author: MR. JUSTICE ABRAHAMSON

text:
    Deanna L. Keefer, a/k/a Deanna L. DeMarco, Plaintiff-Appellee, v. Edward W. Keefer, Defendant-Appellant.
    Gen. No. 68-122.
    Second District.
    March 6, 1969.
    David L. Martenson, of Rockford, for appellant.
    Maynard and Brassfield, of Rockford, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The defendant prosecutes this appeal from an order of the Circuit Court of Winnebago County that denied his motion to “modify the rights of visitation” of his former wife with their two children.

On November 4, 1963, the plaintiff, Deanna L. Keefer, was granted a divorce from Edward W. Keefer. By the terms of the divorce decree, Edward W. Keefer was given custody of the two minor children of the parties, Edward W. Keefer, Jr. and Gary A. Keefer, and Deanna was granted “reasonable visitation privileges.” By a subsequent order dated October 17, 1967, the visitation privileges (although described in the order as “temporary custody”) of Deanna Keefer were defined with greater precision, in part as follows:

“1. That the plaintiff, Deanna L. Keefer, have the right to pick up her minor son, Gary A. Keefer, from the home of the defendant, Edward W. Keefer, at 4:00 o’clock p. m. on Friday of the first, second and third weeks of each month, and to have the temporary custody of said minor child until 7:00 o’clock p. m. of the following Sunday at which time said minor child is to be returned to the home of the defendant.
U
“3. That the plaintiff, Deanna L. Keefer, shall have the right of visitation with her minor son, Edward W. Keefer, Jr., at the home of the defendant at or about the hour of 4:00 o’clock p. m. on Friday of the first, second and third weeks of each month and at or about the hour of 7:00 o’clock p. m. on Sunday of the first, second and third weeks of each month, or at other places by mutual agreement between herself and her said son.”

The defendant’s motion to modify these visitation privileges, filed April 5, 1968, alleged that since the order of October 17, 1967, “the school grades of both children have turned from excellent to poor, the children have been forced by Deanna L. Keefer to associate with undesirable syndicate hoodlums, and other unfortunate and undesirable results have been obtained.” The motion asked for a full hearing and an order “completely terminating” the plaintiff’s rights of visitation until she “discontinues her association with parties whose names, addresses and records shall be presented at the time of hearing.” Edward Jr. and Gary were 9 and 7 years old, respectively, at the time the motion was filed.

Deanna Keefer was called as an adverse witness pursuant to section 60 of the Civil Practice Act by the defendant at the hearing held April 30, 1968. She testified that she resided in two locations, an apartment in Forest Park and in a 7-bedroom home owned by a Sam Samarco in Chicago. Deanna had a separate bedroom in the Chicago home and cared for Samarco’s mother until her death in July, 1967. Samarco, his sister, brother-in-law and their four children also lived at the home. Deanna’s only source of income until her own father died in June, 1967, was from Samarco for the care of his mother. She admitted that the mailbox on her Forest Park apartment had the name DeMarco on it but denied that Samarco ever used the name DeMarco.

Deanna further testified that she visited with her sons regularly after the divorce and that they frequently stayed with her at both residences during her visitation periods. On one occasion Samarco stayed overnight in the apartment with Gary and Deanna but Samarco slept by himself. Deanna said she ate at “Mr. Don’s,” a restaurant near her apartment, and knew the owner, Donald Maggio. She occasionally took Gary with her to eat at “Mr. Don’s” and although she knew that Samarco occasionally ate there she did not know how often. She denied any knowledge of Samarco’s employment or source of income.

Edward Keefer testified that his children resided with his parents in Rockford until his remarriage in January, 1967, and with him, his second wife and her 3 children thereafter. He stated that Deanna visited the boys infrequently until she learned of his remarriage on March 21, 1967, but took Gary with her on weekends regularly thereafter. Keefer and his mother both testified that prior to March 21, 1967, Gary had never lied or stolen but that after that date he lied to his teachers, was disrespectful of others, and, on one occasion, attempted to steal a bag of candy.

Three private investigators employed by the defendant also testified. William Davern testified that on February 28, 1967, he arrived in front of Deanna’s apartment at 5:50 a. m. and that no one entered or left until she came out with Samarco at 11:50 a. m. George Elliott stated that he observed Deanna take Gary into “Mr. Don’s” on two occasions and that they left shortly thereafter with Samarco and drove to the home in Chicago for the night. Elliott also testified that he frequently observed Samarco around “Mr. Don’s.” The third investigator, George Larson, was not permitted to testify from the Chicago Crime Commission report as to the reputed criminal background of Donald Maggio and “Mr. Don’s” but a certified court order from Cook County was admitted that dislcosed that the liquor license of “Mr. Don’s” had been revoked for a gambling violation.

At the conclusion of this evidence, the trial court denied the defendant’s motion and, in effect, confirmed the visitation privileges provided in the prior order of October 17, 1967. It is apparent that the defendant has waived his objections to the visitation privileges afforded Deanna Keefer with Edward Jr., since there is nothing in his brief and abstract or the record in regard to that question. The defendant does contend that the trial court was unmindful of its power to modify visitation privileges previously established in the interest of the welfare of the child and improperly prohibited his cross-examination of Deanna Keefer in regard to her knowledge of Samarco’s previous activities.

The trial court has broad discretion to adjust the privileges of visitation, a discretion to be exercised only in the interest of the children and not as a punishment or reward to either parent. Malone v. Malone, 5 Ill App2d 425, 428, 126 NE2d 505. The privilege is founded on the belief that it is for the welfare of the child that he have a healthy and close relationship with both of his parents. However, a court may amend visitation privileges previously established, or, in extreme cases, temporarily deny them altogether if the privilege is abused. Malone v. Malone, ibid.

It was incumbent on the defendant to show by competent evidence that it was in the best interests of Gary to change the visitation rights provided in the order of October 17, 1967. We feel that he failed to sustain that burden.

There was no evidence that Gary’s school grades had suffered, as charged by the defendant, or that he was forced to consort with hoodlums. The evidence of his decline since March 17, 1967, was scarcely alarming and not necessarily connected to his association with his mother. Although there was some evidence of irregularity in the private life of Deanna Keefer, there is no proof that her son is a witness to any immorality or subject to corrupting influences. Under the circumstances, the trial court was well within its discretionary bounds when it denied the defendant’s motion.

For the reasons given, the order of the Circuit Court of Winnebago County will be affirmed.

Affirmed.

MOHAN, P. J. and SEIDENFELD, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lafayette Hubbard, Defendant-Appellant.
    Gen. No. 52,094.
    First District, Third Division.
    March 6, 1969.
    Rehearing denied March 20,1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Harold A. Cowen, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Theodore A. Shapero, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Defendant Hubbard was indicted for the crime of burglary. He was tried by the court without a jury, found guilty and sentenced to the State Penitentiary for not less than three nor more than eight years.

Defendant by his appointed counsel contends that he was denied a constitutional right when the court denied his motion for a copy of the transcript of the preliminary hearing at which he was held over to the grand jury and that the hearing in aggravation and mitigation did not satisfy the statutory requirements. The defendant pro se also filed a brief unbeknownst to his appointed counsel or the State’s Attorney, in which he argues that the indictment was insufficient and that the court erred in denying defendant’s motion in arrest of judgment.

Quizzola Brooks testified that on April 20, 1966, she awoke to find defendant touching her bed in the apartment occupied by her and her family. The defendant said he wanted money. She said she had no money and had thirteen children. He then said that he had to do this for his living as he had “seven kids.” Members of Mrs. Brooks’ family subdued the defendant and held him until the police arrived. Mrs. Brooks’ nephew, Hicks, testified that while they were waiting for the police to arrive, defendant told them all about his children. Defendant later testified that he had no family of his own and was not married.

It would serve no useful purpose to further discuss the facts of this case as the points raised do not question the sufficiency of the evidence.

Defendant’s first contention is that he was denied his constitutional rights in that he was not furnished a copy of the transcript of the preliminary hearing. Section 102-17 of the Criminal Code, Ill Rev Stats, 1965, c 38, par 102-17, provides that a preliminary examination means a hearing before a judge to determine if there is probable cause to believe that the person accused has committed an offense. The motion for a copy of the transcript was presented by the Public Defender on August 17, 1966, the date the defendant was tried in the Circuit Court, Criminal Division. Defendant relies upon Roberts v. LaVallee, 389 US 40, 88 S Ct 194, wherein the petitioner, an indigent, was charged in the New York courts with robbery, larceny and assault. His clear and unequivocal request for a free copy of a preliminary hearing transcript was denied even though a New York Statute provided for the furnishing of such a transcript for a fee. This denial was held to be a denial of the defendant’s right to equal protection of the laws since the statute created differences in legal access to such a transcript based upon the financial situation of the accused. The LaVallee decision is inapplicable to the instant case because there is no such statute in Illinois which provides for the furnishing of a preliminary hearing transcript for a fee or otherwise. An Illinois Supreme Court Eule (Ill Eev Stats 1965, c 110, § 101.27 (9) (b)) provides only for a transcript to be furnished an indigent of the proceedings of the trial in which the indigent was convicted.

The defendant also relies on Griffin v. Illinois, 351 US 12, 100 L Ed 891, in support of his contention that the preliminary hearing transcript should have been furnished. A similar argument was advanced in People v. Morris, 30 Ill2d 406, 197 NE2d 433, and the Supreme Court rejected such an extension of Griffin which would impose a constitutional duty to provide indigent persons with a free transcript of a preliminary hearing. The Court said at page 411:

“A preliminary hearing in Illinois is not a ‘critical stage’ where rights or defenses must be raised or lost, and neither is it a proceeding at which pleas are made or received. Eather, the scope and purpose of preliminary proceedings are in general to ascertain whether a crime charged has been committed and, if so, whether there is probable cause to believe that it was committed by the accused, (14 ILP, Criminal Law, Sec 171). Even then a finding of probable cause is not binding upon a subsequent grand jury.”

Mr. Justice Schaefer, specially concurring, stated that where a court reporter was present at the preliminary hearing, the rule announced in Griffin required the furnishing of a transcript upon request. In the case at bar, the record does not disclose whether such a reporter was present.

However, we need not only rely upon the aforementioned authority in order to reject this argument advanced by the defendant. On the morning of the trial’s commencement, the defendant unequivocally informed the court that he wished to withdraw his motion which asked for a transcript of the preliminary hearing. Such a withdrawal constitutes a waiver of the point he now relies upon for reversal. Furthermore, the defendant filed a document entitled “Motion to Stay Proceedings and Motion for Dismissal” which was signed by the defendant and sworn to by him in open court. In this document the defendant stated that he was bound over to the grand jury without the appearance of witnesses or the arresting officer. If no testimony was heard at the hearing, we cannot see what a transcript of the preliminary hearing could contain which would be of any advantage to the- accused. Therefore, under the circumstances, the defendant could not have been prejudiced by the action of the trial court.

The defendant next argues that the hearing in aggravation and mitigation did not satisfy the statutory requirements as interpreted by case law. The record shows that the defendant is a high school graduate, served in the Navy and received an honorable discharge, was articulate and employable. He was twenty-eight years of age. He argues that the court gave no heed to the suggestion of the defendant’s attorney that he receive treatment aimed at curing rather than merely punishing the defendant. The basis for this argument is the contention by the defendant that he acted somewhat erratic in that he had testified that he gave a drink to strangers on the street prior to his entrance in the Brooks’ apartment and that he told the complaining witness and other State witnesses about having a large family to support, all of which would serve only to increase the danger of being apprehended. It is further contended that this conduct all points to an emotional disturbance which needed treatment. However, the defense fails to consider that the defendant was being held by members of the victim’s family and could not have escaped the danger of being apprehended. His past record of being a high school graduate, of having been honorably discharged from the Navy, and of being articulate and employable all militate against the defendant’s being in need of treatment by professional healers. The court in People v. Lillie, 79 Ill App2d 174, 223 NE2d 716, states at page 179:

“Advances in the fields of psychology, psychiatry and sociology have contributed to a greater understanding of the motives underlying the commission of criminal offenses, and the techniques and methods which are of value in the rehabilitation of offenders. The hope of earlier release is a great incentive to a prisoner to participate in the educational and rehabilitation programs provided in modern penal institutions.”

The defendant in this case may still avail himself of the educational and rehabilitation programs offered by the State.

The defendant also argues that the hearing in mitigation was violative of section 1-7 (g) of the Criminal Code of 1961 as amended, which provides as follows:

“For the purpose of determining sentence to be imposed, the court shall, after conviction, consider the evidence, if any, received upon the trial and shall also hear and receive evidence, if any, as to the moral character, life, family, occupation and criminal record of the offender and may consider such evidence in aggravation or mitigation of the offense.”

It is argued that the purpose of modern day penology is the rehabilitation of the offender as well as the protection of society. (People v. Donovan, 376 Ill 602, 35 NE 2d 54.) At the hearing in aggravation and mitigation the State presented the following: In 1961, the defendant was fined $100 by Judge Morrissey for a sex offense. Two months later the defendant was fined $100 for another sex offense by Judge Waehowski. In January, 1962, the defendant was given 30 days in the House of Correction by Judge Comerford for criminal trespass to an auto. In 1962, he was given 90 days in the House of Correction by Judge Morrissey for criminal damage to property. On February 6, 1963, the defendant pleaded guilty to robbery and was sentenced to the Illinois State Penitentiary for a term of one to six years by Judge Boyle. He was paroled on April 8, 1966. On April 30, 1966, 22 days after his parole, the defendant committed this present offense of burglary.

In determining an appropriate penalty, the court owes a duty to the public as well as to the accused and should weigh and consider pertinent facts including the nature of the offense and the attending circumstances. People v. Harden, 78 Ill App2d 431, 222 NE2d 693. In People v. Evrard, 55 Ill App2d 270, 274, 204 NE2d 777, the court said:

“The court must strive to render a judgment which will adequately punish the defendant for his miseonduct, safeguard the public from further offenses, and reform and rehabilitate the offender into a useful member of society.”

In a plea in mitigation, the Public Defender stated to the court that the defendant was single and was never married. He also told the court that the defendant was the father of one child who was ten years old.

We are of the opinion that the court in this case properly considered evidence as to the moral character, life, family, occupation and criminal record of the offender in aggravation and mitigation of the offense as provided by section 1-7 (g) of the Criminal Code and the sentence is appropriate.

We now turn to the pro se brief of the defendant. The indictment in this case charged the defendant Lafayette Hubbard with having committed the offense of burglary on April 30, 1966, in Cook County, Illinois, in that he, without authority, knowingly entered into the dwelling house of Quizzola Brooks, with the intent to commit the crime of theft therein, in violation of chapter 38, section 19-1, of the Ill Rev Stats 1963, contrary to the Statute, and against the peace and dignity of the same People of the State of Illinois. The defendant cites the case of People v. Peters, 10 Ill2d 577, 141 NE 2d 9, which involved an information charging the defendant, who was not a regular licensed attorney in Illinois, with knowingly and willfully representing himself as authorized to practice law. The court held that the Act under which the information was filed did not specify or spell out what constituted representing oneself directly or indirectly as authorized to practice law. In that same case, however, the court did say the following on page 580:

“As a general rule it is sufficient in an indictment or information to state the offense in the language of the statute in those cases where the statute clearly defines the offense. (Gallagher v. People, 211 Ill 158.)”

The defendant argues that the indictment here did not define the word theft or describe the acts constituting the offense created thereby. In People v. Reed, 33 Ill2d 535, 538, 213 NE2d 278, it was said:

“In United States v. Harriss, 347 US 612, 617, 98 L Ed 989, 996, the United States Supreme Court stated that, ‘The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.’ We do not agree with defendant’s contention that the words ‘without authority’ and ‘theft’ as they appear in section 19-1 (a) are so difficult of comprehension that they could not be reasonably understood by a man of ordinary intelligence without further definition. (Citation.) Rather, we think that any person of ordinary intelligence, after reading section 19-1 (a), could readily understand what conduct was proscribed by that section. We conclude, therefore, that the statute is constitutional and that the indictment is not void insofar as it employs the language of section 19-1 (a).”

The argument of defendant that the indictment was defective in that it was vague and did not describe the acts constituting the offense is therefore not well taken.

The defendant pro se also argues that in a burglary indictment the street address of the place burglarized is an essential element. In support of this contention, he cites People v. Williams, 30 Ill2d 125, 196 NE2d 483, which affirmed an order to quash an indictment for burglary which stated only that a building owned by a named person and allegedly entered, was situated in Cook County, holding that such an indictment did not give the defendant sufficient information to prepare his defense. The Supreme Court in People v. Blanchett, 33 Ill2d 527, 212 NE2d 97, stated that it had re-examined the opinion in People v. Williams, supra, and were of the opinion that it was incorrect and accordingly overruled People v. Williams. The overruling of the Williams case was adhered to by the Supreme Court in People v. Reed, 33 Ill2d 535, 213 NE2d 278. See also People v. Petropoulos, 59 Ill App2d 298, 208 NE2d 323, affirmed 34 Ill 2d 179, 214 NE2d 765.

The defendant pro se also raises the point that the court erred in denying the oral motion in arrest of judgment, which contention was urged by the defendant relying upon the purported insufficiency of the indictment. Since the form of indictment in this case has been upheld by the Supreme Court in People v. Reed, 33 Ill2d 535, 213 NE2d 278, as heretofore mentioned, the point is not well taken.

Judgment affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    Alan Kniznik, Petitioner, Cross-Respondent, Appellee, v. Enid Quick, Respondent, Cross-Petitioner, Appellant.
    Gen. No. 52,748.
    First District, Third Division.
    March 6, 1969.

      Synek, Bishart & Solomon, of Chicago (Henry T. Synek, of counsel), for appellant.
    Maurice L. Marcus and Melvin A. Weinstein, of Chicago, for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a petition for habeas corpus the petitioner alleged that he was entitled to the custody of his minor son Richard Jay Kniznik by virtue of a Massachusetts divorce decree and that Richard was being unlawfully detained by the respondent in her home in Homewood, Illinois. Respondent filed a cross-petition in which she asked the court to modify the Massachusetts decree to change custody from the petitioner to herself. The court entered an order granting the petition for habeas corpus and denying the cross-petition for modification of the decree. Respondent has appealed from that order to this court.

Neither the respondent nor the petitioner has questioned the jurisdiction of this court to review an order entered in a habeas corpus proceeding. We find nevertheless that the determination of that issue is a prerequisite to our taking jurisdiction. Supreme Court Rule 302(a) provides: The court interpreted this rule in People ex rel. Bryant v. Williams, 68 Ill App2d 334, 216 NE2d 262, and held that “the new Judicial Article and the Supreme Court Rules indicate that jurisdiction in all habeas corpus proceedings, original and on appeal, has been withheld from this court without exception.” That case also involved child custody. The Supreme Court apparently agreed since it accepted the transfer of the case from the Appellate Court. People ex rel. Bryant v. Williams, 35 Ill 2d 372, 220 NE2d 177.

“(A) Appeals from the final judgments of circuit courts shall be taken directly to the Supreme Court ... (3) in cases of habeas corpus. . . .”

Our court is without jurisdiction to hear the appeal in the instant case and it is transferred to the Supreme Court pursuant to Rule 365.

Appeal transferred to the Illinois Supreme Court.

SULLIVAN, P. J. and DEMPSEY, J., concur.


author: MR. JUSTICE DEMPSEY

text:
    Sylvia Perez, Plaintiff-Appellee, v. Donald Janota, Defendant-Appellant.
    Gen. No. 52,806.
    First District, Third Division.
    March 6, 1969.

      Charles Kraut, of Chicago, for appellant.
    No brief for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant-appellant, Donald Janota, appeals from a judgment entered against him on a written instrument. The instrument was signed:

“Pyramid Electronics Donald H. Janota”

and acknowledged a $1,000 indebtedness to Alex Kozil with interest payable at 5% per annum. Kozil assigned the note to the plaintiff-appellee, Sylvia Perez.

Janota contends that the note was not a negotiable instrument, that it was chargeable to Pyramid Electronics only and that Sylvia Perez was not a holder in due course.

The plaintiff-appellee has not countered these contentions; no appellee’s brief has been filed in this court. In this situation we could accept the appellant’s contentions as correct and summarily reverse the judgment of the trial court. 541 Briar Place Corp. v. Harman, 46 Ill App2d 1, 196 NE2d 498 (1964). On the other hand, if justice seems to require it, we may examine the points raised by the appellant to ascertain if they merit reversing the judgment. Matyskiel v. Bernat, 85 Ill App2d 175, 228 NE2d 746 (1967); Werbeck v. Werbeck, 70 Ill App2d 279, 217 NE2d 502 (1966). In this case we will exercise our discretion and will consider the merits of the appeal.

Janota’s theory of the case is that the trial court erred in finding that the note was a negotiable instrument and in not considering certain defenses raised by him, among them that he signed the note in a representative capacity and that Sylvia Perez was not a holder in due course.

The record does not support these claimed errors. Neither a report of proceedings nor an agreed statement of facts has been filed in this court. We do not know what findings were made by the trial court, what defenses were considered or what evidence was presented.

A party prosecuting an appeal must furnish the material essential to the disposition of the appeal. Matters de hors the record cannot be considered. In the absence of a report of proceedings or an agreed statement of facts it is presumed that the evidence supported the trial court’s decision. Houswerth v. Seidel, 47 Ill App2d 112, 197 NE2d 271 (1964).

The defendant-appellant recognized the deficiency of the record and the adverse effect it would have on his appeal. He filed an affidavit in this court (in support of a motion to amend the Praecipe of Becord to include a finding made by the trial court) which stated:

“(A) record of the finding is vital to the proper presentation of this matter on behalf of the appellant.”

When the proposed amendment was submitted for our approval it turned out to be a purported ruling which did not appear anywhere in the record and the motion was, accordingly, denied. The appellant’s representation that it was “vital” to bolster the present record coincides with our view that the record is insufficient to cover the points raised in this appeal.

The record is sufficient, however, to present the appellant’s final point. Janota argues that the note itself shows that it was a corporate obligation and that the judgment against him as an individual should not be permitted to stand. This argument must also fail. Janota did not sign the note in a representative capacity — his office with Pyramid Electronics, if any he had, does not appear on the note; the note on its face is a joint obligation of Pyramid Electronics and Janota, and he is personally obligated. Uniform Commercial Code, Ill Rev Stats 1967, c 26, § 3-403 (2) (b).

The judgment is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


text:
    In re Estate of August F. Trecker, Deceased. Amalia B. Trecker, Petitioner-Appellant, v. John N. Trecker, Executor, Respondent-Appellee.
    Gen. No. 53,030.
    First District, Third Division.
    March 6, 1969.

      Miller, Gorham, Wescott & Adams, of Chicago (John F. Arnold and Harold C. Osburn, of counsel), for appellant.
    Owens, Owens & Rinn, of Chicago (Vincent G. Rinn and Denis J. Owens, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

August F. Trecker died in 1965. His will was admitted to probate but the widow, Amalia B. Trecker, renounced it and demanded her share in the estate as surviving spouse. She also claimed a right to a widow’s award and requested the court to fix the proper amount. The executor of the will opposed her claims contending that they had been waived in a post-nuptial agreement between the decedent and his wife. The trial court resolved the issue in favor of the executor. It denied the claim for the widow’s award, declared the renunciation of the will ineffective and decreed that the widow had no claim of any kind against her husband’s estate.

Amalia and August Trecker were married in 1905. A daughter was born in 1907. Amalia and August lived together until the summer of 1928 when Amalia took the daughter with her and established her own household. The couple lived separate and apart from 1923 until August’s death in 1965.

About the time of the separation, the Treckers executed a written agreement. The document bore no date other than July 30. However, a sale of the couple’s residence which was contemplated by the agreement occurred August 1, 1923, so that the probable date of execution of the agreement was July 30,1923.

The agreement provided: (1) the proceeds from the sale of all property owned as joint tenants would be divided equally by the parties; (2) all household furniture and personal property, with the exception of household tools and the husband’s personal clothing, would upon sale of their residence be given to the wife; (3) each party would waive any right to dower or homestead or as spouse including any rights as heir, widow or widower; and (4) in the event of a proceeding for divorce or separate maintenance, the wife would not claim solicitor’s fees, alimony or support money.

In this appeal Amalia contends that her rights as widow in her husband’s estate were not barred by the agreement because it either lacked consideration or failed in consideration and because it violated the public policy of the State of Illinois.

The evidence disclosed that, in accordance with the agreement, Amalia received all of the furniture and furnishings of the couple’s residence except a bed, a dresser and a trunk containing her husband’s clothes. The executor asserted that she received other considerations which arose from her ownership of property located on Hood Avenue and from their joint ownership of property located on Lunt Avenue, both in Chicago. The executor claimed that she received a waiver of her husband’s right of dower in the Hood Avenue property, which was acquired by her alone on February 28, 1923. August joined her in mortgaging the property and joined her on July 30, 1923, in conveying it to another. The executor also contended that she received one-half the proceeds from the sale of their Lunt Avenue residence. This property was deeded to “August F. Trecker and Amalia Trecker” on January 1, 1913. Ten years later, on August 1,1923, “August F. Trecker and Amalia Trecker, as joint tenants” conveyed the home to new owners. A contract of sale dated July 14, 1928, signed by Amalia but not by August, recited that the net proceeds of the sale were “to be equally divided between August F. Trecker and Amalia Trecker, and payment to each to be made in cash to them individually.” In 1967, 44 years after the sale, Amalia, then 83 years old and in ill health, said in a deposition that she must have received her one-half share. Upon further questioning, however, she said, “I don’t know; I never saw it ... I don’t remember getting it.” Counsel persisted in asking her whether she received it and she then replied, “No. Not that I know of.”

In corroboration of his contention that Amalia received one-half of the proceeds of the sale, the executor presented an undated and unsigned document purporting to be a closing statement of the sale. It was received in evidence over the objection of the petitioner that it was hearsay. The document bore the name of the attorney who represented August at the time of the sale and was entitled, “Memorandum For Closing Real Estate Sale.” It listed the credits to the seller and the purchaser among them the purchase price, mortgage, interest and taxes; and it indicated that the net balance was divided two ways. The purchase price in the document was identical with that in the contract for the sale of the property, dated July 14, 1923, signed by Amalia and the purchasers. The purchasers named in this contract were the same parties to whom the property was conveyed by the Treckers on August 1, 1923. The executor argues that it was not error to admit the document into evidence because it shed light on a transaction that was completed so many years prior to the hearing. In admitting the document the trial court stated: “It supports the contract [the contract of sale] or the contract supports it. It is part of the contract arrangement. If the contract is admissible, in my judgment this would be admissible.”

Amalia claimed that there was no property held in joint tenancy upon which the agreement could operate; that even if there was, she did not receive one-half of the proceeds from the sale of the Lunt Avenue property or, in the alternative, that she received only what she was entitled to receive apart from the agreement; that the furniture and personal property obtained by her had only slight value and that she had contributed to its acquisition in the first place; and that the other rights waived were future property rights subject to an executory waiver.

The evidence presented questions of fact as to whether there was consideration and whether the consideration was performed. The resolution of these questions was for the trier of fact and his findings will not be disturbed if there was substantial evidence to support them. Chicago Motor Club v. Travelers Indemnity Co., 57 Ill App2d 17, 206 NE2d 518 (1965). We have examined the testimony and the exhibits and are satisfied that the court’s findings of consideration and performance thereof are sufficiently supported; and this is so without regard to the probative value of the document entitled: “Memorandum For Closing Real Estate Sale” which should not have been admitted in evidence. In addition to the proof of consideration — the release by August of his rights of homestead, dower and inheritance was consideration for the similar release executed by Amalia. Laleman v. Crombez, 6 Ill2d 194, 127 NE2d 489 (1955).

Amalia next contends that the agreement was invalid because it was either an agreement to separate, or one that contemplated separation at a future time; that the separation was not necessary for the health or happiness of herself or husband, and that they continued to live together as husband and wife for two months after the agreement was executed.

An agreement to separate at a future date while continuing to live as husband and wife is invalid but one made in contemplation of immediate separation is not. Lyons v. Schanbacher, 316 Ill 569, 147 NE 440 (1925). Whether Amalia and August continued to live together after executing the agreement was a question of fact but the evidence was sufficient to support a finding that they did not. Likewise, a review of the record supports a finding that there was a valid reason for their separation. When a husband and wife can no longer live together congenially with mutual confidence and implicit faith in each other, or when the separation is necessary for the health and happiness of one or the other, an agreement to adjust their property rights and to separate may be lawfully made. Stoltze v. Stoltze, 393 Ill 433, 66 NE2d 424 (1946). The agreement in this case implies a valid reason for the separation of the parties and nothing in it negates the implication (as in Lyons v. Schanbacher, supra).

Amalia also contends that the agreement was invalid because it released her husband from his obligation to support her. Paragraph three of the agreement waived present and future dower and homestead plus “any and all rights which [either party] may have as spouse . . . , including any rights . . . as an heir at law, widow or widower. . . .” Among the rights of a spouse is the right to support. Paragraph four also released the right to support. It waived a claim for support “in the event of the institution of a proceeding for divorce or separate maintenance. . . .”

A husband and wife may make a valid separation agreement by which one or each of them releases all his rights in the other’s property, including inchoate rights of inheritance and dower. Purcell v. Weasel, 12 Ill2d 356, 146 NE2d 580 (1957); Kohler v. Kohler, 316 Ill 33, 146 NE 476 (1925). An agreement can also be made to waive a widow’s award. Yockey v. Marion, 269 Ill 342, 110 NE 34 (1915); Pavlicek v. Roessler, 222 Ill 83, 78 NE 11 (1906); In re Estate of Cullen, 66 Ill App2d 217, 213 NE2d 8 (1965). However, a husband cannot by contract relieve himself of the obligation imposed by law to support his wife. Lagow v. Snapp, 400 Ill 414, 81 NE2d 144 (1948); Van Koten v. Van Koten, 323 Ill 323, 154 NE 146 (1926).

Many cases have held that a waiver of the right to support voids the entire agreement, including the release of the rights of dower, inheritance and widow’s award. For example: Threw v. Threw, 410 Ill 107, 101 NE2d 515 (1951); Berge v. Berge, 366 Ill 228, 8 NE2d 623 (1937); Lagow v. Snapp, supra. These cases followed the rule that if any part of the entire consideration for a contract is illegal, the whole contract is void. In Lyons v. Schanbaeher, supra, the rule was epitomized this way: “That which is bad destroys that which is good, and both perish together.”

The case of Laleman v. Crombez, 6 Ill2d 194, 127 NE 2d 489, declared that the good need not perish with the bad. It specifically overruled Lyons v. Schanbaeher and Lagow v. Snapp in abolishing the comprehensive rule that an illegal provision makes the entire agreement void. The court stated that it did not necessarily follow that a release of the rights of inheritance became unenforceable because a provision surrendering the right to support was unenforceable. The court observed that the rule lost sight of the purpose for denying enforcement of a promise on the basis of illegality. In its stead, the court imposed a different test: whether the refusal to enforce the other provisions of an agreement would promote the policy of voiding the illegal provision. If it would not, the parties would be held to the terms of the remaining provisions. In Laleman, a husband and wife entered into a separation agreement and waived their rights in any property each other owned or would later acquire. The agreement also provided that the husband was not to pay any money for his wife’s support. Upon her death he claimed a half interest in the real estate she had acquired after their separation. He maintained that the provision in the agreement releasing him from his duty to support her was invalid and that this provision rendered unenforceable the surrender of his rights in her estate. The Supreme Court ruled against his contention and held that no public policy consideration required it to refuse to give effect to the covenant he had made.

The appellant contends that the pre-Laleman rule survives and she cites as authority for her contention Rhodes v. Rhodes, 82 Ill App2d 435, 225 NE2d 802 (1967). Rhodes involved a separation agreement and the court stated that Illinois cases have consistently held that a provision attempting to relieve the husband from his legal obligation to support his wife renders an agreement with respect to mutual property rights unenforceable. However, the court’s statement of the law was not reached as a full and final determination of the issue because the validity of the parties’ agreement was not argued in the trial court or on appeal. In reversing and remanding the case on other matters, the Appellate Court merely took notice of the possible invalidity of the agreement and directed the parties and the trial court to consider the question in the further proceedings. In doing so the court called attention to several Illinois cases, including Laleman.

The purpose of voiding a wife’s waiver of her right to support is to protect the wife who may need the support and to protect the public, upon whom the burden might fall if the husband should fail to discharge his duty. This purpose is fully served by invalidating that part of the agreement which attempts to release the husband from his duty of support. Invalidating the remainder of a property settlement contract would not necessarily protect the wife — particularly if the property settlement was favorable to her. Furthermore, invalidating a property settlement might present problems because of an accomplished division of property and, also, it might conflict with another public policy which encourages property settlements made pending or in contemplation of divorce proceedings. Nogle v. Nogle, 58 Ill App2d 457,202 NE2d 683 (1964).

In this case, the husband is dead and the duty of support no longer exists. The personal and real property were divided over 40 years ago. Aside from any waiver of support, there was substantial consideration for the wife’s waiver of her rights as a widow. The agreement was relied upon by both parties for 42 years and only after the death of one of them was its validity challenged. The public interest in the agreement is not so great that the wife who had the benefit of her husband’s performance should be permitted to avoid her own obligation on the ground that part of the agreement was illegal.

The judgment is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: MR. PRESIDING JUSTICE ADESKO

text:
    LaSalle National Bank, a National Banking Association, as Trustee Under Trust Agreement Dated April 15, 1947, and Known as Trust No. 6124, Plaintiff-Appellee, v. Village of Skokie, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 51,673.
    First District, First Division.
    March 10, 1969.

      Harvey Schwartz, Corporation Counsel, of Skokie, for appellant.
    Arvey, Hodes & Mantynband, of Chicago (J. Herzl Segal and Walter V. Lesak, of counsel), for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

This is a zoning case involving a parcel of unimproved land located at the southwest corner of Dempster Street and Crawford Avenue in the Village of Skokie. This parcel extends 150 feet west of Crawford Avenue on the south side of Dempster Avenue and 125 feet south of Dempster Avenue on the west side of Crawford Avenue. It was acquired by the plaintiff, as trustee, its sole beneficiary, by various conveyances between 1942 and 1954.

On May 7, 1946, Skokie adopted a zoning ordinance, commonly known as the Zoning Ordinance of 1946. Under this ordinance the subject parcel of property was placed in a Class E Commercial District. Gasoline filling stations were one of the uses permitted in that district. In 1956, Skokie amended the Zoning Ordinance of 1946 and divided all land lying within the limits of Skokie into eleven “use” districts. The parcel here involved was placed in a B-2 Commercial District which permitted gasoline filling stations. On September 15, 1959, Skokie amended the Zoning Ordinance of 1956 deleting gasoline filling stations as a permitted use in a B-2 Commercial District and placed filling stations within a B-3 Business District.

On November 15, 1961, plaintiff petitioned the Village of Skokie to reclassify this property from a B-2 Commercial District zone classification to a B-3, for the purpose of erecting a gasoline filling station. The Village denied it. Thereafter plaintiff filed a complaint for declaratory judgment seeking to adjudge the 1956 Zoning Ordinance and the amendment of September 15, 1959, arbitrary, discriminatory, confiscatory, unconstitutional, invalid and void. Subsequently, plaintiff filed an amended complaint and a supplemental complaint for injunction to enjoin Skokie from enforcing its zoning law as amended, as it affects the parcel here involved.

During the course of the proceedings before the trial court in July, 1965, the Corporation Counsel of Skokie requested the Village Board of Trustees to reconsider the reclassification of a portion of the plaintiff’s property from a B-2 district zone to a B-3 district zone, for the purpose of allowing a filling station on the west 150 feet of the subject parcel. This matter was referred by the Board of Trustees to the Plan Commission which, after holding public hearings, recommended that the request be denied. The President and the Board of Trustees concurred.

The trial court referred this cause to a Master in Chancery who after holding extensive hearings reported his findings to the court and recommended that a decree be entered granting relief. The trial court, after overruling Skokie’s objections and exceptions to the Master’s report, decreed on June 15, 1966, that the Skokie zoning ordinance as amended, insofar as it affects the subject property, is unconstitutional and issued an injunction restraining Skokie from enforcing it.

On appeal, the defendant contends mainly that (1) plaintiff did not overcome the burden of the presumption of validity of the ordinance by clear and convincing evidence and (2) the legislative judgment must be conclusive where there is a fair difference of opinion concerning the reasonableness of a classification.

Defendant relies on Jans v. City of Evanston, 52 111 App2d 61, 201 NE2d 663.

“A presumption exists in favor of the validity of a zoning ordinance and the one who attacks such an ordinance has the burden of overcoming the presumption by proving with clear and convincing evidence that as applied to him, it is arbitrary and unreasonable and is without substantial relation to the public health, morals, safety and welfare.”

Crawford Avenue runs in a north-south direction. It is not a State highway, but it is one of the important north-south streets in the Village of Skokie. Dempster is an Illinois highway route running from Lake Michigan on the east through the Village of Skokie and farther to the west. Dempster Street acts as a feeder for motor traffic to Edens Expressway which is approximately one and one-half miles west of the subject property and also to the Illinois Tollway which is six miles further west. The actual land uses of the immediate area surrounding the subject property are as follows:

The northwest corner is occupied by a gasoline station. Proceeding west on Dempster Street for five blocks we find a medical office, a food mart or supermarket and a drugstore, a parking lot for the supermarket, another parking area, a Chinese restaurant, a bakery, a drive-in cleaning establishment, vacant parcels, a chemical company, a tile company, a vacant area, a medical office building, a conveyor company, a gasoline station and eight single-family residences.

At the southwest corner and proceeding west we have 250 feet of vacant, a Chinese carry-out restaurant, a travel agency, a vacant store formerly used for a beauty shop, another vacant store formerly used for retail sale of ice cream, a dentist’s office, vacant, a real estate firm (beneficial owner of subject property), and vacant zoned R-2 and R-l for residential uses.

At the southeast corner and proceeding east there are a large garden and patio center, a butcher shop, a Community Center, a parking area, three blocks zoned R-2 for single-family residences; a parking area, a drive-in restaurant and another restaurant.

The northeast corner is occupied by a restaurant including a parking area, and proceeding east there are 480 feet of vacant zoned B-2, a donut shop, a hamburger shop, a parking lot, a snack shop, a barber shop and beauty parlor, a meat market and grocery, vacant, electrical supply office, automobile supply store, a bicycle shop, hardware store, a chop suey restaurant, a pizza restaurant, a beauty shop, drugstore, barber shop, a billiard room and a real estate office.

There are large areas to the north and south of Dempster Street classified in the R-l and R-2 category and limited to single-family dwellings. Dempster Street is in the B-2 zone for several blocks in either direction from Crawford Avenue with certain exceptions which are zoned R-l and R-2.

Zoning litigation involving the Village of Skokie was considered by the Supreme and Appellate courts of our State in numerous cases. The Village is attempting to create a zoning policy to correct a lack of policy and the errors of the past. David Einhorn, Skokie’s City Planner testified:

“It is the zoning years ago which caused the kind of scattered business development that you now see on Dempster Street which later filled in further in business use.”

Skokie’s failure to adopt a zoning policy resulted in the establishment of some uses on Dempster Street and elsewhere which are nonconforming. Skokie is attempting to bring about some zoning order and eliminate, eventually, nonconforming uses. However desirable this end might be, it must be accomplished without jeopardizing vested rights.

Plaintiff’s witnesses testified that the highest and best use of the subject property would be a gasoline filling station, taking into consideration the fact that the property is compatible with properties located in and near this intersection as well as the character of Dempster Street itself. This intersection is one of the most heavily travelled in the North Shore suburbs. The evidence before the trial court also showed unquestionably that a gasoline station would bring the holders of the fee the highest return and at the same time would have little depreciatory effect upon the surrounding property or the community as a whole.

Most of the single-family homes were built before the change in the zoning ordinance precluded gasoline stations in the B-2 classification. The people moving into the area had full knowledge that a gasoline station could be built on the corner.

There is no evidence in the record of any change in the conditions which warrants the passage of the 1959 amendment to the zoning ordinance removing gasoline filling stations as a permitted use. Defendant offered no evidence to rebut or contradict testimony of the plaintiff’s witnesses. The record shows only general statements of the defendant’s witnesses that the site could be developed for a B-2 use.

Mere difference of opinion of witnesses does not make positive the presumption that an ordinance is valid. As stated in Atkins v. County of Cook, 18 Ill2d 287, 297, 163 NE2d 826, 832 (1960):

“In all cases of this nature (zoning) there is a conflict of opinion testimony. The credibility of witnesses is of great importance.”

The Master in Chancery saw and heard the witnesses, their qualifications, opinions and their reasons. The trial court approved and adopted the findings and conclusions of the Master.

The defendant also maintains that where room exists for a fair difference of opinion concerning the reasonableness of a classification, the legislative judgment must be conclusive. This argument is sound as far as it goes but is not completely conclusive. It is the court’s duty to determine whether the legislative judgment be upheld. In Fiore v. City of Highland Park, 76 Ill App2d 62, 71, 221 NE2d 323, 328 (1967), the court said:

“We recognize that the zoning ordinance adopted by the defendant is presumed valid, and the burden of showing it unreasonable and oppressive, as applied to plaintiffs’ land rested upon them. Camboni’s, Inc. v. Du Page County, 26 Ill2d 427, 432, 187 NE2d 212 (1963) ; First Nat. Bank of Lake Forest v. County of Lake, 7 Ill2d 213, 225, 130 NE2d 267 (1955). In challenging the ordinance’s validity as applied to their property, the burden was on the plaintiffs to overcome this presumption, and to prove by clear and convincing evidence that the ordinance was unreasonable and unrelated to public health, safety or welfare. Bennett v. City of Chicago, 24 Ill2d 270, 273, 274, 181 NE2d 96 (1962); Hoffmann v. City of Waukegan, 51 Ill App2d 241, 244, 201 NE2d 177 (1964) .
“Due to this presumption, if it appears from all of the evidence that there is justification for a legitimate difference of opinion as to the reasonableness of the ordinance, the legislative judgment of the City must then be upheld. Urann v. Village of Hinsdale, 30 Ill2d 170, 175, 195 NE2d 643 (1964); First Nat. Bank of Lake Forest v. County of Lake, 7 Ill2d 213, 226, 130 NE2d 267 (1955); Bowler v. Village of Skokie, 57 Ill App2d 321, 325, 201 NE2d 117 (1965). However, the fact that there is a difference of opinion among the witnesses, lay and expert, does not mean that the court must find that the reasonableness of the ordinance is debatable and, hence, uphold the ordinance. In cases of this nature, a court must expect differences of opinion. It is for the court to determine from all of the facts whether the differences of opinion are reasonable and justifiable. Myers v. City of Elmhurst, 12 Ill2d 537, 544, 147 NE2d 300 (1958); LaSalle Nat. Bank of Chicago v. County of Cook, 12 Ill2d 40, 47, 145 NE2d 65 (1957).”

Skokie further maintains that there is no need for another gasoline filling station where there are fifteen stations already; that zoning is an exercise of police power and cannot be used to give economic advantage to the owner of a single parcel of land over surrounding owners; and that the present zoning classification imposes no burden on plaintiff or its property that is not common to hundreds of other property owners and properties. The plaintiff purchased the property here involved many years before the zoning amendment was adopted. There is no evidence in the record of any change in conditions which warrants the passage of the 1959 amendment to the zoning ordinance affecting the plaintiff’s property. The plaintiff relied upon the zoning in effect at the time of the purchase. The need or lack of need of gasoline filling stations nor the alleged economic advantage to owners of property along Dempster Street is relevant to the legal issue here involved. We agree with the plaintiff that the existing pattern of land uses prior to September, 1959, which set the pattern for establishing filling stations along Dempster Street and the fact that some of them were unsuccessful or unprofitable is not a reason for the zoning restriction in this case.

In LaSalle Nat. Bank v. Village of Skokie, 62 Ill App2d 82, 93, 210 NE2d 578, 584 (1966), the court said:

“Similarly, in the instant case, we believe that considering the business character of Dempster Street and the presence of numerous gasoline service stations in the vicinity of the subject property, the use of such property for a gasoline service station would be entirely in keeping with such commercial character. The presence of single family residences to the north does not make reasonable the prohibition of such use.
“In the instant case, the defendant has pointed out that there are a total of fifteen gasoline service stations on Dempster Street within the corporate limits of the defendant village. One witness had testified that in his opinion the number of existing gasoline service stations on Dempster Street are sufficient to serve the needs of the community. Obviously, a gasoline filling station on an arterial highway such as Dempster Street does not rely upon the community as its source of customers. The 20,-000 or 25,000 motor vehicles a day passing this site are not all from the immediate community, and we do not feel that it is the office of this court to determine the feasibility of using the subject property for a gasoline service station from an economic standpoint.”

Skokie claims that a gasoline service station will create additional traffic and danger resulting therefrom, increased noise, glare from additional light and possibility of noxious odors. These objections apply also to many of the uses permitted under the B-2 category. Dempster Street is commercial in character. The elimination of a gasoline filling station use from the B-2 classification in its specific application to the subject property is arbitrary and confiscatory without any relative gain to the public.

The decree of the Circuit Court is affirmed.

Affirmed.

MURPHY and DEMPSEY, JJ., concur.


author: JUSTICE MURPHY.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Tolit Zegar, Otherwise Called Tollat Zegar, Defendant-Appellant.
    Gen. No. 52,285.
    First District, First Division.
    March 10, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Harold A. Cowen, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   Opinion by

JUSTICE MURPHY.

Not to be published in full.


text:
    Harris Trust and Savings Bank, as Trustee Under Trust No. 30080, Plaintiff-Appellee, v. The City of Chicago, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 52,592.
    First District, First Division.
    March 10, 1969.

      Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Ronald S. Cope, Assistant Corporation Counsel, of counsel), for appellant.

      Jacob Shamberg, of Chicago, for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

This is an action by the Harris Trust and Savings Bank, as Trustee, against the City of Chicago, to enjoin the city from enforcing its zoning ordinance insofar as such zoning ordinance is applicable to the subject property. The case was referred to a Master in Chancery for hearing, and upon the report of the Master, a decree in favor of the plaintiff was entered by the trial court. This appeal is taken from that decree by the City of Chicago. No questions are raised on the pleadings.

The subject property is located on the east side of Clark Street between Drummond Place on the south and Diversey Parkway on the north in the city of Chicago and is in an area zoned B3-4. It is bordered on the west by Orchard Street and on the east by Lehmann Street, where the two streets intersect with Diversey Parkway. It appears from a map of the area that the subject property is located in a peninsular zone which permits only B3-4 uses, although such zone is surrounded on three sides by a large area in which the zoning is B5-4 and that the subject property faces and backs up to B5-4 uses zones. The complaint confines the subject property to 2707-2709 North Clark Street, a 50-foot frontage one-story brick building containing four stores, several currently vacant, with ground area of 3,500 square feet. (The property itself has two buildings on it, joined by a common wall, located at 2707 to 2713 North Clark Street.) The beneficial owners acquired the subject property in 1960. During the past thirty years no new buildings have been built in the area other than a bowling alley and a restaurant. There have been little, if any, changes of uses of stores in the area, nor has the character of the neighborhood changed in this thirty-year period.

Prior to 1957, the subject property was zoned for commercial and amusement uses, under the ordinances of the City of Chicago, such as bowling alleys and skating rinks, auto service stations and garages, radio and television service and repair shops, automatic self-service launderettes and dry cleaning establishments, restaurants and taverns, including live entertainment and dancing, commercial or trade schools, open parking lots for storage of private automobiles, secondhand stores and rummage shops, funeral parlors, and such other uses permitted under a commercial zoning.

On May 29, 1957, a comprehensive zoning ordinance was adopted rezoning the subject property to a B3-4 classification and such classification did not permit any of the aforementioned uses. The plaintiff’s prayer for relief asked the court to decree that the comprehensive amendatory zoning ordinance passed by the City of Chicago in 1957, insofar as it pertains to plaintiff’s property, constitutes an unreasonable and capricious exercise of power on the part of the defendant. The plaintiff then asked that the court issue an injunction against the defendant from attempting in any manner to enforce the provisions of the said ordinance with respect to plaintiff’s property. The case was referred to a Master in Chancery on October 20, 1965. The Master, after hearing the evidence, concluded that the plaintiff was not seeking an unlimited use of the subject property but only all of those uses allowed in a B5 zone, which were within the physical adaptability of the building located on the subject property. (The Master’s report listed twenty-five such uses.) The Master recommended that a decree be entered in accordance with the prayer of the complaint. All objections to the Master’s report were overruled. The trial court agreed with the Master’s report and on June 8, 1967, entered a decree declaring the 1957 Zoning Ordinance void insofar as it does not allow B5-4 uses in addition to B3-4 uses of the subject property and that an injunction be issued against defendant City of Chicago from attempting to enforce the 1957 Zoning Ordinance with respect to plaintiff’s property as to B5-4 uses in addition to B3-4 uses. The court allowed defendant’s objections to the Master’s report to stand as exceptions to such report.

Three principal issues are presented in this appeal. (1) Whether the plaintiff has established by clear and convincing evidence that the City of Chicago Zoning Ordinance is arbitrary and unreasonable as applied to the subject property; (2) Whether the trial court improperly assumed the legislative function of determining the proper zoning for the subject property; and (3) Whether the plaintiff failed to exhaust available local remedies in that he did not apply to the City Council for rezoning. The plaintiff contends that the subject property is adaptable to other uses and has a greater value for such uses than for the restricted uses permitted by the present B3-4 zoning.

Plaintiff, through its beneficial owners, has made numerous attempts to rent the vacant stores for the purposes permitted by the present zoning, but has been unsuccessful in attracting tenants due to the restricted uses of the B3-4 zoning. The plaintiff also reaffirms its position that it does not seek unlimited use of the subject property, but only to be allowed those B5-4 uses which are within the physical adaptability of the building, such uses not being obnoxious uses nor such uses which would adversely affect the surrounding area. The defendant, City of Chicago, contends that the plaintiff has not met its burden of proof as to establishing the ordinance invalid, and that the trial court assumed a legislative function in determining a different zoning for the subject property.

At the hearing before the Master, plaintiff called Harry L. Shlaes, a real estate broker, as an expert witness. It was Mr. Shlaes’ opinion that the demand for retail stores in the City of Chicago is poor, and that in appraising property he takes the “economic approach.” Shlaes further stated that the stores on the subject property might be more readily rented if the owners were “freer as to use.” In Shlaes’ opinion, he would permit almost any use except that which would be obnoxious from noise or odors, and he testified concerning a large number of different uses. Many of these uses would be suitable for the subject property, considering its physical limitations, and would not have an adverse affect on the neighborhood. It was Shlaes’ opinion, from a practical and economic standpoint, that the zoning ordinance of 1957 was based on research developed in 1945 and 1946, and when the 1957 ordinance was passed by the City Council, it was already obsolete.

Raymond M. Hayes was called as an expert witness for the City of Chicago. Hayes was familiar with the subject property and the present zoning of the area, and it was his opinion that the best use of the subject property was a B3-4 use. On cross-examination Hayes stated that the limitation on the use of the subject property to B3-4 affected its rentability and that most of the uses in the B3-4 category which are carried over into the B5-4 category would not hurt the peace, comfort, safety or welfare of the residents in the area.

Both Shlaes and Hayes testified as to the uses in the area and the number of vacant stores. Shlaes stated that even if the zoning were changed “it would be extremely difficult to rent those stores,” and on cross-examination he said he did not think the proposed change plaintiff sought would help matters very much. Hayes was of the opinion that there are vacant stores in all business areas due to the creation of new shopping centers and discount stores, and that the subdivider allowed far too much business property in the area where the subject property was located.

One of the beneficial owners testified that one of the stores in the subject property has been vacant for three years, while the other store is rented to a marriage counselling service. (This marriage counselling service also appears to carry on a fortune telling and palmistry service.) The counselling service has been a troublesome tenant, and due to violations of the lease, eviction is imminent. While the beneficial owners have listed the property with brokers and placed advertisements in the local newspapers, they have been unable to rent the property. The only prospects the beneficiaries have had as to renting the premises was for the purpose of a cocktail lounge, but the present zoning would not permit such use, nor would the prospective tenant wait for the termination of litigation to open such an establishment.

Considered first is the defendant’s argument that plaintiff has failed to establish by clear and convincing evidence that the City of Chicago Zoning Ordinance of 1957 is arbitrary and unreasonable as applied to the subject property. The plaintiff argues that the zoning ordinance of 1957, as applied to the subject property, is invalid because (1) there was no change in the character of the neighborhood prior to the zoning; (2) there was no public need to limit the use of the subject property to B3-4 uses; (3) an inability to rent stores in the existing building for B3-4 uses only was created; and (4) such zoning created a narrow strip zone of B3-4 uses surrounded by B5-4 zones. Plaintiff stresses that the reclassification of the subject property to B3-4 in 1957 was not for the benefit of the public need. Since there was no need for a zoning change, the action of the City Council was arbitrary and had no reasonable relation to the public health, safety, morals or welfare. Therefore, the presumption of the validity of the amendatory ordinance of 1957 disappeared when expert testimony was introduced that there was no change in the uses or condition of the neighborhood where the subject property is located, and that limitations to B3-4 uses adversely affects the rentability of the building on the subject property. To these contentions the defendant states that none of these arguments, singly or together, justifies declaring the instant zoning ordinance invalid.

There is a presumption of validity in favor of a zoning ordinance, and one attacking the ordinance must establish by clear and convincing evidence that it is arbitrary, unreasonable and without substantial relationship to the public health, safety, morals and welfare. Rams-Head Co. v. City of Des Plaines, 9 Ill2d 326, 137 NE2d 259 (1957); Bennett v. City of Chicago, 24 Ill2d 270, 181 NE2d 96 (1962); Urann v. Village of Hinsdale, 30 Ill2d 170, 195 NE2d 643 (1964). While this court cannot act as a zoning body nor take any action to reclassify or rezone the subject property, it is our duty to consider the question whether the evidence presented establishes such zoning ordinance as arbitrary and unreasonable as applied to the subject property. Among the particular facts and circumstances to be taken into consideration in determining whether a zoning classification bears a substantial relation to the public welfare 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 NE2d 499 (1951); Galt v. County of Cook, 405 Ill 396, 91 NE2d 395 (1950).

When all of the evidence presented is considered, it is our opinion that the plaintiff’s proof fails to overcome the presumption of validity of the ordinance in question as applied to the subject property. The plaintiff emphasizes that the stores located on the subject property would be easier to rent if they could be applied to B5-4 uses. While this may be true, there is nevertheless a failure to show the present zoning is arbitrary or unreasonable or that the desired B5-4 zoning is more desirable. 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 property owner realizes he can generate increased revenues from the use of his property through uses prohibited by the zoning statute. Rams-Head Co. v. City of Chicago, supra.

The expert testimony presented by both parties shows at best a situation where room exists for a difference of opinion concerning the “best” use of the subject property and the reasonableness of the instant zoning. (Neither plaintiff nor defendant introduced any evidence from a city planner or zoning expert.) Although defendant’s expert testified to twenty-five B5-4 uses (which the Master subsequently adopted in his report), which were within the physical adaptability of the subject property, there was no suggestion that the subject property would be devoted to any of these uses, and his testimony in regard to the “possible” use of the property was that of a tavern. The beneficial owner also testified that he had several offers to rent the property for use as a cocktail lounge, but had to refuse them because the zoning precluded issuance of a license for such a use.

Plaintiff’s assertion that since there was no change in the character of the neighborhood in the last thirty years prior to the adoption of the 1957 comprehensive amendatory zoning ordinance, the presumption of validity of such ordinance disappeared, is not conclusive. An ordinance, whether zoning or otherwise, is presumed valid, and while this is a rebuttable presumption, it is incumbent upon the challenger to affirmatively and clearly show that it is unreasonable and arbitrary as claimed, since the ordinance will not be held unreasonable where there is room for a fair difference of opinion on the question. Hannifin v. City of Berwyn, 1 Ill2d 28, 115 NE2d 315 (1954); Wesemann v. Village of La Grange Park, 407 111 81, 94 NE2d 904 (1951). In the case at bar, the plaintiff has failed to show that the present zoning is arbitrary or unreasonable and, therefore, the decree of the trial court is reversed.

In view of our holding, we believe it is unnecessary to consider the other issues raised by the defendant on this appeal.

Decree reversed.

MURPHY and BURMAN, JJ., concur.


author: JUSTICE BURMAN.

text:
    Michael Griffith, a Minor, by William Griffith, His Father and Next Friend, Plaintiff-Appellee, v. Village of Dolton, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 52,749.
    First District, First Division.
    March 10, 1969.

      Quintín B. San Hamel, Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), for appellant; Griffin & Gallagher, of Chicago (Daniel A. Gallagher, of counsel), for appellee.
   Opinion by

JUSTICE BURMAN.

Not to be published in full.


author: ME. PEESIDING JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lawrence Reddick, Defendant-Appellant.
    Gen. No. 53,026.
    First District, First Division.
    March 10, 1969.
    Sam Adam and Daniel D. Mangiamele, of Chicago, for appellant.
    William G. Clark, Attorney General of State of Illinois, of Chicago (Fred G. Leach, Assistant Attorney General, John J. Stamos, State’s Attorney of Cook County, of Chicago, and Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   ME. PEESIDING JUSTICE ADESKO

delivered the opinion of the court.

The defendant, Lawrence Eeddick, was convicted in a bench trial for the sale of a narcotic drug in violation of chapter 38, section 22-3 of the El Eev Stats, and was sentenced to serve a term of not less than ten or more than ten years and one day in the Illinois State Penitentiary. The case was appealed directly to the Illinois Supreme Court and subsequently on March 11, 1968, was transferred to this court. The defendant urges that the judgment be reversed on the grounds that the inconsistency in the statements of a police officer raises a reasonable doubt as to the defendant’s guilt, and that proof of defendant’s guilt was not established beyond a reasonable doubt.

From the record it appears that on the evening of November 4, 1965, one Stephen Cox, a police informer, met with Officer James Arnold and another officer from the Narcotics Unit of the Chicago Police Department. After Cox was searched to determine he did not possess any narcotics or money, he was given a sum of marked money for the purpose of making a controlled purchase of narcotic drugs and also signed a receipt for such money. Cox then proceeded with the officers to the vicinity of the Burgundy Lounge at 6309 South Drexel Blvd., Chicago, Elinois. The police officers parked their unmarked car at 6338 South Drexel Blvd., about one-fourth block away from the Burgundy Lounge. Cox got out of the car on the east side of Drexel Blvd., and proceeded to the lounge while Officer Arnold stood in a doorway on the west side of Drexel. Cox testified the defendant and several other men were just coming out of the lounge as he (Cox) came up to the lounge entrance. After the defendant finished talking with these men, Cox stated that he and the defendant negotiated a sale of narcotics and that Cox gave defendant the marked money. According to Cox, defendant then went in the alley while Cox waited in front of the lounge with the other men. Reddick returned and gave Cox a tinfoil package, whereupon Cox left, returned to the police car and gave the package to the officers. On cross-examination, Cox swore that at no time did he walk into the tavern and further, that after taking the tinfoil package to the officers, he and the officers went to the front window of the lounge and he pointed defendant out to the officers. Cox also admitted he had met defendant for the first time about one week prior to the alleged sale while he was with a friend, but did not know the defendant personally.

Officer Arnold testified that he saw Cox on November 4, 1965, at which time he gave him ten dollars in prerecorded money after searching him for narcotics and/or other money. Cox left the unmarked police car and went to the Burgundy Lounge, where the door opened and Cox either stepped in or stepped out. Arnold stated:

“I don’t know whether he got all the way in the tavern or not, but within a matter of a second or two Mr. Cox and a couple of other fellows and the defendant was on the sidewalk.”

Arnold continued to testify that all the men were talking but he could not see what was transpiring, as he was about a quarter of a block away from the group. The defendant, so stated Arnold, went into the tavern entranceway, then came out through the package goods entranceway and went into the alley. About ten minutes later, defendant emerged from the alley and rejoined the group in front of the lounge. The defendant, Cox, and the others “huddled” together and then dispersed. Cox returned to the police vehicle and gave Arnold a tinfoil package containing a white powder substance. Arnold stated that Cox and the others were never out of his sight. Officer Arnold, his partner and Cox walked to the Burgundy Lounge where Cox looked in the window and identified defendant as the man who sold him the tinfoil package, and who was the same person Arnold observed going in the tavern, coming out of the package goods store door and entering and returning from the alley. Arnold entered the lounge and arrested defendant, who was in the company of a female companion. On the woman’s person was found two one-dollar bills of the prerecorded money. Two other one-dollar bills and a five-dollar bill were recovered from the cash register of the package goods store. (The package goods store was connected to the lounge by a passageway.) On cross-examination Arnold testified that defendant denied making any sale of narcotics and further, that no narcotics or prerecorded money was found on defendant’s person. Mr. Voss, the operator of the package goods store, told Arnold he could not determine who gave him the other two prerecorded one-dollar and five-dollar bills. Arnold also was sure that the testimony he gave at the preliminary hearing was similar to his police report, and that he never saw the defendant before the day in question.

It is upon the testimony of Officer Arnold as to what he observed while awaiting the return of Mr. Cox that constitutes the basis of this appeal. At a preliminary hearing conducted on January 27, 1966, Arnold testified that he gave Cox the marked money, whereupon Cox proceeded to the Burgundy Lounge, stayed for about ten minutes, (emphasis added) consummated a controlled purchase of narcotics and returned to the squad car with a tinfoil package containing heroin. Arnold was emphatic that Cox actually went in the lounge and remained there for approximately ten minutes. Relevant portions of Arnold’s testimony at the preliminary hearing were as follows:

“DIRECT EXAMINATION
“Q. (By Assistant State’s Attorney) What did he say to you, what did you say to him:
“A. (By Officer Arnold) Officer Williams and I met a police informer who stated that there was one of several people in the vicinty of 63rd and Drexel that he could find in the Burgundy Lounge located at 6309, and he would attempt to make a control purchase of narcotics from these people in question. We searched the informant, found him to be free of all money and narcotics. We gave him $10.00 in prerecorded funds; he signed a receipt for same. He got out of the car, walked to the Burgundy Lounge. He walked on the, walked down the east side of Drexel. I stood in the doorway on the west side of Drexel. He went in the Burgundy Lounge, stayed for approximately ten minutes. He walked back out, walked back to the squad car, joined Officer Williams and I and handed me one tin foil package and said.” (Emphasis added.)
“CROSS EXAMINATION
“Q. (By Mr. Adam) All right. Now, you are telling the court that he told you he can make a sale, is that correct?
“A. (By Officer Arnold) That is right.
“Q. Make a buy?
“A. Yes, sir.
“Q. He went, he went where ?
“A. To the Burgundy Lounge.
“Q. He left your vision at that time, is that right?
“A. Yes sir; went to the tavern.
“Q. You don’t know what he did in there ?
“A. No.
“Q. This is the same lounge when you went in it was crowded and full of people with leather jackets on, is that right?
“A. That is correct.”
(Emphasis added.)

In June, 1966, at the trial of the instant case, the court independently examined Arnold to ascertain the validity of the above testimony:

“THE COURT: Let me see the complete transcript.
“MR ADAM: I haven’t seen that myself.
“THE COURT: I’m reading from a portion of the answer:
“ ‘We gave him ten dollars in pre-recorded funds; he signed a receipt for same. He got out of the car, walked to the Burgundy Lounge. He walked down the east side of Drexel. I stood in the doorway on the west side of Drexel. He went in the Burgundy Lounge, stayed for approximately ten minutes. He walked back out, walked back to the squad car, joined Officer Williams and I and handed me one tinfoil package and said — ’
“Did you give that answer?
“OFFICER ARNOLD: Yes sir, I did.
“THE COURT: Was that true: He went to the Burgundy Lounge and stayed for approximately ten minutes ?
“OFFICER ARNOLD: And he went to the lounge^ as I testified last week. That is correct, he went to the lounge. I didn’t say that he stayed in the lounge. I think I testified before that he was gone, that the defendant was gone for approximately ten minutes, approximately ten or twelve minutes, the whole time.
“THE COURT: No, no. You’re referring here in this transcript — As the court reporter took it, he says that you testified, ‘He’ referring to Cox.
“OFFICER ARNOLD: Yes, sir.
“THE COURT: (Continuing) — ‘went in the Burgundy Lounge and stayed for approximately ten minutes.’
“OFFICER ARNOLD: I didn’t mean that he stayed inside the lounge, but I’m sure that’s what the transcript said, as you’re reading it. I didn’t mean to infer that he stayed in the lounge for ten minutes. He was gone for approximately that length of time.
“As I stated before, there is a little — as you enter the tavern, there is a little foyer or vestibule, you may call it. He stepped right in and stepped right out; and other fellows were standing on the street and Cox returned. If I stated he stayed in the tavern, I’m sure I was wrong.”

It is the defendant’s contention that the above inconsistent statements of Officer Arnold amount to perjury, and that knowing use of this perjured testimony by the State resulted in his conviction. Testifying in his own behalf, defendant denied knowing Cox, denied transferring any narcotics to Cox or receiving any money from Cox, and that at no time was he (defendant) ever outside the lounge speaking with Cox.

It is reasonable to conclude that Officer Arnold offered two versions of what occurred on November 4, 1965, when he observed the acts of the defendant and the witness Stephen Cox. Arnold testified at the preliminary hearing that Cox went in the tavern, stayed about ten minutes, came out and gave Arnold the narcotics. In his trial testimony, Arnold placed Cox and the defendant together outside the tavern where he (Arnold) viewed the alleged transaction taking place, although Arnold could not see what was transpiring among the group. This critical contradiction in Arnold’s testimony at the hearing and at the trial most certainly affects the weight and credibility to be accorded his testimony. For if it is true that Arnold saw Cox go into the lounge to make the controlled “buy” of narcotics, then Cox’s testimony as to the transaction with defendant is uncorroborated, since Arnold could not have seen the dealings outside of the lounge while he was a quarter of a block away.

It is interesting to note also that Arnold did not state in his police report of November 5, 1965, that the man he saw milling around on the street with Cox was the defendant or the same person he later arrested, nor was any mention made in the report about seeing the defendant outside the lounge with Cox. On the othqr hand, Cox swore he never went into the lounge, and all his dealings with the defendant were outside on the street. If it is true that Cox and defendant were outside of the lounge, as Arnold testified at the trial, could he have seen the alleged sale of narcotics take place from the distance of one quarter block, among a group of men of whom the only one he knew was Cox, since he (Arnold) had never previously seen or known the defendant? Arnold also mentioned he saw a person, whom he says was the defendant, walk into the lounge, then the same person came back outside via the package goods store doors, proceeded into the alley and returned to the group where the transaction was completed.

When we consider the testimony of Cox, a former narcotics addict who was awaiting trial for sale and possession of narcotic drugs and who was arrested for such offense by Officer Arnold in December, 1964, yet who volunteered to make a controlled purchase of narcotics because he thought the authorities would “go easier on me,” there is some question that the defendant was convicted of the offense beyond a reasonable doubt. The fact that Cox, by his own testimony, is a narcotics addict has an important bearing on his credibility, and our courts have held many times that the testimony of a narcotic addict is to be reviewed with great caution. People v. Crump, 5 Ill2d 251, 125 NE2d 615 (1955); People v. Hamby, 6 Ill2d 559, 129 NE2d 746 (1956); People v. Boyd, 17 Ill2d 321, 161 NE2d 311 (1960); People v. Bazemore, 25 Ill2d 74, 182 NE2d 649 (1962). In the instant case the State contends there was corroboration of Cox’s testimony, together with the other evidence adduced at the trial. Nevertheless it is our opinion that Arnold’s testimony did not corroborate Cox’s testimony sufficiently to establish the defendant guilty of the unlawful sale of narcotics beyond a reasonable doubt. (See People v. Watkins, 68 Ill App2d 389, 216 NE2d 494 (1966)).

The defendant’s contention that Officer Arnold, who testified for the State, committed perjury based upon a difference between his testimony at the trial and his testimony at the preliminary hearing is not, we believe, well founded. No claim of perjury was ever made at the trial, and the issue was raised by the defendant for the first time in a post trial motion to vacate the judgment. Discrepancies or inconsistencies in testimony do not necessarily establish perjury and such a contention falls short of a claim that the State knowingly used perjured testimony. People v. Grayson, 29 Ill2d 229, 193 NE2d 801 (1964); People v. Armstrong, 39 Ill2d 567, 237 NE2d 449 (1968); People v. Tyner, 40 Ill2d 1, 238 NE2d 377 (1968).

In the case at bar, the evidence and the inferences therefrom do not establish the defendant’s guilt beyond a reasonable doubt. Consequently, the judgment of the trial court is reversed.

Judgment reversed.

MURPHY and BURMAN, JJ., concur.