author: CRAVEN, J.,

text:
    Warren E. Rebman, Gloria M. Rebman and Lydia L. Page, Plaintiffs-Appellees, v. The City of Springfield, the City Council of the City of Springfield, the City Plan Commission of the City of Springfield, and the State of Illinois, Defendants-Appellants, Illinois State Historical Society and the Abraham Lincoln Association, Amicus Curiae.
    Gen. No. 11,133.
    Fourth District.
    August 12,1969.
    Rehearing denied September 12,1969.

      Robert C. Walbaum and Ines C. Hoffmann, of Springfield, for appellants.
    R. G. Heckenkamp, of Springfield, for appellees.
    Sorting, Catron and Hardin, of Springfield (Charles H. Northrop and Richard E. Hart, of counsel), for amicus curiae.
   CRAVEN, J.,

delivered the opinion of the court.

The plaintiffs were successful in the Circuit Court of Sangamon County in their attack upon the validity of that part of the zoning ordinance of the City of Springfield which placed their property in “H-l” Historical Zone. This zone, under the Springfield zoning ordinance, relates to a four-block Historical District extending from Seventh to Ninth Streets and from Edwards to Capitol Avenue. The home formerly owned and occupied by Abraham Lincoln is at the northeast corner of Eighth and Jackson Streets, the central intersection of the area. The Lincoln Home faces on Eighth Street (now closed to vehicular traffic in the Historical District) and the lot extends east to a north-south alley between Eighth and Ninth. The Historical Zone or District permits the property located therein to be used for residences, churches, publicly owned centers, auditoriums, historical museums and professional, governmental or business offices not used for retail sales. The zone classification is subject to a height restriction of 35 feet, the same as that fixed for residential districts designated “R-l” through “R-4” of the city zoning ordinance, and the yard and lot requirements are the same as those for “R-4” General Residence Districts. Certain architectural controls are applicable to the district, those being a continuation of controls imposed under a 1961 ordinance. (Those controls, as we see it, are not in issue here.) At the time the plaintiffs acquired the property in question it was zoned under a 1924 zoning ordinance of the City as “B” Residential, “B” Area, with a 45-ft. height limitation.

In 1966, the City of Springfield adopted a comprehensive zoning ordinance and the plaintiffs’ property was placed in the Historical Sites Area. Prior to the adoption of the 1966 zoning ordinance plaintiffs filed a petition to reclassify their property from “B” Residential to “C-2” Commercial and from “B” Area to “D” Area. Before a hearing was held on the petition the new ordinance was adopted and the plaintiffs filed an amended petition to reclassify their property from Historical Sites District to a classification in the new ordinance designated as “B-2” General Business Service District. A hearing was held on the amended petition by the Springfield Plan Commission. That Commission recommended its rejection and the City Council did reject the petition in August of 1966. Thereafter, in July of 1967, the plaintiffs made application for a building permit to construct a masonry and frame commercial building, proposed to be used as a restaurant, on the property. This application was referred to the Historical Sites Commission which conducted a hearing and recommended to the Council that the application be denied. The Council adopted this recommendation and the application was denied.

This action was originally instituted in October of 1966, challenging the right of the City to retain the “H-l” classification for the plaintiffs’ property. After the denial of the building permit for construction of the restaurant, known as a “Top Boy” drive-in restaurant, plaintiffs amended their original complaint adding counts challenging the denial of the building permit.

The pleadings as thus ultimately established consisted of six counts. Count I sought administrative review of the City Plan Commission recommendation and the City Council action in denying the petition for reclassification of the property of plaintiffs; Count II sought a declaratory judgment declaring the existing zoning of the plaintiffs’ property to be invalid; Count III attacked the validity of the statute authorizing cities to establish historical sites or areas and the action of the City Council pursuant to that statute; Count IV sought injunctive relief against the enforcement of the zoning classification; Count V sought to review the action of the Historical Sites Commission and the City Council denying the building permit; and Count VI was a count for damages asserting that the zoning classification amounted to a taking of plaintiffs’ property for public use for which they were not compensated. Motions by the defendants to dismiss these various counts were denied, although ultimately the trial court did dismiss Count VI and no cross-appeal has been perfected as to that action.

Extensive hearings were held and ultimately the circuit court, by its decree, determined the zoning ordinance of the City of Springfield to be invalid as applied to plaintiffs’ property and enjoined the City from enforcing the provisions of the ordinance as to the property. The decree further determined and ordered:

“3. That the fair, reasonable and proper classification of Plaintiffs’ property is hereby declared to be B-2 Business District, and Plaintiffs are entitled to devote their property to such uses as are permitted under such B-2 Business District classification of the Zoning Ordinance of the City of Springfield adopted June 28,1966.”

A memorandum opinion of the trial court expressed a like conclusion.

At the time of the adoption of the 1966 zoning ordinance by the City, the City was authorized by the provisions of section 11-13-1 of the Municipal Code (Ill Rev Stats 1965, c 24, § 11-13-1) to enact zoning ordinances. In addition, section 11-48.2-2 was added to the Illinois Municipal Code (Ill Rev Stats 1967, c 24, § 11-48.2-2) by the Legislature in 1963, as amended in 1965. The substance of this legislation was to authorize municipalities to enact regulations protecting historical areas. We will discuss this statutory authorization in detail in the course of this opinion.

The defendants originally appealed to the Illinois Supreme Court and a portion of their brief is devoted to the proposition that the Supreme Court did have jurisdiction of this case which, while a zoning case, has some unique aspects by reason of the statutory authorization to protect historical areas. The Supreme Court declined a direct appeal and transferred the case to this court on its own motion. Its order of transfer reads:

“This is an appeal from a judgment holding that the provisions of the City’s Zoning Code including plaintiffs’ property in an Historical District were invalid as applied to plaintiffs’ property. While the zoning classification is unique, the issue decided by the trial court and the issue before a reviewing court is no different than that in the typical zoning dispute and no substantial constitutional question is presented. (First National Bank v. Evanston, 30 Ill2d 479.) On the Court’s own motion the cause is transferred to the Appellate Court for the Fourth District.” (Emphasis added.)

We thus turn to a review of this record under that order of transfer.

The plaintiffs, Warren and Gloria Rebman, own two of the lots involved. The corner lot (the northwest corner of Ninth and Edwards Streets) has two duplexes facing Edwards Street and also a small boiler building which serves all of the Rebman property. On the next lot there are two small single-family dwellings, one facing Ninth Street and the other located on the rear of the lot just east of the alley between Eighth and Ninth Streets. Each lot has a 40-ft. frontage on Ninth Street. The Rebmans purchased the property in 1960 for $33,000 knowing that it was then zoned “B” Residential. An accounting of their income and expense as to the property is in evidence.

The third lot, next to and north of the Rebman lots, is owned by the plaintiff Lydia L. Page. It was purchased some thirty-three to thirty-five years ago. The record does not establish what the purchase price was but it does establish that this lot and the single-family residence located thereon has been and is now being used as a residence. Mrs. Page, by her testimony, clearly indicated her willingness to make any future use of the property agreeable to and in conjunction with the use of the Rebman property.

The property of the plaintiffs is on the southeastern edge of the established four-block Historical Area. On Ninth Street, north from Edwards (north of the Plaintiffs’ property), there is a long single-story building used as a car wash and immediately north thereof a paved area and an auto seat cover business that occupy the next three lots. Then there is a multifamily residence and on the next lot (a corner lot), at Jackson Street, there is a multifamily residence. In the area north of Jackson Street there is a parking area owned by the City of Springfield that is metered and provides- parking for Lincoln Home visitors. North of it is a gas station and a private parking lot adjacent to it.

Ninth Street is a major traffic-bearing street in the city of Springfield. It is City Route 66. In the area of Ninth Street immediately across from the two-block Lincoln Home area, there are many commercial uses and there are commercial uses on Ninth Street more heavily on the east side but also partly on the west side both to the north and to the south of the Lincoln Home Area. The “H-l” Historical District, under the 1966 zoning map, has a zoned area around it of a central shopping district. The area to the south, for a distance of some eight blocks, is zoned “R-5,” which is a general residence and office district, except that on the half-block west of Ninth Street there is a highway business service district and across Ninth Street from the plaintiffs’ property there is a light industrial district.

The record establishes further, however, that the four-block “H-l” District is primarily now a district residential in character, although there are uses that do not conform to the “H-l” classification. By and large, Edwards Street, Seventh, Jackson, Eighth and parts of Capitol Avenue contain properties the usage of which would be and is permitted under the “H-l” Historical District zone. Although there are nonconforming uses, upwards of eighty per cent of the property in the district is being used in conformity with the zoning ordinance. The existence of nonconforming uses does not per se invalidate a zoning regulation or ipso facto justify further development contrary to the prevailing character of an area. Trendel v. County of Cook, 27 Ill2d 155, 188 NE2d 668 (1963). Aerial photographs of the Lincoln Home District — the “H-l” District under the Springfield ordinance — rather clearly demonstrate the residential character of the area.

Ninth Street, particularly its east side, cannot be so characterized. It is primarily “commercial.” Such is not true of the west side of Ninth Street where plaintiffs’ property is located. It is urged that the use of Ninth Street as a dividing line is unrealistic and that, more appropriately, the dividing line between the Historical District and commercial uses should have been the alley between Eighth and Ninth Streets — the alley that constitutes the east boundary of the lot on which the Lincoln Home is located. Obviously, in establishing zoning areas and the limitations on land use, lines of demarcation between permitted uses have to be drawn someplace — whether a street or an alley or along natural barriers such as lakes or rivers. We know of no judicially imposed requirement that such lines of demarcation be alleys as distinguished from streets, or vice versa. The Supreme Court has recognized that a street may be a proper line between zoning districts, especially where the street is wide and heavily traveled. La Salle Nat. Bank v. City of Chicago, 6 Ill2d 22, 126 NE2d 643 (1955); Mundelein Estates, Inc. v. Village of Mundelein, 409 Ill 291, 99 NE2d 144 (1951); see also: Northern Trust Co. v. City of Chicago, 4 Ill2d 432, 123 NE2d 331 (1955); Davis v. City of Rockford, 60 Ill App2d 325, 208 NE2d 110 (2nd Dist 1965); Reese v. Village of Mount Prospect, 72 Ill App2d 418, 219 NE2d 682 (1st Dist 1966); Gans v. City of Chicago, 102 Ill App2d 456, 243 NE2d 400 (1st Dist 1968).

It is urged here and the record establishes that the plaintiffs’ property would be more valuable to them if they could use it for purposes not permitted by the existing zoning. That is generally true in zoning cases. Uses that are permitted under the Historical zoning are uses that the plaintiffs’ witnesses described as desirable uses of the area. In this connection we note the lack of specificity with which the term “commercial purposes” was used throughout this proceeding. In Liberty Nat. Bank of Chicago v. City of Chicago, 10 Ill2d 137, 144, 139 NE 2d 235, 240 (1957), the court observed:

“The undisputed testimony is that plaintiffs knew the property was zoned for residence purposes when they bought it and that they paid a price consistent with its use for that purpose. The fact that its value will now be enhanced if a business use is permitted does not justify a conclusion that the ordinance is confiscatory. (First Nat. Bank of Lake Forest v. County of Lake, 7 Ill2d 213, 227 [130 NE 2d 267 (1955)].) As in the case last cited, there is no proof in the record that the property is totally unsuited for the purpose for which it is zoned or that it is now worth any less for residence purposes than it was at the time it was bought. It cannot be said that the ordinance operates to substantially diminish the value of plaintiffs’ property.”

That which the court there observed is very applicable here and fits hand-in-glove the evidentiary situation we find in this record.

The Historical District was established because of the Lincoln Home. This home, purchased by Lincoln in 1844, enlarged in 1856, was the only home ever owned by the Sixteenth President. Its historical significance is well-documented by this record. It is clear that there is com-. munity, state and national interest in preserving the Home and the area around it as a memorial to Lincoln and as an inspiration to the multitude of visitors who come to Springfield to visit the Home, the Tomb, New Salem State Park and the new restored Old State Capitol Building. The plaintiffs do not object to this purpose but rather applaud it. It is their position, however, that this method of preservation of the Historical Area for public use amounts to a confiscation of their property for public use without just compensation. That, they say, is the effect of the Historical District use limitation on their property.

Paragraph 11-48.2-1 of chapter 24, Ill Rev Stats 1967, contains a declaration of policy by the Legislature as a preamble to the act relating to the preservation of historical and other special areas. From the language there found it is clear that the subsequent grant of authority to municipalities to preserve areas, places, buildings, structures, works of art and other objects having special historical community or aesthetic interest was based upon a legislative determination — first, of desirability; second, of public welfare; and third, a total delegation of authority to do that which the state itself could do. Section 11-48.2-5 of that act (111 Rev Stats 1967, c 24, § 11-48.2-5) defines that which constitutes a taking or damage for public use requiring compensation. Section 11-48.2-2 permits of designation by ordinance of areas or buildings and to provide special conditions and to impose regulations governing alteration, demolition and use.

We consider this grant of authority as auxiliary to the general zoning power granted to the city in the Municipal Code previously alluded to. It is uncontroverted that the Lincoln Home would be well within the purview and purport of this legislation. Springfield, by this ordinance and under the zoning legislation and legislation for the preservation of historical and other special areas, has done that which has been done in some fifty-six other communities in America located in nineteen different states, and it is not unlike that which has been done on the federal level in connection with the preservation of the Georgetown Area in the United States Capitol, Washington, D. C. See Montague, New Means for Historic Preservation, 55 ABAJ (March 1969), p 257, and cases there cited.

Cases cited to us which have considered this issue are persuasive, though admittedly not here determinative. See: Town of Leering ex rel. Bittenbender v. Tibbetts, 105 NH 481, 202 A2d 232 (1964); City of Santa Fe v. Gamble Skogmo, Inc., 73 NM 410, 389 P2d 13 (1964); In re Opinion of the Justices, 333 Mass 773, 128 NE2d 557 (1955); City of New Orleans v. Pergament, 198 La 852, 5 So2d 129 (1941); Vieux Carre Property Owners & Associates, Inc. v. City of New Orleans, 246 La 788, 167 So2d 367 (1964); Trustees of Sailors’ Snug Harbor v. Platt, 288 NYS2d 314, 29 App Div 2d 376 (1968).

We see no useful purpose in discussing the details of these cases or distinguishing one from the other because of a municipal ordinance under a constitutional provision authorizing city preservation of historical areas, or state statutes contemplating the same result. The common denominator to all of those cases and to this case, it seems to us, is the fact that preservation of historical areas under reasonable limitations as to use is within the concept of public welfare and may be effected by the exercise of the usual police power attendant upon zoning.

The ordinance here under attack — as is the case of all zoning ordinances — is presumed valid and the burden is upon the plaintiffs to establish its invalidity by clear and convincing evidence. Where there is room for a fair difference of opinion concerning the reasonableness of a particular zoning classification, the legislative judgment will be respected and sustained. See Fox v. City of Springfield, 10 Ill2d 198, 139 NE2d 732 (1957), and cases there cited. We do not find in this record that which is sufficient to overcome this presumption of validity, nor do we find in this record any evidentiary basis for the conclusion that the legislative judgment was unreasonable, arbitrary or capricious. The record does not establish that the Historical District zoning as to plaintiffs’ property is confiscatory.

The action of the Legislature in the passage of the historical sites legislation essentially created a new concept of public welfare and, as we have noted, permits of the exercise of the police powers of the municipality for purposes of preservation and enhancement of historical areas. The creation of the four-block area around the Lincoln Home, obviously, is aimed at fulfillment by the municipality of the concept authorized by the Legislature. The property of the plaintiffs here, it must be said, has an enhanced value due in large part to this action of the municipality. The proximity of the property to the Lincoln Home increases its value, and yet it is clear that use of the property not in conformity with the existing zoning would be detrimental to the Lincoln Home Area and the planning concept of the municipality.

We necessarily note some procedural infirmities that must be discussed although not determinative of any issue. Count I sought administrative review of actions of the Plan Commission as well as an ultimate administrative decision of the City Council. The action of the City Plan Commission or the Historical Sites Commission, insofar as relevant to this case, was clearly advisory only. We know of no authority that makes an advisory recommendation to the ultimate decision-making body a matter subject to administrative review. This point fades into insignificance, however, in view of the fact that there are good counts to the complaint upon which to proceed.

The decree here not only declared the zoning invalid but, as we have noted, proceeded to declare that the plaintiffs were entitled to use their property for any use as is permitted under “B-2” Business District classification of the 1966 Springfield Zoning Ordinance. In our view, this provision of the decree exceeds the proof in the record and the specific use proposed by the plaintiffs. The record is devoid of any showing of any other contemplated use. The issue as to the use of the property for the drive-in restaurant becomes clouded in view of a supplementary affidavit received after all the evidence was in which purported to show that the particular restaurant chain was no longer interested in leasing the plaintiffs’ property. The decree cannot be said to have been framed with reference to the record below within the admonitions of the Supreme Court in Sinclair Pipe Line Co. v. Village of Bichton Park, 19 Ill 2d 370, 167 NE2d 406 (1960). In Treadway v. City of Rockford, 24 Ill2d 488, 493-494, 182 NE2d 219, 222-223 (1962), the Supreme Court stated:

“Zoning lies primarily within the province of the municipality, and it is neither the province nor the duty of courts to interfere with the discretion with which the municipal authorities are vested unless the action of the municipal authorities is shown to be unrelated to the public health, safety, and morals. (Citing case.) Nothing in our decision in Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill2d 370 [167 NE2d 406 (I960)], nor in any of the similar cases, detracts from this fundamental principle.”

Thus, on this record, within the purview of the cited authorities, the decree, in purporting to rezone the property, exceeded the authority of the court. This, like the procedural issue, however, is not a determinative factor here in view of our determination that the ordinance of the City of Springfield is valid.

The decree of the Circuit Court of Sangamon County is reversed and this cause is remanded to that court to enter judgment for the defendants-appellants on Counts I through V of the amended complaint.

Reversed and remanded with directions.

TRAPP, P. J. and SMITH, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    M & N Enterprises, Inc., an Illinois Corporation, Joseph W. Miloncus, et al., Plaintiffs-Appellees, v. City of Springfield, a Municipal Corporation, Defendant-Appellant, Illinois State Historical Society and The Abraham Lincoln Association, Amicus Curiae.
    Gen. No. 11,134.
    Fourth District.
    August 12,1969.
    Robert C. Walbaum and Ines C. Hoffmann, of Springfield, for appellants.
    Edward Casey, of Springfield, for appellees.

      Sorting, Catron and Hardin, of Springfield (Charles H. Northrup and Richard E. Hart, of counsel), for amicus curiae.
   CRAVEN, J.,

delivered the opinion of the court.

This zoning case involves the same statutes and the same zoning ordinances as those discussed in Rebman v. City of Springfield, 111 Ill App2d 430, 250 NE2d 282, filed concurrently with this opinion. The order of the Supreme Court transferring the case is the same as the order in Rebman.

The Rebman case and this one involve all of the property on the west side of Ninth Street from Edwards to Jackson Streets in the City of Springfield. The lots involved here are located to the north of the Rebman and Page lots discussed in the Rebman opinion.

M & N Enterprises, Inc., an Rlinois corporation, in which the plaintiff Joseph W. Miloncus is the principal stockholder, purchased the southernmost lots — Lots 12, 13 and 14 — in 1956, for a sum “in the neighborhood of $27,000.00.” The lots were then improved with residences and then zoned as “B” Residence District. These lots were rezoned in 1956 to “C” Commercial Area, “C” Area District. Under this rather broad business classification commercial buildings were allowed to occupy the entire area of the lots.

An automatic car wash was built on Lot 12. Lot 13 was paved for parking and for access drives. Lot 14 was used to construct a store building for the sale and installation of automobile seat covers. These corporate enterprises were ultimately owned by Mr. Miloncus.

In February of 1963, Mr. Miloncus and his wife purchased on contract for deed Lot 16 — the lot on the southwest corner of Ninth and Jackson — at an indicated purchase price of $32,500. The lot was improved with two apartment houses. It was zoned “B” Residence Use District, “C” Area, and subject to an 85-ft. height district limitation under the then applicable 1924 zoning ordinance.

In December of 1965, Mr. Miloncus obtained an option to purchase Lot 15 from the plaintiffs Robert and Wilma Holvey for the sum of $40,000. This lot is improved with a residence converted to apartments. On the rear of the lot is a small garage of cement block construction used as an automobile repair shop. The zoning on this lot was and is the same as on Lot 16. The option was conditioned upon rezoning of the optioned lot so as to permit its use for a motel-hotel complex.

In March of 1966, Mr. Miloncus filed a petition to rezone Lots 12 through 16, inclusive, from the then zoning classifications to a classification known as “C-2” Commercial Use, “D” Area, with a 125-ft. height district limitation, or as an alternative, to the rezoning for a use variance so as to permit construction of the motel. The Zoning Board recommended a reclassification except for a height limitation of 45 feet. The City Council denied the reclassification and the plaintiffs instituted this proceeding. The complaint was filed June 21,1966.

On June 28, 1966, the City Council adopted a new comprehensive zoning ordinance. The four-block area around the Lincoln Home, which included the plaintiffs’ property, was placed in a district designated as “H-l” Historical District. The height restriction on buildings in the district is placed at 35 feet and the uses permitted include residences, churches, publicly owned information centers, auditoriums, historical museums and professional, governmental, or business offices, but not including retail sales. Architectural controls applicable to the area first imposed in 1961 were continued under the 1966 ordinance.

The zoning and use of the area surrounding the Historical District are detailed in our opinion in Rebman, and although applicable here, we see no need for repetition.

The original complaint was amended setting forth the zoning change by the 1966 ordinance, alleging that the new classification as to the plaintiffs’ property was invalid and unconstitutional and constituted a confiscation of the plaintiffs’ property without just compensation. The pleadings were further amended in February of 1968, reciting an application in October of 1967 for a conditional permitted use and variance to construct a commercial wax museum and a gift shop on the premises. It was alleged that the sought conditional permitted use would have exterior architectural features appropriate to the district and that the use was approved by the Zoning Board and the Historical Sites Commission. There is no allegation that this use was expressly approved or disapproved by the City Council. That body acted only by adopting a resolution reaffirming a policy aimed at eliminating commercial activity in the Lincoln Home Area.

A stipulation by M & N Enterprises, Inc., and the City of Springfield is in the record. That stipulation reads as follows:

“Plaintiffs on October 2, 1967 filed with Defendant an application for conditional permitted use and variance. Said application sought authorization to construct and operate a commercial wax museum and gift shop on the premises here involved. The structure to house such commercial wax museum and gift shop were [sic] represented to have exterior architectural features appropriate to the H-l Historical District. Plaintiffs appeared before the Zoning Board of Appeals and the Historical Sites Commission of the Defendant. On or about November 14, 1967 the City Council of the Defendant adopted a resolution proclaiming the Council’s policy of ultimate elimination of private commercialization in the H-l Historical District. The City Council has taken no action on plaintiff’s [sic] aforesaid application although the recommendations of the Zoning Board of Appeals and Historical Sites Commission were both submitted by December 5,1967.”

As to Lots 12, 13 and 14, the trial court found the “H-l” Historical District zoning to be arbitrary, unreasonable and confiscatory and that it bears no substantial relationship to public health, safety, morals, comfort and welfare, and further found that the plaintiffs proposed to raze the present improvements and construct and operate a motel on the property or in the alternative to construct and operate a commercial wax museum and gift shop, both of which uses were found to be appropriate and reasonable for the property. It therefore enjoined the defendant from enforcing the zoning regulations on the property so far as they related to those proposed uses and “further enjoined to grant such licenses and permits that might be otherwise required for such construction and use.”

As to Lot 15, the Historical District regulations were found to be unconstitutional, null and void, and the same order as to prospective use was entered. The same order applied to Lot 16.

All that we have said in Rebman as to the validity of the Historical District zoning classification is applicable here, and for the reasons there stated the decree of the Circuit Court of Sangamon County is reversed.

Insofar as the decree relates to the proposed construction on all five lots of a motel-hotel complex, it is clear that such a use is in contravention of the existing zoning and the existing nonconforming use, and the legislative classification by the municipality is not shown to be either confiscatory or unreasonable.

As to the proposed use for a commercial wax museum and gift shop, it is not established by the record whether such proposed use has or has not been authorized by the City Council. It is clear that without a zoning reclassification such a use on either Lots 15 or 16 would be and is prohibited by the existing zoning. Such use on Lots 12, 13 or 14 could possibly be a permitted nonconforming use of no greater magnitude than the existing nonconforming use as to these lots. The 1966 zoning ordinance does establish a procedure for change, enlargement and extension of nonconforming uses and sets out the detailed requirements for such change. There being nothing in the record of any action for change, enlargement or extension of the nonconforming use as to Lots 12, 13 and 14, there is no issue here for review as to the use of those lots for a wax museum or gift shop.

Here, as in the Rebman case, there is valuation testimony that establishes, indeed without contradiction, that these five lots would have substantially more value if uses were permitted beyond the scope of the Historical District classification. The fact that property would have more value if a more intense use were to be permitted is, of course, an item to be considered in a zoning case. In addition to that which we have observed as to Lots 12, 13 and 14, Lot 15 is now being used as a residence, and the 1966 zoning can hardly be described as a substantial change from the 1924 zoning applicable to this lot. The evidence indicates that the plaintiffs Robert and Wilma Holvey purchased this lot in 1941 for some $5,000. The testimony as to its value under the Historical District zoning indicated a value some five times that figure and the option to sell it to the plaintiff Miloncus specified a purchase price of $40,000, subject, of course, to a change from the 1924 zoning classification of “B” Residence. The same observations may be made as to Lot 16 which was purchased under a contract for deed in February of 1963 under a “B” Residence zoning classification at $32,500. Since in our view the Historical District Zoning classification does not amount to a more restrictive classification than “B” Residence, applicable to these lots, this ordinance can hardly be said to be confiscatory. See Standard State Bank v. Village of Oak Lawn, 29 Ill2d 465, 194 NE2d 201 (1963).

As we stated in Rebman, there is a presumption of validity in all cases involving a zoning ordinance. Judicial intervention in zoning matters must be predicated only upon a record that establishes by clear and convincing evidence that the ordinance as applied to the plaintiffs is arbitrary and unreasonable and has no substantial relationship to the public health, safety, and welfare. La Salle Nat. Bank of Chicago v. County of Cook, 12 Ill2d 40, 145 NE2d 65 (1957). In the Standard Bank case, the Supreme Court stated:

“Plaintiff urges that the findings of the trial court cannot be disturbed unless contrary to the manifest weight of the evidence. We agree that this is the rule. It is, however, clear to us that the evidence, when viewed most favorably to plaintiff, falls far short of overcoming the presumptive validity of the ordinance. At best, it accommodates a legitimate difference of opinion as to the reasonableness of the ordinance, and, under such circumstances, the legislative judgment must prevail.” Standard State Bank v. Village of Oak Lawn, 29 Ill 2d 465, 471 (194 NE2d 201, 204-205 (1963) ).

The action of the Legislature in the passage of the historical sites legislation (Ill Rev Stats 1967, c 24, par 11-48.2-1) essentially created a new concept of public welfare and is a specific declaration by the Legislature that preservation and enhancement of historical areas is within the concept of the exercise of police powers for the public welfare. The creation of an “H-l” Historical District in the four-block minimum area around the Lincoln Home, obviously, is aimed at fulfillment by the municipality of the concept authorized by the Legislature. From our review of this record, we must conclude that the enhanced value of the plaintiffs’ property is directly related to this action by the municipality. The proximity of the property to the Lincoln Home increases its value, and yet it is clear that use not in conformity with the existing zoning would be detrimental to the Lincoln Home Area and the total concept of the municipality relating to historical preservation. When property has an enhanced value by reason of planning and zoning for historical preservation, the zoning ordinances to implement the planning can hardly be said to be confiscatory or unreasonable or unconstitutional simply because the owners seek to use it for commercial purposes to exploit the visitors and tourists attracted, in part at least, by the creation of the Historical District. The decree of the Circuit Court of Sangamon County, insofar as it purports to authorize the construction of a motel-hotel complex on the five lots here involved, is reversed and the cause is remanded with directions to enter judgment for the defendant as to that proposed use. Insofar as the decree purports to authorize the construction and operation of a commercial wax museum and gift shop on any portion of Lots 15 and 16, the decree is reversed and the cause is remanded with directions to enter judgment for the defendant. That portion of the decree which purports to authorize the construction and operation of a commercial wax museum and gift shop on Lots 12, 13 and 14 is vacated and the cause is remanded to the Circuit Court of Sangamon County with directions to dismiss the complaint for want of equity insofar as it relates to that use on those lots.

Reversed and remanded with directions.

TRAPP, P. J. and SMITH, J., concur.


author: TRAPP, P. J.

text:
    Herbert F. Wascher, Plaintiff-Appellant, v. Randolph Lundeen, Champaign-Urbana City Lines, Inc., a Corporation, and National Bank of Monticello, a Banking Corporation, Defendants-Appellees.
    Gen. No. 11,033.
    Fourth District.
    August 14,1969.
    Unger and Stewart, of Danville, for appellant.
    Phillips, Phebus, Tummelson & Barth, of Urbana (Hurshal C. Tummelson and Francis J. Jahn, of counsel), Summers, Watson & Kimpel, of Champaign (Robert C. Summers, of counsel), Hayes & Moore, Wheat, Hatch, Corazza & Baker, of Champaign (Harold A. Baker and Timothy 0. Madigan, of counsel), for appellees.
   TRAPP, P. J.

This is an appeal from a judgment of the circuit court dismissing a suit by plaintiff against defendants pursuant to motions of the defendants under section 48 of the Illinois Civil Practice Act asserting prior judgments and releases and the insufficiency of the complaint to state a cause of action. C 110, § 48, Ill Rev Stats 1967.

Plaintiff was declared incompetent on March 26, 1932, for reasons not disclosed in this record, and subsequently on March 20, 1944, defendant, National Bank of Monticello, was appointed conservator of his estate. On March 1, 1967, he was adjudged not to be an incompetent and letters of conservatorship were revoked.

On February 10, 1955, plaintiff, while a pedestrian, was injured as a result of alleged joint and several negligence of defendants, Randolph Lundeen, an automobile driver, and Champaign-Urbana City Lines, Inc. Subsequently, the conservator of the plaintiff filed suit to recover damages from defendants, Randolph Lundeen and Champaign-Urbana City Lines, Inc., for the injuries.

On September 9, 1957, the conservator for the plaintiff petitioned the County Court of Champaign County for an order authorizing compromise and settlement of the suit upon payment of $2,000 by defendant, Randolph Lundeen, and $750 by defendant, Champaign-Urbana City Lines, Inc. The court granted the petition and the bank, as conservator, executed a release to the said defendants. On September 13, 1957, the conservator’s common-law action on behalf of plaintiff was dismissed.

After such settlement one Jesse Gibson, as next friend of plaintiff, obtained authority for the conservator to tender the settlement sum back and again to seek recovery from defendants. In 1959 Jesse Gibson, as next friend of plaintiff, filed suit against the defendants, Randolph Lundeen and Champaign-Urbana City Lines, Inc., charging negligence. These defendants filed a motion to dismiss the complaint on the ground that the next friend had no legal right to sue and that the suit was barred by the order of dismissal in the previous suit. The suit was dismissed. Gibson died and Walter Reinhold was substituted as next friend. Plaintiff, by his next friend, asked leave to amend and tender return of the money. This motion was denied and plaintiff, by his next friend, appealed to the Appellate Court. The judgment of the Circuit Court was affirmed in Wascher v. Lundeen, 32 Ill App2d 239,177 NE2d 440.

The reviewing Court held that the order authorizing the tender of the money back was a permissive order to the conservator and did not substitute the first or second next friend for the duly appointed conservator, and did not revoke the order approving the settlement. It therefore, held that neither the first nor second next friend had authority to act. The court also found that since there was a conservator, no guardian ad litem was necessary. The court said there was no showing of adverse interest of the conservator, but only an allegation that full disclosure of the extent and permanency of the injuries was not made to the County Court.

The opinion expressed some doubt whether a release authorized by a court could be set aside absent misrepresentation, overreaching or fraud. It went on to find that there was no showing that the settlement was unfair or unjust. On the contrary, it found that the record showed that two competent attorneys, acting for the bank as conservator, determined that the amount received on the basis of the facts and the injuries, was reasonable and recommended the settlement be made. It was on the basis of these matters of record that the County Court authorized the settlement.

The present suit generally charges fraud and concealment by the conservator in the County Court with reference to the seriousness of plaintiff’s injuries. However, the specification of this charge is only that the conservator stated “in part” that the ward has made “satisfactory recovery” from the said injuries, whereas the conservator knew the ward had received “a serious and permanent type of injury.” This same charge, except as to the language of fraud and concealment, was in the proceedings culminating in Wascher v. Lundeen.

While there is always an area of doubt created by the charge of “fraud” and “concealment,” it has long been recognized by our courts that the use of such words alone does not create a cause of action. In Fortune v. English, 226 Ill 262 on 269, 80 NE 781, our Supreme Court said of an alleged fraudulent concealment of a cause of action :

“The words ‘craftily,’ ‘fraudulently,’ ‘falsely’ and ‘maliciously’ are of no avail in the absence of averments of facts to which they properly apply.”

Without accepting an allegation of a “part” of a representation as sufficient to allege fraud, the quoted “satisfactory recovery” is not necessarily contradictory to the statement that plaintiff, in fact, had “a serious and permanent type” of injury. As to the materiality of the statement standing alone, it is recognized by all that settlement of a personal injury claim always involves consideration of the facts with reference to liability as well as the facts with reference to injury. Thomas v. Hollowell, 20 Ill App2d 288 at p 291, 155 NE2d 827. The recommendation of settlement by the two attorneys who investigated the matter as stated in the record of the case previously appealed was found to be probably a recommendation based upon the total fact situation, and not the situation with reference to injuries alone. The opinion expressly states that the allegation of concealment or failure to disclose was not borne out by any facts and that no fraud was shown.

It is upon the foregoing charges that plaintiff seeks to sue the original defendants and the conservator for the damages resulting from the original injuries to the plaintiff.

Plaintiff asserts that the trial court had no authority to dismiss the action under section 48 of the Civil Practice Act, c 110, § 48(1), Ill Rev Stats 1967, because defendants’ motions were unverified. It is contended that there being an issue of fact raised, accompanied by a jury demand, the court had no alternative but to deny the motions to dismiss. In this case the basis of the motion is the prior judgment of the County Court approving the settlement, the prior judgment of the Circuit Court dismissing the conservator’s original suit and the prior judgment in the case of Wascher v. Lundeen, 32 Ill App2d 239, 177 NE2d 440. These are all matters of which the court is required to take judicial notice. C 110A, Rule 133(b), Ill Rev Stats 1967. Moreover, the matters raised by the several motions were themselves alleged or recited in the complaint and there were no affidavits or proof denying the facts alleged or obviating the defect. C 110, § 48(3), Ill Rev Stats 1967.

It is argued that the previous adjudications are not res judicata because identity of the parties is lacking. The identification in the authorities is “parties and their privies.” The People v. Kidd, 398 Ill 405, p 408, 75 NE2d 851. In the original suit by the conservator against Randolph Lundeen and Champaign-Urbana City Lines, Inc., and in the proceeding in the County Court for approval of the settlement the conservator was in privity with plaintiff. These judgments still stand.

It is insisted that since the reviewing court in Wascher v. Lundeen, 32 Ill App2d 239, 177 NE2d 440, held that the next friend had no standing to represent plaintiff, the other matters contained in the opinion are of no effect, and the case is not an adjudication that the charges of invalidity of the releases and dismissal of the original suit are without merit. We note that opinion had the language, “Had there been any mistake, error, or omission we would have been inclined to hold that the releases should be held invalid.” That court did, in fact, pass upon the merits of the case. The basis of the opinion of the reviewing court, which was seeking on its own to give every possible benefit to the incompetent within established principles of law, was the record of which we are required to take judicial notice. Having before us the very record which the reviewing Court had in the previous case, the order of the County Court of Champaign County approving the settlement, and the judgment of the Circuit Court of Champaign County dismissing the suit of the conservator against the original defendants are res judicata.

The judgment of the Circuit Court is affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


author: MR. PRESIDING JUSTICE DAVIS

text:
    Wilbur E. Swain, Individually, and as Class Representative of Members of Central City Council, an Illinois Corporation, and Central City Council, an Illinois Corporation, Plaintiffs-Appellants, v. County of Winnebago, Illinois, David W. Johnson and Helga S. Johnson, and Gunnard R. Olson and Myrtle A. Olson, Defendants-Appellees.
    Gen. No. 69-2.
    Second District.
    August 19,1969.

      Maynard and Brassfield, of Rockford, for appellants.
    Alfred W. Cowan, Jr., Special Assistant State’s Attorney, of Rockford, and Reno, Zahm, Folgate and Skolrood, of Rockford, for appellees.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is a declaratory judgment action brought to challenge the validity of a zoning ordinance adopted by the Winnebago County Board of Supervisors, which ordinance rezoned the property of the defendants, David W. Johnson, Helga S. Johnson, Gunnard R. Olson and Myrtle A. Olson, to permit the construction of a shopping center. The plaintiffs’ amended complaint was dismissed and they have appealed.

The defendants’ property consists of 145 acres of unimproved land located in Winnebago County on East State Street Road, approximately one mile east of Mulford Road. The land had been zoned for agricultural use, and was changed by the ordinance in question to a business zoning classification to permit the development of a regional shopping center. This land is a substantial distance from the downtown Rockford area, and it is outside of the corporate limits of the City of Rockford.

There are six counts in the amended complaint. In count I, Wilbur E. Swain, individually, is the plaintiff. Therein, Swain alleged that he is a resident, citizen and taxpayer of Winnebago County, and the owner of business real estate in downtown Rockford and the operator of a retail shoe business there; that the zoning ordinance did not receive the requisite vote of the County Board of Supervisors; that Swain’s business interest and the value of his business property is adversely affected by the ordinance which would permit the development of the land for a regional shopping center; that such use affects the orderly development and redevelopment of the central city portion of the City of Rockford; that vehicular traffic in the neighborhood of the proposed regional shopping center, and along all major and minor arteries of traffic within the City of Rockford, would be substantially altered; that the use and development of schools, parks, cultural centers and every public facility within the City of Rockford and County of Winnebago would be affected; that Swain’s business and business property would be greatly depressed and depreciated in value; that the valuation of his property for tax purposes would be depressed and depreciated; that Swain has invested large sums of money in his business and business property in reliance upon the zoning classifications as they existed and he had, and has, the right in law to expect stability in such classification; that the amounts of money which he pays as rent, and has paid for the purchase of an interest in the business real estate, are the result of former planning and zoning policies of the defendant county — which was to confine large and extensive central business districts to the central city district of the City of Rockford; and that as a consequence of the rezoning, Swain would be greatly damaged and injured and his income would be substantially reduced.

In count II, Wilbur E. Swain, as a class representative, is the plaintiff. Therein, Swain alleged that he is the owner of business property located in downtown Rockford and a member of the Central City Council, which is comprised of retail merchants and property owners in downtown Rockford, all of whom have an identical interest with regard to the proposed regional shopping center east of the City of Rockford; and that the issues concerning the validity of the zoning ordinance are common to all members of the Central City Council. The other allegations of count I are repeated.

In count III, Central City Council, an Illinois corporation, is the plaintiff. Therein, the Council alleged that the business interests of the members of the Council, and the value of the downtown business properties, would be adversely affected by the zoning ordinance; that the Council brought this suit as a class action on behalf of its multiple members; that the vehicular traffic in the neighborhood of the proposed regional shopping center, as well as in the central city area, would be substantially altered; that the use and development of schools, parks, cultural centers and every public facility within the county would be affected; that the retail businesses of the members of the Council would be affected and their volume of business reduced; that the value of the business properties owned by the members would be depreciated in value; that such depreciation would also exist for tax purposes; that certain members of the Council had invested large sums of money with regard to the business and business properties in reliance upon the zoning classifications as they theretofore existed; that the various members have the right to rely upon the stability and the classifications of said ordinances; and that the rentals paid and prices paid for business properties and real estate within the central business district are the result of a former planning and zoning policy— which was that central business activities be confined to the central city district; that the zoning ordinance in question changes such zoning policy; and that as a consequence of this, the members of the Council and the Council are damaged and injured and the income of the Council and its members reduced. Other allegations of count I were also repeated.

In count IV, Wilbur E. Swain, individually, is the plaintiff. Therein, he alleged that the zoning ordinance is arbitrary and unreasonable, bearing no reasonable relationship to the public health, safety and general welfare; and generally, he realleged the matters contained in count I.

In count V, Wilbur E. Swain, as class representative, is the plaintiff; and in count VI, Central City Council is the plaintiff. These counts reallege the matters asserted in count IV of the complaint.

The plaintiffs challenge the zoning ordinance on two grounds: first, that it did not receive the required vote of the County Board of Supervisors; and second, on the standard constitutional ground that the rezoning was arbitrary and bears no reasonable relationship to the public health, safety and general welfare, and, thus, is void. They concede that their attack is not based upon any statutory remedy, such as a quo warranto; and they assert that they brought this action, as residents, citizens and taxpayers of Winnebago County, and challenge an amendatory zoning ordinance on the grounds above specified.

The plaintiffs are not the owners of the real estate which was rezoned. To have standing to sue, under the circumstances, they have the burden of alleging facts which show that they have suffered special damage as a result of the ordinance, which differ from that suffered by the general public. Garner v. County of DuPage, 8 Ill2d 155, 158, 159, 133 NE2d 303 (1956); Bullock v. City of Evanston, 5 Ill2d 22, 33, 34, 123 NE2d 840 (1955); Hughes v. City of Peoria, 80 Ill App2d 392, 394, 395, 225 NE2d 109 (1967).

The necessity of showing special damage extends generally to the plaintiffs’ right to challenge the validity of the zoning ordinance and not to any particular ground on which the validity is challenged. The special interest that must be shown before a taxpayer may challenge the act of a corporate body is not limited to ordinances affecting zoning. The financial or administrative affairs of the county are not subject to question by the suit of a taxpayer unless his taxes are directly to be affected, or unless he, as opposed to the general public, has some special or distinct interest affected. Bistor v. Board of Assessors of Cook County, 346 Ill 362, 372, 373, 179 NE 120 (1931); 14 ILP, Counties, §87, p 157; 20 CJS Counties, § 288.

The reason for such a rule is well stated in Garner v. County of DuPage, supra, where the court, on page 159, said:

“As stated in 43 CJS, Injunctions, sec 22B, where a similar rule is expressed in connection with the right of a private individual to seek injunctive relief for a public injury, ‘The rule is not a technical and arbitrary one, but has a solid foundation in principle and is sustained by very sound reasons of public policy, its object being to protect defendant against a multiplicity of suits and to secure him in one suit a final determination of all the controverted questions involved.’ ”

We do not find the allegations in the complaint sufficient to establish the plaintiffs’ standing to sue. There is no allegation, and it would seem that there could be none, that the general tax burden would be increased as a result of the rezoning. See: Garner v. County of DuPage, supra, 159. The allegations in regard to increased traffic and the use and development of public facilities are not special damages peculiar to the plaintiffs, as opposed to the general public. The remainder of the plaintiffs’ allegations, insofar as special damages are concerned, amount to no more than allegations, differently stated, that the plaintiffs will suffer losses by reason of increased competition which will result from the new shopping center.

The property in question is distant from the business properties of the plaintiffs. There is no factual basis in the complaint for assuming that the allegations of loss and depreciation in business interests and value of business properties could result from anything other than the new and increased competition which may result from this zoning.

The plaintiffs contend, however, that Hughes v. City of Peoria, supra, establishes their standing to sue in this case. In Hughes, the plaintiffs claimed to represent a number of persons operating businesses in the central business district of Peoria. The land, which had been rezoned to permit a shopping center, was three or four miles from the plaintiffs’ businesses and properties. The plaintiffs alleged that they had invested large sums of money in their businesses and properties in reliance upon the existing zoning classifications; and that as a result of the rezoning, their businesses and properties would be greatly depressed and depreciated in value. The trial court found for the defendants on summary judgment.

The Appellate Court acknowledged, on pages 394 and 395, that the plaintiffs had the burden of establishing that they would suffer a special damage by reason of the new use, which would differ from that suffered by the general public, and at page 395, the court stated: “The allegations in the complaint of damages to plaintiffs’ businesses and properties are allegations of special damage, Brown v. County of Lake, 67 Ill App2d 144, . . . .” Thus, the Appellate Court concluded that there was no basis for the trial court’s finding that the properties of the plaintiffs were located so far distant from the rezoned properties so as to preclude any damage to the plaintiffs.

It is interesting to note, however, that the Appellate Court, at pages 396 and 397, referred to an allegation in the complaint that the plaintiffs would be “greatly disadvantaged in competition with the new proposed shopping center,” and conceded that such an allegation is not a recognizable special damage. The court further stated that all of the cases which were called to its attention clearly held that increased business competition provides no standing to complain of a zoning change, and at page 397 it cited a number of such cases.

The case of Brown v. County of Lake, 67 Ill App2d 144, 213 NE2d 790 (1966) is not authority for the proposition that losses resulting to businesses and business properties from the increase in competition permitted by a zoning change are special damages giving the injured party standing to sue. Yet, this is what we read the statement in Hughes to mean.

In both Hughes and the case at bar, the general allegations of depreciation and loss in value of the plaintiffs’ businesses and business properties are mere conclusions which must be supported by specific allegations of fact which show a special damage. Winston v. Zoning Board of Appeals of Peoria County, 407 Ill 588, 594, 95 NE2d 864 (1951).

Realistically, however, the only factual basis that can be found (or assumed) to support the conclusions of damage, in both Hughes and the case at bar, is that the new competition will cause the plaintiffs’ businesses to suffer.

The Brown case is not pertinent. There the plaintiffs lived across the road from the property which had been rezoned for cemetery use. The plaintiffs had a farm and husbandry operation, and they contended that the highest and best use of their land was “for residential farming purposes,” and that the proposed cemetery across the road would drastically change the character of the neighborhood and reduce the value of the plaintiffs’ land for its highest and best use. The court at page 152 stated “that the allegations in the complaint of damage to the property of plaintiffs located directly across the road from defendants’ property by use for a cemetery which would substantially reduce the market value of plaintiffs’ property is a sufficient allegation of special damage within the scope of the case of Garner . . . .” In our view, this is not support for the sufficiency of the allegations in either Hughes or in the case at bar, where the properties of the plaintiffs’ were located a considerable distance from the property which was rezoned.

The reference by the court in Brown v. County of Lake, supra, to Garner v. County of DuPage, supra, is important in recognizing that special damages must be established in a case such as this, and that distance is a factor which may be taken into consideration. We do not believe that distance necessarily will preclude a showing of special damage any more than we believe that proximity necessarily establishes a special damage. It is our opinion, that if the plaintiffs’ property is far distant from the property which was rezoned, the plaintiffs’ burden, both as to pleading and proof, is necessarily more onerous.

From the allegations in the complaint in the case at bar, we do not believe — as apparently the court did in Hughes — that there is any valid basis for a finding of damage to the plaintiffs’ businesses or properties, other than as a result of increased competition. It is not the function of the county zoning ordinances to provide economic protection for existing businesses. Exchange Nat. Bank of Chicago v. Village of Skokie, 86 Ill App2d 12, 21, 229 NE2d 552 (1967). Neither the fact that parties may suffer reduced incomes or be put out of business by more vigorous or appealing competition, nor the fact that properties on which such businesses are operated would thus depreciate in value, give rise to a standing to sue. Cord Meyer Development Company v. Bell Bay Drugs, Inc., 20 NY2d 211, 229 NE2d 44, 46, 47 (1967); Whitney Theatre Co. v. Zoning Board of Appeals, 150 Conn 285, 189 A2d 396, 398 (1963); London v. Planning and Zoning Commission of Stratford, 149 Conn 282, 179 A2d 614, 616 (1962); Kreatchman v. Ramsburg, 224 Md 209, 167 A2d 345, 351 (1961).

Free and open competition has always been a strong pillar in the foundation of our society. A person can have no vested or special property right in either the monopoly or competitive advantage accorded by zoning restrictions at a given time. It is the philosophy of our society that any increased competition which may result from a change in the zoning restrictions will ultimately be beneficial. A competitor who may suffer has no actionable injury. Whether or not the particular zoning is in the best interest of the orderly development of the community is a determination to be made by the legislative body — the Winnebago County Board of Supervisors.

The plaintiffs do not claim a right to represent or speak for the people of the entire county. They claim a special interest in the zoning in question because of their particular properties which are located in a rather small, specified area in the City of Rockford and within the county. The factual allegations of their complaint, however, do not warrant concluding that they have suffered any special damage from the change of zoning, which differed from that of the general public, other than that resulting from the potential increased competition. We deem this insufficient to accord them standing to maintain this suit. See: Garner v. County of DuPage, supra, 160.

Also, we believe that the ordinance received the three-fourths vote required by section 5 of the Zoning Act. (Ill Rev Stats 1967, c 34, par 3158.)

It was undisputed that the Winnebago County Board of Supervisors was comprised of 39 members; that member Dennis W. Johnson resigned from the Board; that his resignation was officially accepted; and that 38 members of the Board voted on the ordinance in question on April 24,1968, at a time when no successor supervisor had been elected or appointed to replace member Johnson.

The plaintiffs contend that since the ordinance received only 29 votes, it failed passage; and it is the defendants’ theory that only 29 votes were required for the adoption of the ordinance, since a three-fourths vote of the 38 members then holding office was 28^ votes.

The plaintiffs urge that under the provisions of section 9 of the Township Organization Act (Ill Rev Stats 1967, c 139, par 91) that township supervisors “shall hold their offices for one year, and until others are elected or appointed in their places and are qualified.” The defendants contend that sections 25-1 and 25-2 of the Election Code (Ill Rev Stats 1967, c 46, pars 25-1 and 25-2) are determinative of this issue. They provide that resignations of elective officers “shall be made to the officer, court or board authorized by law to fill a vacancy in such office by appointment, or to order an election to fill such vacancy”; and that such office shall become vacant by the resignation of the officer. Both the plaintiffs and the defendants have cited Illinois cases to sustain their respective positions, and the decisions are not entirely harmonious.

These two statutes are in pari-materia and must be construed together to determine the intent of the legislature. People ex rel. Krapf v. Hayes, 13 Ill2d 143, 147, 148 NE2d 428 (1958). The Constitution of Elinois contains no express denial of the right of a public officer to resign, although it does provide that all officers shall hold their offices until their successors shall have qualified. These provisions mark the intention and policy of the law to be that the public convenience shall not suffer from a vacancy. It is the public convenience, not the private ends of some particular individual or group, which is to be served. People v. Barrett, 365 Ill 73, 77, 5 NE2d 453 (1936).

In Barrett, a Circuit Judge resigned in December, 1935, by presenting his written resignation to the Governor, which was accepted, and both the resignation and acceptance were filed in the office of the Secretary of State. On January 1, 1936, the Judge entered private practice and ceased to act as circuit judge. His reporter performed no official duties after that date, but held herself ready to do so. She claimed a right to receive her salary inasmuch as the Constitution provided, with reference to the office of the circuit judge, that “all officers provided for in this article shall hold their offices until their successors shall be qualified, . . . (Article VI, § 32, Constitution of 1870.)

The wording of the Constitution is similar to that of section 9 of the Township Organization Act, and the court in Barrett, at pages 78 and 79 stated:

“Not only has the right to resign a public office long been recognized and accepted by common consent in this State, but it has been fully recognized by statute and by decisions of this court. It is provided by paragraph 137 of chapter 46 (State Bar Stat 1935, p 1469), that resignations by elective officers shall be made to the officer, court or county board authorized by law to fill a vacancy in such office by appointment or to order an election to fill such vacancy. The next succeeding paragraph provides that every elective office shall become vacant on the happening of eight specified events: . . . (2) his resignation;....”

And, at pages 82 and 83, the court further stated:

“We believe that the cases can all, or nearly all, be harmonized while retaining the necessary principles involved, by giving due consideration and weight to what was intended to be the fundamental holding of our own court in People v. Supervisor of Barnett Township, supra. The language of that opinion indicates the basic holding of the court, which was that one may not evade a duty to a creditor or cause the public convenience to suffer by a voluntary resignation of public office. It would be a narrow and obviously impossible construction of the constitution to say that a public office may in no case become vacant until a successor to the officer is elected and qualified. Not even the constitution can prevent death from vacating a public office. Neither do we think it can prevent such a vacancy following upon the insanity of the officeholder, his abandonment of the office and leaving the jurisdiction of the court, nor by his refusal to perform its duties and acceptance of inconsistent employment, except where the public interest or the rights of creditors may make it necessary that he be compelled by mandamus to perform the duties imposed upon him and assumed by him. The most that the constitutional provision can accomplish is to bridge the gap between successive officeholders and so far as possible protect the public convenience against any hiatus in the occupancy of a public office.”

In People ex rel. Adamowski v. Kerner, 19 Ill2d 506, 167 NE2d 555 (1960), at pages 511 and 512, the court stated:

“Paragraph 25-2 of the Election Code clearly states that every elective office shall become vacant before the expiration of the term of such office upon the resignation of the incumbent. It does not require that such resignation be accepted. . . .
“Therefore, the resignation of an officer effective either forthwith or at a future date may not be withdrawn after such resignation is received by or filed with the officer authorized by law to fill such vacancy or to call an election for such purpose. Cf. People ex rel. McCarthy v. Barrett, 365 Ill 73; Pace v. People ex rel. McMeen, 50 Ill 432.
“In the event the right of creditors or public convenience require that there should be no vacancy in the office from which the incumbent seeks to resign, then affirmative action is required of the officer receiving the resignation in order to preclude it from becoming effective. Absent such affirmative action, the resignation becomes effective either forthwith or upon the future date specified therein, as the case may be, when received by or filed with such officer, and it cannot be withdrawn.”

In the case at bar, neither the rights of creditors nor public convenience were involved in any way to require that there should be no vacancy in the office of supervisor. Thus, the resignation was effective upon receipt by the Town Clerk and the membership in the Board was reduced to 38 members. The affirmative vote of 29 members comprised a three-fourths vote of the then 38-member Board.

For the reasons stated herein, the judgment of the trial court dismissing the complaint is affirmed.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: MR. JUSTICE SEIDENFELD

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Joseph Ferrara, a/k/a Ignatius Ferraro, Defendant-Appellant.
    Gen. No. 69-90.
    Second District.
    August 22,1969.

      Marco and Mannina, of Downers Grove, for appellant.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Helen C. Kinney, Assistant State’s Attorney, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Defendant appeals from a judgment of conviction, after a jury trial, under a two-count indictment of theft of a value of property under $150 in count I and the same theft, “after having been convicted of armed robbery on June 22nd, 19US,” in count II. The jury found the defendant guilty under both charges, but he was given a single sentence of 2 to 4 years in the penitentiary.

The appeal was taken to the Supreme Court which transferred it to this Court, noting,

Defendant was convicted of theft under an indictment which charged that he had previously been convicted of armed robbery. He argues that armed robbery is not a type of theft within the meaning of Section 16-1 of the Criminal Code. The argument does not present a constitutional issue.
It is further asserted that he was deprived of a fair trial by reason of the fact that evidence of the former conviction was introduced. No constitutional question is presented. (See People v. Ostrand, 35 Ill 2d 520, 529).

Defendant contends that robbery is not a “theft” within the meaning of that term in section 16-1 (supra); that he was deprived of a fair trial by reason of the fact that the inclusion of the remote prior conviction was solely for the purpose of prejudicing defendant on the recent charge. (To the extent that these arguments are claimed to assume substantial constitutional proportions, they have been disposed of by the Supreme Court transfer order.) Defendant also contends that he did not receive a fair trial because of an accumulation of trial errors; that the jury was improperly instructed; and that he was not proven guilty beyond a reasonable doubt.

Edward Novy, an assistant security manager for the E. J. Korvette Department Store in Elmhurst, testified that on November 29th, 1966, some time after 1:00 p. m. he saw the defendant in the men’s department going into the coat department. Defendant took off his coat, laid it across the coat rack and tried on several coats. The coat that he was first wearing was a black three-quarter length coat. The last one he took from the rack and put on was a car coat length. He then put his own black coat over it. He looked from left to right, at which time he proceeded out of the store without making payment. The witness went out of the store after defendant and approached Ferrara in the parking lot. Novy asked defendant if he had a receipt for the coat and defendant told him that the coat had belonged to him. Novy then told defendant what he had seen take place in the store and testified that defendant responded “Well, all right, I did take it.”

Novy further testified that he asked defendant to come back inside the store, and that defendant asked him if there was any way this could be taken care of without going through all the trouble. When defendant was asked what he meant by this he said he would see that we got $100 for it, although he didn’t have the money on him at the time, but would get it. The witness refused, at which time defendant said, “Everyone has their price, what’s yours?” Defendant was advised that he would either have to come back into the store or the police would be called to pick him up in the parking lot. Ferrara accompanied the witness back into the store where the police were called and arrested the defendant.

The witness then identified State’s Exhibit No. 1 as the coat taken by defendant and related the procedure by which it was marked and placed in the evidence locker of the store. He had left the employ of Korvette in July of 1967 and had last seen the coat in November of 1966. Novy could not be positive of his own personal knowledge that the coat and ticket were the same items taken from the defendant, as there were no identifying marks placed on the jacket itself.

Kenneth Davis, a security agent for Korvette, testified that he was with Mr. Novy on November 29th, 1966. He saw the defendant come into the men’s department, go over to a rack of men’s coats, suede coats, remove his own coat, try on several coats and place one on his person. Defendant then placed his own coat over it and left the store without making payment. The witness, with Mr. Novy, followed defendant out of the store and into the parking lot. He testified that Mr. Novy identified himself and asked Ferrara if he had a receipt for the suede jacket that he had on and that Ferrara said no.

The defendant denied that he had taken the jacket, first saying it was his own jacket and then after being told that both Novy and Davis had observed him the whole time in the store, admitted that he had just gotten in from California, that it was cold and he didn’t have much money on him and he needed a jacket, so he stopped in and picked one up. Davis corroborated Novy’s testimony as to the offer of the bribe.

Davis identified the suede jacket and a tag which he said defendant removed from the pocket of the jacket and threw on the ground in the parking lot. The witness also testified that there were no identifying marks on the coat and he could not personally know that it was kept in the security locker at all times.

Both witnesses testified that this was the only men’s jacket or coat recovered on November 29th, 1966.

There was testimony that the jacket was put into the security locker in a Korvette bag which was marked as State’s Exhibit No. 2 for identification, and a written memorandum prepared by Mr. Raymond, the security manager for Korvette, was attached to the sealed bag.

An Elmhurst police officer, Robert Doyle, testified that he was called to the store on the day in question and saw the defendant in the security office of the Korvette company. He testified that a Korvette security officer brought the jacket to the station and that the witness saw it in the station later in the day. The officer said that aside from being rolled and wrinkled it was substantially in the same condition as when he first saw it.

The record of the defendant’s 1943 conviction for armed robbery was introduced by the State and the defendant stipulated that the person named in that indictment was the defendant in this case.

In defendant’s case, his wife testified that when they drove to the Korvette store the defendant was wearing the coat identified as State’s Exhibit No. 1. When they arrived at the shopping center she went shopping in another store and her husband went to the Korvette store, and she did not see him again until that evening when she was notified that he was being held at the Elmhurst police station. She testified that defendant purchased his coat at the Korvette store in Morton Grove where they were living when they first arrived in the Chicago area from California in September of 1966.

Defendant testified that he had purchased the jacket in October in the Korvette store in Morton Grove and that he did, at no time, take the suede jacket from the Korvette store. He testified that since it was raining he was wearing a raincoat over the jacket and denied that he made any statement to the security officers that he did take a jacket.

The State, on rebuttal, called witnesses who testified that the raincoat, which was marked Defendant’s Exhibit 1, was not the coat they saw the defendant wearing on the date in question.

The indictment was proper. The prior conviction of robbery was a conviction of “any type of theft” as encompassed in the penalty provision of the Illinois Theft Statute. (C 38, § 16-1, supra.) While robbery is not mentioned by that name in the theft section, but is given a separate category in the Code of Criminal Procedure (Ill Rev Stats 1967, c 38, § 18), robbery in fact has been considered an aggravated form of theft included in the generic definition of theft in section 16-1. People v. Henderson, 72 Ill App2d 89, 95, 218 NE2d 795 (1966). Theft may also be a lesser included offense in a robbery charge. People v. Tolentino, 68 111 App2d 480, 484-5, 216 NE2d 191 (1966). The enhanced penalty portion of section 16-1 is not ambiguous in our opinion and authorities to the effect that enhanced penalty provisions are to be strictly construed are not applicable. See People v. Lund, 382 Ill 213,216, 46 NE2d 929 (1943).

The allegation and evidence of the prior offense were necessary to prove the felony charge in count II of the indictment. It has been settled that evidence of a former conviction can be introduced when it is relevant for the purpose of proving an element of the offense. People v. Ostrand, 35 Ill2d 520, 529, 221 NE2d 499 (1966); People v. Weaver, 41 Ill2d 434, 438, 243 NE2d 245 (1968). A suggestion by defendant that the purpose of alleging and proving the prior offense was merely to prejudice the defendant, is without support in the record. The further argument that the prior offense is too remote in time ignores the clear wording of the statute (section 16-1, supra) which does not limit the time of the prior offense.

Defendant’s contention that the conviction under count I of the indictment must be reversed as a matter of statutory law because the offense in each count arises out of the same conduct has no merit here. The prohibition is against sentencing a defendant for more than one offense resulting from the same conduct, as explored in the case defendant cites, People v. Durant, 105 Ill App2d 216, 245 NE2d 41 (1969). Here defendant was given a single sentence.

We next consider defendant’s contention that a combination of trial errors prevented the defendant from receiving a fair trial. No reference is made to any improper remarks in opening statement or in final argument. The references to questions and answers claimed to have been prejudicial did not have that effect in our opinion from a careful examination of the record, and were, for the most part, the result of a response to inquiries initiated by defendant’s counsel.

We will refer to several of the alleged trial errors which defendant has emphasized.

The State’s witness, Novy, was allowed to testify over objection that he was bonded in his new job, working for a merchant patrol service. This was elicited on redirect examination after defendant’s counsel had inquired whether the witness still worked for Korvette. The State argues that the purpose of this question was to avoid an implication that the witness was unsuited for security work or had left Korvette’s employment under a cloud. We are not persuaded by this argument, but we also cannot perceive any substantial prejudice to defendant from the inquiry.

Defendant claims it was error for the State witness, Davis, to testify over objection that State’s Exhibit No. 2 was a note and memorandum attached to the outside of a bag, allegedly containing the suede jacket marked State’s Exhibit No. 1, and then being allowed to read the note which was to the effect:

One Man’s Suede Coat, brown in color at $52.99. Evidence held for prosecution of JOSEPH FERRARA for shoplifting on 29 November, 1966. Apprehended by Ed Novy at 1400 hours, 29 November, 1966. Complaint #25480 signed by Novy at Elmhurst Police Station. Before Judge Fitzgerald, 29 November, 1966. Evidence held by Ed Novy for prosecution.

The record discloses that prior to this, defendant’s counsel on cross-examination, had been seeking to impeach the witness’s identification of the jacket. Defense counsel initiated the inquiry as to whether the bag would help the witness identify the coat and the answer was that the information on the bag would tell the witness what coat was in there. Counsel himself referred to the note by his question, “So, all it says on the bag is that there was a coat, men’s suede coat, brown, recovered, isn’t that right?” Upon receiving an affirmative answer defendant’s counsel then put the question, “but it doesn’t tell you that this particular coat was recovered, this one ?” In view of this, we believe that the People were properly permitted to refute the inference that there had been any confusion or substitution of the particular jacket alleged to have been stolen.

Objection is made to the court permitting the police officer to testify that he was shown the jacket “that they had said he had taken,” by the security officers at a time when the defendant was present. Defendant seems to claim that this created an unfair inference that because defendant was not stated to have said anything at that point his silence showed guilt. However, whether the accusation was heard and whether the circumstances were such that a response would normally be made, are questions for the trial judge to determine, (People v. Bush, 29 Ill2d 367, 372, 194 NE2d 308 (1963)), and we find no abuse of discretion here. When defendant testified, he stated on cross-examination that he did protest when he was in the Elmhurst Police Station, so that no prejudice is evident.

While the State improperly asked one of the police officers whether defendant was “interested in making a bond, as he is entitled to ?” at the police station, an objection to the question was promptly sustained by the court and no prejudice to the defendant is evident.

Defendant contends that the trial court erred in giving certain of the State’s instructions and in refusing certain instructions offered by him. The conference on instructions has not been fully abstracted, but we have searched the entire record and conclude that no prejudicial error was committed.

Defendant makes particular objection to State’s Instruction No. 9 as being within the prohibition of People v. Church, 366 Ill 149, 160, 7 NE2d 894 (1937). It provides:

You are not bound to believe something to be fact simply because a witness has stated it to be a fact, if you believe from all evidence that such witness is mistaken, or has testified falsely concerning such alleged fact.

No objection to the giving of the instruction appears in the trial record and defendant cannot be heard to object for the first time on appeal. Moreover, this was not an instruction which told the jury to disregard the entire testimony of the witness whether corroborated or not, which has been condemned in the cited case. Devaney v. Otis Elevator Co., 251 Ill 28, 38, 95 NE 990 (1911).

A number of the State’s instructions were objected to in conjunction with defendant’s argument that the indictment was faulty in permitting the reference to the prior robbery conviction, and we find no error in giving those instructions.

Defendant argues that State’s Instruction No. 17 was erroneous in that it attempted to define reasonable doubt, and in that it required the jury to determine what is essential and material. The instruction provides:

The Court instructs the jury that the rule requiring the jury to be satisfied of the guilt of the defendant from the evidence beyond a reasonable doubt in order to warrant a conviction is complied with, if, taking the testimony altogether, the jury is satisfied beyond a reasonable doubt that the defendant is guilty. The reasonable doubt that the jury is permitted to entertain to authorize an acquittal must be as to the guilt of the accused on the whole evidence and not as to any particular fact in the case not essential and material to constitute the offense charged.

The court gave State’s Instruction No. 11 defining theft in the language of the statute, and taking the instructions as a whole the elemental facts constituting the crime charged were given to the jury so that State’s Instruction No. 17 was not prejudicial. People v. Weaver, 18 Ill2d 108,115,163 NE2d 483 (1959).

Defendant’s instructions which he claims were erroneously refused were covered by other instructions, and taking the whole series no reversible error has been shown.

The record establishes that defendant’s conviction was based upon evidence showing his guilt beyond a reasonable doubt in a trial free from substantial and prejudicial errors. A direct conflict exists between the testimony of the prosecuting witnesses and the testimony of the defendant concerning the incident. This conflict was clearly a matter of weight and credibility to be determined by the jury and which the jury resolved in favor of the State.

The judgment is affirmed.

Affirmed.

MORAN, P. J. and DAVIS, J., concur.

       Ill Rev Stats 1967, c 38, § 16-1.

       Ill Rev Stats 1967, c 38, § 16-1, supra: “Penalty ... a person convicted of such theft a second or subsequent time, or after a prior conviction of any type of theft, shall be imprisoned in the penitentiary from one to 5 years . . . .”


text:
    People of the State of Illinois, Plaintiff-Appellant, v. William Whittenburg, Defendant-Appellee.
    Gen. No. 11,096.
    Fourth District.
    September 3,1969.

      William J. Scott, Attorney General of State of Illinois, of Springfield (Fred G. Leach, Assistant Attorney General, of counsel), for appellant.
    Walwyn M. Trezise, Public Defender of Livingston County, of Pontiac, for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

The Circuit Court of Livingston County entered an order discharging the defendant and dismissing an information filed against him charging the crime of escape, holding that the defendant had not been tried within 120 days as provided by section 103-5 of chapter 38, Ill Rev Stats 1967. The State appeals.

The following chronology of events is relevant to this appeal:

The defendant was an inmate in the Illinois Penitentiary at Pontiac. The information with which we are concerned charges his escape from that institution on August 7, 1967. On August 22, 1967, the public defender was appointed for the defendant and on the motion of the defendant the cause was continued to August 29. On August 29, again on the motion of the defendant, the case was continued to September 5, 1967. On September 5, on motion of the defendant, the case was continued to September 12, 1967. On that date the defendant was arraigned, pleaded not guilty and filed some motions with which we are not here concerned. On November 9, 1967, the defendant filed a written waiver of the 120-day statute and consented to a later setting of the case. Again on February 2, 1968, a written waiver of the 120-day statute was filed and then on March 14, 1968, a stipulation was entered into by the State’s Attorney and the defendant by counsel which provided “that the within cause be removed from the Livingston County Circuit Court, General Division, trial calendar scheduled to commence Thursday, March 21,1968, pursuant to prior agreement between them, with the understanding that said case shall be scheduled for trial during the regular spring trial calendar normally scheduled in May.”

In each instance, after the continuances and following the stipulation, the defendant was remanded to the custody of the warden of the Pontiac branch of the Illinois State Penitentiary.

On August 7, 1968, the defendant filed a motion for discharge wherein he asserted that the stipulation was made with the understanding that the case would be set during the spring trial calendar in the month of May, alleged the fact of no trial, and asked for discharge. On September, 3, 1968, an order was entered discharging the defendant.

In People v. Stillman, 391 Ill2d 227, 62 NE2d 698 (1945), the criminal proceeding was continued on motion of the defendant to the September term, 1940, of the Circuit Court of Peoria County. At the September term the cause was continued on motion of the People to December 31, 1940, and the trial was started that date. On December 23, of 1940, the defendant filed a motion for discharge, which was denied, and the Supreme Court affirmed. In so doing the court observed that the defendant’s action on May 20, 1940, seeking a continuance to the September term constituted a waiver of his right to be tried within four months from the date of his commitment. His action placed it beyond the power of the People to give him a trial prior to the September term. He thus was only entitled to a trial within four months from the first day of that term. From that case and numerous other cases, it is well established — and in fact the parties agree — that when the defendant moves for a continuance or otherwise occasions a delay the 120-day permissible delay is calculated from the date to which the cause is continued and not from the date of the filing of the motion or other proceeding which occasioned the delay.

In this case the continuance, which under the stipulation can be said to have been occasioned by the defendant, was to a date during the regular spring trial calendar normally in May. By his motion for discharge the defendant obviously asserts that the 120 days started to run as of the date of the stipulation — March 14,1968— rather than any date in May, and this under Stillman is clearly an untenable position. Prior to the changes made in connection with the adoption of the new Judicial Article, section 72.15 of chapter 37, Ill Rev Stats 1963, provided for a May term of court in Livingston County commencing on the first Tuesday of May.

Although not determinative of this appeal, the first Tuesday in May of 1968 was on the 7th.

Commencement of the trial in this case at the spring trial calendar normally held in May in the trial court clearly would have been within the scope of the stipulation. There was no such trial calendar. Thus, we must give to the stipulation a reasonable interpretation. We construe it to mean a stipulation to continue the case for trial to be held at some time during the customary time of the trial court’s holding of a jury trial in May, although it may have meant any time during May. The evidence showed that customarily such trial had been held for the May term in the first two weeks of May. The motion for discharge was filed August 7, immediately after the trial court’s scheduling and calling a jury panel for September 10. The second week of May, 1968, commenced May 12 and ended May 18. Less than 120 days would have transpired from the latter part of the second week of May to September 10. The order of discharge was in error, and must be reversed.

Judgment reversed and cause remanded for further proceedings.

TRAPP, P. J. and SMITH, J., concur.