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City of Carbondale v. Brewster





Appeal from the Circuit Court of Jackson County, the Hon. Brocton Lockwood, Judge, presiding.


An ordinance enacted by the city of Carbondale (plaintiff) requires, under threat of fine, that persons in control of property fronting or abutting on paved sidewalks remove snow and ice from such sidewalks or, if the snow and ice are too hard for removal, to cover them with abrasive materials within 24 hours after a snowfall or freezing precipitation. An Illinois statute allows municipalities to require the owner or occupant of any premises to keep the sidewalks abutting the premises free from snow and other obstructions. (Ill. Rev. Stat. 1977, ch. 24, par. 11-80-13.) In dismissing a complaint against defendant for violation of the Carbondale ordinance, the circuit court of Jackson County held the statute and ordinance invalid. Plaintiff has appealed directly to this court pursuant to Rule 302(a). 58 Ill.2d R. 302(a).

Plaintiff contends initially that the circuit court erred because the basis for its holding had not been raised and, in fact, had been waived by defendant. The circuit court, in its written order, expressly based its decision on Gridley v. City of Bloomington (1878), 88 Ill. 554, wherein the court struck down a similar municipal ordinance, and held that the ordinance could not be upheld either under the principle according to which assessments are made or under the police power. 88 Ill. 554, 557.) We note that, in his motion to dismiss, defendant contended inter alia that the ordinance is an unreasonable exercise of the police power. It is evident, therefore, that this contention of the plaintiff is without merit.

Plaintiff next contends that the statute and ordinance are valid exercises of the police power. As stated, the Gridley court held the enactment of such an ordinance to be an invalid exercise of police power. This holding was adhered to shortly thereafter by a divided court in City of Chicago v. O'Brien (1884), 111 Ill. 532, which had before it precisely the same issue. Recently, the concept of police power in Illinois has been more thoroughly considered.

"The police power is an attribute of sovereignty inherent in every government. It has been reserved to all the States by the constitution of the United States. [Citations.] While it is not without limitation and may not be exercised arbitrarily, the legislatures of the States have broad discretion in the passage of statutes in its exercise. [Citation.] When the legislature has considered a problem and enacted legislation thereon, the act is presumptively a valid exercise of the power and the burden rests upon the one assailing the statute to show that it is without reasonable basis and entirely arbitrary. [Citations.]" (Memorial Gardens Association, Inc. v. Smith (1959), 16 Ill.2d 116, 123.)

The police power may be exercised to protect the public health, safety, morals, and general welfare or convenience. (Sherman-Reynolds, Inc. v. Mahin (1970), 47 Ill.2d 323, 326; Clarke v. Storchak (1943), 384 Ill. 564, 577.) To be a valid exercise of police power, the legislation must bear a reasonable relationship to one of the foregoing interests which is sought to be protected, and the means adopted must constitute a reasonable method to accomplish such objective. (Sherman-Reynolds, Inc. v. Mahin (1970), 47 Ill.2d 323, 327; Schuringa v. City of Chicago (1964), 30 Ill.2d 504, 509.) Although the determination of reasonableness is a matter for the court, the legislature has broad discretion to determine not only what the interests of the public welfare require but what measures are necessary to secure such interest. (Memorial Gardens Association, Inc. v. Smith (1959), 16 Ill.2d 116, 127; Clarke v. Storchak (1943), 384 Ill. 564, 577.) The court will not disturb a police regulation merely where there is room for a difference of opinion as to its wisdom, necessity and expediency. (Schuringa v. City of Chicago (1964), 30 Ill.2d 504, 515.) The reasonableness requirement also applies to ordinances passed pursuant to legislative authority. Petterson v. City of Naperville (1956), 9 Ill.2d 233, 244.

As it relates to real property, the police power is the vehicle by which the free and unencumbered use thereof may be adversely affected. Thus, a zoning ordinance will be upheld as a proper exercise of the police power if it bears any substantial relationship to the public health, safety, comfort or welfare. (E.g., La Grange State Bank v. County of Cook (1979), 75 Ill.2d 301, 307.) Similarly, a residential land subdivider may properly be required, as a condition to approval of the plat, to provide curb and gutter and suitable storm-water-drainage facilities (Petterson v. City of Naperville (1956), 9 Ill.2d 233), or to make contributions of land, or money in lieu of land, to be used for school and park sites (Krughoff v. City of Naperville (1977), 68 Ill.2d 352). As the court in Petterson stated.

"The privilege of the individual to use his property as he pleases is subject always to a legitimate exercise of the police power under which new burdens may be imposed upon property and new restrictions placed upon its use when the public welfare demands." Petterson v. City of Naperville (1956), 9 Ill.2d 233, 247.

The Gridley decision was based largely upon the court's observation that a lot owner has no greater interest in the street or sidewalk abutting his property than any other member of the municipality. This court has since reiterated that the sidewalk is considered a part of the street which has been set aside for pedestrian use. (Lansing v. County of McLean (1978), 69 Ill.2d 562, 572; City of Elmhurst v. Buettgen (1946), 394 Ill. 248, 252.) Continuing with this notion, the court, in O'Brien, denounced a snow-removal ordinance as laying a purely public burden upon a private individual, without providing for an exercise of the right of eminent domain or proper proceedings to enforce special assessments or special taxation. City of Chicago v. O'Brien (1884), 111 Ill. 532, 537.

We do not think that the ordinance here can properly be said to constitute a taxation scheme. Rather, what is involved is the imposition of regulatory provisions by way of the police power through an ordinance which requires persons in control of property abutting upon sidewalks to keep them clear of snow and ice. (See Petterson v. City of Naperville (1956), 9 Ill.2d 233, 249.) Furthermore, when police power regulations are reasonable and adapted to the objects sought to be accomplished, they are not unconstitutional even though private property may be injured, interfered with, or damaged without the payment of compensation. (Sherman-Reynolds, Inc. v. Mahin (1970), 47 Ill.2d 323, 328.) The court in Sherman-Reynolds upheld provisions of the Illinois Income Tax Act which require employers to withhold tax from compensation paid to their employees. The withholding provisions were upheld even though an employer's compliance required it to advance, out of its own property, substantial sums for necessary equipment, supplies, personnel and professional advice and assistance.

From the foregoing discussion, it becomes evident that Gridley and O'Brien should not be blindly adhered to. More recent developments have witnessed a general increase in the scope of the police power, as well as considerable erosion of the direct underpinnings of those two cases. Moreover, our research discloses only two other reported decisions in accord with Gridley and O'Brien. (State v. Jackman (1898), 69 N.H. 318, 41 A. 347; McGuire v. District of Columbia (1904), 24 App. D.C. 22.) The great majority of jurisdictions have instead upheld ordinances similar to that involved here, many of them expressly declining to follow the two Illinois decisions. (In re Appeal of Goddard (1835), 33 Mass. (16 Pick.) 504; Village of Carthage v. Frederick (1890), 122 N.Y. 268, 25 N.E. 480; Town of Clinton v. Welch (1896), 166 Mass. 133, 43 N.E. 1116; City of Lincoln v. Janesch (1902), 63 Neb. 707, 89 N.W. 280 (repair of sidewalks); State v. McMahon (1903), 76 Conn. 97, 55 A. 591; City of Helena v. Kent (1905), 32 Mont. 279, 80 P. 258; State ex rel. Egan v. McCrillis (1907), 28 R.I. 165, 66 A. 301; Kansas City v. Holmes (1918), 274 Mo. 159, 202 S.W. 392; State v. Small (1927), 126 Me. 235, 137 A. 398; Rich v. Rosenshine (1947), 131 W. Va. 30, 45 S.E.2d 499; State v. Giacchetto (1979), 166 N.J. Super. 351, 399 A.2d 1031.) Based upon the development of the police power in Illinois and upon what we consider to be the better reasoning of cases from other jurisdictions that have upheld similar legislation, Gridley and O'Brien are hereby overruled.

It cannot be disputed that keeping sidewalks free from snow and ice is closely related to and in furtherance of the public's welfare. The fact that this court has not seen fit to impose a common law duty on municipalities to keep their streets and sidewalks clear of snow and ice (Lansing v. County of McLean (1978), 69 Ill.2d 562) does not mean that those same municipalities cannot undertake by ordinance to require that sidewalks be kept clear of snow and ice in the interest of the public safety and welfare. Neither can it be said that the means chosen to accomplish the object of the legislation — requiring individuals to keep clear the portion of the sidewalk abutting the property under their control — is so arbitrary or unreasonable as to constitute an invalid exercise of the police power. The burden is not so manifestly disproportional or unrelated to a legitimate classification as to amount to unjust discrimination. The expenditure of time and effort, and perhaps expense, which the ordinance exacts is incidental to the enjoyment of property, just as are many other burdens, such as those mentioned earlier, imposed by the legislative branch. Furthermore, the law does not demand absolute equality. By making the requirement proportional to the length of property frontage, the legislation, in our opinion, is in compliance with constitutional requirements.

Defendant's final objection to the legislation is that it unconstitutionally imposes absolute liability for its violation. Defendant cites no constitutional provision in support, ...

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