It is urged by the defendant that the ordinance under which this prosecution was instituted is invalid, and the arguments of counsel have been directed to that point alone. Before we can be called upon, however, to pass upon the validity of said ordinance, a case must be made out by the evidence tending to show some breach of its provisions. We are of the opinion that the evidence wholly fails to show any such breach.
The provision of the ordinance which it is claimed has been violated, is the one which forbids any person without a license to permit any grove or other grounds within the Village of Desplaines to be used for picnic purposes where a compensation therefor shall be obtained by the owner, manager or person in charge thereof, through the sale of refreshments or otherwise. The ordinance was passed June 7, 1886, and it is admitted that the defendant is the owner of a grove within the corporate limits of said village which he permits various societies to use for picnic purposes; that during the summer of 1886, and previous years, picnics have been held therein at frequent intervals, the defendant not charging any direct money compensation therefor, but reserving to himself the right to sell refreshments, etc., to the picnic parties, and from such source receiving his compensation for such use of said grounds. So far no breach of the ordinance is shown, as it does not appear that the defendant permitted his grounds to be so used after the ordinance was passed. During the summer of 1886, and previous years, does not necessarily include any occasion subsequent to June 7, 1886. Nor does it appear from this admission that the defendant actually received any compensation for the use of said grounds. It simply appears that he reserved the right to sell refreshments, etc., and thus obtain compensation, but it is not admitted that he in fact exercised such right or actually received any compensation by its exercise.
*588bior does the case seem to be aided by the admission that in July, 1886, the defendant permitted his grove to be used for picnic purposes under the conditions and circumstances in the stipulation previously mentioned. Those conditions and circumstances were merely the right to sell refreshments, etc., to the picnic parties, and receiving his compensation for the use of his grounds from that source. It thus fails to appear that on the occasion of the picnic in July, 1886, the defendant did anything more than reserve-to himself the right to sell refreshments, there being no admission that he did actually so sell them or that he did actually obtain any compensation for the use of his grounds on that occasion.
Permitting the nse of grounds within the village for picnic purposes is not forbidden by the ordinance, unless the owner, manager or person in charge, either directly or indirectly, through the sale of refreshments or otherwise, obtains some-compensation for the renting or use of the same. The evidence wholly fails to show that on any occasion subsequent to the passage of the ordinance the defendant did actually receive such compensation, and it therefore fails to show any breach of the ordinance.
The judgment is unsupported by the evidence, and it will therefore be reversed and the cause remanded.
Judgment reversed.