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County of Peoria v. Capitelli

OPINION FILED MAY 22, 1986.

THE COUNTY OF PEORIA, PLAINTIFF-APPELLEE,

v.

STEPHEN R. CAPITELLI, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Peoria County; the Hon. Jackson P. Newlin, Judge, presiding.

JUSTICE WOMBACHER DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 15, 1986.

Following a jury trial, the defendant, Stephen R. Capitelli, was convicted of allowing his cat to run at large in violation of an ordinance enacted by the plaintiff, Peoria County. The defendant contends on appeal that: (1) the county as a non-home-rule unit of government lacked the authority to enact the ordinance; (2) attorneys for the city lacked the requisite authority to prosecute violations of the ordinance for the county; and (3) prosecution of county ordinance violations by city attorneys is a conflict of interest and violates the Code of Professional Responsibility. We affirm.

The ordinance in question, section 5-19 of the Peoria County Code, provides in relevant part:

"(a) Every owner of a dog or cat shall contain such animal to the confines of the owner's real property unless the animal is under restraint.

(b) Every owner of a dog or cat is prohibited from allowing said animal to run at large in those unincorporated areas of the county which have been subdivided for residential purposes."

• 1 The defendant initially argues that this ordinance violated article VII, section 6, of the Illinois Constitution which governs the powers of non-home-rule units. (Ill. Const. 1970, art. VII, sec. 6.) Article VII, section 6, states that a local unit of government which is not a home rule unit can only exercise those powers expressly delegated by the legislature and those that arise by necessary implication from expressly delegated powers. (Queenwood East Sheltered Care Home, Ltd. v. Village of Morton (1981), 94 Ill. App.3d 51, 418 N.E.2d 472.) The defendant asserts that the county ordinance is unconstitutional because the power to regulate cats running at large was not expressly granted by the legislature, and it cannot be implied from other grants of authority provided by the legislature. We find no merit to the defendant's argument.

The counties were given the express power to establish animal pounds and to dispose of stray animals pursuant to the provisions of the Impounding and Disposition of Stray Animals Act, which concerns pet dogs and cats, as well as other animals. (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 128 et seq.) The grant of authority to dispose of stray animals provided by section 8 of the Act contains the implied authority to regulate stray animals, including pet dogs and cats, by less drastic means, such as fines, as provided by the Peoria County ordinance in section 5-19.

The Animal Control Act, which deals with stray-animal control, rabies protection, liability for animal bites and related topics, provides in section 24:

"Nothing in this Act shall be held to limit in any manner the power of 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 * * *." (Emphasis added.) Ill. Rev. Stat. 1983, ch. 8, par. 374.

The primary consideration in construing a statute is to give effect to legislative intent. (People v. McCoy (1976), 63 Ill.2d 40, 344 N.E.2d 436.) Applying this principle to the instant case, we believe the counties clearly have the express power to impound and dispose of stray animals and the implied authority to further control and regulate dogs, cats and other animals pursuant to the provisions of the Animal Control Act. There is no meaningful reason for a distinction between stray animals and those simply running at large. The authority to regulate and control is based on public health requirements, not upon ownership of any pet or other animal.

• 2 The defendant's next issue on appeal concerns the representation of the county by city attorneys. The prosecution of the defendant was brought pursuant to an intergovernmental agreement between the County of Peoria and the city of Peoria. Under the terms of this agreement, effective January 1, 1984, city attorneys were appointed assistant State's Attorneys for the purpose of enforcing the Animal Control Act (Ill. Rev. Stat. 1981, ch. 8, par. 351 et seq.), and chapter 5 of the Peoria County Code. The defendant maintains that this agreement violated the intergovernmental-cooperation provision of the Illinois Constitution (Ill. Const. 1970, art. VII, sec. 10). The defendant thus argues that city attorneys lacked the authority to prosecute ordinance violations for the county.

We note at this point that two motions were taken with the case. The defendant's motion requests that this court take judicial notice of on-going adversarial litigation between the County of Peoria, represented by the State's Attorney, and the city of Peoria, represented by city attorneys. Although courts of review traditionally do not take judicial notice of pending litigation involving different parties, the motion is allowed in the interest of reaching a full determination of the issue before us. (People v. Davis (1976), 65 Ill.2d 157, 357 N.E.2d 792.) The county, which did not object to the defendant's motion, requests that we take judicial notice of the intergovernmental agreement's adoption by the city council and the county board. This motion is also allowed as it is well established that reviewing courts may judicially notice matters of public record. American National Bank & Trust Co. v. City of Chicago (1971), 4 Ill. App.3d 127, 280 N.E.2d 567.

• 3 We disagree with the defendant's contention that the county's intergovernmental agreement violated article VII, section 10 of the Illinois Constitution. Under this constitutional provision, units of local government may share services and combine, transfer or exercise any function or power in conjunction with another unit of local government. ...


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