the city authorities could impose the duty of constructing sidewalks upon the lot owner, cannot relieve them from their liability in case a sidewalk (no matter by whom constructed) is suffered to be and remain out of repair and dangerous to use. The charter of the city of Bloomington gives the authorities of the city plenary power over this whole subject. It is a subject in which the public interests are deeply concerned, and full power having been bestowed, its execution can be insisted on as a duty, in the neglect of which the city should be responsible for a resulting injury. The case of Browning v. The City of Springfield, 17 Ill. 143, is decided on this principle, and so is the case of Scammon v. The City of Chicago, 25 id. 424, and that of Clayburgh . The Same, id. 535. The case of the City of Chicago e. Robins, 2 Black, 418 (Sup. Court, U. S.), is to the same effect. The rule is well settled, where a plain duty is neglected and one is injured by such neglect, the party upon whom the duty is imposed is liable for the damages sustained. 2. But it is insisted by the counsel for the plaintiff in error that there is no proof in the case that the city built, or even repaired, this sidewalk, and the presumption of law is, that the owner of the lot built it, and the evidence shows that he repaired it. It was in proof that the city council, on the 27th of March, 1852, passed an ordinance for constructing this sidewalk, and that it was, soon after, built. It having been built, by whom is immaterial, and it being a part of the street, it was the duty of the city to keep it in repair, it being under their exclusive control. If it was built by the owner of the lot abutting on it, justice requires that it should not be permitted by the city to suffer it to go to decay and ruin, when it was in their power, by the exercise of a reasonable degree of diligence, to have prevented it and preserved it for the safe passage of all those whose necessities required its use. The duty still remained with the city to keep this sidewalk in a safe condition for use. For the reasons given, the judgment of the Circuit Court must be affirmed. Judgment affirmed. 407. BYRON K. ELLIOTT and WILLIAM F. ELLIOTT. A Treatise on the Law of Rods and Streets. (2d ed., 1900, § 611.) In England the parishes are charged with the repair and maintenance of all roads lying within their limits, unless by custom or prescription the burden is thrown upon particular persons. So in Canada; but in neither country are they held liable to a civil action in damages. . . In the United States, townships and counties usually have control over suburban highways, and are often required by statute to repair their roads. . . . In most of the States, cities are given extensive powers, either by charter or by general statute, over the streets within their limits, and are held to corresponding duties and liabilities. By many of the Courts, the duty to maintain and repair streets is held to be implied where the city is given exclusive control over streets and has power to raise means for that purpose, and this seems to be the most reasonable ground upon which the liability can be placed. It is held by some Courts, however, that no liability for failure to keep streets in repair exists, unless it is expressly so provided by statute. Such is the established law as to towns in the New England States; the New England statutes generally provide that the streets shall be kept in good and sufficient repair or safe and convenient, and that the town or city shall be liable to persons injured by reason of any defect or want of repair. Where the duty to repair is expressly cast upon a municipal corporation and it is provided with means to perform such duty, it is, according to the prevailing doctrine, liable to any one injured (without fault on his part) by its neglect to perform such duty, regardless of the want of any statute expressly imposing such liability. . . . 408. GODDARD, PETITIONER SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1835 16 Pick. 504 COMPLAINT to the Police Court, in the name of the Commonwealth, against Goddard, as the occupant of a house and lot of land situate on Kingston Street, in the city of Boston (and not in that part of the city called South Boston) for neglecting and refusing to remove the snow from the sidewalk in Kingston Street, adjacent to his land; the defendant was sentenced to pay a fine and costs, and he appealed. . . . SHAW, C. J., delivered the opinion of the Court. No question is made of the facts in this case; but it is conceded that the petitioner did not clear the sidewalk in front of his land, in the manner required by the by-law of the city, and he justifies this on the ground that the law itself is invalid and of no binding force. . . . Another and perhaps the most important objection, is, that the by-law is one imposing a tax or duty upon the citizens, and is a violation of the Constitution in this, that it is partial and unequal, and contravenes that fundamental maxim of our social system, that all burdens and taxes laid on the people for the public good shall be equal. But the Court are all of opinion, that the by-law in question is not obnoxious to this objection. It imposes a duty on a large class of persons, the performance of which requires some labor and expense, and therefore indirectly operates as a law creating a burden. It is said to be unequal, because it singles out a particular class of citizens, to wit, the owners and occupiers of real estate, and imposes the duty exclusively upon them. If this were an arbitrary selection of a class of citizens, without reference to their peculiar fitness and ability to perform the duty, the objection would have great weight, as for instance, if the expense of clearing the streets of snow were imposed upon the mechanics or merchants, or any other distinct class of citizens, between whose convenience and accommodation, and the labor to be done, there is no natural relation. But suppose there is a class of citizens who will themselves commonly derive a benefit from the performance of some public duty, we can see no inequality in requiring that all those who will derive such benefit shall by a general and equal law be required to do it. . . . Although the sidewalk is a part of the public street, and the public have an easement in it, yet the adjacent occupant often is the owner of the fee, and generally has some peculiar interest in it and benefit from it, distinct from that which he enjoys in common with the rest of the community. He has this interest and benefit, often in accommodating his cellar-door and steps, a passage for fuel, and the passage to and from his own house to the street. To some purposes therefore it is denominated his sidewalk. For his own accommodation he would have an interest in clearing the snow from his own door. The owners and occupiers of house-lots and other real estate, therefore, have an interest in the performance of this duty, peculiar and somewhat distinct from that of the rest of the community. . ... The Court are all of opinion, that as a by-law, the regulation in question was a reasonable one, that it was not repugnant to the Constitution or laws of the Commonwealth, and that the conviction was right. Petition dismissed. 409. CHICAGO v. O'BRIEN SUPREME COURT OF ILLINOIS. 1884 111 Ill. 532 APPEAL from the Appellate Court for the First District; heard in that court on appeal from the Criminal Court of Cook County; the Hon. George GARDNER, Judge, presiding. This was an action by the city of Chicago, against Thomas O'Brien, for a violation of the ordinance hereinafter set out. The judgment of the Circuit Court of Cook County was in favor of O'Brien, and that judgment was affirmed in the Appellate Court for the First District. The cause was, by agreement of parties, submitted to the Court, without the intervention of a jury, upon the following agreed state of facts: That the said defendant was, at the time hereinafter mentioned, the occupant of the premises known as No. 203 Centre Avenue, which said premises were and are within the corporate limits of the said city of Chicago; that the said O'Brien, on, to wit, the 18th of February, 1884, and for a long time previous thereto, allowed the snow which had fallen, and the ice formed therefrom on a portion of the sidewalk hereinafter mentioned, to accumulate upon the sidewalk in front of said premises to the depth of from six to ten inches, and neglected and refused, and still neglects and refuses, to clear or cause the same to be cleared from said sidewalk, and where the snow had so congealed that it could not be removed without injury to the said sidewalk, the said O'Brien neglected and refused, and still neglects and refuses, to strew the same with ashes or sand; that prior to the said 18th day of February, 1884, the city council of the city of Chicago had duly passed, and the same had been duly and properly approved and published, according to law and the statute in such case made and provided, the following ordinance (Municipal Code, § 1955), to wit: "Every owner or occupant of any house or other building, and the owner or proprietor, lessee or persons entitled to the possession of any vacant lot, and every person having the charge of any church, jail, or public hall or public building in this city, shall during the winter and during the time snow shall continue on the ground, by nine o'clock in the morning, when necessary, clear the sidewalk and gutters in front of such house or other building, and in front of such lot, from snow and ice, and keep them conveniently free therefrom during the day; . . . and every person neglecting to comply with this section, shall incur a penalty of five dollars for each neglect or refusal.” And it is further agreed that said sidewalk is a part of one of the public streets or highways of said city. Mr. Geo. Mills Rogers, and Mr. M. R. M. Wallace, for the appellant. The ordinance can be most properly upheld under the general police powers vested in the city. Messrs. C. C. & C. L. Bonney, and Mr. Lyman M. Paine, for the appellee. The claim that the ordinance rests on the police power, is in conflict with the decisions of this Court. Mr. Chief Justice SCHOLFIELD delivered the opinion of the Court. It is conceded by counsel for appellant that this Court, in Gridley v. City of Bloomington, 88 Ill. 554, decided the only question involved in this case (namely, the validity of the ordinance under which the suit is prosecuted) against appellant; but they contend that decision is based upon incorrect grounds, and should therefore be overruled. They contend that the ordinance is but a proper police regulation, and that, as such, it should be sustained. . . Even the police power, comprehensive as it is, has some limitations. It cannot be held to sanction the taking of private property 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 principle, a purely 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 malarial swamps would surely largely contribute to promote the public health; but could it be contended that therefore the burden of such drainage may be laid upon some single person to be arbitrarily selected, or upon those who happen to own the adjacent dry land, in disregard of the principles applicable to special assessments and special taxation? Undoubtedly, the allowing of ice and snow to remain upon a sidewalk may be declared a nuisance, but it must be a public nuisance, and one, too, not caused by the act of the adjacent property holder, but solely by the action of the elements. No one questions the right of the municipality to prevent such use of property and such action of the citizen as may be injurious to the public; but the adjacent lot owner has no ownership or control of the adjacent street, and this ordinance seeks to control the action of no one while on the street. The lot owner is held responsible solely and simply for the accident of owning property near the nuisance. He may have no more actual control of the street, or necessity to use it, than if his property were miles away; still he is held responsible for a result he could not control, and to the production of which he did not even theoretically contribute. The gist of the whole argument is merely that it is convenient to hold him responsible. It is not perceived why it would not be equally convenient to hold him responsible for the entire police government of so much of the street. . . . We are satisfied with the entire, correctness of the ruling in Gridley v. City of Bloomington, supra, and being so satisfied, the judgment below must be affirmed. Judgment affirmed. DICKEY, SHELDON, and CRAIG, JJ., dissenting. 410. TOUTLOFF v. GREEN BAY SUPREME COURT OF WISCONSIN. 1895 91 Wis. 490, 65 N. W. 168 APPEAL from an order of the Circuit Court for Brown county: S. D. HASTINGS, Jr., Circuit Judge. Affirmed. This action was brought to recover damages for injuries suffered by a fall upon a defective sidewalk, upon one of the streets of the defendant city, in front of the lot of one Froncee. The sidewalk was charged to have become out of repair. Froncee was named as a co-defendant in the summons and complaint, but was never served. The defendant city, by answer, alleged that Froncee, the owner, and one Schroeder, the occupant, of the lot aforesaid, were charged with the duty of keeping the sidewalk in question in repair, and were primarily liable for the plaintiff's injury, if she was injured; and, upon the answer and an affidavit showing such ownership and occupancy, moved for a stay of proceedings until said Froncee and Schroeder should be made parties to the action and served with process. The motion was denied, and the city appealed. For the appellant, there was a brief signed by Carlton Merrill, city attorney, and Ellis & Merrill, counsel, and oral argument by E. H. Ellis. For the respondent, there was a brief by Cady & Huntington, and oral argument by F. C. Cady. WINSLOW, J. The question in this case is whether, under the charter |