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City of Des Plaines v. Gacs

OPINION FILED OCTOBER 5, 1978.

THE CITY OF DES PLAINES, PLAINTIFF-APPELLANT,

v.

ANTHONY GACS, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. MARVIN J. PETERS, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

The City of Des Plaines, in a quasi-criminal action, charged defendant, Anthony Gacs, with keeping pigeons within the city limits, in violation of section 6-3-14 of the Des Plaines Municipal Code (Des Plaines City Code, ch. 3, § 6-3-14). The trial court held the city ordinance unconstitutional and thereby found the defendant not guilty.

The City of Des Plaines appeals, contending the ordinance is a legitimate exercise of its police powers and is constitutional as applied to the defendant.

We agree and reverse the trial court.

In 1963 the City of Des Plaines enacted the following ordinance:

"6-3-14: KEEPING OF FOWL PROHIBITED: It shall be unlawful and it is hereby declared to be a nuisance to raise, maintain or have upon any property within the City any chickens, ducks, geese, guinea hens, pigeons or other similar fowl."

On February 4, 1975, the defendant, Anthony Gacs, was charged with violating this ordinance by knowingly keeping racing pigeons on his premises.

It was stipulated at trial that the defendant owned and maintained approximately 50 pedigreed racing pigeons at his Des Plaines home. It was also stipulated that the facility which housed the pigeons was clean and sanitary.

At trial, the city presented Marvin Martin as an expert witness on its behalf. Martin was serving his fourth year as a Des Plaines city sanitarian. Martin had previously served as a sanitarian with the City of Park Ridge for 11 years.

Martin testified that, in his opinion, pigeons pose a contamination hazard. He stated that pigeons are proven carriers of such diseases as encephalitis, ornithosis, newcastle disease, salmonellosis and pig dysentery. Furthermore, pigeon droppings could communicate these diseases to human beings. Martin concluded his testimony by stating that the keeping of racing pigeons, within the city limits, detrimentally affects the public health and welfare of the city residents and that the ordinance in question was, therefore, reasonable.

The defendant called James A. Ruzek to testify as an expert witness on his behalf. Ruzek is secretary-treasurer of the Greater Chicago Combine and A.V. Center, an affiliate of American Racing Pigeon Union, Inc. Ruzek testified that racing pigeons are exercised two times a day, for one-half hour in the morning and one-half hour in the afternoon. Ruzek testified further that racing pigeons do not contact birds which are carriers of disease.

During his testimony, Ruzek claimed that a study was conducted by Marquette University and the University of Illinois which demonstrated that racing pigeons are not disease carriers. On cross-examination, however, Ruzek stated that he did not have copies of this study available.

The defendant was granted permission to file data with the court for its consideration. Among the data filed is an article by Wendell M. Levi entitled "Domestic Pigeons Do Not Carry Or Spread Diseases To Human Beings."

After considering the evidence and the arguments of counsel, the trial court found the city's ordinance unconstitutional and unreasonable as applied to the defendant and thereby found the defendant not guilty of the ...


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