text:
    Chicago Title and Trust Company, Plaintiff, v. Irene M. Watson et al., Defendants. Appeal of Albert J. Peterson and 5500 Everett Building Corporation, Appellants, v. Earl C. Leonard, Receiver, Appellee.
    Gen. No. 41,309.

      Heard in the second division of this court for the first district at the June term, 1940.
    Opinion filed November 28, 1941.
    Sabath, Perlman, Goodman & Rein and Max W. Petacque, all of Chicago, for appellants.
    Henry E. Ayers and Gregory A. Gelderman, both of Chicago, for appellees; Clyde C. Fisher, of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

In a proceeding filed in 1933 to foreclose a second mortgage on property at 5500-02 Everett avenue and 1719 E. 55th street, Chicago, improved with a three-story brick building containing fifteen apartments, Earl C. Leonard was appointed receiver. Thereafter in July 1934, Chicago Title & Trust Company, as trustee, filed a complaint to foreclose a first mortgage on the same premises, alleging default in the payment of bonds aggregating $62,000. The following month the court entered an order extending the existing receivership to the first mortgage proceedings and directing Leonard as receiver to segregate and hold apart all moneys paid to him for the benefit of the Chicago Title & Trust Company, as trustee, and the holders and owners of the indebtedness secured by the trust deed. Irene M. Watson was the owner of the equity and a sister of Earl C. Leonard, the receiver. Shortly prior to the. foreclosure sale the owner of the equity, Mrs. Watson, assigned and transferred her equity in the premises to the 5500 Everett Building Corporation, which had been incorporated pursuant to a plan of reorganization. Albert J. Peterson, who was made a party to the complaint of the Chicago Title & Trust Company, filed his answer admitting the allegations thereof and joining in the prayer for foreclosure. Leonard continued in possession as receiver during the pendency of the proceeding, from August 13, 1934, to February 23, 1939, and during this period collected the rents, issues and profits as directed by the court. Shortly after the equity of redemption was assigned and transferred to the 5500 Everett Building Corporation, the chancellor directed Leonard as receiver to file his final report and account, and upon presentation thereof to the court various objections were interposed by Albert J. Peterson and the corporation. None of these objections, except one, is the subject of controversy in this proceeding. This appeal, prosecuted by Peterson and the corporation, arises from a ruling of the chancellor sustaining objection No. 5 and surcharging Leonard with the sum of $1,000 for rents collected from James C. Barnes, a tenant in the building during the period of receivership. The actual rental paid by Barnes during this period was $3,025, and appellants contend that the receiver should have been surcharged with the entire amount.

There is substantially no dispute as to the essential facts. Barnes and his wife occupied the apartment in question during the period of receivership, and ac-fatally paid $3,025 rental therefor. At times the rent was collected by Irene M. Watson, the owner of the equity, but during most of the period the rent was paid to the receiver, who takes the position that before sale the owner of the equity is entitled to the rent of one apartment, free, until a deficiency decree is entered. This contention is predicated upon what counsel characterizes as “the custom and established practice of this court.” While it is true that during the unprecedented period of foreclosure that existed in the depression years, the courts frequently allowed the owner of the equity to occupy an apartment in a building under foreclosure, before sale, rent free, this practice was not followed in all cases. No authority is cited in justification of the practice and we know of no cases which hold that the equity owner has such rights as a matter of law. However, that question is not of controlling importance because as a matter of fact Mrs. Watson did not occupy the apartment in question; it was occupied and paid for by Barnes, who attorned either to the receiver or to Mrs. Watson for the fair and reasonable rental thereof, and presumably the proceeds came into the hands of the receiver who is chargeable with an accounting therefor. The argument that if Mrs. Watson had occupied the apartment the receiver would not have been obliged to account for the rent, but would have been justified in allowing her to remain there without payment is beside the point.

The trust deed in question conveyed the rents, issues and profits of the mortgaged premises as security for the mortgage debt, and provided that “Upon or at any time after the commencement of any proceeding instituted in case of default, the court . . . shall,' upon application of complainant, as a matter of strict right and without regard to the then value of the mortgaged premises and without regard to the solvency of mortgagor or of any other party liable hereunder or the then use of mortgaged premises, appoint a receiver of the mortgaged premises and the rents, issues and profits thereof, pending foreclosure and sale and during the period of redemption, and mortgagor hereby irrevocably consents to such appointment and waives the giving of any notice or bond by the applicant for receiver. ’ ’ Under that provision of the trust deed and by the appointment of a receiver the court sequestered the rents of the entire mortgaged premises pending the foreclosure proceeding, and it became Leonard’s duty as receiver to collect the rents from all the apartments, including that occupied by Barnes, and account therefor, for the benefit of the bondholders. The indebtedness secured by the trust deed, as found in the foreclosure decree, amounted to $83,392.60. The foreclosure sale of the premises yielded only $7,000, leaving a deficiency of $76,392.60 available to the bondholders, who were the real parties in interest.

Brushing aside the extraneous matters argued in the briefs, we find no justification for the chancellor’s order, and no cases are cited to sustain the receiver’s position. In ruling on objection No. 5 to the receiver’s report, the court was evidently of opinion that the rental from the Barnes apartment belonged to the receivership estate and that the receiver was accountable therefor, but instead of surcharging Leonard with $3,025, which was the actual amount collected by him from Barnes during the period of the receivership, the chancellor arbitrarily fixed the amount with which Leonard was to be surcharged at $1,000, and made the following comment on his ruling: “I am inclined to rather make a short cut of this, and if the Appellate Court wants to wonder just how I arrived at the "amount, they will have to wonder, or reverse it, or do • what they want, because sometimes I just cannot take the time to go into all the various things that might make an exact sum, even on the basis I am figuring. It is a rather general reaction I have to the whole thing, and the figure I have got in mind that I think he should be held liable for to the estate out of this claim of three thousand dollars is one thousand dollars. That is just taking an arbitrary figure, assuming the estate might have had nothing if she had lived in the apartment, but the receiver gained nothing from having it paid to her. She was the gainer, just how much I cannot say. . . .”

Having determined that the receiver was liable, we know of no reason why he should not be surcharged with the entire amount collected from Barnes. A receiver appointed to collect the rents from the mortgaged premises must account for all rents collected by him or which by the exercise of reasonable diligence he could have collected, and where he wrongfully failed to collect rent from the tenant of premises he will be surcharged with the amount which he failed to collect. (Tenth Nat. Bank of Philadelphia v. Smith Const. Co., 242 Pa. 269; Clark on Receivers (2d Ed. 1929), vol. 1, par. 390, p. 506, par. 419, p. 569.)

During the pendency of this cause in the Appellate Court a motion was here made by the receiver to dismiss the appeal on the ground that neither of the appellants has any interest in the subject matter or in the proceeds of the receivership estate. As herein-before stated, Peterson was made a party to the proceeding and filed his answer, and therefore had a right to interpose objections to the receiver’s report. 5500 Everett Building Corporation became the owner of the equity of redemption through assignment, and therefore was entitled to the proceeds in the receiver’s hands. Moreover, the contention that these two appellants have no interest in the subject matter was not urged before the chancellor, but is made for the first time on appeal; therefore, the motion to dismiss the appeal, which was reserved to hearing, is now denied.

Because of the conclusions reached herein the order of the superior court is reversed and the cause is remanded with directions to order the receiver to account for the sum of $3,025.

Order reversed and cause remanded with directions.

Scanlan, P. J. and Sullivan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Friend

license: Public Domain

text:
    Cleaners Guild of Chicago et al., Appellees, v. City of Chicago et al., Appellants.
    Gen. No. 41,624.

      Heard in the second division of this court for the first district at the December term, 1940.
    Opinion filed November 28, 1941.
    Barnet Hodes, Corporation Counsel, for appellants; Martin H. Foss and Alphonse Cerza, Assistant Corporation Counsel, of counsel.
    Ryan, Condon & Livingston, of Chicago, for appellees; N. S. Channin, of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Cleaners Guild of Chicago, a nonprofit corporation, and seven individual plaintiffs engaged in the business of cleaning and dyeing, lodged a complaint against the City of Chicago, its commissioners of police and buildings, for temporary and permanent injunctive relief, seeking to restrain the city, its agents and servants from prosecuting any pending suits or proceedings against plaintiffs for alleged violations of certain zoning, health and fire prevention ordinances pertaining to the business of cleaning and dyeing in the City of Chicago; asking that the court find and declare that the process of dry cleaning by use of chlorinated hydrocarbon type solvents is not within the classification as a C-3 use under the zoning ordinance, but falls within classification C-l; also that the court find and declare that plaintiffs, other than the guild, are engaged in dry cleaning by means of chlorinated hydrocarbon type solvents; and that the provision of the building code which prohibits their systems being located in or near any dwelling or place of public assembly be declared invalid. The verified answer of defendants joined issue with the allegations of the complaint, and averred affirmatively and at length that the business of dyeing and cleaning as conducted by plaintiffs by means of chlorinated hydrocarbon solvents constitutes direct fire hazards and is highly hazardous to life and health because of the toxic gases emitted therefrom. The chancellor issued a tempoary injunction, from which defendants have prosecuted this interlocutory appeal.

In view of the fact that the interlocutory order is predicated upon the complaint and answer it will be necessary for an understanding of the issues involved to set forth these pleadings at some length.

It is alleged that the gravamen of plaintiffs’ suit is the oppressive, unreasonable, discriminatory and destructive effect on their business of a certain amendatory ordinance passed by the city council June 5, 1940, entitled, “An amendment of the building and license regulations governing dry cleaning establishments.” Plaintiffs say that they are engaged in the business of cleaning garments by a process employing synthetic solvents in specialized machinery and equipment, which are technically known as carbon tetrachloride, trichlorethylene, perchlorethylene, and nonflammable blends of carbon tetrachloride and other chlorinated hydrocarbon solvents, which are among the group commonly referred to as the chlorinated hydrocarbon type of solvents, and that the process of cleaning with these solvents is commonly known as the synthetic process.

The complaint then proceeds to set forth that prior to nine or ten years ago the prevalent commercial method of dry cleaning garments was by the use of gasoline, naphtha, benzine or other volatile and highly flammable solvents, which are generally referred to as the naphtha process, as distinguished from the synthetic process; that the naphtha process has for many years been classified under chap. 51 of the Municipal Code of Chicago as a “hazardous use”; that under chap. 51-1 of the Municipal Code hazardous use units were required to comply with the general provisions of the code pertaining to buildings and in addition thereto with the special provisions of chap. 51; that under chap. 51-3 dry cleaning occupancy was classified as a hazardous use unit; that consistent with the fact that the naphtha process, because of its extreme flammability, is a hazardous use and involves a serious fire risk, naphtha cleaners for many years past have beenunder the regulation of chap. 121 of the Municipal Code, entitled, “Dry Cleaners and Spotters”; that under the latter chapter as it existed prior to the amendment of June 5, 1940, a dry cleaner was defined “to mean any person keeping or using more than two quarts of gasoline, naptha, benzine or other volatile flammable liquids for the purpose of dry cleaning or spotting wearing apparel or any fabric for profit or reward”; that this definition itself clearly denotes that the dry cleaning process as then known was synonymous with the use of highly flammable solvents, and their licensing was justified on the ground that municipalities have the power to prevent fires and to regulate the construction of buildings for the handling and storage of flammable materials; that the zoning-ordinance of 1923, by chap. 194-A-8, classified and restricted clothes cleaning as a C-3 use, and the gist of such restriction is that under the 1923 ordinance a dry cleaning establishment was not permitted in that part of a commercial district which is nearer at any point to a residence district or apartment district than 125 feet (chap. 194 of the Municipal Code of Chicago, A-10 (d) ), that a naphtha cleaning plant or unit, by the very nature of the process, requires complicated and bulky machinery and equipment, spacious quarters, and because of the fire hazard, special structural and housing facilities and restrictions, inherently involving- a large capital outlay or investment, and to be profitable is designed for volume production in plant units adapted to servicing- large residential areas as distinguished from a strictly neighborhood service use, and that these factors readily adapt the naphtha process to the C-3 use zoning classification without destroying- its commercial effectiveness.

It is alleged that about ten years after the adoption of these zoning provisions the synthetic process of cleaning garments began its commercial development, and as a result of extensive research by chemical producers and equipment manufacturers in new and improved uses for chlorinated hydrocarbon solvents, the growth of the synthetic method of garment cleaning was substituted for the old naphtha process; that the growth of the new method is due first to the properties of the synthetic solvent itself, and second to the perfection of specialized machinery for its mechanical and safe use.

It is further alleged that these solvents present no fire hazard; that they have a relatively high volatility which permits rapid drying and deodorizing, and that the vapors have a distinctive odor and any appreciable escape out of the cleaning machinery is instantly detectable; that because of the ease with which synthetio solvents can be reclaimed and used repeatedly, and freedom from fire hazard, they are particularly suitable for use in relatively small, compact, specialized machinery units to be accommodated in the average store space of the usual commercial district, in distinguishing contrast to the naphtha process, and that by reason of these characteristics garments are ready for delivery within as little as two hours after they are received, and therefore the synthetic process lends itself to a local service neighborhood use. It is conceded that these synthetic solvents have a moderate toxicity if improperly used, but because the odor from gases can be readily detected by the sense of smell, plaintiffs say they present a much lower toxicity hazard than carbon monoxide gas which is the odorless gas emitted from the exhaust of automobiles and other internal combustion engines which is in a certain degree continuously present in all congested city districts where there is heavy traffic.

It is alleged that the process of synthetic cleaning involves the use of specialized machinery and equipment which is designed to reduce to a minimum the possible escape of vapors into the surrounding room atmosphere to insure healthful working conditions and at the same time to conserve the solvent; that the price of these solvents per gallon is about 90c as compared with 9c per gallon for naphtha solvents, thus making conservation of the solvent essential to a commercially profitable use of the process. The complaint alleges that in the naphtha cleaning process there is involved a secondary step known as “spotting,” which is in effect the removal by hand and use of chemicals of types of soil which the principal process of cleaning fails to remove, and that a similar spotting process is involved but to a lesser degree in the synthetic process of cleaning; that in the spotting process flammable substances are sometimes used, but the synthetic cleaning business does not, in its nature, require, and is in no sense dependent on flammable substances for spotting purposes. Plaintiffs allege that the synthetic cleaning process as a neighborhood enterprise has a large commercial value and that during the past six or seven years the number of such neighborhood synthetic cleaning stores and installations has grown from only a few to about 150, located in various parts of the city, including the loop area as well as outlying districts which are generally classified under the zoning ordinance of the City of Chicago as commercial districts; and that the respective synthetic cleaning stores operated by plaintiffs are located in commercial districts in various sections of the city.

The complaint then sets forth the pertinent sections of the code as existing prior to the amendment and the amendatory portions thereof, and alleges that prior to the amendatory ordinance of June 5, 1940, regulation and licensing of cleaners was predicated on the use of gasoline, naphtha, benzine or other volatile flammable oils, the use of which involves a serious fire hazard and therefore is subject to municipal regulation under the implied powers of chapter 24, sections 65.62 and 65.64 of the Cities and Villages Act (Smith-Hurd Rev. Stat. 1939).

It is further alleged that by the amendment of June 5, 1940, the city council included chlorinated hydrocarbon type solvents within the regulatory scope of both chapter 51 of the Municipal Code, entitled “Hazardous Use Units,” and chap. 121 of the code, entitled “Dry Cleaners and Spotters”; that these synthetic solvents present no fire hazard and therefore their inclusion cannot be justified on the ground of fire hazard, but must be based on some other implied ground, and that since these synthetic solvents, if improperly used, have some toxic reactions, “it is a safe assumption that the city’s justification for the regulation of their use is based on health hazard from toxic vapors.”

The complaint alleges that fire hazard on the one hand and health hazard on the other are so different in their reactions that restrictions by the city within the ordinances complained of, consistent with protection of the public from fire, are entirely unreasonable and irrelevant to the protection of the public health from toxicity, and, in fact, destructive of the synthetic cleaning business, and that the substance of plaintiffs’ objections is “that under the guise of regulation of synthetic cleaners, the City is attempting to subject these plaintiffs to certain regulatory provisions of the ordinances which have no reasonable relation to the protection of the public health and are so oppressive, unreasonable and discriminatory when applied to their type of business as to, in effect, prohibit and destroy their business within the City of Chicago.”

With respect to the zoning of cleaning and dyeing establishments, it is alleged that under chap. 194 A-8, custom dyeing or cleaning is classified as a C-3 use, and that the ordinance provides that “no C-3 use or part thereof, together with auxiliary uses thereto, shall be established in that part of a commercial district which is nearer at any point to a residence district or apartment district than 125 feet.” It is alleged that when the zoning ordinance was passed in 1923 the synthetic cleaning industry was entirely unknown, and that the only method then used was the naphtha process, which was generally recognized as a very extreme fire hazard; that the naphtha process requires complicated and bulky machinery and equipment, and, because of fire hazard, special structural and housing facilities, and to be commercially profitable is dependent on volume of production adapted to servicing large residential areas as distinguished from a strictly neighborhood service use; and that it is to be assumed that in 1923, when the C-3 classification for dry cleaners was established, it was done with a view to, the nature of the cleaning industry as then known, and the restriction that dry cleaning plants shall not be established in that part of a commercial district which is nearer at any point to a residence district or apartment district than 125 feet, is consistent with the cleaning industry as it was known and conducted in the year 1923, but that the factors that justified these restrictions in 1923 are wholly nonexistent in the case of the later synthetic process of cleaning in which plaintiffs are engaged.

The complaint alleges generally that each plaintiff conducts his business in a safe, sound and sanitary manner, free from any hazards of toxicity to the employees and public and consistent with the protection of health and safety; that each plaintiff has built up a local neighborhood good will and clientele indispensable to a continuance in the lawful business of synthetic cleaning; and that their businesses, in the aggregate, represent an investment of many thousands of dollars;

It appears from the complaint that after the passage of the amendatory ordinance of June 5, 1940, some of the plaintiffs were served with arrest slips by the City of Chicago for purported violation of the ordinances, others threatened with arrest, some served with summary notices to discontinue the operation of their businesses within five days for alleged violation of the provisions of the ordinances, and still others threatened with the service on them of summary notices to discontinue their businesses; and that unless the City of Chicago, its officers and agents are restrained from pressing these proceedings, both threatened and commenced against them, their businesses, investment, patronage and good will will be destroyed and irreparably lost to them; and that, having no adequate remedy at law, and for the purpose of preventing a multiplicity of suits, they bring their complaint to obtain injunctive relief.

The verified answer of the city and other defendants denies that the ordinances have an oppressive, unreasonable, discriminatory and destructive effect upon the lawful business of plaintiffs, it states that chlorinated hydrocarbon solvents are not the only cleaning solvents used by plaintiffs, but that in addition thereto plaintiffs use highly flammable solvents, such as naphtha, gasoline, acetone and the like, which constitute serious fire hazards; that although chlorinated hydrocarbon solvents do not constitute the same direct fire hazard as do gasoline, naphtha, benzine and other flammable liquids, they are highly hazardous to life and health, due to the toxic gases emitted therefrom, and, because of the hazards involved in the storage and use of same, they have been classified as a hazardous use, and dry cleaning buildings and rooms in which they are used are required to comply with the provisions of the Municipal Code relating to hazardous use units; that because of the hazards involved in their use, dry cleaners have been brought within and made subject to the city’s dry cleaners and spotters license ordinance.

The answer further avers that chlorinated hydrocarbon solvents are highly volatile liquids and constitute secondary fire hazards, for the reason that if a fire or other accident should occur in a plant using them, and a pipe, drum or other container holding them were to be ruptured, then by reason of the highly toxic nature of the fumes from such solvents they would constitute pronounced hazards by causing the death of or incapacitation of firemen or others in or near the plant.

■ It is averred that the licensing and regulation of all dry cleaners is now justified on the ground that municipalities have the power to prevent fires and regulate the construction of buildings for the handling and storage of flammable liquids and also the power to protect lives and health of the public against the hazards of toxic liquids and gases and to regulate the construction of buildings, including the ventilation thereof, for the storage and use of toxic chlorinated hydrocarbon solvents.

It is averred that the city’s zoning ordinance classifies custom, dyeing or cleaning, clothes cleaning, steam cleaning, as a C-3 use along with many other C-3 uses, and prohibits the establishment of C-3 uses in that part of a commercial district which is nearer than 125 feet to a residence district or apartment district; that long before the passage of the zoning ordinance in 1923 the city regulated fire hazards, and the zoning ordinance was not passed for the purpose of regulating fire hazards but basically and fundamentally for reasons such as the planned dividing of the City of Chicago into districts, for the purpose of regulating the location of trades and industries and buildings and structures designed for dwellings, apartment houses, industries and other specific uses, and generally for the underlying purpose of protecting residence districts and apartment districts against commercial and manufacturing establishments, whether the latter were or were not fire hazards, and for the purpose of preventing depreciation in property values.

The answer further avers that chlorinated hydrocarbon process cleaning requires the use of complicated and costly machinery and equipment, special structural housing facilities and restrictions and careful regulation by public authorities for the purpose of protecting the employees and the public against the toxic vapors and fumes of the solvents; that if the structural and housing facilities of dry cleaning plants using such solvents are not properly regulated and adequate ventilation provided, and the location of exhaust pipes kept from residential apartments and places of public assembly, a dire health hazard will be presented; and that these health hazards as readily adapt chlorinated hydrocarbon cleaning to the C-3 use zoning classification as do the fire and explosion factors adapt the naptha process to such C-3 use zoning classification.

The answer denies that chlorinated hydrocarbon solvents have a distinctive odor and that any appreciable escape is.instantly detected, but state that the odor is very subtle and at times pleasant to the sense of. smell, and under certain conditions and concentrations it is well nigh impossible to detect; and that there is always some vapor escape from the cleaning machinery and equipment in the process of dry cleaning.

It is further averred that dry cleaners of long experience say it is impossible to clean all garments and fabrics by using chlorinated hydrocarbon solvents, but that other solvents, flammable in their nature, such as naphtha, ether and the like must be resorted to.

Defendants aver that the reclamation process employed by plaintiffs in order to make repeated use of the solvents is a distillation process; that to distill it is necessary to subject to high temperatures, to cause the solvents to vaporize and in this manner remove therefrom any soil or foreign substance; that the vapors are then passed through cooling apparatus to recondense the liquids, but after recondensation it becomes necessary to remove both liquid and foreign matter from the still; that this distillation process not only subjects the machinery and equipment to high tension, causing possible leaks therein, but contamination results when the foreign substances are removed and exposed to the atmosphere of the rooms in the cleaning establishments, and is frequently the direct cause of fires and explosions; that the solvents which plaintiffs say they use in their business are produced by combining hydrocarbons with gas known as chlorene in various proportions, and at ordinary room temperatures they have a vapor pressure which will cause them to diffuse into an enclosed room and reach such concentrations as to prove fatal; that they are highly volatile, and emit gases more readily at room temperature than do the so-called naphtha solvents, and exposure to them may easily endanger health to a degree that would bring about degenerative changes in the human system; that this degenerative action is well recognized by both the medical profession and all industries wherein these solvents are manufactured and used; that because of their volatile nature they are a health hazard to persons occupying inclosed spaces within the plant building used, and frequently to individuals in adjoining buildings, and are additionally dangerous when used near heated surfaces, because they break down to form phosgene under certain conditions and to form hydrochloric acid and oxide of chlorine under other conditions; that phosgene is highly toxic and one of the principal agents in chemical warfare.

It is averred that the regulation of these solvents is of paramount importance to protect the lives and health of employees, and the public generally, because the membrane of the alveolae of the lungs is pervious to them; they enter the blood stream and have the same effect on the fatty structures of the body as they have in the dry cleaning process, namely, a fat solvent; that since one of the substances in the blood is the protoplasm consisting in part of fatty material, the danger is apparent; and that they also have an injurious external effect, causing dermatitis and chronic eczema.

It is also averred that the business of “spotting” is involved in most all dry cleaning establishments, whether synthetic or naphtha, and that the defendants are informed and believe that practically all dry cleaners in the spotting process are dependent upon a wide variety of flammable and toxic substances, such as ether, gasoline, naphtha, acetone, carbon disulphide and the like; that the regulation of dry cleaning under the hazardous use unit chapter of the municipal code is justified not only on the ground of fire hazard but also and especially upon the ground of hazards due to toxic gases, and that the ordinance regulations have a reasonable and direct relationship to the public health and public welfare.

With reference to the zoning ordinance it is averred that this ordinance was passed pursuant to express statutory authority and has long been in effect and sustained by the courts as being an exercise by the city of the broad powers as to zoning* granted by the legislature ; that its classifications are valid, and the courts should not substitute their judgment for that of the legislative body; that the classification of dry cleaners as a C-3 use, and the 125 foot restriction, are equally applicable, reasonable and proper and within the power of the city to apply to synthetic process cleaners.

It is averred that plaintiffs, comprising a small group of recalcitrant synthetic cleaners object to the ordinance, while others are complying therewith and recognizing the value and validity thereof; they deny that there are no locations in commercial districts more than 125 feet distant from residence or apartment districts, but on the contrary say that there are vast areas wherein plaintiffs and their establishments may properly be located.

In conclusion it is averred that manufacturers of chlorinated hydrocarbon solvents recognize the toxic properties thereof by placing conspicuous labels on all containers or drums containing such solvents, warning users against their toxic properties, and that the United States Division of Labor Standards recognizes the hazards in chlorinated solvents and maintains a large force for research purposes and for the purpose of preparing and disseminating information regarding the toxic properties and the causes and prevention of poisoning thereby. Plaintiffs’ allegation that their businesses will be injuriously affected by the enforcement of the. ordinance is generally denied in the answer.

It may be conceded that the object of a temporary injunction is to preserve and hold in status quo the rights of parties until the cause can be disposed of on .its merits (Nestor Johnson Mfg. Co. v. Goldblatt, 371 Ill. 570), and that the purpose of the statute (Ill. Rev. Stat. 1939, ch. 110, sec. 202 [Jones Ill. Stats. Ann. 104.078]), allowing appeals from interlocutory orders is to permit a review of the exercise of the discretion lodged in the chancellor for the purpose of determining whether an interlocutory order is necessary to maintain the status quo and preserve the equitable rights of the parties (Lincoln Trust & Savings Bank v. Nelson, 261 Ill. App. 370), but whether equity will lend its aid, either in the form of a temporary or permanent injunction, to violate valid ordinances, predicated on the admitted right of the city to enforce health and safety measures, especially when it appears extremely doubtful whether plaintiffs can ultimately prevail, presents another question.

Plaintiffs concede that the ordinances in question were valid when passed, and that the city had the power and authority to enact them. They contend, however, that these ordinances are .outmoded as now invoked against them because of the new synthetic process of cleaning developed since the ordinances were passed; that because chlorinated hydrocarbon solvents, in the main, are not flammable or direct fire hazards and are used in specialized cleaning equipment, plaintiffs should be permitted to locate their cleaning plants wherever they choose, in or near dwellings, apartments or places of public assembly, where plaintiffs can most readily attract prospective customers ; and that they should be permitted to escape compliance with the city’s ordinances which control the location of dry cleaning plants and regulate the business of dry cleaning, and receive the aid of equity in so doing, upon the theory that it is the province of the courts and not the city council to grant relief against unreasonable and oppressive ordinances and to protect litigants from arbitrary or discriminatory restraint by the city in the exercise of its police power. The argument invoked is predicated upon allegations that these ordinances are oppressive, unreasonable, discriminatory, and that they have a destructive effect upon the business of. plaintiffs.

Plaintiffs admit that the chlorinated hydrocarbon solvents used in their plants are volatile at room temperatures and toxic, and it is conceded in their complaint, and affirmatively averred in defendants ’ answer, that certain flammable chemicals are used in spot cleaning as a part of the business in which they are engaged. The city argues that the most plaintiffs can hope to accomplish on the final hearing is to show that their toxic solvents are less dangerous to health than defendants believe them to be, that their specialized machinery and equipment is better adapted to protect employees and the public from the hazards of fires and toxic gases than defendants aver in their answer, and that plaintiffs consider the 125 foot restrictive provision of the zoning ordinances and of the hazardous use units chapter of the building code more drastic than plaintiffs think they should be, because of the new processes of cleaning now employed.

The powers to subject to license and regulate dry cleaners using toxic solvents are derived from various sections of Article V of the Cities & Villages Act (chap. 24, Ill. Rev. Stat. 1939). Section 78 (par. 65.77) grants express power to make all regulations necessary or expedient for the promotion of health or the suppression of disease, and in interpreting this section of the statute the courts have said that the health power is one of the most important of the city’s police powers, and that it is “inherent in a municipality, and may be exercised whether expressly granted or not, because the preservation of the health of the public is indispensable to the existence of the municipal corporations.” (Gundling v. City of Chicago, 176 Ill. 340, at 348, citing Ferguson v. City of Selma, 43 Ala. 400.) In Biffer v. City of Chicago, 278 Ill. 562, without any specific grant of power the court, under section 78, sustained the city’s ordinance regulating the sale and advertising for sale of deadly weapons, and said (p. 569): “When the city council considers some occupation or thing dangerous to the health of the community and in the exercise of its discretion passes an ordinance to prevent such a danger, it is. the policy of the law to favor such legislation. Municipalities are allowed a greater degree of liberty of legislation in this direction than in any other. . . . The most important of the police powers is that of caring for the safety and health of the community. . . .”

In Ruban v. City of Chicago, 330 Ill. 97, the court held (at p. 101) that “if there is a reasonable connection between any business or occupation and peril of employment therein, or to the public, a reasonable ground for regulation is presented.” The Ruban case involved the regulation of the laundry business, which the court described as being of such character, which without proper regulation, “may create unsanitary and unhealthful conditions,” and concluded by saying “there seems to be no doubt that the city had authority, under paragraphs 66 and 78, to regulate the establishment and operation of laundries . . . .”

It is one of plaintiffs’ contentions that there is no need for regulation of their plants and businesses; that the city’s power is limited to the regulation of health hazards and does not extend to regulating the use of every toxic and injurious substance; that because their toxic solvents are used by them in specialized machinery and equipment, there is no health hazard in their use. It seems to us, however, that the affirmative averments of the answer, which in the absence of a replication to the verified answer must be taken as admitted (Wiedoeft v. Frank Holton & Co., 294 Ill. App. 118, 126), satisfactorily negative the allegations of the complaint. Aside from this conclusion, however, the decisions sustain the position taken by the city. City of Chicago v. Arbuckle Bros., 344 Ill. 597, involved the city’s wholesale food establishments’ ordinance, to which defendants objected on the ground that due to the kind and manner of handling their food products the ordinance regulations were not necessary, a contention similar to that advanced by plaintiffs in this proceeding. The court held adversely to this contention, however, and said (p. 604): “It is argued on behalf of the plaintiff in error that if there is any question of public health connected with the distribution of the articles dealt in by it the question is very remote; that most of the operations involved in the preparation of its products are accomplished through the use of automatic machinery; and furthermore, that teas and coffees, before consumption, are prepared with boiling water in the home and spices and flavoring extracts are used sparingly in cooking. However remote the question may be, whether it exists and the degree of its importance are for the determination of the city council, and while its determination is not final, it will not be set aside if there is any reasonable relation between the action of the council and the public health.” Ruban v. City of Chicago, supra, deals with the same subject matter and the court there held (p. 101): “The city in the first instance, is the judge of the expediency of regulation,” and that “having adopted means and prescribed methods to those ends, the city has the right, and as a correlative the duty is imposed upon it, to make, correct and enforce the regulations it has prescribed to that end.” It is likewise well settled in Illinois that when a city exercises its power of regulation upon a subject courts will not declare the regulatory provisions void unless they are palpably arbitrary (City of Chicago v. R. & X. Restaurant, 369 Ill. 65, 71); and that courts are without power to inquire into the wisdom of an ordinance and have nothing to do with the mere policy of legislation. (Booth v. Illinois, 184 U. S. 425; City of Chicago v. Waters, 363 Ill. 125, 131; Stearns v. City of Chicago, 368 Ill. 112, 116.)

It is evident from an examination of the complaint and the averments of the answer that under the well-settled rule of law in this State it did not lie within the province of the court to declare these ordinances manifestly unreasonable or palpably arbitrary, especially in view of the conceded admissions of the complaint, and while there may be room for a difference of opinion on the question of fire hazard and toxicity, we are impelled to hold that the ordinances are adapted to the purpose of securing and protecting the public health and safety, a duty committed by the legislature to the city, whose judgment and discretion is vested in the city council and not the courts.

With respect to the zoning ordinance as applicable to plaintiffs’ dry cleaning plants, we think the provisions of this ordinance are valid and properly related to the dry cleaners and spotters’ license ordinance, which provides that every application for a license shall be approved by the commissioner of buildings and the division marshal in charge of the bureau of fire prevention as to compliance of the premises named therein with the building provisions and fire Regulations of the code, before the licenses issue. Thus, the provisions of the. city’s zoning ordinance, as well as those of the hazardous use units, are incorporated in the license ordinance. With respect to dry cleaners the requirements of the zoning ordinance are proper for the reason that their plants are commercial establishments and are regulated as to location. Dry cleaners have long been subject to the provisions of this ordinance. The legislature has granted the city broad powers over zoning and the ordinance was not passed merely to regulate fire hazards but for various reasons specified, in the grant of power. The powers granted to the city are reasonable and valid, and the authority of a municipality to impose reasonable restraint upon the use of private property by means of zoning ordinances has been repeatedly recognized by the Supreme Court of this State, and was expressly approved in Speroni v. Board of Appeals of the City of Sterling, 368 Ill. 568. If, as plaintiffs contend, the process of dry cleaning should not be within the zoning ordinance as a C-3 use, that contention should be addressed to the city council and not to the courts, and unless the chancellor was prepared to hold that the classification was palpably arbitrary or that there was no basis or reason to support it, or that the ordinance should be impeached for fraud, we think he was not justified in questioning the classification enacted by the city.

With respect to the particular ordinance before its amendment June 5, 1940, the Supreme Court in Klever Shampay Karpet Kleaners v. City of Chicago, 323 Ill. 368, made the following observation (p. 375): “If the requirements of an ordinance regulating the construction and use of buildings for the protection of the lives and safety of citizens as well as their property against fire are adapted to the purpose of securing such protection, the court cannot interfere with their enforcement unless they are manifestly unreasonable. The extent to which the public safety requires the construction of buildings and the conduct of business therein to be regulated and the method of such regulation, where such regulation is committed by the legislature to a city, are questions which are left to the judgment and discretion of the city council to determine, and unless the exercise of such judgment and discretion is manifestly unreasonable the courts will not interfere with it. A court will not hold cm ordinance void as unreasonable where there is room for a fair difference of opinion on the question, even though the correctness of the legislative judgment may be doubtful and the court may regard the ordinance as not the best which might be adopted for the purpose.”

Following the issuance of the temporary injunction the cause was referred generally to a master in chancery for hearing of the issues made up by the pleadings, with a short time limitation upon the conclusion of the hearing which has long since expired, and presumably the proceedings should now be ready for determination upon the merits of the cause. Plaintiffs’ counsel argue that reassertion of the allegations of the bill and answer does not constitute proof of those allegations, but that for a determination of these ultimate questions the chancellor properly referred the cause to the master and was justified, in the interim, in granting the temporary injunction to maintain the status quo pending the hearing on the merits. This procedure is not applicable to cases where ordinances involved were admittedly valid when passed and within the powers of the city to enact, and the case made by the bill and answer fails to disclose that the application and enforcement of the ordinances and their reasonable adaption to the subject matter of the regulatory power are palpably arbitrary or manifestly unreasonable.

Plaintiffs complain because the city has only recently determined to enforce these ordinances against them and that the summary manner in which it is proposed now to enforce them will operate with destructive effect upon the businesses of plaintiffs. They overlook the fact, however, that these ordinances were in effect long before they selected the present locations in which they are operating their cleaning and dyeing establishments, and that plaintiffs were fully aware of the existence of these ordinances at all times. It has been repeatedly held that failure to enforce an ordinance against all persons affected by it does not invalidate it or furnish a ground of attack against it. (Patsone v. Pennsylvania, 232 U. S. 138; Wagner v. City of Rock Island, 146 Ill. 139; City of Metropolis v. Gibbons, 334 Ill. 431.)

It appears from the complaint that chlorinated hydrocarbon cleaning is a comparatively new process and has made rapid growth in the city, and until the amendment of June 5, 1940, subjecting such establishments to regulation and license under the dry cleaners and spotters ordinance, it was undoubtedly difficult for the zoning officials to check up on the many plants in operation. On the other hand, the zoning ordinance classification and the 125 foot provision have long been applicable to plaintiffs’ establishments, and even though a violation of this ordinance was not sooner abated plaintiffs should not be entitled to urge their own violation of a law as a reason why it should not be enforced against them. Moreover, the answer affirmatively shows, and the complaint concedes, that plaintiffs keep and use in their business highly flammable solvents such as ether, naptha and the like, which are fire hazards, and therefore their plants come within the purview of the ordinance as upheld in Klever Shampay Karpet Kleaners v. City of Chicago, supra.

No question is raised as to the constitutionality of these ordinances, and under the authorities we hold them to bear a reasonable relation to the public health and safety. We are of the opinion that the temporary injunction was improvidently issued and should be reversed. It is so ordered.

Injunction order reversed.

Scanlan, P. J., and Sullivan, J., concur.


author: Mr. Justice Sullivan

text:
    People of the State of Illinois ex rel. Moody Bible Institute of Chicago, Appellee and Cross Appellant, v. City of Chicago et al., Appellants and Cross Appellee.
    Gen. No. 40,573.

      Heard in the second division of this court for the first district at the February term, 1939.
    Opinion filed November 28, 1941.
    Barnet Hodes, Corporation Counsel, for appellants and cross appellees; Joseph F. Grossman, First Assistant Corporation Counsel, and J. Herzl Segal, Assistant Corporation Counsel, of counsel.
    Urion, Bishop & Sladkey, of Chicago, for appellee and cross appellants; Howard F. Bishop, Daniel S. Wentworth and Robert F. Dewey, all of Chicago, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

The Moody Bible Institute of Chicago (hereinafter referred to as the Institute) filed a petition for mandamus against the City of Chicago and certain of its officials (hereinafter for convenience sometimes referred to collectively as the city) to compel payment of the balance of certain condemnation judgment awards and interest thereon, which judgment awards were entered on November 28, 1930, in a condemnation proceeding wherein property of the Institute was taken for public use by the city. The city and its officials admitted in their answer the entry of said judgment awards and the partial payments made on account of same, but denied any obligation to pay the unpaid balance of said awards because of the failure of the Institute to perform an agreement alleged to have been made by it to remove its property from the condemned portions of its land. The city filed an amended counterclaim wherein it averred petitioner’s breach of the agreement to remove its property from the condemned portions of its land and claimed damages'by reason thereof equivalent to interest on the amounts paid upon the judgment awards at the rate of 5 per cent from the dates of payment. After a hearing by the court without a jury the issues raised by the petition for mandamus and the answer thereto were found in favor of the city. The issues presented by its amended counterclaim were found against the city. The city perfected its appeal to this court from that portion of the judgment order denying its counterclaim. Petitioner filed its notice of appeal to the Supreme Court from that portion of the judgment order denying its petition for mandamus. In the appeal taken by petitioner to the Supreme Court, that court entered the following order: “In this case it appears a prior appeal has been prayed to the Appellate court, First District. This appeal is dismissed without prejudice. ’ ’ Petitioner then perfected a cross-appeal to this court from that portion of the judgment order of the trial court denying its petition for mandamus.

The following material facts appear from admissions made by the parties in their pleadings and from the evidence submitted at the trial. December 23, 1924, the city council of the City of Chicago passed an ordinance pursuant to the Local Improvements Act, which provided for the taking of certain property, including property owned by the Institute, for the purpose of making a public improvement on North LaSalle street. In accordance with the terms of said ordinance a petition for condemnation, entitled City of Chicago v. McCluer, was filed by the city in the county court of cook county. Said petition and proceeding involved the condemnation of fourteen feet of property on each side of North LaSalle street for the widening thereof from Ohio street north to North Clark street. The Institute owned three parcels of land on North LaSalle street near Chicago avenue, which was only a short distance from the south end of the widening project. Certain property owners, including the Institute, filed legal objections to the special assessments and the amounts of the proposed condemnation awards. After the county court overruled such objections, said property owners waived further controversy and judgment was rendered confirming the assessments against their property and the awards to them. Said judgment awarded compensation to the Institute aggregating $519,727 as to its three parcels of land. This judgment of the county court was appealed to the Supreme Court and affirmed (City of Chicago v. McCluer, 339 Ill. 610). The aforesaid property owners, including the Institute, filed “an appeal to and a petition for certiorari in the Supreme Court of the United States” to review the judgment of the Supreme Court of Illinois. While said appeal and petition for certiorari were pending the city and the property owners effected a compromise and entered into the following written stipulation:

In the Supreme Court of the United States. October Term, A. D. 1930.

It is hereby stipulated and agreed, by and between the parties hereto, that a careful investigation has been made of the awards heretofore allowed and the assessments confirmed, which investigation shows that the awards are considerably below a fair value and the assessments too high, as a result of which investigation the issues in the above entitled cause have been settled as hereinafter set forth in order that the awards and assessments may be fair and reasonable, which reasonable amounts both parties agree are in accordance with the schedule hereto attached. In consideration of the settlement of the controversy by the entry of the findings and the judgment thereon as hereinafter set forth, the parties hereby agree that the appeal and the petition for a writ of certiorari in the above entitled case now pending in the Supreme Court of the United States shall be dismissed.

In consideration of said dismissals, and immediately upon the dismissals of the aforesaid causes and delivery to the Corporation Counsel of the City of Chicago of a copy of the said orders of dismissal, appellee agrees to set aside the verdicts and judgment order entered therein in the County Court of Cook County, Illinois, as to the properties hereinafter described in the schedule hereto attached and made a part hereof, and after evidence presented to enter findings and judgment thereon as to both awards and assessments which (subject to court approval) shall be in accordance with the amounts set up in said schedule, which schedule is hereto attached and made a part hereof.

Upon the entry of such findings and judgment order thereon, and the furnishing to the appellee evidences showing good title in the respective appellants to the properties described in said schedule, and the removal of all obstructions, or the submission to the Board of Local Improvements of a bona fide contract for their removal, from the part taken in such proceeding, said appellee agrees to pay in cash to the owners of the properties mentioned in said schedule the amounts originally allowed in said findings and judgment order as to each of them, deducting therefrom the assessments originally confirmed against each of the remainder of such properties.

Upon the payment to the appellants of the amounts allowed in the original judgment order less the original assessments confirmed against each of said properties in the assessment roll, the respective appellants agree to surrender to appellee the property taken in the above proceedings and described in the schedule hereto attached, and to have entered in the above proceeding an order, or orders, permitting the appellee to take possession of such properties for which awards have-been allowed and part payment made.

Said appellants, and each of them, do hereby agree that in the event that any court or courts should decide that the appellee or any officials of said appellee be charged with the excess amount allowed to the said appellants over and above the amount in the original judgment order or/and the amount saved to the said appellants by reason of any reduction in the assessment beyond that already reduced and such decision or decisions be made final, the said appellants, and each of them, do hereby agree to reimburse the said appellee or any of its officials and to give a personal bond to the said appellee and its officials to hold them safe and harmless in case any judgment or judgments is entered against them or either of them because or on account of this stipulation. Appellee agrees that before there can be any liability on the part of appellants, appellants will be promptly notified of any attempt to impose such liability upon appellee or its officials as aforesaid, so that appellants may have full and complete opportunity to defend any such actions on their own behalf, as well as on behalf of the appellee or its officials, as well as full opportunity to prosecute appeal.

It is further stipulated and agreed by and between the parties hereto that the appeal and petition for writ of certiorari above referred to are being dismissed solely in consideration of the entry of findings and judgment as hereinafter stated.

It is further understood and agreed that this stipulation is in the nature of a compromise, for the sole purpose of settling the issues between the parties, and cannot be used by either party in this cause except for the sole purpose of settlement in accordance with the terms hereof.

City of Chicago, Appellee, By Samuel A. Ettelson, Corporation Counsel.
Board of Local Improvements of the City of Chicago, By M. J. Faherty, President.
Gotthard A. Dahlberg,
Attorney for the Board of Local Improvements of the City of Chicago.
Foreman Trust & Savings Bank, as Trustee, Albert Crosby, Alma Jevne, Henry M. Jevne and Clara Haugan, Louis Sakowski, Bertha L. Tessmer, Helen Brubaker, John J. Seideneck, Mary Pomeroy Green, Caroline H. Baumann, Hilda S. Hill, Grace Lane Beardsley, Melissa F. Hubbard, George W. Foster, Elinor F. McLaughlin and Mary S. Foster, Sole Heirs and Next of Kin of George A. Foster, Deceased, Edward Lindahl and John J. Weber, Trustees of the Estate of Deckra Aghasian, Deceased, Helen G. Hillis, Packard Motor Car Company of Chicago, a Corporation, William Lux, William G. Murray, Hanna Obermeyer, The Moody Bible Institute, a Corporation, The Moody Church, Sophie L. Peters, Frank Heekl and John B. Irwin, and Physicians & Surgeons Institute of Chicago, a Corporation.
Appellants.
By Howard F. Bishop,
Their Attorney.
I concur in this Stipulation, Eugene H. Dupee, October 6, 1930.”
Appended to the stipulation was the following schedule:

Pursuant to the foregoing stipulation of October 6, 1930, the appeal and petition for certiorari pending in the Supreme Court of the United States were dismissed and the city and the property owners on November 7, 1930, entered into the following stipulation, which was filed in the county court:

“It is hereby stipulated and agreed, by and between the parties hereto, by their respective attorneys, that
the verdicts and judgments thereon as to the properties owned by the parties hereto be and the same are hereby vacated and set aside.

It is further stipulated and agreed that the' election heretofore made by the respondents hereinafter named, to waive further controversy be and the same is hereby vacated and set aside.

It is further stipulated and agreed that as to all questions of benefits and awards, jury is hereby waived and the cause is.hereby submitted to the Court.”

The judgment referred to in the stipulation of November 7, 1930, was the original judgment of the county court, which was affirmed by the Supreme Court of Illinois (City of Chicago v. McCluer, 339 Ill. 610) and which was involved in the appeal and petition for certiorari filed in the United States Supreme Court and the waiver of controversy referred to was the waiver, of controversy made in the county court in 1928 in the McCluer case.

On November 8, 1930, the following order was entered in the county court of Cook county:

“This cause coming on this day to be heard upon the motion of the parties hereto by their respective attorneys, that certain verdicts and judgments be vacated and set aside;
And the Court having heard the arguments of counsel, and being fully advised in the premises, finds that certain verdicts and judgments should be vacated and set aside;
It Is Therefore Ordered that the verdicts and judgments as to the properties owned by the following named parties [here followed names of owners, including the Institute] be and the same are hereby vacated and set aside.
It Is Further Ordered that the election heretofore made by said respondents to waive further controversy be and the same is hereby vacated and set aside:

It Is Further Ordered that upon the parties hereto having waived a jury, the cause as to the parties above named on all questions of award and benefits is hereby submitted to the Court.”

On November 28, 1930, in a trial by the court without a jury and after evidence heard the county court entered a judgment awarding compensation to the Institute, which aggregated $869,727 as to its three parcels of land. These awards to the Institute represented an increase of $350,000 over the original aggregate award of $519,727, which increase was identical in amount with the increased award provided for in the stipulation of October 6, 1930. On November 29, 1930, petitioner acquired by assignment a judgment award of $26,500, also entered November 28, 1930, as to a fourth parcel of land involved in the North LaSalle street condemnation proceeding.

As to the three parcels of land owned by petitioner from the inception of the condemnation proceedings, the city made partial payments to the Institute on the final judgment awards of November 28, 1930, in the amounts and on the dates set forth in the following schedule:

These partial payments aggregated $519,727, the exact amount of the original awards as to these three pieces of property. On April 2, 1931, the city made a partial payment of $10,718 on the Institute’s subsequently acquired judgment award.

Michael J. Faherty, who was president of the board of local improvements of the City of Chicago when the foregoing occurrences took place and the above partial payments made, testified in the instant case that it was an advantage to the city to have the property owners themselves remove their buildings from the condemned portions of their land because the city would thereby avoid liability for any damages that might ensue if it undertook such removal; and that he insisted that the Institute comply with the provisions of the stipulation of October 6, 1930, pertaining to the removal of its buildings from the condemned portions of its property before he would approve the foregoing partial payments on the final condemnation judgment. As a result of Mr. Faherty’s insistence in this regard, he received the following letter:

“Office of President of the Institute,
December 30,1930.
The Honorable Michael J. Faherty, President of the Board of Local Improvements, City Hall, Chicago, Ill.
Dear Sir:
We hereby undertake and agree that as soon as we receive the partial payments equivalent to the original awards, for all of the Moody Bible Institute properties in the LaSalle Street condemnation proceedings, we shall arrange to have (free and clear of any contractor’s lien) the buildings removed from the fourteen feet condemned.
Very truly yours, James M. Cray, President.”

It was admitted upon the trial that when James M. Cray wrote this letter he was president of the Institute and that it was his signature that was attached thereto, but counsel for petitioner refused to admit that it was Cray’s signature as president of the Institute.

In conformity with the stipulation of October 6,1930, the following communication was also delivered to Mr. Faherty by a trustee of the Institute and one of the persons whose signatures are attached thereto.

‘‘Chicago, December 31, 1930.
Honorable Michael J. Faherty,
President, Board of Local Improvements,
Chicago, Illinois.
Dear Sir:
We, the general contractors employed by The Moody Bible Institute of Chicago to remove and alter their several buildings on North LaSalle Street in accordance with the demands required for the widening of North LaSalle Street, do hereby agree to hold The Moody Bible Institute responsible for all moneys payable and will not look to the City of Chicago for any reimbursements on account of the above contract work, agreeing also not to encumber any of the properties with mechanics’ liens. The above contract refers to the following buildings: (which are all The Moody Bible Institute buildings)
900-2-4—6 North LaSalle Street, which are 4- and 6-story buildings;
851 North LaSalle Street, the building on the Northeast Corner of West Chestnut and LaSalle Street ;
830 North LaSalle Street;
The auditorium building on the Northwest Corner of Chicago Avenue and LaSalle Street ;
1438 North LaSalle Street;
Houses between Auditorium building and 830 N. LaSalle St.
As general contractors we agree to commence work within twenty-four hours after all the partial payments of all the awards have been made by the City of Chicago to The Moody Bible Institute of Chicago (by partial payments is meant that part of the award on each property equivalent to the original judgment) and to completó same within sixty days from the date of commencement, except as to the 8-story building at 830 North LaSalle street, which, on account of its character and construction may require additional time, but at any rate not more than one hundred twenty days.
(Signed) Nelson Building Construction Co.
(Signed) By Andrew Nelson, Pres.
(Signed) J. W. Snyder Co.
(Signed) By J. W. Snyder.”

Mr. Faherty further testified that he also demanded from the Institute the indemnity agreement provided for in the stipulation of October 6, 1930, before he would approve the partial payments on the final compensation awards. The Moody Bible Institute by its president and secretary executed the indemnity agreement on December 12, 1930, and delivered same to the City of Chicago.

It was only after it had received the letter from Gray to Faherty, the letter from the contractors to Faherty and the indemnity agreement that the city made the partial payments to the Institute to the extent of $519,727 on its final awards as to its three parcels of land. After said partial payments had been received by the Institute it failed and refused to remove its buildings from the condemned portions of its property. The city proceeded with and completed the paving portion of its widening project but was unable to proceed with the sidewalk portion thereof in front of the premises owned by the Institute. In November 1931, the city was compelled to condemn and have removed the building on one of the parcels of land owned by the Institute because of its hazardous condition. Thereafter a sidewalk was built in front of this parcel.

In an attempt to prove in the instant mandamus proceeding that the written stipulation of October 6, 1930, did not contain all of the terms of the agreement between the Institute and the city, especially as to that part of said stipulation which related to the removal of the Institute’s buildings from the condemned portions of its property, Howard F. Bishop, the attorney for petitioner, offered in evidence certain documents which were excluded upon the city’s objection. It should be noted at this point that Samuel A. Ettelson was the corporation counsel of the city when the stipulation of October 6, 1930, was executed and that because of a change in the city administration he was succeeded in that office by William H. Sexton in April 1931. One of the documents offered in evidence by petitioner was a letter dated April 5,1932, from Sexton to Ettelson, to which was attached a letter from Howard F. Bishop to Sexton dated March 11, 1932. Attorney Bishop’s letter was in substance a statement of his conception of what he termed the complete agreement between the city and the Institute covering, among other matters, the removal of the Institute’s buildings from the condemned portions of its property. The letter from Sexton to Ettelson requested the latter to state “whether or not you did in behalf of the city make the agreement as recited in Mr. Bishop’s letter.” Another of the rejected documents offered by petitioner was Ettelson’s letter of April 15, 1932, in reply to Sexton’s letter, which stated in part: “I am familiar with the situation and took part in the conferences referred to in your letter and in the letter of Mr. Bishop for the purpose of settling and adjusting the matter upon lines that I regarded to be for the best interests of the City. I have read Mr. Bishop’s letter to you very carefully and it accords with my recollection and understanding in regard to the agreement that a general judgment should be taken against the City for the increase in awards, interest, damages, and cost of removal as described in Mr. Bishop’s letter. It was unfortunate, of course, that there wasn’t sufficient money to pay these awards in full.”

The other document which was offered in evidence by petitioner and excluded was a memorandum dated January 9, 1935, from Joseph F. Grossman, first assistant corporation counsel, to William H. Sexton, corporation counsel, to which memorandum was attached a computation of interest and also an unsigned statement submitted by Mr. Bishop again proposing a settlement between the Institute and the city.

All the foregoing documents offered in evidence by the petitioner were properly excluded by the trial court. After several conferences between the attorney for petitioner and William H. Sexton, the then head of the law department of the city, in an effort to settle the claims advanced by petitioner to the end that the Institute’s property would be cleared so that the improvement might be completed, Corporation Counsel Sexton requested Attorney Bishop to address a letter to him “setting out his contentions.” This is the letter which Sexton received from Attorney Bishop and attached to his own letter to Ettelson, and, inasmuch as it consisted entirely of self-serving declarations and was submitted merely as a part of negotiations for a compromise which was never consummated, it was clearly inadmissible in evidence. It was as to the contents of this letter that Sexton requested information from Ettelson, his predecessor as corporation counsel for the city. Inasmuch as the statements in Ettelson’s letter to Sexton were made concerning the self-serving declarations contained in Attorney Bishop’s letter and inasmuch as Ettelson had no official connection with the city when he wrote the letter, the statements contained therein could in no wise be construed as admissions by the city. All this correspondence was merely part of the investigation conducted by Sexton in his endeavor to ascertain if there was any merit to the claims advanced by petitioner. It all had to do with the Institute’s unsuccessful attempt to compromise such claims and it was therefore incompetent and inadmissible.

Since Attorney Bishop’s written statement of December 10, 1934, entitled “Reference Proposed LaSalle Street Settlement” was purely a proposal of settlement and since Grossman’s letter of January 9, 1935, to Corporation Counsel Sexton, to which the Bishop statement was attached, was an interoffice memorandum concerning such proposal, neither of such documents were admissible in evidence inasmuch as they both related to negotiations for compromise and settlement. Since offers to compromise or proposals of settlement, which are not accepted, have no binding force, they cannot be considered competent evidence.

Petitioner first contends that "it did not agree to remove the buildings from the part condemned at its own expense, and, further, that the stipulation of October 6, 1930, does not impose any such obligation upon the Institute. It is further contended that said stipulation does not contain the entire agreement between the city of Chicago and the Institute.” We are concerned primarily with the question as to whether that stipulation did contain the sole and complete agreement between the parties as to the removal of the Institute’s buildings from the condemned portions of its premises. It is fitting that the stipulation be analyzed as to the obligations contained therein and the manner in which they were to be and have been performed. "It will be noted that Attorney Bishop executed this stipulation on behalf of the property owners involved, including the .Institute, and that it was concurred in by Attorney Eugene H. Dupee. The stipulation states that it “is in the nature of a compromise for the sole purpose of settling the issues between the parties.”

Just what matters were covered by the stipulation and to 'what extent were the obligations thereunder of the respective parties performed?

The Institute agreed to dismiss “its appeal and petition for certiorari” then pending in the Supreme Court of the United States. It did that.

The city agreed to vacate the original judgment awards in the county court. It did that.

The city agreed to permit a judgment to he entered against it in the county court increasing the aggregate award to the Institute by $350,000 and reducing its assessments 50 per cent. It did that.

The city agreed to make partial payments to the Institute of $519,727, the amount of the aggregate of the original awards, upon the entry of the final condemnation judgment in the county court and “the submission to the Board of Local Improvements of a bona fide contract” by the Institute for “the removal of all obstructions” from the condemned portions of its land. The city made such payments.

The Institute agreed to deliver to the city a contract of indemnity. It did that.

The Institute agreed that before it was entitled to receive the partial payments on its final awards it had to furnish evidence to the city of “the removal of all obstructions, or the submission to the Board of Local Improvements of a bona fide contract for their removal from the part taken in such proceeding. ’ ’ It delivered to the city the contract heretofore set forth for the removal of the obstructions.

The Institute agreed that when the city made the partial payments to it on account of the final awards, it would surrender to the city the condemned portions of its property and have an order entered in the county court permitting the city to take possession of such property so that it could complete its improvement. The Institute did not comply with its agreement in this respect, because it repudiated its obligation under the stipulation to remove or have removed its buildings from the condemned portions of its land.

The provision of the stipulation of October 6, 1930, pertaining to the removal of the obstructions from the condemned portions of petitioner’s property is open to no other construction than that the Institute assumed the obligation of removing such obstructions at its own expense. If there was any possible doubt concerning the meaning of such provision or the intention of the parties as to same, it would necessarily have to be resolved against the Institute in view of the interpretation placed upon it by its own officers, as evidenced by the delivery of the letter of Gray, its president, and the contract for the removal of the obstructions to President Faherty of the Board of Local Improvements. Both of these documents show conclusively that the officers of the Institute clearly understood after the final judgment awards were entered and before the partial payments were made on same that the Institute was obligated to remove the obstructions at its own expense before it was entitled to receive said partial payments from the city. The only other conclusion possible is that when Gray wrote the letter to Faherty on December 30, 1930, stating that, “We shall arrange to have (free and clear of any contractor’s liens) the buildings removed from the fourteen feet condemned,” and that when one of the trustees of the Institute delivered the removal contract dated December 31, 1930, to Faherty, containing the statement that the contractors “agree to hold The Moody Bible Institute responsible for all moneys payable and will not look to the city of Chicago for any reimbursement on account of the above contract work,” the officers of the Institute intended to practice a deliberate fraud upon the city in order to secure the partial payments. We prefer to believe that said officers at that time recognized the obligation of the Institute under the stipulation of October 6, 1930, to remove the obstructions at its own expense, and fully intended to perform same but that they were improperly dissuaded from so doing.

As has been seen the stipulation of October 6, 1930, was a contract complete in itself as to all matters covered therein and we have a situation presented where the city performed all its obligations under such stipulation and the Institute wrongfully refused to perform its obligation to remove its buildings from the condemned portions of its land. In view of the agreement by the city in the stipulation of October 6, 1930, to increase the original awards to the Institute of $519,727, which awards had been affirmed by the Illinois Supreme Court, by the not inconsiderable amount of $350,000, the agreement on the part of the Institute to remove its buildings from the condemned portions of its premises at its own expense was surely not unreasonable. There is evidence in the record that the cost of such removal would have been approximately $42,000.

Petitioner next contends “that the admitted, final and unconditional condemnation judgment of the county court is conclusive in this mandamus proceeding and cannot be varied or contradicted in any respect by extrinsic evidence; that the introduction in evidence of the stipulation of October 6, 1930, constitutes an outright collateral attack on the terms and provisions of the judgment itself which, under the law of this state, cannot be permitted. ’ ’

The insistence by the city that the Institute perform its agreement and comply with its obligation to remove its buildings at its expense from the condemned portions of its properties before it is entitled to compel the city to pay the balance of the condemnation awards does not question the unconditional character or the finality of the condemnation judgment. It must be remembered that the attorney for the Institute signed the stipulation of October 6, 1930, in its behalf. This instrument as stated therein was “in the nature of a compromise” and it constituted a valid and binding contract between the parties thereto. The obligation therein of the Institute to remove the obstructions was just as material as was the obligation of the city to procure the vacation of the earlier condemnation judgment and the entry of the later judgment for the increased awards. The agreement by the Institute to remove the obstructions constituted a substantial part of the consideration for the obligations undertaken by the city in the stipulation. It is idle to urge that because said obligation of the Institute was not made a part of the record in the proceeding that resulted in the judgment for the increased condemnation awards or that same was not made a part of the judgment itself that that portion of the stipulation of October 6, 1930, containing the obligation of the Institute to remove its buildings at its expense from the condemned portions of its property was merged in the condemnation judgment. While it would have been safer practice in view of all that has occurred since, if the city as a matter of protection against such a contention as is now advanced in behalf of the Institute had made the stipulation a part of the record in the condemnation proceeding, it by no means follows that the city should be deprived of a substantial right under said stipulation because of its failure to incorporate same in such record. In our opinion the agreement of the Institute to remove the obstructions being an entirely distinct and separate undertaking from that of the city to permit the entry of the condemnation judgment for the increased awards, it was neither merged in the condemnation judgment nor rendered ineffective, invalid or unenforceable by reason of the entry of said judgment. The Institute by its then and present attorney voluntarily and for a valuable consideration entered into a valid and binding contract on October 6, 1930, and that contract is just as valid and binding now as it was then.

The admission in evidence of the stipulation of October 6, 1930, did not constitute a collateral attack on the condemnation judgment and to hold the Institute to the performance of its undertaking to remove the obstructions does not in any manner modify or contradict the condemnation judgment either as to its amount or its finality. It merely postpones plaintiff’s right to demand the payment of the balance of its condemnation judgment until it performs its obligation to remove its buildings from the condemned portions of its property.

The city filed an amended counterclaim which alleged inter alia:

“Defendants aver that said City of Chicago made partial payments on account of said judgments. . . . Relator immediately returned to said City of Chicago from the proceeds of said payments the amount of benefits assessed and adjudged against the parcels of land described in said petition and the net amount paid by said defendant to and retained by the relator after deducting the amount of benefits assessed and adjudged against said parcels of land are as follows:
“Defendants further aver that by reason of the failure and refusal on the part of said relator to remove the buildings and obstructions upon the condemned portion of its properties or the submission to the Board of Local Improvements of a bona fide contract for their removal, said relator has breached the said agreement dated October 6, 1930, and the said defendant has been wrongfully deprived of the use of the moneys paid on account of said judgments as aforesaid and is therefore entitled to recover damages equivalent in amount to interest upon said amounts at the rate of 5% per annum upon the respective amounts from the respective dates of payment.”

Included in the judgment order from which this appeal is taken is the following finding:

“That the evidence introduced in support of said counterclaim is insufficient to support the counterclaim sued upon and that the partial payments made by the defendant City of Chicago were required to be made at the times they were made and the City of Chicago is not entitled to recover any damages on account of the counterclaim as amended.”

The city concedes that it did not and could not prove any actual damages but insists that since the Institute breached its agreement of October 6, 1930, to remove its buildings from the condemned portions of its property and turn such portions over to it, it is entitled to recover damages equivalent in amount to interest upon the partial payments made to the Institute at the rate of 5 per cent per annum from the respective dates of said payments. We are in accord with the foregoing finding of the trial court as to the counterclaim and find no warrant in law for the allowance of the damages claimed by the city.

Plaintiff’s motion heretofore made to transfer this appeal to the Supreme Court, which was reserved to hearing, is at this time denied.

No clear right to the issuance of a writ of mandamus having been established the judgment of the superior court is affirmed.

Other points have been urged and considered but in the view we take of this case we deem further discussion unnecessary.

Judgment affirmed.

Scanlan, P. J., and Friend, J., concur.