled, thereby causing a nuisance in violation of the Northbrook Animal Control Ordinance. After a bench trial in the circuit court of Cook County, he was found guilty and assessed $40 in fines and $20 in costs. In this appeal he contends that the trial court erred in its interpretation of the ordinance as it applied to the facts presented.

The facts in this case are set out in a bystander's report of proceedings submitted pursuant to Supreme Court Rule 323 (Ill. Rev. Stat. 1977, ch. 110A, par. 323) and certified by the trial court as accurate. No verbatim transcript of the trial was taken. The report of proceedings provides, in pertinent part:

"At trial without a jury before the Honorable Edward M. Fiala on May 4, 1977, Officer G. Manes testified that on March 19, 1977, he picked up two dogs after he observed them running along the Strand near Newport in the Village of Northbrook, Illinois.

He further testified that the dogs were impounded by him and later picked up by defendant's daughter who presented evidence of proper rabies innoculation and Village licenses.

On April 16, 1977, Officer Manes testified that he picked up the same two dogs in back of premises near Willow and The Strand and informed defendant's minor son that the dogs would be taken to the police station because the officer wanted to deliver them to his parents instead of to a minor and that defendant later picked up the dogs from Officer Manes at the police station.

On cross-examination, Officer Manes stated that he did not observe defendant on either occasion except at the police station on the later date and that he did not know of any evidence that defendant caused, permitted, or even was aware of the dogs being out on either occasion except the fact that the dogs were out.

Defendant testified, without contradiction or challenge, that he was away from home and outside Northbrook at the time of each pickup and that the dogs were safely inside his home at the time he had left on each date."

Although the date shown on the complaint, April 6, and the date testified to, April 16, are conflicting, it is evident that defendant was prosecuted for four violations, viz., two violations on each of the two dates in question. The record further shows that defendant testified that at two earlier trials he had been found not guilty of charges relating to comparable sections of an earlier animal law, where the words "cause" or "permit" had been interpreted to require defendant's knowledge that his dogs were running uncontrolled and the word "owner" had been interpreted to require that defendant have a property interest in the dogs. Defendant alleged that the court should be bound by these former interpretations.

At the conclusion of the trial, the court found the ordinance in question was malum prohibitum and no proof of intention or awareness of an alleged violation was required. It further found that defendant was the owner of the dogs in question, notwithstanding the absence of any proof that defendant had "the right of property" in the dogs. Consequently, defendant was found guilty and assessed a fine and costs. Defendant's motion to vacate the judgment was denied and this appeal followed.

The pertinent provisions of the Animal Control Ordinance provide:

"16.1(c) `Animal Nuisance' is created when an animal owner permits his animal to: (1) run uncontrolled:

16.1(p) `Harborer' is any person who provides food and shelter for any domesticated animal on other than a ...


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