author: Mr. ChiEE Justice KlingbiEE

text:
    (No. 33975.
    The City of Aurora ex rel., Paul Egan, Appellant, vs. The Young Men’s Christian Association of Aurora et al., Appellees.

      Opinion filed September 25, 1956.

      Cooper & Donat, of Geneva, and Charles A. Darling, of Aurora, (Richard L. Cooper, of counsel,) for appellant.
    Harold L. Beamish, Corporation Counsel, for the City of Aurora and other appellees, and Reid, OchsEnscheager and Murphy, of Aurora, (Lambert M. OchsEnscheager, and Robert B. Hupp, of counsel,) for appellee Young Men’s Christian Association of Aurora.
   Mr. ChiEE Justice KlingbiEE

delivered the opinion of the court:

This appeal questions the validity of a deed of the city of Aurora conveying certain real estate to the Young Men’s Christian Association of that city (herein referred to as YMCA). The plaintiff brought his action as a citizen, taxpayer and mayor of the city. The land in question was deeded to the city August 2, 1945, by Col. and Mrs. Copley and the deed of conveyance gave the city the property “to hold and use and permit the use for public purposes, either by the grantee or by the State of Illinois as the grantee may determine.” The city authorities, after accepting the gift of this land, quitclaimed it to the Illinois Armory Board on July 17, 1946. Thereafter on December 18, 1951, the Armory Board, pursuant to legislative authority, reconveyed this tract to the city. In May of 1954 the city council of Aurora found that the land was no longer necessary, appropriate or required for the use of the city, and after full compliance with sections 59 — 1 and 59 — 2 of the Revised Cities and Villages Act, (Ill. Rev. Stat. 1953, chap. 24, pars. 59 — 1 and 59 — 2,) sold and conveyed the land to the YMCA, as high bidder, for $25,000 on June 21, 1954. The mayor, being the only objecting member of the council as to the entire transaction, refused to open the bid and to sign the deed. The conveyance was signed by two city commissioners and attested by the city clerk.

It appeared that the city had investigated and consulted a city planning expert concerning the land and it was concluded that it was not satisfactory for a playground, a swimming pool or a city hall. It further appears that no substantial use of the land was ever made. A portion, however, was used for a parking lot by people who worked in nearby industries. The city did not improve this lot. After execution of the city’s deed to the YMCA the surviving heirs of the Copleys quitclaimed their interest in this land to the same organization.

The plaintiff now urges that the authority conferred upon municipalities by section 59 — 1 of the Revised Cities and Villages Act is unconstitutional if construed to permit sale of land dedicated to public uses and purposes to a private corporation. He further contends that the property in question was held in trust by the city for the public in general and may not be diverted by such a sale. Other points raised in his brief are to the effect that the YMCA is not a public use or purpose, that the mayor is a proper person to bring such an action, that the trial court erred in striking allegations charging inadequacy of sale price, that absence of the mayor’s signature to the deed renders it a nullity and that the Copley deed to the city conveyed the entire fee to the land without any limitations or restrictions, so that if the land be diverted to an unauthorized use equity will intervene at the instance of a taxpayer or citizen.

The defendant filed answer which joined issue with the plaintiff on the constitutionality of the statute, and filed counterclaim wherein it sought to have the court declare the deed from the city to be a good and valid conveyance of the premises under consideration, or, in the alternative, if the deed be declared insufficient, that a writ of mandamus issue to compel the plaintiff, as mayor of the city of Aurora, to execute and deliver a good and sufficient deed to the defendant. The plaintiff, by suitable reply, denied that the defendant was entitled to the relief sought in the counterclaim.

Section 59 — 1, in force for many years before the execution of the Copley deed to the city, provides :

“Any city or village incorporated under any general or special law which acquires or holds any real estate for any purpose whatsoever, except real estate granted to a municipality as commons by a grant which has been confirmed by the government of the United States, has the power to lease the real estate for any term not exceeding ninety-nine years, and to convey the real estate when, in the opinion of the corporate authorities, the real estate is no longer necessary, appropriate, required for the use of, profitable to, or for the best interests of the city or village, This power shall be exercised by an ordinance passed by three-fourths of all aldermen or trustees of the municipality, at any regular meeting or at any special meeting called for that purpose. However, the corporate authorities have the power to authorize any municipal officer to make leases for terms not exceeding two years in such manner as they may determine.” Ill. Rev. Stat. 1955, chap. 24, par. 59 — 1.

The parties all proceed on the assumption that section 59 — 1 was intended to apply to the conveyance in question. Defendants assert that the conveyance was justified by that section while plaintiff argues that the statute is violative of the due process clause of the Illinois constitution. The substance of the argument in this respect is that the municipality holds the property in trust for the public, and by permitting sale of the property to a private corporation the public as beneficial owners of the land are deprived of a vested right without due process. This assumption by the parties cannot preclude this court from determining if sections 59 — 1 and 59 — 2 do in fact apply to this conveyance. We will not consider the constitutionality of a statute if the case may be disposed of without determining that question. (Illinois Central Railroad Co. v. Illinois Commerce Com. 411 Ill. 526; Cohen v. Lerman, 408 Ill. 155.) It would be clearly improper for us to determine the constitutionality of the statute before first determining if it governed and validated the conveyance in question. Fair bank, Morse & Co. v. City of Freeport, 5 Ill.2d 85, at 90.

In considering the applicability of section 59 — 1, we turn first to the nature of the city’s ownership of the land and then to the statutory framework established for our municipalities. The conveyance by the Copleys to the city of Aurora was a gift of land “to hold and use and permit the use for public purposes.” From reading the deed, we conclude that this language in the habendum clause, expressed a trust purpose and did not create a condition, a base fee, or a possibility of reverter. (Newton v. Village of Glen Ellyn, 374 Ill. 50; Downen v. Rayburn, 214 Ill. 342.) The effect of the conveyance was to vest legal title in the city of Aurora upon an express trust to use the land for public purposes. Such a gift, when accepted, created a charitable trust with legal title in the city as trustee for the benefit of the public. (IV Scott on Trusts, 2d ed. sec. 373-373.1) The city had a right to accept such a trust (Ill. Rev. Stat. 1953? chap. 24, par. 2 — 9; 10 McQuillin, Municipal Cor0orations, sec. 28.25,) and the record affirmatively indicates it did so.

In the absence of any applicable legislation the city would have no power to convey and divert property held on such a trust to any other purpose or use. (City of Jacksonville v. The Jacksonville Railway Co. 67 Ill. 540; City of Alton v. Illinois Transportation Co. 12 Ill. 38; 10 McQuillin, Municipal Corporations, sec. 28.38-28.39.) Text writers and courts have even questioned whether land purchased by the city, free of any express trust limitation, and thereafter applied to a public use can be conveyed without statutory authority. (10 McQuillin, Municipal Corporations, sec. 28.38; Dickenson v. City of Anna, 310 Ill. 222.) We have recently referred to these limitations of municipal power in Schien v. City of Virden, 5 Ill.2d 494, relied upon by plaintiff. In that case, however, we held that the action of the city was not a diversion from a public use, and the language of that opinion pertaining to limitations of municipal power were dictum and without application to the facts before us.

In the light of this common-law background, we must examine not only section 59 — 1, but also section 23 — 103 of the same act,' which provides that a city has the general power, “To donate, sell, lease, or convey any land heretofore acquired to the State * * * to be used as a site for an armory.” The same section, however, contains an absolute prohibition as to lands such as involved here. “No municipality, however, shall have any power to divert any gift, grant, or devise from the specific purpose designated by the donor.” Section 59 — 1, however, purports to grant a special power to sell real estate which it “acquires or holds for any purpose whatsoever.”

If section 59 — 1 were intended to apply to the land here, then it would be in direct conflict with the clearly expressed prohibition of section 23 — 103. We do not, however, consider the statutes to be in conflict. The prohibition of section 23 — 103 is limited solely to express trusts in which a specific purpose was designated by the donor. The power given by 59 — 1, however, refers to the purpose for which the city acquired or holds the land.

We think it a reasonable construction that the legislature, by section 59 — 1, intended to permit municipalities to dispose of real estate, the title to which they had acquired absolutely and thereafter devoted to a public use. Since statutes granting the general right to sell municipal real estate have been held to apply only to real estate held or acquired for private purposes, (10 McQuillin, Municipal Corporations, sec. 28.40,) the phrase in section 59 — 1, “for any purpose whatsoever,” has meaning in embracing lands devoted by the city to both private and public purposes.

We do not think it necessary to now decide the extent of the legislature’s power to authorize the sale of property held on express trust, by either retroactive or prospective legislation. There is authority that not even the legislature has the power to permit diversion of an express trust created by the grant of the settlor (Girard v. Philadelphia, 7 Wall. (U.S.) 1, 19 L. ed. 53; Cary Library v. Bliss, 151 Mass. 364, 25 N.E. 93; Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, 26 L. ed. 1018.) However, special statutes permitting the sale of land held under an express trust have been upheld on the doctrine of legislative cy pres descending from the common-law sign manual. Trustees of New Castle Common v. Gordy, 33 Del. Ch. 334, 93 A.2d 509; Stanley v. Colt, 5 Wall. 119, 18 L. ed. 592; 2 Bogert, Trusts and Trustees, sec. 398.

In the light of this background, however, we do not believe it was the intention of the legislature to permit the sale of property in which the city holds mere legal title on express trust established by a settlor for the public, especially when there is no provision in the statute to devote the proceeds of the sale to the same public purposes as contained in the express trust. Such a broad exercise of legislative power would certainly require the clearest expression of intention, especially in the face of the prohibition of section 23 — 103. The language of section 59 — 1 is sufficient to express an intention to include lands owned outright whether devoted to public or private uses, but is insufficient to embrace lands held under an express trust created by a settlor. Cf. Lake County Water & Light Co. v. Walsh, 160 Ind. 32, 65 N.E. 530; Buckhout v. City of Newport, 68 R.I. 280, 27 A.2d 317.

Our conclusion that section 59 — 1 is inapplicable does not determine the merits of this case, however. The record indicates that no substantial public use of the real estate has been made since 1945. The evidence further shows that investigations have been made and that it was reasonably concluded that no public use could be made of it. It appears that a city planner determined it to be inappropriate for public use. The language of the deed of the settlor, Copley, clearly indicates a general charitable purpose for the benefit of the public. At public sale this land brought $25,000 which could be used for public purposes. Without attempting to review all the facts in the record, we feel that the evidence submitted brings this case within the broad powers of a court of equity in the exercise of its traditional power over charitable trusts. Catholic Bishop of Chicago v. Murr, 3 Ill.2d 107; Board of Education v. City of Rockford, 372. Ill. 442.

Under the doctrine of cy pres, if property is given in trust to be applied to a particular charitable purpose, and it becomes impossible, impractical or illegal to carry out the particular purpose, and if the settlor manifested a more general intention to devote the property to charitable purposes, the trust will not fail but the court will direct the application of the property to some charitable purpose falling within the general purpose of the settlor. (Trustees of Rush Medical College v. University of Chicago, 312 Ill. 109; Bruce v. Maxwell, 311 Ill. 479; 2 Restatement, Trusts, sec. 399.) In the exercise of this power, equity may decree a sale of trust realty even in the face of an express prohibition if the designated use becomes impracticable. Catholic Bishop of Chicago v. Murr, 3 Ill.2d 107; Board of Education v. City of Rockford, 372 Ill. 442.

We feel that, under the prayer for general relief in the defendant’s counterclaim and under the evidence already in the record, the trial court would have been justified, in the exercise of its discretion, to decree a sale of this property and impress the same trust upon the proceeds thereof. (County of DuPage v. Henderson, 402 Ill. 179, at 191 and 192.) While this case was not tried on that theory in the lower court and its decree did not pass upon the question of whether the circumstances justified the application of the cy pres doctrine, the proof before the court would support such decree and it was within the sound discretion of the court to grant such relief as the equities of the case may require under the evidence. A court of equity is not restricted by any limitation that tends to trammel the free and just exercise of discretion and particularly where the public interest is involved. Virginian Railroad Co. v. System Federation No. 40, 300 U.S. 515, 81 L. ed. 789.

Further, section 92 of the Civil Practice Act provides that in all appeals the reviewing court may, in its discretion, and on such terms as it deems just, “give any judgment and make any order which ought to have been given or made, and make any other and further orders and grant such relief, including a remandment, a partial reversal, the order of a partial new trial, the entry of a remittitur, or the issuance of execution, that the case may require.” (Ill. Rev. Stat. 1955, chap, no, par. 92(1) (e).) Aside from the statutory authority, the power is in the Supreme Court to enter such final judgment as the evidence in the record' shows should have been entered. Pope v. Speiser, 7 Ill.2d 231; City of Spring Valley v. Spring Valley Coal Co. 173 Ill. 497; Manistee Lumber Co. v. Union Nat. Bank, 143 Ill. 490; Supreme Lodge A.O.U.W. v. Zuhlke, 129 Ill. 298.

We believe that justice requires that this cause be reversed and remanded with instructions to permit amendments or further pleadings and additional proof, if necessary in the opinion of the trial court, to determine the issues herein in accordance with the opinion of this court. If the trial court in the exercise of its traditional powers over trusts, should approve the sale of the premises heretofore made to the YMCA, then it should determine how the proceeds of such sale should be applied for city purposes under the cy pres doctrine of trusts and take such other action as may be required to effectuate its decree.

In connection with any sale of this property, a court of equity, under its chancery powers, has the power to order the mayor and necessary city authorities to execute a proper deed and upon their failure or refusal to do so, to direct the master in chancery to execute such deed for and on behalf of the city of Aurora. Accordingly, the decree of the circuit court of Kane County is reversed and the cause is remanded with directions for further proceedings consistent herewith.

Reversed and remanded, with directions.


source: Caselaw Access Project

author: Mr. Justicr Dairy

license: Public Domain

text:
    (No. 33982.
    Carmien Gore et al., Appellants, vs. The City of Carlinville et al., Appellees.

      Opinion filed September 25, 1956.

      Paur C. Vrrticchio, of Gillespie, and Snrrr & Sryerit, of Carlinville, for appellants.
    M. E. Hrbron, City Attorney, of Carlinville, Frank M. Perierr and John P. Fixmrr, both of Springfield, for certain other appellees.
   Mr. Justicr Dairy

delivered the opinion of the court:

Appellants, the owner and lessees of a lot from which a gasoline filling station is operated in the city of Carlin-ville, filed a complaint in the circuit court of Macoupin County, against the city and its officials, seeking a declaratory judgment that a city ordinance is unconstitutional and void, and injunctive relief to prevent its enforcement. By way of alternative relief, appellants prayed for a declaratory judgment that the said ordinance is not binding as to them or their property. Since the ordinance in question relates to the regulation and location, in residence districts, of “garages and any place or business where motor vehicles are serviced or repaired for profit,” the court permitted three property owners from the residence district affected to intervene in the cause and to join in the defense of the ordinance. After hearing evidence the circuit court found the ordinance to be both constitutional and effective as to appellants’ property and entered judgment denying the relief sought. This appeal has followed.

The ordinance under attack was enacted in 1937 pursuant to the authority then contained in section 82 of article V of the Cities and Villages Act, (Ill. Rev. Stat. 1937, chap. 24, par. 65.81,) and now found in section 23 — 87 of the revised act. (Ill. Rev. Stat. 1955, chap. 24, par. 23 — 87.) Insofar as pertinent to this proceeding, the ordinance provides as follows:

“Section Three (3) : The area covered by the lots within 300 feet of any garage or place where motor vehicles are serviced or repaired for profit shall be known as a ‘Residence District’ if two-thirds of such lots have residences situated thereon or are vacant unless the owners of a majority of such lots have residences thereon or being vacant shall file with the City Clerk an election and determination not to be known as a ‘Residence District.’
“Section Four (4) : No person, firm or corporation shall locate, build, construct, improve, enlarge, extend, or maintain a garage in the City of Carlinville, Illinois, on any lot or site within a ‘Residence District.’ ”

Undisputed facts show that the filling station now owned and operated by appellants was erected in 1926, and has been operated and maintained continuously since that time by various parties, including two of the intervenors. As presently situated, the filling station, its pumps, its driveways and outside washing and greasing facilities occupy approximately one half of a corner lot which measures 100' x 100' with the balance of the lot being landscaped. Appellants desire to tear down the old structure and to erect a new and larger station, together with new driveways, pumps and tanks, which would utilize the lot in its entirety. When appellants’ intentions were made known, a controversy developed with one of the intervening residence owners as to whether the ordinance would permit the enlargement and extension proposed and this action for relief from the ordinance was initiated.

Appellants concede in this court that both the authority conferred by the Cities and Villages Act and the ordinance adopted pursuant thereto, extend to the regulation of gasoline filling stations. It is likewise un'contested that the station in controversy is located within a residence district as defined by the ordinance. As a basis for their claim of invalidity, appellants contend, first, that a gasoline filling station is not a nuisance per se and therefore not subject to regulation under the police power and, second, that if such a business may be regulated, the ordinance here is an invalid exercise of such power, which serves to deny them due process and equal protection of the law, in that it does not promote the public health, safety, morals or general welfare as applied to’ their property.

While it is to be conceded that a gasoline filling station is not a nuisance per se, a complete answer to appellants’ first contention is found in People ex rel. Busching v. Ericsson, 263 Ill. 368, where the validity of an ordinance regulating the location of garages was held to be valid. There, after stating that it is common knowledge that the storage of gasoline creates a menace both because of the odor of the fumes and their inflammable character, the court concluded: (p. 372) “The power of the legislature to regulate such a business is in no way dependent upon the question whether it is a nuisance per se. It is of such a character that it becomes a nuisance when conducted in particular localities and under certain conditions, and it is clearly within the province of the legislature, in the exercise of the police power, to authorize the municipalities of the State to direct the location of public garages.” In People ex rel. Keller v. Village of Oak Park, 266 Ill. 365, the quoted principle was interpreted as meaning that it was not unreasonable to regulate the location of garages in strictly residential districts. The similarities between garages and filling stations, insofar as they produce noxious odors and inflammable vapors by the storage and transfer of gasoline, need not be elaborated upon. In either case the menace to surrounding residents and residence properties is the same and the regulation of both must be said to fall within the exercise of the police power.

To support their contention that the ordinance here is an improper exercise of the police power appellants argue that there is “no evidence that in any way indicates that the operation of the station has been detrimental to the citizens of Carlinville, nor is there any evidence which indicates that the future operation will affect in any way the public health, safety, morals, comfort or general welfare of any of the neighbors or citizens.” Such an argument overlooks the long established rule that where an ordinance is within the grant of power conferred by the legislature, the presumption is in favor of the validity of the ordinance, and that the burden is always on the party attacking its legality to show such invalidity. (City of Chicago v. Waters, 363 Ill. 125; Stearns v. City of Chicago, 368 Ill. 112; Poole v. City of Kankakee, 406 Ill. 521.) The sole evidence held forth by appellants as supporting the claim that the ordinance does not promote the public health or safety is the testimony of Franklin L. Metzler, one or the intervening residence owners, to the effect that there have been no ill effects to the people from the operation of the station. As opposed to this, judicial notice may be taken of the fact that the business of storing and handling gasoline at filling stations within a city is attended with a peculiar degree of danger to life and property, (Fligelman v. City of Chicago, 348 Ill. 294; People ex rel. Busching v. Ericsson, 263 Ill. 368,) and that the noxious odors, noise and traffic emanating from the conduct of such a business are incompatible with a residence district. On the state of the record, therefore, it must be concluded that appellants have failed to maintain their burden of establishing the invalidity of the ordinance on the grounds advanced.

Drawing upon decisions dealing with zoning ordinances, appellants make the final contention that they have a right to a nonconforming use of their property, by reason of the fact its use for filling station purposes existed prior to the adoption of the ordinance. It is enough to point out that the zoning laws relied upon have been interpreted as justifying restrictions against any extension or expansion of a non-conforming use. (Mercer Lumber Co. v. Village of Glencoe, 390 Ill. 138, pp. 144-145.) Section 4 of the ordinance here involved expressly restricts the enlargement or extension of existing structures. Yet, in the face of such restrictions and their manifest relationship to the public safety and welfare, appellants propose to build an entirely new and larger structure which will have the effect of increasing the volume of gasoline to be stored and transferred, and which will bring the operation into closer proximity with adjacent residences by utilizing the entire lot. The extension, enlargement and expansion of an existing non-conforming use to such a degree is clearly a violation of the terms of the ordinance. (See: Price v. Ackmann, 345 Ill. App. 1, Leave to Appeal Denied 346 Ill. App. xv; Federal Electric Co. v. Zoning Board, 398 Ill. 142; Mercer Lumber Co. v. Village of Glencoe, 390 Ill. 138; 58 Am. Jur., Zoning, sec. 158; State ex rel. City Ice & Fuel Co. v. Stenger, 120 Ohio St. 418, 166 N.E. 226.) While it is not to be denied that appellants possess a fundamental right to devote their property to whatever lawful use they choose, such right must give way to the considerations of public health and safety underlying the statutory authority upon which the city’s ordinance is based. Nor can appellants’ claim to a nonconforming use be aided by the fact that a gasoline station has been “located” and “maintained” on their property since the passage of the ordinance, for, as stated in People ex rel. Keller v. Village of Oak Park, 266 Ill. 365, 371, under comparable facts: “Any failure of the city authorities * * * to enforce the terms of the ordinance does not render the ordinance void.”

The judgment of the circuit court of Macoupin County was correct and is affirmed.

Judgment affirmed.


author: Mr. Justice Maxwell

text:
    (No. 34004.
    The People ex rel. Joseph D. Shirk, County Collector, Appellee, vs. Theodore G. Glass, doing business as Ted Glass Oil Properties, Appellant.

      Opinion filed September 25, 1956.

      Craig & Craig, of Mt. Vernon, (Donald F. Storm and GlEnn E. Moore, of counsel,) for appellant.
    Lloyd Middleton, State’s Attorney, of Pinckneyville, (Harold O. Farmer, of counsel,) for appellee.
   Mr. Justice Maxwell

delivered the opinion of the court:

This is an appeal by a taxpayer from an order of the county court of Perry County overruling objections to the application by the county collector for judgment for taxes against a certain oil and gas leasehold for the years 1954 and 1953. The court overruled the objections and rendered judgment against the real estate for the two years. No questions were raised on the pleadings. As this case relates to revenue, appeal was taken directly from the trial court to this court.

The objector’s theory is that the real estate was assessed for the taxes in the year 1954 as omitted property for the years prior to 1954 by the assessor, not by the board of review, without notice to the taxpayer and without a hearing.

The theory of the collector is that the assessments were for the years 1954 and 1953; that the assessment for the current year of 1954 was made in 1954 by the assessor; that the assessment for the omitted year of 1953 was made by the board of review; and that the objector has waived his right to question either assessment.

The objector commenced the operation of oil wells in Perry County in the spring of 1952. He made no effort to schedule his interest in the leasehold for the years 1952 and 1953 although the wells were in continuous production. The property was not listed in the assessment book for the quadrennium 1950-53. The objections here are to- taxes assessed against the oil-and-gas leasehold for two- separate years and are the first ever made against objector’s leasehold property. It is admitted that the assessments for both years were made in 1954. The assessment book, before being amended, showed that the assessments were for the years 1953 and 1952. -

At the hearing on the objections the collector made a prima facie case by introducing the tax judgment, sale, redemption and forfeiture record of Perry County and proof of publication of the delinquent lists.

Thereafter the collector requested and obtained leave of court to- introduce evidence to form a basis to amend the assessment book to make it show that the assessments were for the years 1954 and 1953 and to further make it show that the 1954 assessment was made by the assessor. The trial court, over objection, permitted the introduction of such evidence and after its introduction allowed the amendment of the assessment book accordingly.

We shall first consider the amendment to the assessment book. Objector contends that the trial court erred, first, in hearing any evidence on which to base the amendment and, second, in allowing the amendment on the evidence adduced.

For the purpose of effecting the amendment, the People called the former assessor and introduced in evidence the applicable assessor’s book for the years 1954-1957. On line 15 of page 14 of this book was written a description of the oil and gas lease in question. Beside this description was written the figure “1953.” Below the description and on line 16 was written “Ted Glass Oil Properties, 7/8 W.I. less 1/32 of 7/8 ORR” and opposite this in the column headed “As Revised, Corrected or Made by the Board of Review” was written the figure “80,300.” Below the 80,300 figure were written the valuation figures for a third party’s overriding royalty interest and the land owner’s 1/8 royalty interest. To the left of “oil wells” was written “(1953)” with the figure “4” superimposed upon the “3.” On lines 19 and 20 of this same page the description of the lease was again written and beside this description was the figure “1952.” Below this description and on line 21 was written “Ted Glass Oil Properties (7/8 W.I.)” and opposite this in the column headed “As Revised, Corrected or Made by Board of Review” was written the figure “97,000.” Below this 97,000 figure was written a valuation for land owner’s 1/8 royalty interest. To the left of these two valuation figures was a bracket, to the left of the bracket was written “oil wells”; and to the left of “oil wells” was written "(1952)” with the figure “3” superimposed upon the “2.”

The attention of the witness was directed to the appropriate lines in the book where the disputed assessments were shown. He testified that it was in 1954 that he commenced preparation of the assessment of objector’s property and that the years involved were 1954 and 1953. Further that when he entered the assessment of $80,300 at lines 15-17, he intended the figure as an assessment for 1954, but through a clerical error it showed 1953. In support of his recollection the published assessment roll for 1954 was introduced and identified. This exhibit shows the property listed at lines 15-17 was assessed for 1954 at $80,300, the same figure which appears in the assessment book. There was further testimony by the witness that as assessor he made the assessment of $80,300 in the year 1954 and that it was not changed or revised by the board of review.

With reference to the assessment of $97,000 at lines 19-21, the witness testified that 1953 was the year intended to be assessed rather than 1952. His recollection was supported by a letter from the witness to objector dated June 19, 1954, to which was attached a real and personal property tax return for oil producers showing that the assessment for 1953 was $97,000.

Over the objector’s objections, the court permitted page 14 of.the assessor’s book to be amended by changing the figure “1953” on line 15 to “1954,” changing the figure “1952” on line 19 to ”1953” and inserting the figure $80,300 in the column headed “As Made by Assessor.”

After leave to amend had been granted and amendment made, the county clerk of Perry County was called as a witness for the collector. Over objection, the collector’s book for 1954 was introduced in evidence and the county clerk testified that valuations of objector’s property, entered in lines 20 and 21 and 26 through 29, page 14 of the collector’s book for 1954, were taken from page 14 of the assessor’s book. He further testified that, prior to making the extensions for the years 1954 and 1953, he determined from the assessor that those were the years intended to be assessed.

The objector urges, first, the assessment record cannot be amended by parol evidence; second, that a certificate of error is the sole means of amendment of the record; and, third, conceding the trial court had the authority to permit the amendment, the evidence in the case was insufficient to allow it.

Section 235 of the Revenue Act of 1939 (Ill. Rev. Stat. 1953, chap. 120, par. 716,) provides in part:

“In all judicial proceedings of any kind, for the collection of taxes and special assessments, all amendments may be made which, by law, could be made in any personal action pending in such court, and no assessment of property or charge for any of said taxes shall be considered illegal on account of any irregularity in the tax lists or assessment rolls, * * * and no error or informality in the proceedings of any of the officers connected with the assessment, levying or collection of the taxes, not affecting the substantial justice of the tax itself, shall vitiate or in any manner affect the tax or the assessment thereof; and any irregularity or informality in the assessment rolls or tax lists, or in any of the proceedings connected with the assessment or levy of such taxes, or any omission or defective act of any other officer or officers connected with the assessment or levying of such taxes, may be, in the discretion of the court, corrected, supplied and made to conform to law by the court or by the person (in the presence of the court) from whose neglect or default the same was occasioned.”

The assessor testified it was in 1954 that he commenced preparing an assessment of objector’s property and that the years involved were 1954 and 1953. On June 19, 1954, the assessor wrote the objector a letter which clearly advised him that the assessment for the year 1953 was $97,000. In May, 1954, the objector himself made a return to the assessor for assessment for the year 1954, in which he fixed the valuation of his oil wells at $80,300. The same valuation of $80,300 was listed against his property for the year 1954 in the published assessment roll. Aside from these matters, objector testified as follows:

“Q. Then as early as June 19, 1954, and very shortly thereafter when you received this letter you were aware that the County of Perry proposed to assess you for the year 1953 in the amount of $97,000; is that correct?
A. Yes sir.
Q. So that when you came to the Assessor’s office in the year 1954, you were aware that the assessments proposed to be made against you were for the years 1954 and 1953.
A. Yes, I suppose.”

At a hearing on objections to application for judgment for delinquent taxes, a public record may be amended by parol evidence to correct clerical errors and make it speak the truth.

From that before us we believe the evidence of a mistake in the original public record is clear and satisfactory and that the assessor’s book, as amended, does speak the truth. Under the liberal provisions of section 235 of the Revenue Act, it was proper for the court, in its discretion, to correct any irregularity or supply any omission of any officer connected with the assessment and levying of taxes which did not affect the substantial justice of the tax. People ex rel. Lunn v. Chicago Title and Trust Co. 409 Ill. 505, 515, and cases cited.

Objector’s contention that a certificate of error is the sole means of amendment of the record is made in this court for the first time. No such suggestion was raised in the trial court where the validity of such contention could be ruled upon and an exception preserved. In further support of this contention the objector now argues that the collector did not introduce in evidence such a certificate of error. That argument was not made in the trial court when the amendments were requested. However, a cursory reading of the statute (Ill. Rev. Stat. 1953, chap. 120, par. 526,) makes it clear that a certificate of error is to be issued to the person or corporation erroneously assessed. It is apparent that the instrument is delivered to the taxpayer for his use and benefit, and its purpose is to rectify a mistake or error in calculation, identity, ownership or the like. It is the taxpayer who would possess and present it as evidence for the purpose of avoiding payment or securing a reduction of taxes.

The record and all the evidence points to the fact that the assessment of $80,300 was for the year 1954. The testimony further shows that this particular assessment was made by the assessor, as assessor, and was never revised or changed by the board of review. It was made in 1954 for the year 1954. The year 1954 was the year of the quadrennial assessment and the statute authorizes the assessor to make the assessment in such year (Ill. Rev. Stat. 1953, chap. 120, par. 524.) Under the authority of Dietman v. Hunter, 5 I11.2d 486, the assessor had the authority to make the 1954 assessment and without prior notice to the taxpayer. Furthermore, the assessment was made from data furnished by the objector. He had constructive if not actual notice from the publication of the assessment roll. His testimony indicates that in 1954 he was aware of the year and amount assessed. On the facts and under the law, objector has no just ground to complain of the assessment for 1954. The action of the trial court in overruling his objections as to the tax in the amount of $1959.32, based on the 1954 assessment of $80,300, should be sustained.

Having come to the conclusion that taxes were properly assessed for 1954 we now direct our attention to the taxes assessed for the year 1953. Both objector and collector agree that 1953 was an omitted year. Both concede that only the board of review may assess for an omitted year. Ill. Rev. Stat. 1953, chap. 120, pars. 589 and 701; People ex rel. Patton v. Sellars, 179 Ill. 170; Stevens v. County of Henry, 218 Ill. 468; People ex rel. Jones v. Webb, 256 Ill. 364; People ex rel. Parker v. Board of Appeals, 367 Ill. 559.

The collector submits that taxes on the property for the year 1953 were assessed by the board of review. Objector contends that three basic fundamental statutory duties necessary to make the taxes for 1953 valid were omitted; first, the board of review did not assess the property; second, the notice required by statute was not given; third, the hearing required by statute was not held.

The power of a board of review is prescribed by statute and it must act in the manner therein prescribed. The board can act only by its record. Parol levy of taxes is not legally possible but a record of the taxing body showing the levy or assessment of a tax must be kept. (People ex rel. Stuckart v. Chicago Lake Shore and Eastern Railroad Co. 270 Ill. 477; People ex rel. Ferguson v. Schlitz Transfer Co. 333 Ill. 333.) As was said in People ex rel. Wangelin v. City of St. Louis, 367 Ill. 57, at page 67, “A record which is the only source of evidence by which official action can be shown and which does not show any action shows that none was taken.” Although the valuation for assessment was entered in a column in the assessment book entitled “As Revised, Corrected or Made by Board of Review,” the evidence of the minute book of the board of review for 1954 showed that no notice was given and no hearing was held on the assessment of this oil and gas leasehold. Further, no witness at the hearing specifically testified that the board of review made the assessment. The record on this point, taken as a whole and considered most favorably to the collector, indicates that the assessment for the omitted year, 1953, was made by the assessor, as assessor, and not by the board of review as required by statute. Ill. Rev. Stat. 1953, chap. 120, par. 589(1), 701.

The collector argues that the objector has waived his right to object to the assessment on which the 1953 tax was extended by his failure to complain to- the board of review. The authorities are uniform that there must be notice to the property owner, either actual or by law, and an opportunity for hearing of some description, as a condition precedent to charging him with a tax. (The City of Lawrenceville v. Maxwell, 6 Ill.2d 42.) The situation where a current assessment is properly made by the local assessor and approved or reduced by the board of review is to be distinguished from the situation presented where the assessment is of omitted property. In the former situation, the board of review need not give notice or hold a hearing before it acts, for the reason the taxpayer is given such notice by publication and thereafter has an opportunity to file a complaint with the board of review and obtain a hearing. The levy, assessment and collection of taxes are purely statutory and the levy, assessment and collection of taxes can only be made as expressly pointed out in the statute. In the latter case the taxpayer is entitled to rely upon the provisions of a statute which provide that an assessor cannot assess omitted property, and the taxpayer has a right to await notification from the board of review before talcing any action with regard to his property which has been omitted from the tax rolls.

The objections by the objector to the tax on the 1953 assessment are well taken. The trial court erred in not sustaining them. To this extent, the judgment of the county court of Perry County is reversed and the cause is remanded, and that court is directed to enter judgment determining the tax in the amount of $2366.80 based on the 1953 assessment is not due and ordering the collector to refund to the objector the tax so paid.

A firmed in part and reversed in part and remanded, with directions.

      This opinion was prepared by the late Mr. Justice Maxwell and has been adopted and filed as the opinion of the court,


author: Mr. Justice Schaefer

text:
    (No. 34014.
    Charles G. Lind et al., Appellants, vs. Harry Spannuth et al., Appellees.

      Opinion filed September 25, 1956.

      G. A. Buresh, of Chicago, (James J. Cherry, of Chicago, of counsel,) for appellants.
    R. A. Bierdemann, of Chicago, for appellees.
   Mr. Justice Schaefer

delivered the opinion of the court:

The plaintiffs, Charles G. Lind and Wallace Schwab, leased property in River Forest from the defendants. They brought this action to cancel the lease on the ground that the contemplated use of the property for a photo finishing establishment violated the zoning ordinance of the village. Defendants’ answer denied that the lease was invalid, and their counterclaim sought judgment for rent alleged to be due under the lease. Plaintiffs answered the counterclaim, alleging that the lease was executed for an illegal purpose, and made a motion for summary judgment on the same ground. Defendants filed an affidavit of defense setting forth the uses previously made of the property, to show that the contemplated use was a nonconforming use permissible under the zoning ordinance.

The trial court took judicial notice of the zoning ordinance, found that the lease was executed with the intent by both parties to use the property for an illegal purpose, and ordered both the complaint and the counterclaim dismissed for want of equity. Defendants appealed; plaintiffs did not.

The Appellate Court decided that the judgment of the trial court was erroneous insofar as it dismissed the counterclaim for rent on the ground that the lease was executed for an illegal purpose, and that the judgment was not open to review insofar as it dismissed the complaint, because plaintiffs had not cross-appealed. The court also held that since no valid defense had been interposed to the counterclaim, the judgment should be reversed and the cause remanded, "with directions to enter judgment for the amount of the rent which had accrued under the lease.” (Lind v. Spannuth, 3 Ill. App.2d. 112.) No attempt was made to review the judgment of the Appellate Court by leave to appeal, but plaintiffs sued out a writ of error to the Appellate Court which was dismissed on September 15, 1954. (No. 33348.)

On September 16, 1954, defendants’ attorney mailed a notice to plaintiffs’ attorney, stating that on September 20 he would appear before the trial court and ask leave to file the mandate of the Appellate Court and move that the case be set for hearing on the counterclaim for rent. Plaintiffs did not appear in response to the notice. An order was entered on September 20 granting defendants leave to file the mandate instanter and setting the counterclaim for hearing on September 28 “to determine the amount of rent accrued under the lease.” The mandate was filed on September 20, 1954. On September 28, at an ex parte hearing, evidence was heard and an order was entered finding that plaintiffs owed defendants $2133.33 f°r rent from March 1, 1953, to March 11, 1954. Judgment for this amount and costs was entered in favor of defendants and against plaintiffs. Plaintiffs appealed to this court, (No. 33569,) but the cause was transferred to the Appellate Court for the First District. The Appellate Court affirmed the judgment, (8 Ill. App.2d 442,) and granted a certificate of importance which brings the case to this court.

Plaintiffs’ first contention is that the three justices of the Third Division of the Appellate Court for the First District were disqualified to hear and dispose of the appeal from the judgment of September 28, 1954. The earlier appeal had been decided by this division of the Appellate Court, and the argument is based on section 11 of article VI of the constitution: “Such appellate courts shall be held by such number of judges of the circuit courts, and at such times and places, and in such manner, as may be provided by law; but no judge shall sit in review upon cases decided by him, * * The contention is without merit. The clause “but no judge shall sit in review upon cases decided by him” recognizes the fact that the judges of the Appellate Courts are also circuit judges. It means that no judge shall sit as a member of the Appellate Court in reviewing a case he decided as a trial judge. (See: Provident Savings Life Assurance Society v. King, 216 Ill. 416.) In the present case none of the justices of the Appellate Court participated in any of the proceedings in the trial court. And on the second appeal they did not “sit in review” of their earlier decision on the first appeal.

Plaintiffs next contend that the trial court was without jurisdiction to enter the judgment of September 28, 1954. The contention is that the Appellate Court exercised original jurisdiction when the case was before it on the first appeal (1) when it stated in its opinion that it was impelled to reverse that part of the order of the trial court that dismissed the counterclaim and to remand the cause, “with directions to enter judgment for the amount of rent that had accrued under the terms of the lease,” and (2) when its mandate remanded the cause “for * * * further proceedings * * * not inconsistent with the views expressed in the opinion * * This alleged exercise of original jurisdiction is said to vitiate the mandate, and it is further argued that because the superior court was proceeding under a void mandate when it entered the judgment now before us, that judgment is likewise void.

It is true, as plaintiffs assert, that only appellate jurisdiction can be conferred upon Appellate Courts under section 11 of article VI of the constitution, (People ex rel. Lydston v. Hoyne, 262 Ill. 82,) and that when an Appellate Court exercises original jurisdiction it proceeds without authority. (Goodrich v. Sprague, 376 Ill. 80; Scott v. Freeport Motor Casualty Co. 379 Ill. 155.) While the first judgment of the superior court was not responsive to the motion for summary judgment which was before it, plaintiffs concede that the chancellor had the right to consider whether the lease was entered into for an illegal purpose. The power of the court to raise this issue sua sponte is settled. First Trust and Savings Bank of Kankakee v. Powers, 393 Ill. 97; Vock v. Vock, 365 Ill. 432.

Plaintiffs also concede that on the first appeal the Appellate Court had jurisdiction to determine whether the trial court was right or wrong in holding that the lease was executed for an illegal purpose. But they say that if the trial court was wrong, as the Appellate Court decided, that court had jurisdiction only to reverse the judgment and to remand the cause for a trial in due course. And they assert that the judgment of the Appellate Court which remanded the cause with directions to enter judgment for the rent which had accrued under the terms of the lease was the exercise of original jurisdiction.

The difficulty with the plaintiffs’ position is that their argument overlooks the state of their own pleadings. They sought to set aside the lease on the sole ground of its illegality. They defended against the counterclaim for rent on the same single ground. So when the Appellate Court decided that the lease was legal, it also decided that the only defense which had been asserted to the counterclaim was not tenable. The Appellate Court did not determine the amount of rent due but remanded the cause to the superior court for that determination. In an analogous situation, in Electrical Contractors’ Ass’n v. A. S. Schulman Electric Co. 391 Ill. 333, 346, this court said: “Defendant’s contention that the Appellate Court erred in remanding the cause with directions to enter judgment is without merit. There was no issue of fact determined by the Appellate Court. Its conclusions were based upon propositions of law. The amount due was not in controversy, and the only issue was the question of law as to whether or not there was liability.” (See, also: Abrams v. Awotin, 388 Ill. 42, 47.) We hold that in the present case the Appellate Court did not exercise original jurisdiction when it decided the issue of law before it and remanded the case for a determination of the amount due.

Plaintiffs’ final contention is that the judgment appealed from is void because the superior court lacked jurisdiction over their persons when it entered judgment. This argument is based upon section 88(2) of the Civil Practice Act, which in 1954 read as follows: “(2) When any cause is remanded for a new trial or hearing the reviewing court shall issue its mandate reversing and remanding such cause directly to such trial court; and upon the filing of such mandate in the trial court, the cause or proceeding shall be reinstated therein, upon ten days’ notice being given to the adverse party or his attorney. Service of such notice may be made upon any party personally, whether found within or without the State, or upon the attorney of record of such party in the trial court in any manner provided for service of papers upon attorneys, or as the trial court may direct.” Ill. Rev. Stat. 1953, chap, no, par. 212.

In this case a notice was mailed to the plaintiffs on September 16, 1954? stating that on September 20, 1954, defendants would move for leave to file the mandate and that the case be set for hearing on the counterclaim. On September 20, 1954? leave to file the mandate was granted, the mandate was filed, and the cause was set for hearing on September 28. Plaintiffs contend that since the notice which they received did not fully comply with the statute, the court lacked jurisdiction.

Plaintiffs press upon us the numerous decisions of this court and of the Appellate Court which have treated section 88(2) of the Civil Practice Act and its predecessors in earlier statutes as expressing jurisdictional requirements. (See, e.g., Austin v. Dufour, 110 Ill. 85, 87; Gage v. People ex rel. Hanberg, 223 Ill. 492; Snell v. Weldon, 243 Ill. 496, 516.) Indeed, in Snell v. Weldon, this court said that the mandate is the declaration by which the court reacquires jurisdiction of the subject matter, and the ten-day notice is the summons by which it reacquires jurisdiction of the person. These decisions are analyzed in the opinions of the Appellate Court in this case, (8 Ill. App.2d 442,) and it is there pointed out that in many instances the language used went far beyond the requirements of the case, and that other decisions have not treated the provision as jurisdictional. We shall not repeat that analysis, but will confine ourselves to consideration of the relevant statutory provisions, for we think that they show that the legislature did not intend jurisdictional consequences.

The provision before us probably had its origin in Murray v. Whittaker, 17 Ill. 230, decided in 1855. There a judgment of the circuit court was reversed, and the cause was remanded for a new trial. This court held that the parties to the cause were bound to know that the cause had been remanded for further proceedings and that no notice of redocketing was required. The court went on to suggest that notice of redocketing would be desirable, and that suggestion may have been responsible for the provision requiring notice which the General Assembly enacted in 1877. Laws of 1877, p. 152.

Section 88(2) does not speak in the language of jurisdiction, and indeed other clauses of the same section are inconsistent with that concept. If the jurisdiction of the trial court over subject matter and person is completely terminated by the perfection of an appeal, it is of course terminated regardless of the outcome of the case in the Appellate Court. Yet section 88(1) provides that “When an appeal is dismissed, or a judgment, order or decree is affirmed, execution may issue and other proceedings may be had thereon in all respects, as if no appeal had been taken upon the filing of the mandate,” without any notice whatsoever of the filing of the mandate. And if jurisdiction is to be separated into compartments, the reviewing court would lose jurisdiction upon the filing of its mandate in the trial court. Yet section 82(5) fixes the period within which the reviewing court can recall its mandate whether or not the mandate has been filed in the trial court.

Section 76 of the Civil Practice Act likewise shows that the trial court does not lose jurisdiction for all purposes upon perfection of an appeal. It provides that pending the issuance of a supersedeas property may be sold at a private or judicial sale, and a subsequent reversal or modification of the judgment will not affect the rights of purchasers who are not parties to the action. Ill. Rev. Stat. 1955, chap, no, par. 76.

Plaintiffs treat the case as three separate law suits, the first in the trial court, the second in the Appellate Court, and the third in the trial court again. They say that the jurisdiction of the trial court ended with the filing of the notice of appeal; that the jurisdiction of the Appellate Court then attached, and continued until the mandate was filed in the trial court and notice served in strict accordance with the statute. This concept of fragmented jurisdiction did not exist in the absence of statute. (Murray v. Whittaker, 17 Ill. 230.) It is not required by the language of the statute, and it is inconsistent with the general statutory scheme.

We hold that section 88(2) is directory. It was enacted to prevent reinstatement of the cause without adequate time for opposing counsel to prepare for retrial of the case. The only question is whether the failure to give proper notice prejudiced the rights of the plaintiffs. It is not contended that it did. Plaintiffs had actual notice of the motion to reinstate, and if they had wished to object to its form they should have made their objection known.

The judgment of the Appellate Court is correct and is affirmed.

Judgment affirmed.


author: Mr. Justice Daily

text:
    (No. 34015.
    Stephen Saladino, Appellant, vs. The City of South Beloit, Appellee.

      Opinion filed September 25, 1956.

      Robert K. Clark, of Rockford, for appellant.
    Henry H. Caldwell, of Rockford, for appellee.
   Mr. Justice Daily

delivered the opinion of the court:

Stephen Saladino, the appellant, after first having sought unsuccessfully a change of zoning through administrative processes, filed a complaint in the circuit court of Winnebago County alleging that the zoning ordinance of the city of South Beloit, the appellee, is unconstitutional and void in its application to certain of his property, and praying that the city be enjoined from enforcing the same. Following a hearing of the cause, the complaint was dismissed for want of equity and this direct appeal has followed upon the chancellor’s certification that the validity of a municipal ordinance is involved and that the public interest requires this court’s consideration of the controversy.

The disputed property, which is described throughout the record as lots 133 and 134 of Viets Addition to the city of South Beloit, is vacant and unimproved and fronts on Shirland Avenue adjacent to the Illinois-Wisconsin State line. By a zoning ordinance adopted in April, 1954, all of Viets Addition was classified “B-Business District.” Under this classification some seventy-five separate and distinct uses are permissible but not the operation of a tavern, such a use being restricted to areas classified “C-Business Districts.” Appellant purchased lots 133 and 134 in April, 1955, with full knowledge of their use limitations and thereafter, in July, 1955, petitioned the city to change the zoning of the lots from “B” to “C” business district, so that he could operate a tavern thereon. The zoning board of appeals recommended the change be granted but on the condition that the city council would see fit to issue a tavern license for the location. The council, however, denied appellant’s application for a liquor license and referred the zoning petition back to the board of appeals. At this point appellant applied for and received a building permit to erect a commercial building on his lots. Subsequently the zoning board of appeals made an unqualified recommendation favoring the rezoning; the council, however, rejected the recommendation and this action by appellant for injunctive relief has ensued. We learn also from the record that appellant has initiated a mandamus action, undisposed of as yet, to compel the city to issue him a liquor license.

The overt purpose of appellant both in this court and in the tribunals below has been to compel the rezoning of lots 133 and 134 so that he might operate a tavern thereon. In seeking judicial relief on the constitutional grounds of due process and equal protection of the laws he relies, in the first instance, on the oft-repeated generality that it is the right of every citizen to use his property according to his own will, and he argues that there are no considerations of the public health, safety, welfare or morals, to which such right must give way in this instance. There is in appellant’s position the assumption of a fact which does not exist, namely, that he has an inalienable right to use his property for tavern purposes. In Great Atlantic and Pacific Tea Co. v. Mayor of Danville, 367 Ill. 310, this court, after pointing out that the unbridled use of intoxicating liquors is inimical to the welfare of the people, summarized as follows (p. 317): “The right to engage in the liquor traffic is not an inalienable right guarded by the organic law. It is not a right of citizenship nor one of the privileges and immunities of citizens of the United States. It involves no constitutional right which is violated by the mere curtailment or termination of its exercise. The regulation and restriction of the right to sell alcoholic beverages is referable to the police power which has resided in the States since the beginning of the present system of government. The policy of the State has long been to consider the right to traffic therein as permissive, only.” Again, in Hornstein v. Illinois Liquor Control Com. 412 Ill. 365, at 369, it is said: “Legislation with respect to liquor traffic does not come within the protection of the fourteenth amendment to the Federal constitution unless it is apparent that its real object is not to protect the community or to promote the general well-being but, instead, under the guise of police regulation, to deprive the owner -of his liberty or property without due process of law.” See also: Crowley v. Christensen, 137 U.S. 86, 34 L. ed. 620; Harrison v. People ex rel. Raben, 222 Ill. 150.

The decisions of this court in People ex rel. Morrison v. Cregier, 138 Ill. 401, and People ex rel. Fitzgerald v. Harrison, 256 Ill. 102, authoritatively establish that the police power is properly exercised by regulations which control the location of liquor vending establishments, so long as there is no unreasonable discrimination between persons and places not founded upon a reasonable difference in conditions. In reaching such a result the court made the following observations in the Cregier case (p. 415) : “If prohibited districts are created at all, their boundaries must be established somewhere, and it may well be that the situation of premises on one side of the line may not differ essentially from that of those on the other. To a great extent the precise location of the boundary lines must be left to the arbitrary discretion of the municipal authorities. The fact that premises are omitted from the districts which might just as wisely have been included * * * in no way militates against the reasonableness of the prohibition so far as it goes.” That these same concepts govern where the police power is exercised through the media of zoning regulations may be gathered from the frequently expressed views that zoning boundaries must begin and end somewhere, that mere proximity to a boundary line will not render a zoning regulation discriminatory or unreasonable, and that where there is ground for a fair difference of opinion, the legislative judgment as to zoning classification will not be disturbed by the courts. La Salle National Bank v. City of Chicago, 6 Ill.2d 22; Mundelein Estates, Inc. v. Village of Mundelein, 409 Ill. 291; Neef v. City of Springfield, 380 Ill. 275.

By the ordinance here in question, the city of South Beloit affirmatively restricted the location of taverns to class “C-Business Districts,” along with amusement places, clubs, dance halls, motels and trucking terminals and, by omission, excluded them from classes “A and B — Business Districts” wherein innumerable sales and service uses are permitted. There is no showing in this record that the city was prompted by arbitrary or discriminatory considerations or that the limitations in the classifications employed are unrelated to the public good. On the other hand, many reasons related to the public welfare, safety and morals may be suggested which cause it to be both desirable and reasonable that the shopping and service areas of a city’s business districts, to which its citizens are drawn to fulfill their daily needs, be kept from the influences attendant to tavern operations. Similarly, there is no showing here that the boundary lines between the use districts involved were so drawn as to discriminate against any particular persons or properties. We cannot say, therefore, that the ordinance contravenes any provision of the State or Federal constitutions.

Insofar as the ordinance applies to the particular property of the appellant there is likewise presented in the record no evidence that its effect is confiscatory, unreasonable or arbitrary. At best there is presented only a question of whether appellant’s land should be classified as a “B— Business District” or as a “C — Business District.” Without reviewing the nature of nearby zoning or the characteristics of the neighborhood in question, we deem it sufficient to say that there is room for a fair and debatable difference of opinion as to which of such zoning classifications should prevail. Under such circumstances the determination is one to be made by the city council and not by this court. (Cf. Herzog Building Corp. v. City of Des Plaines, 3 Ill.2d 206; Dunlap v. City of Woodstock, 405 Ill. 410.) Unless an abuse of discretion is shown, it is not proper for this court to constitute itself a zoning commission and substitute its judgment for that of the legislative body charged with the primary duty of determining zoning classifications.

For the first time in this court, appellant presents the theory that, in view of the many and diverse uses permitted in a “B — Business District,” the exclusion of a tavern business therefrom is so arbitrary and capricious as to violate section 22 of article IV of our constitution which protects against special legislation. Such a contention not only comes too late on appeal, but is also refuted by the decisions of this court which hold that a classification can properly be made by statute or ordinance, without doing violence to the constitution, where there are real differences between the classes and where the selection of the particular class, as distinguished from the others, is reasonably related to the evils to be remedied by the statute or ordinance. (Josma v. Western Steel Car and Foundry Co. 249 Ill. 508; Charles v. City of Chicago, 413 Ill. 428.) The differences between a tippling house and the other businesses permitted under the “B” classification, as well as the relative evils they present to the public, need not be elaborated upon.

For the reasons stated the decree of the circuit court of Winnebago County is affirmed.

Decree affirmed.


author: Mr. Justice Bristow

text:
    (No. 34033.
    Rams-Head Company, Appellant, vs. The City of Des Plaines, Appellee.

      Opinion filed September 25, 1956.

      Frank P. Zareski, of Chicago, for appellant.
    Marshall S. Howard, of Chicago, for appellee.
   Mr. Justice Bristow

delivered the opinion of the court:

Plaintiff-appellant, Rams-Head Company, an Illinois corporation, brings this direct appeal from the circuit court of Cook County seeking reversal of a decree dismissing for want of equity its complaint for declaratory judgment filed against defendant-appellee, the city of Des Plaines, praying that the Class C commercial district classification, as applied to its real estate under the Des Plaines zoning ordinance, and all amendments thereto, be declared invalid and void.

The plaintiff has taken a direct appeal to this court on the certified ground that the validity of a municipal ordinance is involved.

Plaintiff alleged that the disputed property is no longer suitable for the permitted uses under the zoning ordinance; that the highest and best use thereof is for industrial purposes; that the ordinance and classification of plaintiff’s real estate in the Class C commercial district is arbitrary, discriminatory and unreasonable; that such classification fails to bear any relation to or to enhance the public safety, health, morals, comfort or general welfare; that the enforcement of this zoning ordinance would constitute the taking of plaintiff’s property for public use without paying just compensation therefor; and that by reason thereof said ordinance is contrary to the constitutions of the United States and of the State of Illinois, and that plaintiff had exhausted his administrative procedures for variation before a board of zoning appeals and the city council.

Defendant denied that its zoning ordinance is invalid or unconstitutional in any respect whatsoever.

The master, after hearing the evidence, reported that the testimony was conflicting, but nevertheless recommended that a decree be entered in accordance with the prayer of the complaint. He found that the disputed property is no longer suitable for any of the permitted uses under the ordinance; that all experts agree that the Gass C commercial district classification, as applied to the involved premises, is undesirable; that the industrial uses in the area and a railroad with its switching facilities and activities impinge upon the involved property and characterize it as industrial, despite the fact that on Graceland Avenue there is a substantial residential use; that there have been changes in the uses in the area within the past three or four years which have affected and make the subject property suitable for light industrial use; and that the highest and best use of the subject premises is for I-i, light industrial purposes, for the reason that such use would implement a natural extension of the nearby and surrounding area consistent with the current trend of development.

Defendant objected to the master’s report on the grounds that the conclusions and recommendation were contrary to the weight of the evidence, and that his report sets forth an unfair picture of the zoning as it relates to plaintiff’s property.

The trial court ordered the objections to stand as exceptions to the master’s report and after hearing arguments of counsel, sustained the exceptions and dismissed the suit for want of equity.

The evidence shows that the property in question was zoned Class C commercial district, before and at the time it was acquired by plaintiff; that it was, when purchased three years before this suit was filed, improved with three residences, each over 50 years old and now rented as dwelling units at $75 per month; that said tract is located in the middle of the block on the west side of Graceland Avenue, south of Thacker Street and north of the Soo Line railroad. The frontage is 250 feet and the tract extends westerly 190 feet to an alley, across which is located a triangular tract, which fronts on Thacker Street, is bounded by the railroad and alley on the other two sides, is zoned I-1, light industrial, and is occupied by an affiliate corporation engaged in the manufacture of saw blades, a light manufacturing process, from which there are no objectionable odors, smoke or gases discernible on the outside of its building. Plaintiff has constructed a concrete floored, steel trussed warehouse on the disputed premises, and has rented the same to a steel company. The railroad right of way lies within five feet of the southwest corner of the disputed property and along a side of the affiliate’s triangular tract, zoned I-i, light industrial. Several freight trains are operated each day on the double track, and nearby switch tracks are frequently used to serve an oil company bulk station, a lumber and coal company having coal silos, and a company manufacturing pallets from cardboard, all of which are located within 600 feet of the subject premises, but not on Graceland Avenue.

On the west side of Graceland Avenue, between the Soo Line railroad and Thacker Street, there are six houses, all more than fifty years of age, three of which are located on the subject premises, as above mentioned. The west side of Graceland Avenue, north of Thacker Street, is zoned residential except for a church located in the first block. The next three and one-half blocks north on Graceland Avenue are zoned residential, and beyond that point Graceland Avenue is zoned for commercial uses. On the east side of Graceland Avenue, in the same block where the subject property is located, there is a vacant lot adjacent to the Soo Line railroad, having about 100 feet of frontage. This is sometimes used as a parking lot for several large trailers. North of this vacant lot five residences are located and north of these residences two vacant lots are situated at the corner of Graceland Avenue and Thacker Street. In the next block north there are several dwelling houses, and the second block north is used for commercial pursposes. All of the houses are old except one which was built within the past five years on property zoned for Class C, commercial use.

Lee Street, being U.S. Route 45, a main north-south thoroughfare, lies immediately east of Graceland Avenue and has “unrestricted” zoning, an unusual classification included in the original zoning ordinance. Some of the lots on the west side of Lee Street are improved with commercial type buildings. A few are vacant. The lot adjacent to the railroad is used as a materials storage yard. The east side of Lee Street is used for commercial and light industrial purposes.

The record shows that the plan commission of the defendant city has recommended to the city council the adoption of a new comprehensive zoning ordinance which reclassifies plaintiff’s property as residential, and the above mentioned “unrestricted” property on Lee Street as commercial. When this case was heard, the proposed ordinance had not as yet been adopted by the city council.

One of plaintiff’s expert witnesses is a real estate agent, who is a former resident of Des Plaines and had served on its plan commission. He testified that the property zoned as commercial has about the same value as if it were zoned residential, being between $50 and $60 per front foot, totaling between $12,500 and $15,000. He stated that if the premises were zoned I-i, light industrial, the value would be between $0.80 and $1.00 per square foot, being from $38,000 to $47,000. Another expert witness for plaintiff, who is an architect and city planner and had been a member of the master plan staff for the city of Chicago, is a consultant in zoning, and was then employed as a city planner of Robbins, Illinois. He testified that the subject property is in the wrong location for commercial purposes and that commercial zoning is not reasonable for the disputed property. Both of plaintiff’s experts concluded that the highest and best use for the subject property is industrial because the surrounding uses are industrial and each of them stated as his opinion that authorizing such use for the subject property would not adversely affect the surrounding or adjacent properties, chiefly because of the nearby railroad operations and the slight difference between commercial and light industrial activities.

Defendant’s zoning consultant, an architect and city planner who had prepared the new zoning ordinance, testified as an expert witness and stated that he had recommended that the zoning of the disputed property be changed from commercial to residential because he considered the highest and best use for the subject premises and for the block in which it is located to be residential for the reason that the neighborhood is now residential. He stated as his opinion that to change the subject property to industrial would greatly depreciate the surrounding residential property and would increase traffic congestion and create parking problems. A real estate agent testified that Graceland Avenue is one of the more desirable residential streets in the city because it has a tree-lined view and is close to shopping and transportation.

The only issue before us is whether the ordinance, as amended, is invalid and void as applied to plaintiff’s property. (First National Bank of Lake Forest v. County of Lake, 7 Ill.2d 213, 130 N.E.2d 267.) This court cannot act as a zoning body nor take any action to reclassify or rezone the disputed property. We, therefore, can only consider the question as to whether the decision of the trial court in dismissing the complaint for declaratory judgment for want of equity was proper. A presumption favoring its validity always obtains where the proper authorities adopt a zoning ordinance pursuant to a legislative grant. (Galt v. County of Cook, 405 Ill. 396, 91 N.E.2d 395; City of Springfield v. Vancil, 398 Ill. 575, 76 N.E.2d 471; Rothschild v. Hussey, 364 Ill. 557, 5 N.E.2d 92.) One assailing the validity of such an ordinance as arbitrary, discriminatory and unreasonable as applied to a particular property must prove by clear and affirmative evidence that the ordinance constitutes arbitrary, discriminatory and unreasonable municipal action, that there is no permissible interpretation which justified its adoption or that it will not promote the safety, health, morals, comfort and general welfare of the public. People ex rel. Alco Deree Co. v. City of Chicago, 2 Ill.2d 350, 118 N.E.2d 20; Mundelein Estates v. Village of Mundelein, 409 Ill. 291, 99 N.E.2d 144.

Among the particular facts and circumstances to be taken into consideration in determining whether a zoning ordinance is so unreasonable and confiscatory as to constitute an unlawful invasion of private rights are the character of the neighborhood, the zoning classification and use of nearby properties, the extent to which property values are diminished by the particular zoning restrictions involved, and the gain to the public compared to the hardship imposed on the individual property owner. Trust Co. of Chicago v. City of Chicago, 408 Ill. 91, 96 N.E.2d 499; Galt v. County of Cook, 405 Ill. 396, 91 N.E.2d 395.

The extent to which values are diminished by the restrictions of the ordinance must always be considered in determining whether an alleged invasion of property rights by a zoning ordinance is arbitrary, discriminatory, unreasonable or confiscatory. The highest and best use of the property immediately involved is but one factor to be considered. The effect upon the value of other property must always be taken into account. (People ex rel. Alco Deree Co. v. City of Chicago, 2 Ill.2d 350.) The fact that the subject .property may be more valuable if zoned for other uses is not decisive, as this fact exists in nearly every case where the intensity with which property may be used is restrained by the zoning laws. Miller Brothers Lumber Co. v. City of Chicago, 414 Ill. 162, 111 N.E.2d 149.

The privilege of using property may be restricted by legislative action when public welfare demands. (2700 Irving Park Bldg. Corp. v. City of Chicago, 395 Ill. 138, 69 N.E.2d 827.) The legislative judgment of the city council in zoning matters is conclusive, unless it is shown to be arbitrary, capricious and unrelated to the public morals, safety and general welfare. (Mercer Lumber Companies v. Village of Glencoe, 390 Ill. 138, 60 N.E.2d 913.) Where there is room for a legitimate difference of opinion concerning the reasonableness of a particular ordinance, the finding of the legislative body will not be disturbed by the courts. (Burkholder v. City of Sterling, 381 Ill. 564, 46 N.E.2d 45.) The rules applicable to this case have long been well established, and recently reviewed in Krom v. City of Elmhurst, 8 Ill.2d 104, 133 N.E.2d 1; First National Bank of Lake Forest v. County of Lake, 7 Ill.2d 213, 130 N.E.2d 267; La Salle National Bank v. City of Chicago, 6 Ill.2d 22, 126 N.E.2d 643; and Tower Cabana Club, Inc. v. City of Chicago, 5 Ill.2d 11, 123 N.E.2d 834.

In the instant case, taking into consideration the evidence most favorable to plaintiff, it is evident that the property could be reasonably zoned either for residential, commercial or industrial purposes. The conflicting evidence creates a substantial doubt, which must be resolved by the city council and not by this court. A change to I-1, light industrial, zoning would increase traffic hazards and congestion, and would depreciate the value of surrounding dwelling houses in the predominantly residential area. It is evident that this ordinance is reasonably related to the promotion of the public safety, health, morals, comfort and general welfare. The record shows that plaintiff has not proved by clear and convincing evidence that this ordinance is confiscatory in its application to plaintiff’s land, or that it is arbitrary and unreasonable.

Eor these reasons, the decree dismissing the complaint for declaratory judgment, entered in the circuit court of Cook County, is affirmed.

Decree affirmed.