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    City of Chicago in Trust for the Use of Schools, Plaintiff-Appellee, v. Albert J. Schorsch Realty Co., Inc., et al., Defendants, National Bank of Albany Park in Chicago, as Trustee Under Trust No. 11-1030, Individually and as Successor in Interest to Exchange National Bank of Chicago as Trustee Under Trust No. 15166, and La Salle National Bank of Chicago as Trustee Under Trust No. 35232, Successor in Interest to John Przywara and Josephine Przywara, His Wife, Defendants-Appellants, Consolidated with City of Chicago in Trust for the Use of Schools, Plaintiff-Appellee, v. John Przywara, et al., Defendants, National Bank of Albany Park in Chicago, as Trustee Under Trust No. 11-1030, Individually and as Successor in Interest to Exchange National Bank of Chicago as Trustee Under Trust No. 15166, and La Salle National Bank of Chicago as Trustee Under Trust No. 35232, Successor in Interest to John Przywara and Josephine Przywara, His Wife, Defendants-Appellants.
    Gen. No. 54,685.
    First District, First Division.
    June 15, 1970.
    Rehearing denied August 3, 1970.

      Green, Murnighan & Kane Associates, of Chicago, for appellants.
    James W. Coffey and Frank S. Righeimer, of Chicago (Richard E. Girard, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is an eminent domain proceeding commenced in 1965 by the Board of Education of the City of Chicago to acquire for school purposes five parcels of land referred to as Parcels A, B, C, D and E. The instant appeal concerns Parcels B, C and D, which consist of approximately nine and one-half acres of vacant land except for an old frame house. These three parcels were the subject of a prior appeal in which this court reversed judgment in favor of plaintiff and remanded the cause “with directions to vacate the order striking the traverse and motion to dismiss of National Bank of Albany Park, to vacate the order denying leave to Exchange National Bank to file its traverse and motion to dismiss and to conduct such proceedings as may be required.” 95 Ill App2d 258, 263,238 NE2d 434.

The mandate of the Appellate Court in the prior appeal was filed in the trial court on October 22, 1968. On remand and after hearing evidence, the trial court (1) overruled and denied defendants’ motions to dismiss; (2) denied leave to defendants to file a petition to establish a new date to fix the valuation of the property involved; and (3) denied leave to defendant National Bank of Albany Park to file a cross petition for damages to a remaining five-acre tract immediately north of and contiguous to Parcel D of these proceedings. In a valuation trial a jury verdict fixed the value of Parcel B at $165,000, C at $92,000, and D at $92,000. Judgments were entered on the verdict.

Defendants appeal from orders striking portions of the motions to dismiss, overruling and denying the motions to dismiss, denying leave to file certain petitions, and from the verdict and judgments entered thereon. On appeal defendants contend they did not receive a proper hearing on their motions which were either dismissed or denied. Also, because of prejudicial trial errors, they did not receive a fair valuation trial.

Initially considered is defendants’ contention that the trial court erred in striking their motions to dismiss and violated their right to due process of law. The motions alleged the following:

“1. Plaintiff failed to prepare any preliminary plans for the construction of a school or to decide on what type of school it would construct on the proposed site.
“2. Plaintiff, prior to the initiation of the instant suit, began a prior suit seeking to condemn a site slightly less than three acres of land in the immediate vicinity which was subsequently dismissed. Plaintiff also had initiated a suit prior to this instant suit, seeking to condemn a site of approximately 19 acres, also in the immediate vicinity. This second suit also was dismissed by the plaintiff prior to beginning this suit. By reason of the premises the attempt to take herein demonstrates an attempt to take an excessive amount of property.
“3. No reports, surveys, or other basis for a recommendation for the taking, or reason why plaintiff should proceed differently in this suit from its proceedings in the two suits heretofore referred to, appear anywhere of record.
“4. Plaintiff has failed to comply with an essential condition precedent to the filing of its Petition herein in that it has failed to comply with the provisions of Section 11-12-4 of Chapter 24 of the Illinois Statutes.
“5. Since plaintiff relies on the exceptions contained in Section 42 of Chapter 102 of the Illinois Revised Statutes relating to Meetings of Public Agencies to keep from the record any information which enters into its purported exercise of discretion to acquire the real estate here involved, their failure to comply with the duties of the statute requiring their reference to the Chicago Plan Commission constitutes an abuse of power and prevents any reasoned decision or check or balance on the administrative actions of the Board of Education as plaintiff herein. It further prevents any review which might serve to uncover issues which were ignored or inadequately treated by the Board of Education; and refuses to this defendant the constitutional and statutory protections intended by the Illinois Legislature in the Plan Commission Statute. As a result thereof, this defendant is deprived of due process in that there is a complete absence of any review of plaintiff’s decision to take this property.”

Thereafter, plaintiff filed a motion to strike the motions to dismiss on the ground that the motions were legally insufficient. On December 20, 1968, the trial court entered an order which included directions to plaintiff to respond to certain paragraphs of the provisions of defendants’ Request to Admit Facts, which had been served on plaintiff on December 16, 1968. On January 3, 1969, and after a hearing, the court entered an order striking paragraphs 1, 3, 4, and 5 of defendants’ motions. On January 6, 1969, the remaining portions of defendants’ motions to dismiss were denied, after hearing the testimony of witnesses and considering various resolutions of the Board of Education relating to the acquisition, the responses to the Request to Admit Facts which related to the various sites involved, and arguments of counsel.

Defendants contend that the hearing on their motion to dismiss did not fulfill the minimal requirements of due process of law. Defendants argue that “plaintiff in seeking to condemn this property has failed to show any use of discretion in making its determination and additionally abused its discretion in taking an excessive amount of property.” They assert that the reasoning of plaintiff’s motion to strike was that defendants had no right to inquire into plaintiff’s basis for its exercise of eminent domain and that the attempts at discovery by defendants was inhibited by this position, especially as to the question of why the Board of Education changed at least the size of its site on five occasions.

Plaintiff contends that the selection and acquisition of the public school site here involved was within the discretion of the Board of Education. It asserts that it is a long established rule of condemnation law that the exercise of the power to condemn is a legislative and not a judicial question, and the determination by the Board of Education to acquire the subject school site should not be disturbed by the court.

After examining the arguments and authorities cited by both sides, we conclude that an extended discussion would unnecessarily lengthen this opinion. The guidelines to be used here are sufficiently set forth in City of Chicago v. Vaccarro, 408 Ill 587, 97 NE2d 766 (1951); Cafeteria Workers v. McElroy, 367 US 886, 6 L Ed2d 1230, 81 S Ct 1743 (1961); and an article by Chief Justice Traynor of the California Supreme Court in 17 Vand L Rev 109.

In City of Chicago v. Vaccarro, it is stated (p 596):

“This court has held in an unbroken line of decisions that where the right to condemn exists, and the property is subject to the right of eminent domain and is being condemned for a public use, and the right to condemn is not being abused, courts cannot deny the right to condemn on the ground that the exercise of the power is unnecessary or not expedient, as the determination of that question devolves upon the legislative branch of the government and is a question which the judicial branch of the government cannot determine; and that in such cases courts may only rightfully determine whether a petitioner has the power to exercise the right of eminent domain, whether the property is subject to the right of eminent domain and is being taken for a public use, whether the power is being abused, as by the taking of an excessive amount of property, and other kindred questions which do not involve a determination of the necessity or expediency of the taking of the lands sought to be condemned.”

And at page 597:

“The general rule is that where the legislature has delegated to a corporation the authority to exercise the power of eminent domain, the corporation has also the authority to decide on the necessity for exercising the right, and its decision will be conclusive in the. absence of a clear abuse of the power granted. . . . An abuse of such power, however, will not be tolerated, and if no necessity for its exercise exists, or if it appears that the quantity of the property sought to be taken is grossly in excess of the amount necessary for the public use, the court will not permit the land to be taken.”

In Cafeteria Workers v. McElroy, it was stated (p 895):

“As these and other cases make clear, consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action. Where it has been possible to characterize that private interest (perhaps in oversimplification) as a mere privilege subject to the Executive’s plenary power, it has traditionally been held that notice and hearing are not constitutionally required.”

Justice Traynor in his article remarked (p 117):

“One is moved to add that these are basic concerns of a court in the review of decisions of administrative agencies. A person has not had a fair hearing if the one in authority, given discretion to adjudge the case in the ample terms of a general policy, has exercised his discretionary power not with the realistic appropriateness that is the very justification of such power, but with such harsh inappropriateness as to mock the meaning of discretion. A court reviewing an alleged abuse of discretion, and finding a prima facie case of arbitrariness, must be alert to ascertain whether or not there emerges from the record some reasonable explanation for the administrative decision. We cannot take it for granted that because an authority is, he thinks. The thought process, or the absence thereof, of the one in authority has more than once been the key to determining the issue of due process in administrative proceedings.”

Summarized, the motions to dismiss were substantially based on the following grounds: (1) preliminary plans for construction for a school or type of school were not made; (2) the taking was excessive; (3) no reports, surveys, or other basis why plaintiff should proceed in this suit differently than in the two suits it heretofore dismissed appear of record; (4) plaintiff did not consult with the Chicago Plan Commission; and (5) plaintiff has kept from the record information which entered into its exercise of discretion in seeking to acquire the school site.

After examining this record, we find that in the instant case the filing of the resolution of the Board of Education to acquire the subject property was sufficient. No plans, reports or surveys were required to be prepared as a condition precedent to plaintiff’s exercise of the power to acquire a school site. See 26 Am Jur2d, Eminent Domain, § 117; Village of Depue v. Banschbach, 273 Ill 574, 113 NE 156 (1916). The dismissal of two previous suits by plaintiff was not relevant to the determination that the taking was excessive. Plaintiff was not required to consult with or secure the approval of the Chicago Plan Commission. We agree with the remarks of this court in the first appeal of this cause (95 Ill App2d 264, 279):

“The statute expressly provides that the plan commission’s disapproval does not bar the proposed action. We believe that the statute taken as a whole indicates that the requirement of submission to the plan commission is not mandatory and failure to submit the proposed action to the commission does not bar condemnation.”

Furthermore, plaintiff was not required to reveal or record the information or motives that went into its decision. In Oak Park National Bank v. Village of Broadview, 27 Ill2d 151, 188 NE2d 679 (1963), it is said (p 155):

“The motives that may have actuated those in authority are not the subject of judicial investigation.”

In Deerfield Park Dist. v. Development Corp., 22 Ill2d 132, 174 NE2d 850 (1961), it is said (p 140):

“As we stated in Ligare v. City of Chicago, 139 Ill46, 28 NE 934, in a condemnation case the purpose for which the power of eminent domain is exercised may be questioned, but ‘the motives that may have actuated those in authority are not the subject of judicial investigation.’ ”

Finally, the trial court did not err in refusing defendants leave to amend their motions to dismiss. Such was a matter for the sound discretion of the trial judge, and there is nothing in this record to show that he abused his discretion. We hold the trial court was correct in striking or denying defendants’ motions to dismiss and in so doing defendants’ right to due process of law was not violated.

Subsequent to the denial of the motions to dismiss, the court denied leave to defendants to file a petition alleging substantial change in the value of their property and asking for a new valuation date. Also, the court denied leave to defendant National Bank of Albany Park to file a cross petition alleging damages to its five-acre parcel of property immediately north of and contiguous to Parcel D. The court then set the cause for a valuation trial as of the date of the filing of the condemnation petition in 1965.

At the valuation trial before a jury, the first witness for plaintiff was Charles A. Hodlmair. He had been in the real estate brokerage, sales, management, appraisal and construction business all his life, and was well acquainted with the area in question. He testified that the area of the subject parcels is mostly newly built up, particularly on the south and east, as a single family residential neighborhood, for which it is zoned and best suited.

Hodlmair further testified that the highest and best use of Parcels B, C and D as of July, 1965, was single family residence use. He based his opinion on the character and condition of the property itself, the size of the parcels, the surrounding neighborhood, the single family residence developments surrounding the subject property on three sides, the situation with respect to bringing in sewer and water, the necessary site preparation, the possible uses of the property, the mortgage market possibilities, and the most feasible layout of the lots on these parcels for subdivision purposes, including the development problem with Parcel B caused by the one-half acre taken out for Parcel A. Other difficulties in developing the condemned parcels for use arose from the fact that there was a one street access only, and that Cumberland Avenue at the west is a 40-mile an hour speed limit road. Also, for Parcel B it would be necessary to put in a street with a cul-de-sac or loop in order to get in and out, thereby reducing the amount of land for building use.

Hodlmair’s valuation testimony was $85,000 for Parcel B and $58,000 each for Parcels C and D. In arriving at these figures he took into account the sales price of comparable land known to him, the market, the cost of improving the land and the maximum that would be paid for it on the market after improvement. The vacant property across Cumberland didn’t have any particular bearing on his opinion. When asked if he took into account whether there was a reasonable probability of rezoning these three parcels, he stated, “I wouldn’t even consider it.”

The second valuation witness for plaintiff was Herman O. Walther, who testified that he has been in the real estate business for forty years, and has appraised all kinds of real estate during that time. He testified that in his opinion the highest and best use of the subject parcels as of July 14, 1965, was for single family residence use in keeping with the adjoining developments, all single family residences, and with the zoning to the east, south and north of the property. He valued Parcel B at $125,000 and Parcels C and D at $70,000 each as of the date of July 14, 1965. The facts he took into consideration in arriving at these figures included the location of the property, the transportation, the 200 or so single family homes that adjoined on the northeast, east and south of the subject parcels, the single family zoning and the highest and best use of the subject property, its accessibility to churches, schools, shopping areas, transportation, and his familiarity with the real estate market and his experience in the real estate business.

On cross-examination he testified that it would be highly improbable that Parcels B, C, and D could be rezoned. He stated that “assemblage” is a process so that small parcels are made into a larger parcel of land under one ownership, whether through purchase or option. He finally stated that the R-4 zoning across the street had no affect on the subject property.

The third valuation witness for plaintiff was John J. McNamara, who testified that he has been in the real estate business as a broker and an appraiser for forty-two years. He stated he was familiar with real estate in the vicinity of the subject parcels; that temporary classrooms have been erected south of the subject property at Cumberland and Balmoral, and that the subject parcels were on the east surrounded by a residential development of single family dwellings. He testified that in his opinion the highest and best use of Parcels B, C, and D, as of July 14, 1965, would be for development as a single family residential development, based on property that these parcels are surrounded by and that the subject parcels are zoned R-2, single family residence. His opinion of value for Parcel B was $105,000 and $72,000 each for Parcels C and D. In arriving at these figures the elements he considered included the size and shape of the parcels, the use to which they could be put under their present zoning of R-2, and his experience in the real estate business. On cross-examination he testified that he did not take into account the reasonable probability of rezoning the subject parcels because they were strictly R-2 zoning.

Mitchell Kobelinski, a witness for defendants, testified that he was a lawyer and banker and has had extensive experience in assemblage and development of real estate of all types. He identified defendants’ Exhibit 1 as a zoning map of the City of Chicago and testified that no rezonings occurred in the area of the subject parcels for the period July 14, 1965, to February 16, 1966, the date of the document. As of July 14, 1965, he owned Parcel C, had an option to purchase Parcel D and owned a five-acre parcel immediately north of D. He had an opinion that the parcels each would be best used for multi-family residential use with the possibility of alternate commercial use along the Cumberland Avenue frontage, and that the value of Parcel B at its highest and best use was between $340,000 and $365,000 and Parcels C and D at their highest and best use was $195,000 to $200,000. His opinion of the values of the subject parcels at their present zoning was $290,000 for Parcel B, and for Parcels C and D each $160,000 to $165,000. The factors he took into account in arriving at his opinions of value included rezoning and a demand for multi-family housing.

On cross-examination Kobelinski testified that he has had an interest in the neighborhood since 1962 when they first bought property there. He was asked what he paid for the five-acre tract immediately north of and contiguous to Parcel D, which was objected to. Over this objection he testified that he paid $164,000. On redirect he testified that he did not seek rezoning of Parcel C or the five acres north prior to July 14, 1965, because at that time the last parcel of their assemblage had not been acquired. It was not economically advantageous.

Carl Gardner, a city planning consultant, testified for defendants. He stated that he was familiar with the subject property, and told specifically which areas of influence affected it. He described the established trend in the area toward multiple-family 6, 8 and 12 units and stated that Cumberland Avenue is in no way a zoning barrier. He stated the properties on either side of a given street should be the same use or a comparable use, at least a compatible use. He further stated that assuming that Parcels C and D were assembled with the five-acre tract immediately north, that his opinion of the highest and best use for that site would be a planned residential development under the zoning classification R-4. He also stated that the highest and best use of Parcel B would be the same.

Richard Roppolo testified for defendant that he was a real estate broker and was familiar with the subject property. He was asked to make an appraisal of Parcels B, C and D, and his opinion was that the highest and best use of the property was a combination of commercial and multiple. He valued Parcel B at its highest and best use as $460,000 for what might be commercial and $300,000 for the multiple. His opinion of Parcels C and D at their highest and best use was $250,000. The values of the parcels at their present zoning of R-2 was $273,000 for Parcel B and $141,000 each for Parcels C and D.

Vincent Oliva testified for defendants as to the sale of allegedly similar property. The deal was closed and the money paid subsequent to July 14, 1965. However, upon objection by plaintiff, the court did not admit the sale into evidence.

Albert Schorsch, Jr., testified for defendants that he was a real estate broker and also a subdivider and builder. His opinion of the highest and best use of each of these parcels would be under general residence zoning, R-4, with apartment units. His opinion of the value of Parcel B at its highest and best use would be $351,200 and $202,000 for Parcels C and D at their highest and best uses. The value of the Parcels at their present zoning was $242,000 for Parcel B and $141,000 each for Parcels C and D. He took into account the upward trend of values of land which has put the market of the property beyond the reach of the single family home developer to a point where it would have to be developed as rental or general residence type property; and that the trend throughout the city has been toward the demand for more apartments.

On cross-examination he stated it would be necessary to get the zoning changed to use this property under B-4 and described the procedures for obtaining a rezoning.

Eugene Kuberski testified for defendants that he is a zoning plan examiner for the Cook County Building Department. He examined the five-acre tract of property in Norwood Park Township at Cumberland Avenue immediately south of Bryn Mawr with regard to the number of residences a person could put on it. As of April, 1962, one residence could be placed on that parcel of property.

Defendants offered into evidence Exhibits 2 through 7, which were zoning ordinances of the City of Chicago relating to specific rezonings in the area covered by the zoning map. The court denied admission to Exhibits 2 through 6 inclusive and admitted Exhibit 7 into evidence. As previously noted, the jury returned a verdict awarding compensation and judgment was entered on the verdict.

Considered next is defendants’ contention that they were not afforded a fair valuation trial because of prejudicial rulings of the trial court. They first complain that they were not allowed to present their theory of “assemblage” for the jury’s consideration and that this evidence would have greatly shown an increase in value of the subject property. They note that if Parcels C and D were assembled with the five-acre tract near Parcel D, that compact nine-acre parcel would be worth more than the three smaller individual parcels. The record in this regard shows that in November, 1962, the owners of Parcels C and D, Walter and Florence Branda, entered into an option agreement where they gave Mitchell Ko-belinski and Ted Szywala or their company an option right to purchase one-half of Parcel C on or before May 1, 1963; the other half of Parcel C on May 1, 1964; one-half of Parcel D on May 1, 1965, and the other half on May 1, 1966. At the time of the filing of the Petition to Condemn, the optionees had acquired the two halves of Parcel C but had not acquired any of Parcel D. The ownership of the parcels at the time of the filing was thus as follows: Parcel B was then owned by John and Josephine Przywara; Parcel C was then owned by the National Bank of Albany Park under Trust 11-1030, whose beneficiaries were Mitchell Kobelinski and Ted Szywala or their company; and Parcel D was then owned by the Exchange National Bank under Trust No. 15166 as trustee, whose beneficiaries were Walter and Florence Branda. During the direct examination of Kobelinski, he was questioned concerning his ownership of property in the vicinity of the subject parcels. He testified that he owned Parcel C and “had an option” to purchase Parcel D. A colloquy took place and the witness stated: “I answered two questions, Judge. One I said we had an option to purchase Parcel D and we had title to the rectangle immediately north of Parcel D.” The Court: “Okay, objection sustained as to ‘had an option to purchase.’ ”

Defendants assert that the trial judge struck the answer “had an option” in such a manner and so out of context that the jury readily may have understood it was to disregard any evidence by the defendants relating to the claim of an option throughout the trial, and that such was prejudicial. They assert that evidence of assemblage would tend to show a greatly increased market value. They also assert that defendants’ instruction No. 8 concerning the theory of assemblage was improperly refused. Authorities cited include County of Cook v. Holland, 3 Ill2d 36, 119 NE2d 760 (1954), and Union Electric Power Co. v. Sauget, 1 Ill2d 125, 115 NE2d 246 (1953), where it was stated (p 130):

“As to the evidence, which must be viewed in the light that its purpose is to establish just compensation for the land, it has long been the rule that parties to a condemnation proceeding have the right to adopt their own theories as to the best and highest use of the land taken and each may introduce evidence without being bound by the theory of the other. . . . Since neither party is bound by the theory of the other, it follows that the court is not limited to admitting evidence which embraces the theory of one party only.”

We find that no prejudicial error was committed by the trial court in its ruling. Kobelinski was asked the question, “Did you own any other real estate in the immediate vicinity of this property?” It was improper for the witness to answer that he owned Parcel D, because an option creates no interest in the land. See Keogh v. Peck, 316 Ill 318, 328,147 NE 266 (1925).

Also, we find that defendants were not prevented from presenting their theory of assemblage to the jury. The record shows that Kobelinski testified that he was part owner of the Ridgeway Construction Company, which owned Parcel C and had an option to purchase Parcel D. Also, defendants’ witness Gardner, over objection, was allowed to testify as to the highest and best use of Parcels C and D as being assembled. Finally, it was not prejudicial error to refuse defendants’ instruction No. 8. There was no evidence that assemblage of Parcels C and D would affect the value of the parcels.

Defendant National Bank of Albany Park, as Trustee for Kobelinski and Szywala, next contends that it was erroneously denied leave to file a cross petition and have damages to a remaining five acres immediately north of and contiguous to Parcel D assessed. Defendant bank owned this five-acre tract, but it was not a part of the condemnation proceedings. It notes that defendant National Bank of Albany Park established sufficient rights in the ownership of Parcel D which should have been sufficient to have damages assessed, presumably because it considered all of the parcels together, including the five acres north of Parcel D, more valuable as a single tract. Defendants maintain that they were diligent in attempting to assert their rights and at all times, when proper, asked the court to treat the property as a tract or allow damages to the remainder or both.

In the Eminent Domain Act (Ill Rev Stats, c 47, § 1 et seq.), it is provided:

“11. Cross Petition.] § 11. Any person not made a party may become such by filing his cross petition, setting forth that he is the owner or has an interest in property, and which will be taken or damaged by the proposed work; and the rights of such last named petitioner shall thereupon be fully considered and determined.” (Emphasis added.)

We find that it was proper to deny leave to defendant National Bank of Albany Park to file its cross petition. In the instant case any possible damage to the five-acre tract north of Parcel D necessarily depended on whether defendant was the “owner or has an interest” in Parcel D. However, as shown previously, at the time of the cross petition defendant merely had an option to purchase Parcel D and did not “own” it. In City of Chicago v. Equitable Life Soc., 8 Ill2d 341, 134 NE2d 296 (1956), it is stated (p 348):

“It is elementary that a mere intention on the part of the owner to put properties to a common use is not sufficient to allow a cross petition in a condemnation action, but such properties must be considered as they existed at the time the proceedings were commenced, . . . and whether or not the cross petition is proper is a question of law which must be decided by the court. . . . Under the facts and circumstances of this case, we are of the opinion that the properties in question are not so interrelated as to warrant their consideration as a single unit.”

Defendants next contend that the trial court erred in refusing to allow defendants to introduce five or six ordinances which showed that recently rezonings of property of a comparable use directly across the street had occurred. They note that the only rezoning ordinance which was admitted showed a rezoning to B-5-1 and the jury could reasonably infer that the other exhibits offered probably related to identical matters. They further note that the allowance of those exhibits “not only would have substantiated Gardner’s testimony but showed what usages the city felt were then presently available to the property and further, would have substantiated the testimony of each of defendants’ witnesses.” They further note that the relevancy and materiality of the zoning ordinances should not be questioned.

Defendants further argue that counsel for plaintiff remarked to the jury that no attempts at rezoning were made until the Board of Education sought to take the property. They note that the excluded exhibits would have contradicted these assertions. Authorities cited include Lombard Park District v. Chicago Title & Trust Co., 103 Ill App2d 1, 242 NE2d 440 (1968), and Dept. of Public Works v. Rogers, 39 Ill2d 109, 233 NE2d 409 (1968).

In Lombard Park District v. Chicago Title & Trust Co., it is stated (p 8) :

“Without opening wide the floodgates for such testimony, courts have usually taken the view that a prospective purchaser, on the open market, on a proper showing that a change in zoning was reasonably probable in the reasonably near future, would consider the probability of such change in valuing the property, and that courts in condemnation proceedings should also receive such evidence.”

In Dept. of Public Works v. Rogers, it is stated (P 114):

“Were the zoning ordinance inflexible, the trial court could very well have concluded that there was no probability of rezoning. However, the ordinance was proved to be flexible and there was sufficient basis for its introduction in evidence in support of the reasonable probability of the rezoning theory. The fact that the rezoning of the fifty-acre tract was for a different purpose and for a much larger area does not destroy its admissibility on the basis that it was irrelevant and immaterial.”

Plaintiff contends that the excluded ordinances (defendants’ Exhibits 2 through 6) were concerned with an area entirely different from that in which the subject parcels are located and were mostly R--4 zoning for multi-apartment and business uses. We agree with plaintiff’s assertion that “defendants were not thereby deprived of their right to show a theory of reasonable probability of rezoning Parcels B, C, and D for the reasons that (1) all the defendants’ witnesses were permitted to testify to valuations of the condemned property on the basis of a change in zoning there from R-2 to R-4; (2) both the owner Kobelinski and the witness Schorsch testified for defendants to actual rezonings west of Cumberland from R-2 to R-4 to business; (3) a rezoning ordinance of property at the northeast corner of Bryn. Mawr and Cumberland, defendants’ Exhibit 7, was admitted into evidence; (4) in his final argument to the jury defendants’ attorney repeatedly referred to these rezon-ings on the west side as evidence to be considered on the defendants’ theory that there was a reasonable probability of securing rezoning of the subject parcels which he argued emphasized the correctness of the valuation testimony given by the defendants’ witnesses based on Rr-4 zoning.”

We conclude that defendants were not prejudiced by the court’s exclusion of their zoning exhibits. They were in fact permitted to present their theory of a reasonable probability of rezoning to the jury. We find no error here.

Defendants next contend that the court erred in refusing to allow into evidence a sale of a one and one-half acre tract zoned R-l in the area. The record shows that this parcel was not comparable to the parcels involved in the condemnation suit. We find no error here.

Defendants further contend that permitting petitioner to introduce a sale during cross-examination over objection and to introduce a sale upon rebuttal over objection where no contract was produced or foundation of similarity established are further examples of error prejudicial to defendants. We have examined the record and find these parcels had sufficient similarity for the court to permit counsel for plaintiff to go into the sales on cross-examination. Also, the terms and conditions of the contract of sale were not important. The only important thing was when the land was sold and what it was sold for. Forest Preserve Dist. v. Kean, 298 Ill 37, 131 NE 117 (1921). We find no error here.

In City of Evanston v. Piotrowicz, 20 Ill2d 512, 170 NE2d 569 (1960), it is stated (p 522):

“As we have also stated in the past, no fixed or general rule has or could be laid down which governs the degree of similarity that must exist between the properties sold and that condemned to make evidence of the sale or sales admissible; rather, the admissibility of such evidence must in each instance be determined by the trial judge within the proper limits of his discretion.”

Defendants further contend that they were improperly denied leave to file a petition by which they sought to establish a new date for valuation of the premises for the condemnation trial. The petition essentially alleged that since the time of the petition on July 14, 1965, until the time for trial, February 3, 1969, the market value of all the property in the vicinity of the subject parcels had substantially increased. Defendants assert that “the petition raised a serious question as to whether using a date of July 14, 1965, under the circumstances of this case would constitute just compensation within the meaning of the constitutional mandate.” Defendants’ authorities include Sanitary District v. Chapin, 226 Ill 499, 80 NE 1017 (1907), and Illinois Cities Water v. City of Mount Vernon, 11 Ill2d 547, 144 NE2d 729 (1957). In Sanitary District v. Chapin, it is stated (p 504):

“The rule so established, that the value of property is to be fixed as of the date of filing the petition, has been consistently followed ever since. . . . The filing of the petition is the first actual step toward devoting property to a public use, and in ordinary cases that time is as fair and just to both parties for fixing the value of the property as any that could be adopted. At any rate, the rule is firmly established; but if it should be applied to a case like this, where the owner has not been brought into court and no steps have been taken for several years, during which the property has greatly advanced in value, it would result in wrong and injustice.”

Plaintiff, on the issue of the proper valuation date to be used here, asserts that the trial court rule correctly followed the long-established rule and procedure in Illinois. In City of Chicago v. Riley, 16 Ill2d 257, 157 NE2d 46 (1959), it is said (p 264):

“It is well settled that the value of the property must be determined as of the time of filing the petition for condemnation.”

In City of Chicago v. Blanton, 15 Ill2d 198, 154 NE2d 242 (1958), it is stated (p 202):

“It is of course elementary that eminent domain proceedings were designed to afford the property owner a means by which he would receive in money the full, fair cash market value of the condemned land under the conditions which existed, not at time of trial, but at the time the eminent domain proceedings were instituted.”

We find that defendants have not asserted sufficient facts to entitle them to a new valuation date. Defendants’ cases are distinguishable on their facts. The record indicates that the attorneys for both sides have tried to expedite the proceedings as much as possible and within their professional responsibilities to their clients.

Defendants next contend that the jury was influenced by passion and prejudice as exemplified by the statements of counsel for plaintiff in closing argument. We find no merit in this contention. The remarks made in County of Cook v. Colonial Oil Corp., 15 Ill2d 67, 153 NE2d 844 (1958), apply here. There the court stated (p 75):

“Counsel for defendant also characterizes the closing argument of petitioner’s counsel as ‘unfair, insulting, full of ridicule of respondent’s witnesses and counsel, and so insinuating and vindictive as to be highly prejudicial to the respondent.’ First of aU, counsel for defendant, who is admittedly experienced in condemnation, made no objection to any of the opening argument of counsel for petitioner and no objection to any of the supposedly objectionable remarks made by petitioner’s counsel in his final argument. We have consistently held that experienced counsel cannot take a chance of failing to make objections and then, upon receiving what they consider an adverse jury verdict, claim error.”

Defendants finally contend that the cumulative errors denied defendants a fair trial. They assert that “the jury verdicts were approximately $10,000 or so less than in the first trial from which the plaintiffs originally took an appeal. The extreme prejudice which occasioned such a low verdict is confirmed by plaintiff’s earlier attempting to waive a retrial after these defendants’ motions to dismiss were over-ruled and return again to the jury verdict in 1966 from which they had originally taken an appeal.”

After examining this record, we believe defendants received a fair trial on the proper issues without prejudicial error, and the verdict was within the range of the testimony. In School Trustees v. LaSalle National Bank, 21 Ill2d 552, 173 NE2d 464 (1961), our Supreme Court said (p 556):

“This court has repeatedly held that where the jury has viewed the premises and the amount fixed is within the range of the evidence, the verdict of the jury will not be disturbed unless the record clearly shows that it has been influenced by passion or prejudice or unless there was a clear and palpable mistake.”

These remarks apply here, and the judgment of the trial court is affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE BURKE

license: Public Domain

text:
    Lettie B. Henderson, Plaintiff-Appellant, v. Illinois Department of Public Aid, Harold O. Swank, Director of the Illinois Department of Public Aid and David L. Daniel, Director of the Cook County Department of Public Aid, Defendants-Appellees.
    Gen. No. 54,317.
    First District, Second Division.
    June 23,1970.
    Rehearing denied July 15, 1970.

      Gordon H. S. Scott, John Henry Schlegel, and William Wagner, of Chicago (Lorelei Borland, of counsel), for appellant.
    William J. Scott, Attorney General of State of Illinois, of Chicago, and Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Daniel P. Coman, Chief of Civil Division, Francis T. Crowe and A. Zola Groves, Assistant Attorneys General, and Thomas E. Brannigan and James A. Rooney, Assistant State’s Attorneys, of counsel), for appellees.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This action was brought to review a determination by the Illinois Department of Public Aid that the welfare assistance grant of plaintiff be reduced in an amount to reflect the deletion of Donna Henderson, one of plaintiff’s minor children, from plaintiff’s budget. The Department ordered the deletion on the ground that the child had resources available for her current support in the form of an account which arose out of the settlement of a personal injury action. The court affirmed the determination of the Department of Public Aid, and plaintiff appeals.

Plaintiff is the mother of nine minor children and is the recipient of welfare assistance under the Aid to Families with Dependent Children Program. Her daughter, Donna Henderson, 12 years of age, was included in the assistance grant to plaintiff. Donna sustained an eye injury in 1968, suit was filed on her behalf, and the case was settled for the amount of $1,500. On order of the Circuit Court, the funds, less certain costs and fees, were deposited in Donna’s name in a savings account in a savings and loan association, with the provision that the funds be distributed to her upon her attaining majority or upon further order of the court.

On August 8, 1968, plaintiff received a notice from the Department of Public Aid to meet her caseworker at the Court on August 13, 1968, to petition for an order ter withdraw the funds in Donna’s account on a week-to-week basis for Donna’s current support. Plaintiff appeared with counsel and refused to cooperate. The Department thereupon reduced plaintiff’s welfare assistance grant by an amount equal to Donna’s pro-rata share of the grant. Plaintiff was notified of this decision on September 26, 1968, and was given further details thereof on October 3, 1968. Plaintiff filed her appeal from that determination.

At the hearing on plaintiff’s appeal held before a hearing officer from the Department of Public Aid, the Department maintained that Donna’s fund was an available resource, which could be used for her current maintenance and support, in accordance with the provisions of the Illinois Public Aid Code. Plaintiff, through her counsel, contended first that the fund should not be so regarded, and secondly, that the fund should be set aside for Donna’s future education. In support of the latter contention, a letter was introduced purportedly composed and signed by Donna’s sixth-grade teacher, asserting that Donna was “college material and should take this training beyond her high school education.” Neither plaintiff nor Donna, both of whom were present, testified at the hearing. Plaintiff’s counsel admitted that Donna’s academic achievement had declined over the last year but that this was probably due to the injury from which the settlement was obtained.

The hearing officer found that Donna was “potential college caliber,” but recommended that the determination of the Department be upheld. The hearing officer’s decision was approved by the Director of the Department of Public Aid. Plaintiff thereupon filed this action for administrative review; the trial court affirmed the determination of the Department and plaintiff prosecutes this appeal.

Section 4-1.6 of the Illinois Public Aid Code (Ill Rev Stats 1967, c 23, par 4-1.6) provides:

“Income available to the family, or to the child in the case of a child removed from his home pursuant to Section 4-6, when added to contributions in money, substance or services from other sources, including income available from parents absent from the home or from a step-parent, contributions made for the benefit of the mother or other persons necessary to provide care and supervision to the child, and contributions from legally responsible relatives, must be insufficient to meet the basic maintenance needs of the family or the child, as the case may be, as defined by standards established by the Illinois Department.
“In considering income to be taken into account, consideration shall be given to any expenses reasonably attributable to the earning of such income. The Illinois Department may also, subject to such limitations as may be prescribed by federal law or regulation, permit all or any portion of earned or other income to be set aside for the future identifiable needs of a child. If federal law or regulations permit or require exemption of other income of recipients, the Illinois Department may provide by rule and regulation for the exemptions thus permitted or required.”

Plaintiff maintains that damages recovered for a personal injury to a minor child are not available as a resource to be used for the current support of that child, within the terms of the statute. It is argued that the recovery is not a “contribution . . . from other sources,” since it is a payment by way of reparation rather than a payment by way of alimony, child support, or other sums one is legally obligated to pay. It is further argued that the recovery is not “income available to the family” since a personal injury recovery cannot be considered “income” nor can it be considered available to the family of the injured party.

An analysis of section 4-1.6 of the Public Aid Code reveals that a minor’s recovery for personal injuries is available as a resource which may be used to meet that minor’s current needs. The statute first sets forth the resources which should be taken into account in determining whether those resources are sufficient to meet the basic needs of the family or child under consideration for assistance. These resources are defined generally as, “[i] ncome available to the family . . . when added to contributions . . . from other sources. . . .” This broad definition of resources to be considered is then stated to include such specific items as income available from parents, contributions made for the benefit of the mother or other persons necessary to provide care and supervision to the child, and contributions from legally responsible relatives. Although the statute does enumerate specific items to be considered, it does not purport to limit the resources to those actually enumerated. Further, the items enumerated in the statute include contributions voluntarily made and those involuntarily made, as is the case with a recovery for personal injuries. We are of the opinion that the trust fund which arose out of the personal injury settlement is a resource available for Donna Henderson’s current maintenance and support.

The cases cited by plaintiff are distinguishable on their facts. In Essex County Welfare Board v. Hellams, 98 NJ Super 181, 236 A2d 416, the trial court held that the welfare agency could not claim reimbursement from the tort recovery fund of a minor recipient since an applicable statute required a written agreement to reimburse, whereas no such agreement had theretofore been entered. In DeMarco v. Seaman, 157 Misc 390, 283 NYS 697, an action by guardians to invade tort recovery trust funds of their minors to meet the current needs of the minors, the trial court held that the statute then in effect did not provide that the taxpayer should be relieved from welfare payments to injured minors who had recovered for those injuries. Finally, in Application of Woods, 32 Misc2d 745, 222 NYS2d 903, the welfare agency was not allowed reimbursement from the tort recovery funds of an injured minor welfare recipient since such was not allowed under an applicable statute. In the instant case, on the other hand, reimbursement is not being sought by the Department of Public Aid; further, section 4-1.6 of the Public Aid Code permits funds such as exist here to be considered in determining the need for assistance.

Plaintiff contends that the Department of Public Aid failed to meet its alleged statutorily imposed duty to ascertain whether there existed with regard to Donna Henderson any future identifiable need to which the trust fund could be applied.

The language of the second paragraph of the statute indicates that the legislature intended the Department of Public Aid to act in its discretion in this regard. In considering the income to be taken into account in determining need, the statute first requires the Department to consider the expenses required in earning such income, by use of the phrase, “consideration shall be given. . . .” (Emphasis supplied.) The statute then provides that the Department, subject to certain limitations not here applicable, may permit some or all of earned or other income to be set aside for future identifiable needs, indicating that the Department was given the power to act in this regard in its discretion. Finally, it is clear from a reading of section 4-1.6 in its entirety, the terms “earned or other income” as used in the second paragraph includes the resources available as defined in the first paragraph thereof.

The hearing officer and the Director of the Department of Public Aid found notable the desire of the plaintiff to have the fund set aside to meet the future college educational needs of her sixth-grade daughter, but nevertheless determined that the fund should be employed to meet the current needs of the child. It was determined that the current needs of Donna Henderson be met by the fund rather than by public funds. Contrary to plaintiff’s contention, the Department of Public Aid did in fact make a determination as to Donna’s future identifiable needs and, in its discretion, elected not to recognize that claim, the Department’s determination in part reciting that the primary objective of the Public Aid Code is to provide aid to persons currently without assets or means of support. We are not disposed to disturb such a policy determination made by the Department of Public Aid. See generally James v. Cook County Department of Public Aid, 126 Ill App2d 75, 261 NE2d 420.

For these reasons the judgment is affirmed.

Judgment affirmed.

McCORMCK, P. J. and LYONS, J., concur.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    Mrs. John R. Siegel, et al., Plaintiffs-Appellants, Cross-Appellees, v. City of Chicago, a Municipal Corporation, Defendant-Appellee, and Lincoln-Pratt Building Corporation, an Illinois Corporation, Wells North Corp., an Illinois Corporation, Seymour Stein and Lester Stein, Defendants-Appellees, Cross-Appellants.
    Gen. No. 54,365.
    First District, Second Division.
    June 23, 1970.
    Rehearing denied July 15, 1970.

      L. Louis Karton and John B. Cashion, of Chicago, for appellants.
    Richard L. Curry, Acting Corporation Counsel of City of Chicago (Marven E. Aspen and Edmund Hatfield, Assistant Corporation Counsel, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

Mrs. John R. Siegel, James Ward, Johanna Walsh Ward and Mrs. E. Page Townsley, plaintiffs, are owners and/or residents of property situated on Eugenie Street between Wells Street and North Park Avenue, in Chicago. The defendants will be referred to as the Stein defendants; the property in question as the Stein property; and the City of Chicago as the City.

The Stein property is presently vacant and is being used as a parking lot and gas station. The frontage on Wells Street is approximately 163 feet, and the lot size is between 54,000 and 55,000 square feet. The property is located on the west side of Wells Street between Eugenie and North Avenue, with North Park Avenue the first street to the west. When the Stein defendants first became involved in the property, approximately three years prior to 1968, it contained several structures which were demolished to make way for the parking lot at 1638-1646 North Wells Street which the Stein defendants now own.

Planning to build a high-rise apartment on the property, with a higher density than allowable under their old zoning classification, the Stein defendants sought and obtained a rezoning of their property by an amendment to the Chicago Zoning Ordinance which was passed on May 28, 1968. It had been zoned Cl-3 and Cl-4 Restricted Commercial Districts; the amendment placed the property in a B4-5 Restricted Service District. Four property owners adjacent to the subject property instituted an action for declaratory judgment seeking to nullify the amendment. After the plaintiffs’ complaint and first and second amended complaints were struck on defendants’ motions, the case was tried on the plaintiffs’ third amended complaint, and the trial court struck plaintiffs’ jury demand. At the end of plaintiffs’ evidence, the judge entered judgment for all the defendants. The plaintiffs have brought this appeal from that judgment.

The Stein defendants had filed a counterclaim which alleged in substance that Count II of plaintiffs’ suit amounted to an abuse of process. The trial judge dismissed that counterclaim and from that order of dismissal the Stein defendants have filed a cross-appeal. They further cross-appeal the trial court’s ruling in permitting plaintiffs to file their amended notice of appeal after the original notice of appeal was struck on defendants’ motion.

We shall first consider the appeal of plaintiffs. Their primary argument is that the amendment which was allowed to the defendants constituted an act of spot zoning and it was, therefore, erroneous for the trial court to have entered judgment for the defendants. Much of plaintiffs’ argument is based on their assertion that the amended zoning classification of the subject property was not in accord with the comprehensive zoning plan of the area enacted in 1957, and in support of this position the following is contained in the plaintiffs’ brief: “The last comprehensive zoning ordinance was enacted by the City in 1957. There were no physical land use changes in the specific block where the Stein property was located in the 11 years after the 1957 comprehensive ordinance.”

Philip Zeitlin, a city planner for the City of Chicago, testified at the trial that he had visited the area in question, and he was asked if he recalled seeing any changes of physical land uses on the west side of Wells Street near Eugenie. He said that although he could not recall specific changes, there had been some. This court’s attention has been directed to Zeitlin’s testimony, which was alleged to have supported plaintiffs’ assertion of "no changes” in the block where the Stein property is located. However, it appears to us that Zeitlin’s testimony stands for precisely the contrary proposition.

Jared Shlaes, a Chicago real estate developer and onetime resident near the Stein property, described the area of Wells Street involved in the litigation as an old commercial street of specialty shops and night clubs. He testified that since the passage of the 1957 comprehensive plan, there had been no material changes between Eugenie Street and North Avenue except the removal of several structures to make way for parking. He further testified that Eugenie was an unusually attractive residential street, characterized by elegant Victorian structures. It was his opinion that the construction of a high-rise apartment building on the Stein property, with the allowed density of the amendment, and with parking facilities for 500 automobiles, would decrease the property values on Eugenie by ten to fifteen percent. Shlaes admitted that he had served as broker and developer of a 24-unit apartment building at the southeast corner of Eugenie and North Park Avenue.

Mrs. Johanna Walsh, the only plaintiff who testified, stated that she lives at 225 West Eugenie Street; that Mrs. Townsley, a plaintiff, lives two doors west of her; and that Mrs. Siegel lives four doors east across the street from her. She said that she and her husband had purchased their home several years ago, and at the time of trial had lived there a little over two years.

A summary of all testimony heard at the trial regarding the ownership interest of plaintiffs is Mrs. Walsh’s statement that she and her husband had “purchased” their home, her declarations that Mrs. Siegel and Mrs. Townsley “live” on the same block, and one statement that Mrs. Siegel “owns property” on Eugenie. In the trial court no objection was made to the lack of proof of ownership sufficient to satisfy standing requirements, so we will not dwell on that point. Plaintiffs’ assertion in their brief before this court that they “are adjoining landowners” is rather extreme in the light of the “proof” offered to verify the matter. See Clark Oil & Refining Corp. v. Evanston, 23 Ill2d 48,177 NE2d 191.

Thompson A. Dyke, a professional city planner, testified that he was familiar with the area in question and described it as having residential character with small structures of no more than four stories. He was of the opinion that a high-rise on the Stein property would not be in the best interests of the neighborhood.

Plaintiffs argue that the amendment is a departure from the normal zoning pattern of the area, and they point out that the adjacent property on both sides of the Stein property was not rezoned. The relevance of this fact of inaction is not clear to us. While it may be perfectly true that there have been no other zoning amendments in the area, it could also be true that no other property owners have ever sought an amendment. The mere statement that there have been no other amendments, without a showing that such had been applied for and denied, and without sufficient proof that the change is detrimental to the community, is without effect.

Plaintiffs seek to gain support from Zeitlin’s testimony by asserting that it establishes that in the subject area no amendments had been made in the zoning pattern since 1957, and therefore, the amendment granted to Stein defendants was unjustified. This reasoning would suggest that once a zoning pattern has been established, it can never be altered, since any deviation therefrom would be arbitrary and, therefore, illegal. We will not approve such a view. Even the Constitution of the State is subject to amendment, and it would be absurd to say that a legislative enactment could be held to be forever binding upon the same terms as originally established within the four corners of the document.

We cannot be unmindful of the fact that the amendment granted to the Stein defendants carries with it a presumption of validity since the amendment was a legislative act. See Cosmopolitan Nat. Bank of Chicago v. Chicago, 22 Ill2d 367, 372, 176 NE2d 795; Jans v. City of Evanston, 52 Ill App2d 61, 67-68, 201 NE2d 663. Before a legislative decision will be overturned by a court, the party seeking such court action must prove by clear and convincing evidence that the legislative action was unreasonable and arbitrary and bears no reasonable relation to the public health, morals, safety and welfare. Bennett v. City of Chicago, 24 Ill2d 270, 274, 181 NE2d 96; Atkins v. County of Cook, 18 Ill2d 287, 293, 163 NE2d 826. This burden is heavy and is not met by simply putting on witnesses who testify, in effect, that if they had had the authority they would not have granted the amendment.

In Reskin v. City of Northlake, 55 Ill App2d 184, 204 NE2d 600, the plaintiffs wanted to erect a gas station on their lots 30, 31 and 32, which were all adjacent to one another, each 60 feet wide and 125 feet deep. Lot 32 was zoned to permit the erection of a gas station, while lots 30 and 31 were zoned to disallow gas stations. The master had concluded that the city’s zoning ordinance was unreasonable and void insofar as it prevented plaintiffs from erecting a service station on lots 30 and 31, and the Circuit Court adopted the master’s recommendation, and entered judgment for the plaintiffs. This court reversed the judgment, finding [at page 189],

“that the effect of declaring defendant’s residential zoning ordinance invalid as it applies to lots 30 and 31 would have the same consequence as ‘spot zoning’ by permitting this two-lot encroachment of the manufacturing zone into an otherwise solid and regularly rectangular residential zone. To constitute spot zoning . . . the two requisites which must coexist are: a change of zone applicable only to a small area, and a change which is out of harmony with comprehensive planning for the good of the community as a whole.” [Emphasis supplied.]

At page 193 of the opinion, the court again pointed out its concern with the encroachment into one zoning area of a different pattern: “The subject property (lots 30 and 31) is characterized by the homogeneous, compact and uniform residential area to the east and northeast and not by the commercial and manufacturing areas.”

This leads us to inquire as to the character of the community involved in the present litigation. The first thing we would note is that there does not exist in this case the kind of “homogeneous, compact and uniform” zoning pattern as was involved in Reskin. Zoning maps which form a part of the Chicago Zoning Ordinance show that on the northernmost strip of the south side of North Avenue are B4-4 and B4-5 zoning districts around North Park Avenue, Wells Street and LaSalle. On the north side of North Avenue, one block east of the subject property, there is a large B4-5 zone; on the block of the subject property itself are two Cl-4 and one Cl-3 zones, while the northwest corner of Eugenie and North Park Avenue is R5.

Another feature which should not be overlooked is that even the prior zoning classifications of the Stein property would have permitted the construction thereon of a high-rise apartment building. The first statement in the permitted uses of the Cl-1 to Cl-5 districts, inclusive, is:

(1) Any use permitted in the B4-1 to B4-5 Districts inclusive, as set forth in Section 8.3-4B with the exception of day care centers unless otherwise set forth or superseded hereinafter.

Furthermore, there exist no height restrictions within the zoning classifications here under consideration. As previously noted, Thompson A. Dyke testified for the plaintiffs, and on cross-examination, he was asked whether the presence of a high-rise building on the Stein property would cut off light and air of the adjoining residence property. He first answered that it would, although he subsequently modified that by saying that a tall building on the subject property would be out of harmony with the Lincoln Park project. We find the following series of questions and answers instructive:

Q. “Are you familiar with the limitations under the Cl-4 for a building business uses on the ground floor and apartments above it?”
A. “Yes.”
Q. “What is the height limitation ?”
A. “It is a floor area ratio, it is not a height limitation.”
Q. “So that under the Cl-4 there is no height limitation?”
A. “I would say there is not a height limitation in the normal sense of zoning terminology. There is one in the sense of using floor area ratio as a limiting factor.”

Mr. Dyke’s responses require some explanation. Under a Cl-4 classification, the floor area ratio is 5.0, whereas under a B4-5 classification, the floor area ratio is 7.0. In practical terms this means that the B4-5 zoning allows more people to live in the same overall area than are allowed under a Cl-4 zoning. Thus, Mr. Dyke was saying that the only method by which height is restricted is indirectly, through density control. In one sense, his testimony hurts the plaintiffs’ case, since he had testified that he favored a zoning pattern in the subject area which would keep down the height of apartment buildings. When asked, “If a 20-story building were constructed under the B4^5 as against a 40-story building under the Cl-4, which would be the better zoning classification?” Mr. Dyke responded, “I would rather see 20 than 40 in the first place.” He then admitted that if a B4-5 would reduce the height it would be a better zoning classification than a Cl-4. Even under the old zoning classification, a high-rise could have been built; therefore, the objection to the amendment seems far less compelling than it would have been if the amendment allowed a totally new use of the property.

Mr. Dyke also read into the record the permitted uses under classifications ranging from Cl-1 to Cl-5, among which are horse stables, archery ranges, shooting galleries, house trailer sales, retail sale of live and slaughtered poultry, stadiums, auditoriums and arenas, with a maximum seating capacity of 2,000 persons. As previously mentioned, Mr. Shlaes had testified that the proposed project would, in his opinion, reduce the value of plaintiffs’ homes by ten to fifteen percent. That figure is rather meaningless without some basis of comparison. We question how much the residences would have depreciated in value if the Steins had built an arena on their property with seating for 2,000 people, or a 40-story building with a lower density than allowed under the B4-5 zoning; and what was the effect on the value of plaintiffs’ homes of the now existing parking lot and gas station? Mr. Dyke admitted that he would prefer to see the proposed apartment building go up than an animal hospital, which could have been built under the Cl-4 classification. He also insisted, when asked directly, that a Cl-4 was better for the Stein property than a B4-5, although his answers to less direct questions continually pointed out that the Cl-4 would have allowed for many uses which were far less desirable than the proposed apartment building under the B4-5.

Before the City Council passed the amendment which altered the zoning classification of the Stein property, hearings were held before the Committee on Building and Zoning. At those hearings in the spring of 1968, the Steins testified regarding their proposed use of the property. Some residents of the area testified, some favoring, some opposing, others apathetic to the proposed use. On May 28, 1968, the City Council approved the application and rezoned the property to B4-5.

We have concluded that the plaintiffs have not overcome the presumptive validity of the amendment. Our reading of the record discloses that the plaintiffs’ witnesses testified that they disagreed with the City Council’s action. That is not a sufficient reason to justify judicial interference with the legislative enactment. In Zilien v. City of Chicago, 415 Ill 488, 114 NE2d 717, the court said at page 492:

“In approaching the problem it is to be borne in mind that ordinances duly enacted lie behind the bulwark of presumptive validity and the burden is upon the one assailing them to overcome that presumption. Because of this presumption, we have consistently held that it must be clearly and affirmatively shown that the ordinances attacked are unreasonable and capricious, as claimed, for we will not upset the municipality’s action where there is room for a fair and debatable difference of opinion on the question.” [Emphasis supplied.]

In that case, the court concluded there was no debatable difference of opinion over the municipality’s amendatory zoning action. Evidence disclosed, among other things, that in eight consecutive blocks the zoning pattern alternated in a leap frog pattern between business and commercial uses and that the plaintiff’s property was thus rezoned from what it had previously been, by a process appearing to be dictated more by chance than reason. No such arbitrary process is involved in the case before us, and we hold that the trial court properly ruled that plaintiffs had failed to prove a case of spot zoning.

The plaintiffs had demanded a jury. After much preliminary discourse between the trial court and counsel for plaintiffs, the judge struck the jury demand because he felt there were no triable issues of fact and because he believed that when the plaintiffs requested “other relief” they were asking for an injunction against the proposed use. Since he felt that the relief requested was equitable in nature, there existed no right to a trial by jury.

The plaintiffs have cited cases in this court which deal with the issue of the right to a jury trial. However, we feel that a review of the cases cited is unnecessary. At the close of plaintiffs’ evidence the trial court entered judgment for all the defendants, and it is our opinion that this was correct, since the plaintiffs failed to prove their case. Accordingly, had a jury been sitting in the case, the judge, at the close of plaintiffs’ evidence, would simply have directed a verdict . for the defendants, rather than entering judgment. In other words, the case would never have gone to the jury even if one had been impaneled, and it would thus be absurd for this court to reverse the case on the ground that plaintiffs were deprived of their right to a jury.

The plaintiffs also complain that the rezoning was tantamount to the granting of a special privilege contrary to article IV, section 22 of the Illinois Constitution, and in their brief they argue as follows:

“. . . it would seem that if the Stein property warranted a zoning change, then other properties within this same exact zoning district also are entitled to the same change. Since the Stein property alone received the benefit of the redesignation, the Stein defendants have obtained a special privilege which is forbidden by our constitution.”

We reject this argument on two grounds. First, there was absolutely no evidence to indicate that other property owners in the area had applied for rezoning, and consequently, there is no basis for the statement that the Steins were treated more favorably than other owners would have been had they made similar applications. Second, even if others were denied the right to rezoning while the Steins were not, that fact alone would not make out a case of special privilege. There may well be many rational bases upon which a legislative body may grant one party its requested relief and deny the same relief to another. It would be an unacceptably restrictive rule which would compel a legislative body to be bound by an “all or nothing” proposition. When a city council decides that one change would be desirable for the welfare of the community, it does not mean that it is bound to allow the same change for everyone. Common sense dictates the necessity for affording latitude in the legislative process, with the caveat that the power entrusted to such bodies be not wielded arbitrarily.

Count II of plaintiffs’ original complaint pleaded an action for fraudulent concealment against the Stein defendants, and sought $500,000 in damages. The count was stricken and the plaintiffs urge that the striking was error. We disagree with the plaintiffs. In Count II plaintiffs alleged, among other things:

16. That the defendants, LINCOLN-PRATT BUILDING CORPORATION, an Illinois corporation, LESTER STEIN, SEYMOUR STEIN, and their attorney, WILLIAM GOODSTEIN, and each of them, failed to disclose at the aforesaid hearing that certain land adjoining said property and comprising approximately 165 linear feet of frontage on the east side of North Park Avenue were intended to be an integral part of the proposed erection and construction of an apartment building on the aforesaid property.
17. That said land was and still is zoned in an R-5 classification.
18. That at the time of the aforesaid hearing, said land was to be used by said defendants for purposes of driveways, pedestrian walkways and delivery and residence entrances of the proposed apartment building.
19. That at the time of the aforesaid hearing, certain structures located on said land were in the process of being negotiated for and acquired by the defendants.
20. That at the time of the aforesaid hearing, certain structures located on said land had already been acquired by and were already owned by the defendants.
21. That the failure of defendants to disclose at the meeting before the Committee facts concerning the actual intended use of R-5 zoned properties contiguous to the aforesaid described property . . . was a fraudulent concealment by the defendants, and each of them.
22. That the Committee would not have recommended to the Council that the proposed ordinance rezoning the aforesaid described property to pass had the members of the Committee been informed of the above-described facts which were concealed.

The R-5 zone referred to by the plaintiffs was the property on North Park Avenue, which was in an R-5 zone as of the date of the trial, and as far as this court is aware (according to the most current Zoning Ordinance maps) it is still zoned R-5. We fail to understand the relevance of the Stein defendants’ plans for the North Park property. Even if the allegations were true, we do not see why the defendants’ silence regarding their proposed use of that property would constitute fraudulent concealment before the Committee. We do not feel there was an affirmative duty on the part of the defendants to volunteer information regarding their intended use of the North Park property, even if they contemplated any such plans. The lot under consideration was the one currently in use as a parking lot and gas station, and not the property referred to in plaintiffs’ Count II. If the defendants have some plan in mind for the North Park frontage which will require another zoning amendment, then the time for disclosures regarding that property will be at the hearings specifically concerning it.

Whether or not there are such plans for acquiring the amendment or otherwise dealing with the property, it was irrelevant to the specific question of whether or not the City Council should have passed an amendment altering the zoning on the Wells Street frontage property from Cl-3 and Cl-4 to B4-5. The pleadings do not even allege that the defendants had been asked specific questions and had given false answers about the North Park property. They only state that the defendants did not volunteer information regarding their plans for the North Park property, and further plead a conclusion in paragraph 22 from the “fact” of the “concealment”; however, even though such a conclusion was pleaded, no such volunteering of information was required of the defendants. The trial judge properly struck Count II of the plaintiffs complaint.

Plaintiffs also make a frontal attack on the Chicago Zoning Ordinance, urging that those sections of the ordinance relating to zoning amendments are void for vagueness. The thrust of this argument is that there exist no standards which could serve as a guide to the granting or refusal to grant an amendment to the ordinance. The section on amendments in the ordinance appears in Article 11, commencing with § 11.9-1 and proceeding through § 11.9-8. Plaintiffs argue that a reading of the amendment sections discloses no standards which are to be taken into account in determining whether or not to grant an amendment to the Chicago Zoning Ordinance. The ordinance cannot be read in a vacuum. Section 11-13-1 of chapter 24, 111 Rev Stats 1967, enumerates zoning objectives:

“To the end that adequate light, pure air, and safety from fire and other dangers may be secured, that the taxable value of land and buildings throughout. the municipality may be conserved, that congestion in the public streets may be lessened or avoided, that the hazards to persons and damage to property resulting from the accumulation or runoff of storm or flood waters may be lessened or avoided, and that the public health, safety, comfort, morals, and welfare may otherwise be promoted, the corporate authorities in each municipality have the following powers: ”

Plaintiffs admit that this section enumerates “certain basic objectives of zoning,” but they feel that this is inadequate. The amendment power is specifically granted by section 11-13-14, but the power to amend is governed by the same standards as set out in the objectives section 11-13-1, quoted above. We believe that 11-13-1 sets out sound police power objectives and provides workable standards from which a legislative body may work.

Article 2 of the Chicago Zoning Ordinance also establishes standards; however, above and beyond these standards there remains the judicial power to review legislative enactments to insure that such enactments meet the requirements set out in the earlier part of this opinion. It is interesting to note that plaintiffs do not complain that the standards regarding initial zoning classification are void for vagueness, and yet the same standards that control initial classification also control amendatory zoning.

The Chicago Zoning Ordinance does contain express standards which govern decisions regarding variations, but without such assistance the legislative body would have no idea as to the criteria it should employ in deciding whether or not to grant a variation. These are granted because it is recognized that there may be “practical difficulties or particular hardships in the way of carrying out the strict letter of the regulations . . . .” Chicago Zoning Ordinance, § 11.7-1. Accordingly, it establishes standards for variations. Amendments, on the other hand, are controlled strictly by the regulations. Thus, the legislative body, in determining whether an amendment should be allowed, need only look to the objective section of the enabling statute (Ill Rev Stats 1967, c 24, § 11-13-1), and to Article 2 of the Chicago Zoning Ordinance, which sets out in detail the intent of the ordinance and the purposes sought to be established.

We feel that these sections are sufficiently explicit to advise one what his rights will be. That is not to say that one will always be able to foretell whether an amendment will be allowed. There remains an important permissible range of discretion which must be exercised by the legislative body. Our standard of review is to determine whether or not the legislative action was arbitrary and unreasonable. We hold that the zoning standards here attacked are not void for vagueness, based upon our reading of the amendment sections of the Chicago Zoning Ordinance (§§ 11.9-1 to 11.9-8) together with Article 2 of the ordinance which sets out the intent and purpose of the law, and with § 11-13-1 of the Illinois Municipal Code, which appears in chapter 24 of the Ill Rev Stats and establishes, among other things, the objectives of zoning law. These standards afford sufficient clarity to all concerned, but at the same time are flexible.

The plaintiffs urge that the City Council’s passage of the amendment constituted an abuse of discretion. They first contend that this court should review the transcript of the hearings before the Committee to determine whether due notice and a proper hearing were had. They never openly complained to this court that they did not receive due notice, nor do they question that a proper hearing was had. In fact, they were represented by counsel at the hearing, at which time several owners of contiguous property and several neighborhood associations appeared. We are told that the dictum in Anthony v. City of Kewanee, 79 Ill App2d 243, 223 NE2d 738, is authority supporting our right to look into the Committee proceedings. In that case the court said at page 247:

“The courts are without power to inquire into the wisdom of an ordinance or the motives which prompted its enactment with the possible exception that municipal ordinances may be impeached for fraud by persons injuriously affected thereby.”

We have previously rejected plaintiffs’ argument regarding their allegation of fraud on the part of the defendants ; thus, the Anthony case is inapplicable.

The plaintiffs would also have this court examine the Committee proceedings which we are told would reveal “such a paucity of factual information” that we would be led to the conclusion that any vote favoring the amendment must have been inherently unreasonable. The answer to this also lies in the Anthony case, where the court said at page 249:

“The Board’s reports or recommendations [in the present case the Committee’s recommendation] are advisory only and it is not required that the evidence produced at the hearings support the Board’s conclusion. More importantly, the municipal authority is acting in the performance of its legislative function and the propriety of the exercise of its discretion is not dependent on the adequacy or sufficiency of its knowledge or of supporting evidence. ... In the instant case the validity of the ordinance is presumed and such validity does not depend on the evidence presented at the hearings before the Zoning Board of Appeals.”

The plaintiffs’ last argument is that the trial court improperly dismissed one of the party-defendants. That point is mooted by our disposition of the case since we are affirming the judgment.

The defendants have filed a cross-appeal from the trial court’s dismissal of their counterclaim and from its order allowing plaintiffs to file an amended notice of appeal after their first one was stricken on the defendants’ motion. The counterclaim contains three counts, the first one alleging that plaintiffs had maliciously abused process. Defendants state:

“There are two essentials to an action for abuse of process: an ulterior purpose and an act in the use of legal process not proper in the regular prosecution of the proceedings. Dixon v. Smith-Wallace Shoe Co., 283 Ill 234, 119 NE 265; Bonney v. King, 201 Ill 47, 66 NE 377; Ammons v. Jet Credit Sales, Inc., 34 Ill App2d 456, 181 NE2d 601.”

Defendants’ allegations fail to plead an improper act in the use of legal process, although the counterclaim does contain allegations of ulterior purpose. Therefore, the trial court properly struck Count I.

Count II alleges malicious prosecution, and Count III alleges injury to reputation, credit and property resulting from malicious filing and prosecution. The defendants do not argue with the proposition that they must allege all essential elements, but they urge that they have done so. One of the elements which must be properly alleged under Counts II and III is the suffering of injury or damage as a result of the action or prosecution complained of. Schwartz v. Schwartz, 366 Ill 247, 252, 8 NE2d 668; Caspers v. Chicago Real Estate Board, 58 Ill App2d 113, 117, 206 NE2d 787. In the Caspers opinion the court concluded that special damages were not sufficiently alleged, and at page 120 quoted from Schwartz v. Schwartz, supra, as follows: “There are no allegations of Special loss to him of any character, over and above the ordinary expense and trouble attendant upon the defense of an ordinary civil suit.’ ”

In the case before us the defendants allege that as a result of plaintiffs’ having filed Count II of their complaint the defendants were damaged “in that financing which they were negotiating has been refused as a direct consequence . . . In support of the allegation they attached a letter to the pleading which they had received from a mortgage banking firm, advising the Steins that a loan of $225,000 which had previously been approved was refused “at this time due to the fact that our Credit Bureau Associates say that the principals involved are in litigation as shown by a matter of public record in case 68-L-16711. . . . Should these adverse procedures be adjudicated, we shall then be happy at that time to reconsider a new application.”

The case number shown in the letter is the docket number of this case in the Circuit Court. We think it significant that the letter does not state the loan was being refused because of the charge of fraudulent concealment; rather, that the Steins were involved “in litigation,” and were being sued. The Steins never charged that Count I of the complaint was improperly brought, and they seek no redress from plaintiffs’ filing of Count I. Bather, they assert that their financing was ruined because of plaintiffs’ filing of Count II. The letter does not justify a conclusion that it was Count II which caused the Steins’ difficulty, yet the letter was incorporated into the pleadings to verify that very claim. Its purpose is to do the opposite and leads this court to conclude that defendants’ allegations regarding special damage are simply based on sheer conjecture and speculation. It follows that a material element of both Counts II and III of the counterclaim was not properly pleaded, and the trial court properly dismissed them.

One further point should be made regarding defendants’ counterclaim. Generally, the party suing for a malicious prosecution must prove that the former pro-eeeding terminated in his favor. There are exceptions to this rule which are not applicable here. See Prosser on Torts, 2d Ed (1955) § 99. There are four reasons for a showing of this requirement of legal termination; they are set out in March v. Cacioppo, 37 Ill App2d 235, 185 NE2d 397, at page 246. The reason with which we are here concerned goes to the question of probable cause. Presuming that the party suing for malicious prosecution did not have judgment entered for him in the former proceeding, he cannot sustain his charge that the plaintiff in that proceeding had no probable cause upon which to have instituted his lawsuit. He must show that that former proceeding terminated in his (defendant's) favor; of course, it does not follow that because he won at the former proceeding it was initiated without foundation, and that fact must still be proved. But if he lost at the former proceeding he cannot be heard to complain in an independent action that the former proceeding was brought without probable cause. This would amount to a collateral attack on the judgment.

The question in this case is whether the dismissal of plaintiffs’ Count II was such a legal termination in defendants’ favor as to satisfy the requirement of legal termination for the purpose of justifying the defendants’ filing a suit charging malicious prosecution. Neither party to this controversy has cited Supreme Court Rule 273, which states: “Unless the order of dismissal or a statute of this state otherwise specifies, an involuntary dismissal of action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.” Several aspects of this rule have been considered in other opinions. Mages Sports Arenas, Inc. v. Winston Park Shopping Center, 112 Ill App2d 409, 251 NE2d 334 (retroactivity of the Rule); Brown v. Schoenberg, 121 Ill App2d 342, 257 NE2d 539 (inapplicability of the Rule under the facts of the case).

Under Rule 273 the dismissal of Count II of plaintiffs’ complaint was an adjudication upon the merits. The question remains, however, whether it was an adjudication which legally terminated the cause in favor of the defendants, as the phrase “legally terminated” relates to suits for malicious prosecution. We think not. One purpose of the legal termination requirement is to lay the groundwork for showing that no probable cause existed for the institution of the former proceedings. Can it be logically said that the dismissal of a complaint for failure to state a cause of action indicates there was no probable cause to have filed the complaint? The trial judge said in a memorandum: “Could anyone logically argue that dismissal of a complaint because of lack of jurisdiction, lack of capacity to sue, pendency of another action, or statute of limitations should be prima facie evidence of a lack of probable cause?” The judge thought not, and we agree.

We believe that the legal termination requirement necessitates a judgment which deals with the factual issue of the case, whether the judgment be rendered after a trial or upon motion for summary judgment. However, it is not sufficient to simply obtain a dismissal of the opponents’ complaint, for such dismissal need bear no logical relationship to the legitimacy of the assertions contained therein; therefore, such dismissal lends no credence to the claim that the assertions were baseless. Thus, if the defendants had properly alleged special damage we would still have sustained the trial court’s dismissal of their counterclaim because the dismissal of plaintiffs’ Count II did not serve as a sufficient legal termination of the cause.

Finally, the defendants argue that the trial court improperly allowed plaintiffs to file an amended notice of appeal. The first notice was stricken on defendants’ motion because it failed to designate the court to which the appeal was being taken. That designation is required by Supreme Court Rule 303(c) (1) (i). On oral motion the trial judge granted plaintiffs leave to file an amended notice of appeal, pursuant to Supreme Court Rule 303 (c) (4).

No complaint on this ground was made to this court until the defendants filed their briefs in the case. No motion was presented to us to dismiss the appeal on the ground of improper designation, and it is obvious that no prejudice resulted. The defendants point out that part of the reason for designation of the court requirement is so that both parties will know in which court to file their appearances, motions and other filings. After the error was rectified the defendants knew to which court the case was being appealed, yet they made no motion to dismiss the appeal. They have waived the issue by their delay. If they felt prejudiced by the trial court’s ruling they should have moved to dismiss the appeal.

The judgment of the Circuit Court is affirmed in all respects.

Affirmed.

LYONS and BURKE, JJ., concur.


text:
    People of the State of Illinois, Appellant, v. Robert Bryant, Appellee.
    Gen. No. 54,506.
    First District, Second Division.
    June 23, 1970.
    Rehearing denied July 24, 1970.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel), for appellant.
    No brief for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

The appeal in this court was taken by the State from an order quashing a search warrant and suppressing evidence under Supreme Court Rule 604. The issues before this court are whether there was probable cause to justify the issuance of a search warrant for the search of the person of the defendant and his apartment, and whether a three-day delay in the execution of a search warrant removes the validity of a search and seizure. The State filed a brief, but no brief was filed by the defendant.

On December 7, 1968, Chicago police officers obtained a search warrant for the person of Robert Bryant and a third-floor apartment at 5452 South Calumet Avenue, in Chicago. The warrant authorized the seizure of parimutuel lottery records of bets, lottery bet money, adding machine and tapes used in the offense of gambling. On December 10, 1968, the warrant was executed upon the person of the defendant at 55th and Prairie, in Chicago; evidence was seized, and the defendant was taken to his apartment where a search was conducted and additional evidence seized. The defendant was subsequently indicted for the offense of gambling. On July 1, 1969, at a hearing in the Circuit Court, the search warrant was quashed and the evidence suppressed. On July 31, 1969, the State filed a notice of appeal.

One of the reasons given by the trial judge for quashing the warrant and suppressing the evidence was that the case is controlled by People v. Bak, 45 Ill2d 140, 258 NE2d 341. At the time the State’s brief was filed, the Bak opinion was not a final decision in the Illinois Supreme Court, but it was later filed by that court and is controlling and directly in point. The question presented in that case is “whether the person against whom or against whose property a search warrant has been directed may dispute the matters declared under oath which led to the finding of probable cause and the issuance of a search warrant by the judicial officer.” [Page 141.] It was held that the defendant had no right to a hearing challenging the search warrant on the basis that the informer was not reliable, and that other allegations made by the affiant were not proved; and that there was no authority for the defendant to dispute the finding of the trial court that there was probable cause for the issuance of the search warrant presented to it. The court further held that it “declines to adopt a rule which it believes would unnecessarily permit a collateral and distracting evidentiary dispute.”

Under the ruling in Bak, no attack could be made upon the validity of the issuance of the search warrant. The warrant was issued on December 7, 1968, and executed on December 10, 1968. The three-day delay does not render it void. Ill Rev Stats 1967, c 38, § 108-6 provides that a warrant shall be executed within 96 hours from the time of issuance. In the instant case there was no delay beyond 96 hours.

The trial court admitted that an offense was committed by the defendant on October 15, 1968, as set out in the following portion of the complaint:

a. ) The informant had given reliable information in the past concerning gambling cases. Information was given six times, during approximately one year, which resulted in a number of convictions, with two cases still pending under indictment;
b. ) On October 15, the informant observed Bryant collecting pari-mutuel bets and money at 5507 S. Prairie Ave., Chicago, Illinois;
c. ) Robert Bryant was known to the affiant, Officer Davis to live at 5452 S. Calumet Ave., Chicago, Illinois, and to be a runner for a pari-mutuel lottery;

There was probable cause for the issuance of the warrant. In People v. In re Search Warrant Upon Person of William L. Johnson, 84 Ill App2d 143, at 147, 228 NE 2d 457, the court said, with reference to the question of probable cause necessary for the issuance of a search warrant, “Thus, the guiding principle in determining probable cause is common sense.” The Illinois courts have consistently found probable cause present for the issuance of search warrants where there was information from a reliable informant supported by police surveillance. People v. Williams, 27 Ill2d 542, 544, 190 NE 2d 303; People v. Williams, 36 Ill2d 505, 508, 224 NE2d 225; People v. Chatman, 38 Ill2d 265, 270, 230 NE2d 879.

In the case before us there was reliable information that the defendant was collecting pari-mutuel bets. The order quashing the search warrant and suppressing evidence is reversed and the cause is remanded for further proceedings.

Reversed and remanded with directions.

LYONS and BURKE, JJ., concur.