The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1885-07-07
CLEAN CUTTERS.
A Decision OF Great Interest to Lot Own,
In CItiea.

~ In Cities.
An interesting decision, important to
every lot owner in cities, has Just been
rendered by the Supreme Court Of I'LL,
nois, in which it is held that acity has
not the constitutional powerto require
the owner or occupant Of premises to keep
the sidewalk and cutters in front thereof
free from snow and ice, or TO sprinkle the
\ same with ashes or sand where the snow
and ice cannot be removed without injury
4 Ia the pavement, and ipaicta fine on him
for a neglect or failure TO do so. Referring
To contrary cases the Court said:
"The cases 90 TO the length OF sustain.
/ ing the doctrine contended for by plain
titis in error. They announce the doc
trine that such improvements may be
compelled under tbegeneral police power.
.jIf this be so, by an exercise OF the same
mower. we presume that the owner could
be compelled 10 construct and keep IN re-
pair public roads, bridges and culverts
| ftonting upon or running through his
LANDS. or the owner Of o city or village lot
conld be compelled'to make aud repair
| the street in front Of his property. a
sidewalk is portion Of o public highway,
appropriated, 1t is true, to pedestrians
alone, but still open and free 70 all per-
sons desiring TO use and enjoy 1t as pub.
| lie highway. It's as much q public high.
way In the mode Of lis use as the street
itself. The difference in the manner OF
their use does not render one public more
than the other. They are both free to be
properly enjoyed by the entire public, and
are constructed alike for their use.
That the Legislature may afford the
necessary power OF constructing such ina
proyements, so essentially necessary to the
comfort and convenience OF the Commune
nifty, ia apparent; but under our Consi-
tuition we think the mode authorized in
thiscase Is not sanctioned. Even
the police power, comprehensive as 1t Is,
has some limitations. Itcannot be held
to sanction the taking Of private proper.
ty for public use without making Just
compensation therefor, however essential
this might be, for the time, to the public
health, safety, etc. And, upon like prin-
ciple, q public burden cannot be
laid upon a private individual, except as
authorized in cases to exercise the right OF
eminent domain, or by virtue OF proper
proceedings to enforce special assessments
or special taxation. The drainage OF ma
larial swamps would surely largely con-
tribute to promote the public health but
could It be commended that therefore, the
burden OF such drainage may be laid upon
some single person to beatbitrarily selected,
or upon those who happen to own the adj
jacent dry land, in disregard OF the princi:
pies applicable to special assessments and
special taxation. Undoubtedly, tho al
lowing OF ice and snow to remain upon
the sidewalk may be declared q nuisance,
but II must be q. public nuisance, and one,
too, not caused by the act Of the adjacent
property holder, but elyby the action
Of tho elements. No one questions the
right OF the municipality 10 prevent such
use OF property and such action OF the cit
izen as may be injurious TO the public;
but the adjacent lot owner has no owner.
ship or control OF the adjacent street, and
this ordinance seeks 10 control the action
OF no one while on the street. The lot
owner Is held responsible solely and SIM
ply for the accident ofoWning property near
the nuisance. He may have no more &C.
tual control Of the street or necessity TO
use 1t than II his property were miles
away. Still, he is held responsible for q
result he could not control, and TO the pro.
duction Of which he did not even theoret-
ically contribute. The gist of the whole
argument is merely that ID Is convenient
to hold him responsible Its not per-
ceived why it would not be equally con-
venient to hold him responsible for the
entire police government