author: MR. PRESIDING JUSTICE SULLIVAN

text:
    Helen E. Stachnik et al., Plaintiffs-Appellees, v. Village of Norridge, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 50,300.
    First District, Third Division.
    February 3, 1966.

      Peter G. Schultz and Bernard J. Hennessy, of Chicago, for appellant.
    Smith and Munson and Simon Herr, of Chicago, for appellees.
   MR. PRESIDING JUSTICE SULLIVAN

The defendant, Village of Norridge, a Municipal Corporation, appeals to this court from a declaratory judgment in favor of the plaintiffs, Helen and Walter Stachnik, rendered by the circuit court of Cook County. The trial court found that the zoning ordinance of the defendant was unreasonable, discriminatory, confiscatory, unconstitutional and void insofar as it applied to the real estate of the plaintiffs.

The plaintiffs are the owners of property located at the southwest corner of Lawrence Avenue and Ozanam Avenue in the Village of Norridge. The entire tract of the plaintiffs consists of Lots 1, 2 and 3 and the north 13 feet of Lot 4, all facing Ozanam Avenue.

The Village of Norridge adopted a zoning ordinance in 1962, under which ordinance the village was divided into seven (7) districts, which are:

(1) R-l — Single Family Residence District

(2) R-2 — Two Family Residence District

(3) R-3 — Multiple Family Residence District

(4) B-l — Restricted Neighborhood Business District

(5) B-2 — Restricted (Shopping Center) Business District

(6) B-3 — General Business District

(7) “M” — Restricted Light Manufacturing District

The plaintiffs’ property was zoned B-2 Restricted (Shopping Center) Business District. Automobile service stations are placed in the B-3 General Business District classification.

The plaintiffs have entered into an agreement with Texaco Oil Company whereby Texaco has agreed to purchase lots 1 and 2 of plaintiffs’ property for $55,000, conditioned upon the property being rezoned B-3. At the present time, a house is situated on a portion of lot 2, and if the rezoning is successful, the house will be moved. The subject property extends 135 feet on Lawrence Avenue and 141 feet on Ozanam Avenue.

The plaintiffs applied to the Zoning Board of Appeals of the defendant village for a rezoning of the subject property to permit a gasoline service station to be erected thereon. The Board allowed the plaintiffs’ application. The trustees of the village overruled the Board. The plaintiffs thereupon sued for the aforementioned declaratory judgment, which was granted by the trial court.

Lawrence Avenue runs westward through the village of Norridge. It is intersected at right angles by Ozanam Avenue. The subject property is located on the southwest corner of this intersection. Immediately to the west of the plaintiffs’ property, on the south side of Lawrence Avenue, is a Convenient Food Market. It is part of an L-shaped shopping center containing a drug store, a package liquor store, coin-operated laundry and a beauty shop. West of the shopping center, across Opal Avenue, is a medical center and another beauty shop. Continuing 1,200 feet west to Canfield Avenue, a through north and south street, there are several older homes and a Baptist Church-Home for the Aged, which has a frontage of 66 feet on Lawrence Avenue at Canfield. Across the street therefrom there is a service station on the north side of Lawrence Avenue.

Immediately east of the plaintiffs’ property, across Ozanam Avenue, is another shopping center containing a variety store, a restaurant and delicatessen, and a card and gift shop. On the north side of Lawrence Avenue, across from the property in question, there are very modern single family homes which front on the side streets, Ozanam and Opal. From Opal, west, on the north side of Lawrence, it is entirely residential to Canfield.

The property surrounding the subject premises is zoned either for residential purposes, B-l Restricted Neighborhood Business District, or B-2 Restricted (Shopping Center) Business District. The nearest B-3 zoning is four blocks away.

At the trial, the evidence and testimony adduced on behalf of the plaintiffs was as follows: There was ample shopping center use in the neighborhood. The retail uses in the area have reached a saturation point. There were three vacant stores in the shopping center east of the subject property that have been vacant for some time. The subject property is “sandwiched in” between the two shopping centers. The business uses to the west and those to the east have almost created a “Chinese Wall” around this property. It is isolated by two blank walls, and the orientation of other business uses is away from the property.

The best use of the premises would be in the next higher classification of zoning, permitting the erection of a service station thereon. The use of the premises for such a service station would have no depreciatory effect on the surrounding property. The value of the land if used for a business building would be approximately $12,500. However, if it were rezoned to permit a service station, the land value would be between $45,000 and $50,000.

The evidence and testimony adduced on behalf of the defendant was as follows: Taking into consideration the size of the property and the nature of the surrounding property, the best use of the subject premises would be a business use. The income would be safer and greater from stores and business rather than a special purpose use. The property could be made more productive for other business uses than for a single business use. The variation from the existing zoning would have a poor effect on the surrounding property. The present fair market value of plaintiffs’ property was $40,000, and this value would remain about the same even if the zoning were changed to permit a service station.

The existing zoning encourages the activity and well-being of the present business interests in the area in that a business district is best served with a uniform type of business without having a gas station break it up. Two of the three stores that were vacant in the shopping center to the east of the subject premises were rented at the time of the trial; the other store was going to be used by the builder of the center as his own office.

The trial court found that since a portion of the village had been set aside for business, a gasoline service station could not be considered a detriment to the area. Further, it found that the plaintiffs had sustained the burden of proof of overcoming the presumption of the validity of the municipal ordinance, and the ordinance was therefore void as to the plaintiffs’ property.

The decision of the trial court must be reversed. From our examination of all of the evidence presented and the testimony given, it is clear that the plaintiffs have not met their burden of showing by clear and convincing evidence that the ordinance, as applied to their land, is arbitrary and unreasonable. A zoning ordinance is presumed valid. Only by clear and convincing evidence can this presumption be overcome. LaSalle Nat. Bank v. County of Cook, 12 Ill2d 40, 145 NE2d 65; Bright v. City of Evanston, 57 Ill App2d 414, 425, 206 NE2d 765.

As the Bright case pointed out: “However, the presumption of validity may be overcome where the evidence shows a destruction of property value in the application of the ordinance, and an absence of any reasonable basis in public welfare requiring the restriction and the resulting loss.” (Emphasis added.) The plaintiffs contend that since the evidence shows that the value of their land would be seriously impaired if its use is restricted by the ordinance, as compared to its value if used for a service station, the trial court properly declared the ordinance invalid.

We do not agree. As the facts reveal, the evidence of the plaintiffs is that the value of the premises would be much less if the land is restricted to B-2 zoning, while the evidence for the defendant shows no such discrepancy in land values. Assuming that the plaintiffs are correct in their contention that they will suffer a financial loss, such factor is not controlling, nor does it justify a conclusion that the ordinance is confiscatory. Reeve v. Village of Glenview, 29 Ill2d 611, 616, 195 NE2d 188. That factor is to be considered in determining the validity of the ordinance, but it is not of itself determinative, particularly where the proposed use would depreciate the value of the other property in the neighborhood. This factor is important only where there is an absence of any reasonable basis in public welfare requiring the restriction and resulting loss.

In the case of Ryan v. County of Du Page, 28 Ill2d 196, 190 NE2d 737, on facts quite similar to those in the instant appeal, the plaintiff had an agreement with Martin Oil Service Company whereby the latter would purchase plaintiff’s tract for $50,000.00, provided the zoning would be changed to allow the erection of a service station. The plaintiff argued that a great discrepancy in land values made the ordinance confiscatory, and the ordinance bore no relation to the public welfare. The court decided that the property took its character from the surrounding area, and the fact that it was zoned in conformity with surrounding existing uses was of paramount importance. The court stated at page 198 of the opinion: “There is a substantial difference in the value of the tract depending upon the zoning classification, but as we have repeatedly pointed out that is usually true and is not in itself decisive.” (Citing cases.) The court also held that the evidence was neither clear nor convincing that the property could not be sold for other uses. Similarly in the instant case, there was no evidence offered that the plaintiffs have attempted to sell their property under the existing zoning classification.

The Supreme Court has pointed out in LaSalle Nat. Bank v. County of Cook, supra, that one of the factors to be considered in determining the validity of an ordinance is “the existing uses and zoning of nearby property.” (Cf. Reeve v. Village of Glenview, supra.) The record shows that the plaintiffs’ property is zoned in conformity with the surrounding area. The evidence reveals that in a several block area adjacent to the plaintiffs’ land, on the south side of Lawrence Avenue, the uses are all in accord with the .B-2 Shopping Center District zoning, while on the north side of the street, the land is all residential, with the exception of one parcel zoned for business, B-l. These facts reveal a uniform system of zoning which will not be disturbed by this court.

Further, we believe that the effect of declaring the zoning ordinance invalid as applied to plaintiffs’ property would be “spot zoning.” This change in zoning would permit an encroachment of a B-3 zoning use into an area uniformly zoned B-l, B-2, or residential.

The plaintiffs argue that the subject property is isolated from the surrounding businesses because of the blank walls of the stores to the east and the west. Allegedly these walls have created what plaintiffs refer-to as a “Chinese Wall” around the property. It is common knowledge that most business structures have blank outside walls of necessity. When the plaintiffs argue that this situation causes an isolation of their property they are reciting a very common situation. The one blank wall is a part of the building across the street from the subject property. The distance of this wall from the subject property refutes the contention of plaintiffs that they are “sandwiched in” by these two walls.

The plaintiffs contend that where there is a conflict of opinion in testimony, the findings of the trial court will not be disturbed unless manifestly against the weight of the evidence. This is the rule. It is, however, clear to us that the evidence, even when viewed most favorably to the plaintiffs, falls far short of overcoming the presumption of the validity of the ordinance. Standard State Bank v. Village of Oak Lawn, 29 Ill2d 465, 471, 194 NE2d 201. At best, the evidence reveals a legitimate difference of opinion as to the reasonableness of the ordinance, and, under such circumstances, the legislative judgment must prevail. The determination of the municipal authorities should be respected. In cases such as this, their judgment is conclusive. Bolger v. Village of Mount Prospect, 10 Ill2d 596, 141 NE2d 22; Exchange Nat. Bank of Chicago v. County of Cook, 25 Ill2d 434, 185 NE2d 250; Fox v. City of Springfield, 10 Ill2d 198, 139 NE2d 732.

The presumption of the validity of the zoning ordinance has not been overcome in this case. The judgment of the circuit court of Cook County is reversed.

Reversed.

SCHWARTZ and DEMPSEY, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE DEMPSEY

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Clarence Hill, Defendant-Appellant.
    Gen. No. 50,343.
    First District, Third Division.
    February 3, 1966.

      R. Eugene Pincham and Charles B. Evins, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Willie M. Whiting, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

After a non jury trial in the First Municipal District of the Circuit Court of Cook County the defendant, Clarence Hill, who was not represented by counsel, was found guilty of theft “in manner and form as charged in the complaint herein” and was sentenced to the House of Correction for six months. The defendant asserts that his conviction should be reversed because he was tried under a void complaint and by a court which lacked jurisdiction.

The complaint was drawn on a quasi-criminal form but was in reality a criminal complaint which charged that Clarence Hill,

“. . . on or about 16 August -64 at 4646 S. Halsted St. committed the offense of theft, in that he knowingly obtained unauthorized control over 4 Mens Shirts value of $6.78 and 4 Mens Sweaters value of $39.48 and 6 Boxes of Handkerchiefs value of $5.00 —total value — $51.26 the property of Community Discount Store at 4646 S. Halsted St. intending to deprive the owner permanently of the use and benefit of said property in violation of Chapter 38, Section 16-lal, of the Municipal Code of the City of Chicago.”

The complaint is defective in several particulars, some of which go far beyond formal technicalities or niceties of pleadings. The most flagrant defect is that venue is not alleged. The complaint does not say in what city, county or state the offense was committed. A defendant has a constitutional right to be tried in the county in which the offense is alleged to have been committed. Constitution of Illinois, art II, sec 9. It follows that if there is no allegation of the county in which the offense took place the jurisdiction of the court is not established. The complaint was filed in the Circuit Court of Cook County and it is essential that the complaint show on its face that the offense took place in Cook County. People v. Petropoulos, 59 Ill App2d 298, 208 NE2d 323 (1965). An address, such as “4646 S. Halsted St.,” and nothing more, is insufficient for this purpose. A court cannot conjecture that it is the only court that has such an address within its jurisdiction. In People v. Strong, 363 Ill 602, 2 NE2d 942 (1936), it was said that venue in an indictment “must be stated with such precision that the court can see that a criminal offense has been committed within its jurisdiction.” In People v. Powell, 353 Ill 582, 187 NE 419 (1933), the court said: “Venue is not a matter of form — it is a matter of substance. It is jurisdictional. It is absolutely essential that the venue of the alleged offense be stated in clear, apt and concise terms by the indictment.” Our courts have long made it clear that it is essential to allege the county in which the crime took place. It has been held that venue may be proved by circumstantial evidence (People v. Allen, 413 Ill 69, 107 NE2d 826 (1952)) and that venue may sometimes be proved by testimony concerning a street address (People v. Pride, 16 Ill2d 82, 156 NE2d 551 (1959)) but both of these cases unequivocally state that the charge that a crime was committed in a particular county is a material averment. In People v. Williams, 233 Ill App 53 (1924) an information charged that the offense was committed in the City of Chicago. The Appellate Court held that this was sufficient because the court would take judicial notice of the fact that Chicago is in Cook County. However, no case has been called to our attention which' intimates that venue may be alleged by only a street address. Nor has any case been cited which holds that the printed caption on an indictment or complaint is an averment of where the offense was committed. A caption which states the place where the court is sitting cannot be substituted for essential allegations. For example, it has been held that captions are not to be considered in determining whether the indictment states the elements of the offense or whether the prosecution of the offense is within the statute of limitations. People v. Sellers, 30 Ill2d 221, 196 NE2d 481 (1964); People v. Shaw, 300 Ill 451, 133 NE 208 (1921).

The same certainty of allegation is required in an information or a criminal complaint as in an indictment. People v. Ring, 275 Ill App 214 (1935). The failure of the complaint to allege commission of the offense within the county over which the trial court had jurisdiction would have been reason for a motion to dismiss (Ill Rev Stats 1963, c 38, § 114-1 (a) (6)) and would have been cause for arresting the judgment (c 38, § 116-2 (b) (2)) ; and it is a substantive deficiency which makes the judgment of conviction void.

The complaint fails to allege that the theft was from an entity legally capable of owning property. In an indictment for theft the ownership of the property allegedly stolen is a necessary averment. People v. Cohen, 352 Ill 380, 185 NE 608 (1933); People v. Smith, 341 Ill 649, 173 NE 814 (1930). The complaint avers that the property stolen belonged to a store — the Community Discount Store. If the Community Discount Store was a corporation, its corporate existence should have been alleged. People v. Brander, 244 Ill 26, 91 NE 59 (1910). If the store was not an entity capable of owning property, the ownership should have been alleged in the individual or individuals who owned the property.

In charging that the theft was in violation of chapter 38, section 16-lal of the Municipal Code of Chicago, the complaint not only fails to cite the. correct statute but cites a nonexistent ordinance. Chapter 38 of the Municipal Code of Chicago deals with harbors, wharfs, docks and bridges. It does not contain a section 16-lal, and no section of chapter 38 and no other section of the Chicago Municipal Code describes the offense of theft or prescribes penalties for its commission. The intention obviously was to charge the defendant with violation of section 16-1 (a) (1) of the Criminal Code of 1961. In not doing so, the complaint contravenes section 111-3 (a) (2) of the 1963 Criminal Code of Procedure which provides:

“(a) A charge shall be in writing and allege the commission of an offense by:
“ (2) Citing the statutory provision alleged to have been violated. . . .”

Failure to cite the statute or the correct provision thereof is error but, in view of the description of the offense given in the complaint, is not an error which, in itself, vitiates the complaint. The complaint describes the offense of theft by charging that the defendant knowingly obtained unauthorized control over the property of the owner and intended to deprive the owner permanently of the use and benefit of the property. Ill Rev Stats 1963, ch 38, sec 16-1 (a)(1). The complaint adequately informed the defendant of the nature and cause and the elements of the charge against him so that he knew precisely what he was called upon to meet, and thereby fulfilled the requirements of article II, section 9 of the Constitution and of section 111-3 (a) (3) of the 1963 Code of Criminal Procedure. People v. Burns, 403 Ill 407, 86 NE2d 197 (1949); People v. Brown, 336 Ill 257, 168 NE 289 (1929). Failure to cite the proper statutory provision alleged to have been violated is not a ground for dismissal under section 114-1 (a) or for arresting judgment under section 116-2 (b) of chapter 38, and cannot be equated with a failure of the charge to state an offense. People v. Bridges, filed January 27, 1966, 67 Ill App2d 236, 214 NE2d 539. Because this complaint states an offense, it is not vulnerable either to a motion to dismiss under section 114-1 (a) (8) or to a motion in arrest of judgment under section 116-2 (b) (1) of chapter 38, and it is not subject to the attack that the conviction based upon it is void. People v. Bridges, filed January 27, 1966, 67 Ill App2d 236, 214 NE2d 539.

A lesser shortcoming of the complaint is the date given for the offense: “16 August -64.” The date, like the inaccurate statutory citation, points up the carelessness with which this complaint is drawn. The defendant argues that since the offense is said to have taken place in the year 64, the prosecution is barred because it is not within the time fixed by law for the prosecution of theft of property less than $150. If an offense is laid on an impossible date or a date beyond the statute of limitations, a complaint is defective. People v. Weinstein, 255 Ill 530, 99 NE 589 (1912). However, we regard the date “16 August -64” as incomplete rather than as a decisive error. A date beyond the statute of limitations is reason for the dismissal of a complaint under section 114-1 (a) (2) of the 1963 Criminal Code of Procedure which deals with motions to dismiss predicated upon prosecutions being barred by section 3-5 (b) (general limitation provision) of the Criminal Code of 1961. But if a motion to dismiss is not made prior to trial and within a reasonable time after arraignment, it is waived. Ill Rev Stats 1963, ch 38, sec 114-1 (b). Moreover, an indefinite or questionable date would support a motion for a bill of particulars. Ill Rev Stats 1963, ch 38, sec 114-2 (a).

If a criminal complaint is void it can be challenged at any time and if need be, for the first time in a court of review. People v. Green, 368 Ill 242, 13 NE2d 278 (1938); People v. Stringfield, 37 Ill App2d 344, 185 NE2d 381 (1962). In People v. Fore, 384 Ill 455, 51 NE2d 548 (1943) the court said that where an indictment does not charge an offense the judgment of conviction must be reversed notwithstanding the fact that the point was not raised in the trial court,

“. . . as no waiver or consent by the defendant to a criminal prosecution can confer jurisdiction or authorize his conviction in the absence of an accusation charging him with a violation of the criminal law.”

Because of the errors related, the judgment of conviction is reversed.

Reversed.

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


author: MR. JUSTICE SCHWARTZ

text:
    Jack M. Polivka et al., Plaintiffs-Appellees, v. The County of Cook, a Body Politic and Corporate, Defendant-Appellant.
    Gen. No. 50,351.
    First District, Third Division.
    February 3, 1966.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Edward J. Hladis, Chief of Civil Division and Donald J. Yeverka, Assistant State’s Attorney, of counsel) , for appellant.
    Haskins, Maguire & Haskins, of Chicago (Robert E. Haskins and C. W. Eckert, of counsel), for appellees.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a declaratory judgment proceeding the trial court found that defendant’s zoning classification of plaintiffs’ property as R-4 (single family residential) was arbitrary and discriminatory and that plaintiffs should be allowed to develop their property with a gasoline station and stores, as permitted in a B-2 zone.

The subject property is located on the southwest corner of 55th Street and Wolf Road on the outskirts of the City of Chicago. It is presently improved with a small delicatessen style restaurant called the Cupboard. Adjoining plaintiffs’ lot to the west is an animal hospital, a single family residence and a grocery-poultry store. The hospital and store were made nonconforming uses when the area was comprehensively zoned R-4 in 1960.

To the west of the store, less than 100 yards from the property here in question, is an area of 60,000 square feet owned by a realtor who is engaged in the development of single family residences in the neighborhood. That property is improved with a residence type structure housing a real estate office and was originally included in the area zoned R-4. The realtor, however, obtained a rezoning of the site to a B-3 classification (general business usage). That would not only permit the realtor to establish a gasoline station in the area, but would also permit uses lower than B-2, the classification the plaintiffs seek and which the trial court allowed. The alleged purpose justifying this diverse classification was to enable the realtor to maintain his real estate office permanently as a buffer between the nonconforming business uses fronting on 55th Street and the single family residences which were to be developed on tracts to the south, also owned by the realtor.

Plaintiffs contend that defendant discriminated against them by refusing their request for a B-2 usage, while granting a B-3 classification to the realtor, whose property was situated within 100 yards of theirs. Plaintiffs note that justification for the commercial zoning of their property is far greater than that supporting the rezoning of the realtor’s land. Plaintiffs’ lot, on the corner of a heavily traveled intersection, is already improved with a nonconforming use and is located among other business uses. The realtor’s lot, in comparison, is located in the middle of the block and was undeveloped at the time of the rezoning. Plaintiffs allege that the erection of a gasoline station on the corner will have little effect on the neighborhood to the southwest, whereas the improvement of the realtor’s lot to the extent of the permitted usage would discourage future residential development on adjoining lots.

Plaintiffs also allege that the action of the defendant was unreasonable in that it penalized plaintiffs without substantially benefiting the community. Testimony was introduced tending to show the undesirability of residential development on plaintiffs’ property due to the adjacent animal hospital and the possibility of a gasoline station or other commercial usage on the realtor’s land. The existence of a contract of sale of plaintiffs’ land for $110,000, contingent upon the owners securing permission for usage as a gasoline station, established the value of the lot if zoned commercially. Plaintiffs’ expert placed the value of the property as presently zoned at $24,000, which figure the defendant did not dispute. Although the element of property values is not controlling in determining the validity of a zoning ordinance, the loss to the property owner caused by the ordinance should be justified by substantial benefit to the public welfare. Krom v. City of Elmhurst, 8 Ill2d 104, 138 NE2d 1.

Defendant argues that the zoning is justified because the area is “uniformly zoned and used, with a few minor exceptions, for single family residential purposes,” that the realtor has erected a structure substantially conforming to the character of the emerging neighborhood and has shown no inclination to alter or increase the usage of his property.

The realtor testified that the reason for rezoning his plot was to facilitate the sale of homes. On cross-examination he said that his objections to a gasoline station were purely economic. It is a fair assumption that when economics so dictate the realtor will construct a gasoline station or other structure permitted by the B-3 classification. This gives the realtor a rare and valuable advantage over plaintiffs and other property owners in the area, in that he controls the only land which may be developed as a gas station or other enterprise within the broad provisions of the B-8 classification. He can let the property remain vacant and watch the demand increase for a gas station or other business within the B-3 classification and sit secure in his monopoly until he thinks the time has come to sell. A zoning ordinance, although reasonably designed to protect public health, safety or welfare, cannot in such guise effect an arbitrary discrimination against the class upon which it operates by omitting from its coverage properties similarly situated. Ronda Realty Corp. v. Lawton, 414 Ill 313, 111 NE2d 310; City of Chicago v. Sachs, 1 Ill2d 342, 115 NE2d 762; Frost v. Village of Glen Ellyn, 30 Ill2d 241, 195 NE2d 616; Dalkoff v. City of Rock Island, 17 Ill2d 342, 161 NE2d 292; Colvin v. Village of Skokie, 54 Ill App2d 22, 203 NE2d 457. In the Colvin case last cited, the plaintiff sought permission to build a gasoline station on his lot, which was zoned single family residential. The request was denied despite the granting of a variation for identical purposes to the adjoining landowner. This court held the ordinance discriminatory and void as to the plaintiff’s property, reasoning that the spot zoning indulged in by the village destroyed the uniformity of surrounding uses and “would undermine its [the village’s] opposition to future petitions by other landowners for the same favorable variation.”

The defendant cites cases for the proposition that a zoning ordinance is not discriminatory merely because nearby properties are zoned to permit different uses. In Mundelein Estates, Inc. v. Village of Mundelein, 409 Ill 291, 99 NE2d 144, the village zoning ordinance established uniform districts and prescribed certain uses for each district. A property owner sought a declaration that the ordinance was unreasonable as applied to his property because of the commercial uses allowed in an adjoining district located across the street. The Illinois Supreme Court said that the fixing of zoning lines is a matter of legislative discretion and “necessarily results in a different classification on either side of the boundary line,” but the existence of such difference in itself does not make the ordinance invalid.

So in Ryan v. City of Elmhurst, 28 Ill2d 196, 190 NE2d 737, a property owner was denied permission to improve his land with a commercial structure where the entire area was zoned and developed residentially, despite the presence of nearby business uses across the zone boundary. Accord, Bennett v. City of Chicago, 24 Ill2d 270, 181 NE2d 96; Reeve v. Village of Glenview, 29 Ill 2d 611, 195 NE2d 188.

In each of the foregoing instances, the zoning body determined that a portion of the community was to be improved commercially while the remainder was to be restricted to residential development. Landowners within the areas zoned residentially were treated similarly despite the necessary proximity of some to the business districts. What distinguishes those situations from the instant case is the discrimination present here in the rezoning of one piece of property for commercial usage at the owner’s request, while denying permission to plaintiffs to develop their property with a less intensive use, notwithstanding the fact that the favored owner’s property was in the middle of the block on property substantially undeveloped, while plaintiffs’ land was located at a heavily trafficked intersection amid nonconforming business uses.

The judgment is affirmed.

Judgment affirmed.

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


text:
    The People of the State of Illinois, ex rel., Louis Selvaggio et al., Plaintiffs-Appellees, v. The Village of River Grove, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 50,471.
    First District, Third Division.
    February 3, 1966.

      McDonnell & McDonnell, of Chicago (Bernard J. McDonnell, Jr., of counsel), for appellant.
    Wisch, Crane & Kravets, of Chicago (Myron E. Wisch and Leonard Kravets, of counsel), for appellees.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The plaintiffs are the owners of a 50-foot wide and 183-foot deep vacant lot in the Village of River Grove. The lot is zoned for a single family residence. Two months after purchasing the lot the plaintiffs petitioned the Village Board of Zoning Appeals for a variation to permit them to build thereon a four apartment building. The board rejected the petition and the Village Board of Trustees upheld the zoning board. The plaintiffs then brought this mandamus action. The Circuit Court held that the zoning ordinance of the Village was invalid insofar as it related to the plaintiffs’ property and ordered that a building permit be issued for the erection of the proposed building. The Village appealed.

The issue before this court is whether the plaintiffs have sustained the burden of presenting evidence which clearly and convincingly overcomes the presumptive validity of the ordinance in question.

The plaintiffs’ lot is in the middle of the block on the east side of Hessing Street, a north and south street. The block in which the lot is located is bounded on the south by Grand Avenue and on the north by the tracks of the Chicago, Milwaukee and St. Paul Bailroad. The block is approximately 600 feet long from Grand Avenue to the railroad right-of-way.

The center of the block on both sides of the street is zoned for single family residences and is used exclusively for this purpose. There are five such residences on the east side of the street and seven on the west side, all about 40 to 50 years old. The plaintiffs’ lot is the only unimproved property in the block. The ends of the block are zoned for commercial and industrial uses. Grand Avenue to the south is a busy thoroughfare zoned throughout the Village for commercial use. The northeast corner of Grand and Hessing is occupied by a gasoline station; the northwest corner by a 2-story building with an electrical company and a cleaning establishment on the first floor and an apartment on the second floor. An east and west alley which runs parallel to Grand Avenue separates the commercial and residential areas. At the north end of the block, at the railroad tracks, Hessing becomes a dead-end street. The east side of the street next to the tracks is zoned industrial and there is a lumber yard there which fronts 175 feet on Hessing and extends eastward along the railroad right-of-way to Clinton Street, which is the next street to the east. There is one small factory building and the foundation for another next to and south of the lumber yard on Clinton Street. The west side of Hessing Street adjoining the tracks is zoned for commercial use and a 2-story, 12-apartment building is located there. It occupies about 20 feet on Hessing and extends westward three or four times that distance. It is directed toward, and its entrances face, the railroad tracks.

There are two residences between the plaintiffs’ lot and the alley to the south and three residences between it and the lumber yard to the north. The lot is not only in the middle of the single-family homes on Hessing Street but it is approximately in the middle of an area of four contiguous blocks principally zoned for single family residences. As we have seen there are exceptions to the single family zoning in the area, and industrial, commercial and multiple family uses are permitted in some locations.

The mixed character of the zoning in the area is the principal reason advanced by the plaintiffs in their contention that the zoning ordinance is capricious and arbitrary and that it bears no reasonable relationship to the public health, safety, morals and welfare of the community. They also point to the suitability of the use they propose to make of their property, the hardship the ordinance imposes upon them, the effect of the ordinance on the value of their land, the age of the neighboring residences and the fact that their lot has not been improved nor sold for many years and is the only vacant one in the area.

The plaintiffs’ contentions find support in the testimony of two real estate experts who stated that in their opinion the highest and best use of the subject property would be that of a multiple family building. They estimated that the property, which was purchased by the plaintiffs for $6,500, would be worth about $7,000 for single family use but worth $12,000 if a multiple family structure were permitted. They testified that there was no ready market for the lot as presently zoned. One expert thought that the erection of an apartment building on the subject property would rejuvenate the neighborhood.

The evidence presented by the Village was meager. The Village’s building commissioner was its only witness and he merely identified photographs and described the vicinity surrounding the plaintiffs’ property. Nevertheless, after a careful evaluation of the testimony and exhibits of both parties we are of the opinion that the plaintiffs have failed to show by clear and convincing proof that the ordinance is invalid in its application to the property in question.

The validity of each zoning ordinance must be determined on the facts and circumstances applicable to the particular case. LaSalle Nat. Bank v. County of Cook, 60 Ill App2d 39, 208 NE2d 430 (1965). A municipal ordinance is presumed to be valid and the party attacking its validity has the burden of overcoming this presumption. If there is room for a reasonable difference of opinion, the judgment of the legislative body that enacted the ordinance must be upheld. Bright v. City of Evanston, 57 Ill App2d 414, 206 NE2d 765; Maywood Proviso State Bank v. Village of Berkeley, 55 Ill App2d 84, 204 NE2d 144.

In the instant case we believe there is room for a reasonable difference of opinion as to the validity of the ordinance and the judgment of the trial court should not have been substituted for that of the Village Board of Trustees. In reaching this conclusion we have taken into consideration the relative gain to the public as compared to the hardship upon the plaintiffs, the suitability of their property for the purpose for which it is zoned, the length of time it has been vacant, the existing uses and the zoning of property in the vicinity of the plaintiffs’ lot, the property values involved and the extent to which the present zoning promotes the health, safety, morals and general welfare of the public. La Salle Nat. Bank v. County of Cook, 12 Ill2d 40, 145 NE2d 65 (1957).

The plaintiffs’ lot is surrounded on four sides with single-family dwellings. It is zoned in conformity with these surrounding, existing uses. These uses are uniform and have been long established. Although the nearby dwellings are old, they appear to be in good repair; the fact that they are 40, 50 or more years old does not lessen their right to the protection of the zoning ordinance. While there are implications in the record concerning the possibility of illegal, nonconforming, multi-family use of some of the single family residences, such testimony is vague and totally inconclusive. The mere fact that the plaintiffs’ lot remained unimproved does not of itself impute unsuitability to the indicated zoning. The market value of the lot for its zoned usage is greater than at the time of its purchase and no substantial financial hardship is imposed on the plaintiffs by the retention of the present ordinance. The possibility that rezoning the property might increase its value does not establish the invalidity of the ordinance. The permitted industrial and commercial uses are in areas zoned for these uses and in general they abut on Grand Avenue and the railroad right-of-way; they are on the perimeter of the single family group of homes which are orientated toward their own streets and not toward Grand Avenue or the railroad. Zoning must begin somewhere and the lines of demarcation between the industrial and commercial zoning on the one hand and the single family classification on the other are not indisputably arbitrary and capricious. Bennett v. City of Chicago, 24 Ill2d 270, 181 NE2d 96 (1962); Bright v. City of Evanston, 57 Ill App2d 44, 206 NE2d 765 (1965).

The defendant’s zoning ordinance insofar as it classifies the plaintiffs’ property bears a reasonable relationship to the well-being of the Village of River Grove and the judgment of the Circuit Court is reversed.

Reversed.

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


author: MR. PRESIDING JUSTICE DRUCKER

text:
    People of the State of Illinois, Defendant in Error, v. Louis Watkins (Impleaded), Plaintiff in Error.
    Gen. No. 50,600.
    First District, Fourth Division.
    February 4, 1966.
    H. A. Sanford, Jr., of Chicago, for plaintiff in error.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and George Saméis, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant, Louis Watkins, was convicted after a jury trial of the unlawful sale of narcotic drugs and was sentenced to the penitentiary for not less than ten nor more than fifteen years. In this appeal defendant contends that he was not proven guilty beyond a reasonable doubt.

Defendant was arrested on March 7, 1963, for his alleged participation in the illegal sale of the narcotic drug heroin to Charles Perry, an informer and “special employee” of the Chicago Police Department. Perry testified that he was previously a narcotics addict but that he hadn’t used any drugs for about three years; that he is “unemployed” but is a professional informer and has testified in courtrooms on numerous occasions; that on March 7 he went to the 11th Street Police Headquarters where he met Officers Donald Dura and Robert Lopez; that he was asked to strip and was searched; that after getting dressed he was given $25, two tens and five ones. The witness further testified that the three men drove to the vicinity of Madison and Leavitt where the officers parked and remained in their car, while he (Perry) went unaccompanied into a restaurant on the corner looking for a narcotics dealer named Chuck; that he was unable to locate “Chuck” but had a conversation with Elliot Willis and Horace Ferguson, who introduced him to the defendant. Perry then testified as to his conversation with defendant:

I told Watkins I wanted to get two halves, that is, a sixteenth of heroin. He told me I could if I had the money and I told him I had it.

Perry also related that:

I gave Mm [defendant] the $25.00 and he gave the $25.00 to Ferguson and told him to take it across the street and get it changed. Ferguson left the restaurant and went across the street to the tavern. Ferguson came back in the restaurant and gave Watkins back the $25.00. I do not know whether the $25.00 Ferguson gave Watkins was the same $25.00 I gave Ferguson. I do not know if it was in the same denomination. Then Watkins told Ferguson to come and go with him and Ferguson and him and Ferguson [sic] went out of the restaurant.
Then Watkins and Ferguson came back the front of the door and I came out of the restaurant. Watkins went to hand me the package and Ferguson told him that he would give it to me. Ferguson took the package and we [Perry and Ferguson] started down the street.
When we got halfway down the street I took my cap off and the police officers turned the car around and when we got to the corner of Hoyne they jumped out and placed us under arrest .... I gave the tin foil package that I had to Officer Dura and told him that was the package I had purchased. Willis had left our presence to get his outfit which is what you inject the heroin into you with. When he came back Officer Dura and Officer Lopez placed him under arrest. After they had put him in the car I seen Watkins drive by and I pointed him out to Officer Lopez and Officer Dura and they placed him under arrest.

Officer Dura testified and identified Charles Perry as a special employee of the police department. He corroborated those portions of Perry’s testimony with respect to the events in the police station when the informer was given the money. He stated on cross-examination that from his parked car he could see only the exterior of the restaurant and that:

Up to the point where I saw Willis and Ferguson leave the restaurant with Mr. Perry I had not seen the defendant Louis Watkins. I had not seen Mr. Watkins at the time Mr. Perry raised his hat to give the signal.

Officer Dura also testified that defendant at no time admitted selling the norcotics.

The testimony of Officer Lopez was substantially the same as that of Officer Dura. He also stated that at no time did he see the defendant in the company of Ferguson or Perry; that no money was found on the defendant when he was arrested; and that upon his arrest defendant was told that he was charged with selling narcotics, after which he replied: “I didn’t sell any narcotics to anyone.” Officer Lopez also testified that he had known the informer for approximately a year or two; that when he first met Perry he believed that Perry was a narcotics addict; and that based upon his experience of six years as an officer with the narcotics bureau and his observation of thousands of addicts, he was of the opinion that Perry was an addict on March 7,1963.

Elliot Willis testified that on the date of this sale he was a drug addict. He twice stated that Perry handed the money to Ferguson while in the restaurant but later said that the defendant was the recipient thereof, and subsequently testified thht' the defendant did not return to the restaurant with Ferguson. He stated that: “Ferguson came back alone and Perry approached me for an outfit and I said I didn’t have one.”

Defendant testified in his own behalf and admitted being in the restaurant at the time and date in question with one Arthur Green, but denied any participation in the sale of- narcotics or even having a conversation with Willis, Ferguson or Perry. He testified that he was in the restaurant for about fifteen minutes and then left with Green, stopping at a tavern and later at a pool hall, and that he was arrested thereafter while driving near Madison and Leavitt.

Defendant’s primary assertion in support of his contention that he was not proven guilty beyond a reasonable doubt is that the only testimony of his participation in the sale of narcotics was that of the informer, Charles Perry, and that it was uncorroborated.

It is an established principle that the uncorroborated testimony of an addict-informer alone is insufficient to prove an accused guilty beyond a reasonable doubt of the unlawful sale of narcotics. People v. Bazemore, 25 Ill2d 74, 182 NE2d 649; People v. Boyd, 17 Ill2d 321, 161 NE2d 311. In the instant case only the informer, Perry, testified that defendant accompanied Ferguson to the restaurant with the foil package (that was later found to contain heroin) to consummate the sale. Officers Dura and Lopez, who were able to view the exterior of the restaurant from their parked car, both testified that they had not seen defendant prior to his arrest. Elliot Willis testified that defendant did not return to the restaurant with Ferguson (who was not called to testify). Moreover, the only corroboration of Perry’s testimony that he gave defendant money was by Willis, an admitted narcotics addict, who twice stated that Perry gave Ferguson the money and later stated that defendant was the recipient thereof.

The instant case is distinguishable from People v. Martin, 63 Ill App2d 492, 211 NE2d 753, in which the same informer (Charles Perry) participated in a controlled purchase of narcotics. The court in that case held that the evidence presented by Perry’s testimony was sufficient to sustain the conviction because the essential elements of his testimony were substantiated by the police. In the instant case, however, there is no corroboration of that portion of Perry’s testimony which implicated defendant in the sale of narcotics.

We therefore find that defendant was not proven guilty beyond a reasonable doubt. The judgment of the trial court is reversed.

Reversed.

ENGLISH and McCORMICK, JJ., concur.

       On redirect examination Perry testified that he “received the narcotics from Ferguson.”

       It was stipulated that if Andrew Principe, a chemist, was called as a witness he would testify that the contents of this package (State’s Exhibit 5) was a derivative of morphine.


author: PRESIDING JUSTICE DRUCKER.

text:
    Paul v. Byrne, Jr., Plaintiff-Appellant, v. The First National Bank of Chicago, Defendant-Appellee.
    Gen. No. 50,482.
    First District, Fourth Division.
    February 4, 1966.
    Rehearing denied March 30, 1966.
    Joseph Keig, Sr., of Chicago (John O’C. Fitzgerald, of counsel), for appellant; Rogers, Paul & Hansen, of Chicago (Don W. Feeley and George A. Hansen, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE DRUCKER.

Not to be published in full.


author: MR. PRESIDING JUSTICE BRYANT

text:
    Jack F. Bourne, etc. et al., Plaintiffs-Appellees, v. Lloyd M. Johnson, etc. et al., Defendants-Appellants. Thomas F. Taplin, etc. et al., Intervenors-Defendants-Appellants.
    Gen. No. 49,700.
    First District, Second Division.
    February 8, 1966.
    Rehearing denied and opinion modified March 24, 1966.
    Raymond F. Simon and John C. Melaniphy, Corporation Counsel, of Chicago (Sydney R. Drebin, Allen Hartman and Dominick Dolci, Assistant Corporation Counsel, of counsel), and Thomas D. Nash, Jr., of Chicago, for certain appellants.
    Michael F. Ryan, of Chicago, for appellees.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This appeal comes from a judgment order entered in the Circuit Court of Cook County, January 31, 1964. The action was tried before the court sitting without a jury upon a stipulation of facts.

It was agreed that certain named plaintiffs were all employed as linemen in the classified civil service of the Department of Streets and Sanitation of the City of Chicago, having been certified to their respective positions on the following dates:

Name Date of Certification

Jack F. Bourne July 20,1953

Robert Johnson June 16, 1948

Angelo Zangeri January 28,1952

William F. Nolan July 27,1953

Charles Elliott July 3, 1953

John J. Burke Sept. 4, 1951

Michael Pembrook June 16,1948

John Lanigan August 24,1951

It was further agreed that certain other named plaintiffs were all certified and appointed as civil service linemen in the year 1953, but were not presently working as linemen, having been laid off from said position for alleged lack of work; that their names had been placed on the reinstatement list for the position of lineman pursuant to the rules of the Civil Service Commission of the City of Chicago. Other named plaintiffs were laid off from their respective positions as linemen on May 15, 1963, for alleged lack of work.

The positions of both lineman and foreman of linemen are positions in the classified civil service of the City of Chicago. The position of lineman is in the next lower rank or grade to that of foreman of linemen, and the position of foreman of linemen is a promotional position from that of lineman. The plaintiffs below claim they should have priority on the list for reinstatement over certain foremen of linemen who sought reinstatement both as linemen and as foremen of linemen.

The Civil Service Commission rules bearing on the case at bar are as follows:

Rule IV: Certifications
“Certification. A written notice, upon blanks prescribed by the Commission shall be mailed to the eligible, at his latest address as shown by the records of the Commission, stating that his name has been certified to the appointing officer. A similar notice shall be sent to the appointing officer, containing the name of the eligible certified. Employees accepting certification from a promotion register are thereby permanently separated from the positions formerly held by them. No person shall be certified from a promotion register who has been separated permanently from the service of the City. An eligible may accept certification to a position in a grade lower than that for which he was examined, and in the same general class of service and similar duties, but the acceptance of any such lower grade position shall fix permanently the grade of the appointee therein.
“Certification from More than One Register. An employee who leaves a position to accept employment by certification from another eligible register shall be separated permanently from the position formerly held by him. Any such employee, may within six months, be reinstated in any vacancy in the same branch, class and grade from which he was so separated with the consent of the Commission and the approval of the department or departments concerned, or his name may be placed on the appropriate reinstatement register upon his resigning from, or being separated from, his new position. Where an officer or employee accepts certification to a higher position, the duties of which are merely temporary, he shall be reinstated in his former position without loss of seniority when such higher duty is completed, if and when such former position is or shall become vacant. . . .
“Probation. Original appointment shall be on probation for a period of six months. In no case shall a probationer be discharged until after the appointing officer has received from the Commission a notice in writing that the Commission has approved such discharge. Time served on probation, whether continuous or not, shall be credited upon the period of probation.
Rule V: Promotion, Efficiency and Seniority
“Eligibility. The Commission in its notice of examinations shall define lines of eligibility for promotion, specifying by title of position the particular rank or grade entitled to take such promotion examination. Promotion examinations shall be held when the next lower rank, whether in the same or a lower grade, as determined by the Commission, contains two or more eligible persons desirous of taking examination. Should not more than one eligible candidate register, or should all candidates fail to pass, an original entrance examination shall then be held. No person shall be eligible for promotion from a position in any rank or grade to fill a vacancy in the next higher rank unless the position in which he is employed at the time of examination is in the same branch and class of service as the position to be filled and unless such person is at the time of examination actually employed in such branch and class, or unless such person has a civil service rating in the rank or grade from which promotion is sought but is actually employed on a temporary basis in a higher rank or grade in a similar line of duty, or is on leave of absence or is eligible for reinstatement.
“Seniority. Credit for Seniority shall be given only for actual service in the rank or grade from which promotion is sought, whether such service has been continuous or not, or for actual service in a higher rank or grade in a similar line of duty, to which the applicant has been assigned on a temporary basis from the rank or grade from which promotion is sought. Seniority shall be computed as of the date of examination. The average marking to be entered for seniority shall be obtained by adding to a standard mark of 70, as follows:
For the first six months..................... 0
For each full month of the second six months... 14
For the second full year..................... 8
For the third full year....................... 4
For the fourth full year...................... 4
For the fifth full year....................... 3
For the sixth full year....................... 3
For the seventh full year..................... 2
For the eighth full year..................... 2
For the ninth full year....................... 2
For the tenth full year...................... 2
For each additional year of service after ten years (Maximum 14 years)........14
Rule IX: Layoff, Resignations and Reinstatements
“Lay-offs. Whenever it becomes necessary, through lack of work or funds, or for other causes to reduce the force in any employment in any department or bureau, the person who was last certified to such employment shall be the first laid off. Persons laid off in accordance with the foregoing procedure shall be entitled to have their names placed on the reinstatement list according to the seniority of their certification. Any officer or employe whose position has been abolished for lack of work or funds, may, upon application, have his name placed on the reinstatement list in any lower rank or grade from which he was promoted, according to his examination and seniority of certification. Any officer or employe who elects to accept certification to such position in any lower rank or grade shall remain on the reinstatement list of the position from which he was separated on account of lack of work or funds, and on the reinstatement list of any intermediate rank or grade in which he has seniority rights, and he shall be eligible to reinstatement in any vacancy occurring in such position in accordance with his seniority rights therein.
“Resignation. A copy of the resignation of an officer or employe from the classified service shall be filed with the Commission by the head of the department receiving and accepting the same. The Commission may permit the withdrawal of a resignation and its cancellation upon application at any time within thirty days after the filing of same, provided, the head of the department concerned approves of such withdrawal and cancellation.
“Reinstatement. When any officer or employe has returned from a leave of absence and his position in the meantime has been filled by certification, or when any officer or employe has been laid off in accordance with the preceding Section 1, or when the position of any officer or employe has been abolished, or when the name of any officer or employe has been placed on a reinstatement list in any lower rank or grade in accordance with the preceding Section 1, such officer or employe shall be eligible to reinstatement in any vacancy occurring in the same branch, class or grade according to his standing on the reinstatement list.”

The foremen of linemen in question were certified as linemen and as foremen of linemen on dates as follows:

Name Date of Certification as Lineman Date of Certification as Foreman of Linemen

Taplin, Thomas F. June 11, 1948 August 1, 1953

McCormick, William C. June 11, 1948 August 1, 1953

Burke, Peter A. June 11, 1948 August 1, 1953

Walsh, John R. June 11, 1948 March 16, 1955

Caughlin, Clarence J. June 1, 1948 March 16, 1955

Cucci, Louis A. February 21, 1949 August 1, 1953

Kerr, Lawrence H. June 13, 1949 August 1, 1953

Dawe, Nicholas T. August 21, 1951 August 17, 1953

Martin, Donald B. August 21, 1951 August 1, 1953

LeBlanc, Robert A. August 30, 1951 July 16, 1957

Campbell, Michael J. August 30, 1951 March 16, 1955

Weinberg, Leonard August 30, 1951 August 16, 1953

It is undisputed that during the months of April, May and June of 1963, it became necessary, through lack of work, to reduce the work force in the Bureau of Electricity of the Department of Streets and Sanitation; that as a result, approximately 50 percent of those holding the position of lineman, including some of the plaintiffs and intervening-plaintiffs, and 15 out of 44 of those holding the position of foreman of linemen, including all of the intervening-defendants, were laid off from the duties of their respective positions; that for pay purposes, the aforesaid linemen and foremen of linemen were separated from their respective positions after the expiration of the vacation time, if any, they each had accumulated while occupying their said positions.

At the time of the lay-off the names of the foremen of linemen in question were placed on the reinstatement list for the class of foreman of linemen, and the names of the said plaintiffs and intervening-plaintiffs were placed on the reinstatement list for the class of lineman by the defendant Civil Service Commission which so acted under authority of rule IX, sec 1 of the rules of the Civil Service Commission. At the same time the said intervening-defendants each made application to the Civil Service Commission to have their names placed on the reinstatement list for the class of lineman according to their seniority of certification to that class. The Civil Service Commission acting upon its interpretation of rule IX, sec 1, approved the said applications, placed the names of the intervening-defendants on the reinstatement list for the class of lineman according to their seniority or original certification to that position and thereafter on or about July 1, 1968 certified said defendants, according to the seniority of certification of each, to the Department of Streets and Sanitation upon the request of that Department for names to fill vacancies then occurring in the class of lineman due to an increase in the work of that department. Thereafter, vacancies occurred in the class of foreman due to the said work increase, and as a result, the intervening-defendants either were reinstated to that class from the foreman’s reinstatement list and thereby were removed from their position of lineman, or waived reinstatement and thereby remained in the class of lineman, or their names were not yet reached by the department’s request for certification to the then existing vacancies and they thereby remained in the class of lineman. The dates the said intervening-defendants were separated from their positions as foremen, and reinstated as linemen and thereafter as foremen are as follows:

Date separated Date Date from Fore- Reinstated Reinstated Name man position as Lineman as Foreman

Taplin, Thomas F. June 13,1963 July 1,1963 Oct. 16, 1963

McCormick, William C. June 6, 1963 July 1,1963 Waived

Burke, Peter A. June 6, 1963 July 1,1963 Sept. 26, 1963

Walsh, John R. May 13, 1963 July 1,1963

Caughlin, Clarence J. May 25, 1963 July 1, 1963

Cucei, Louis A. May 17, 1963 July 1, 1963 Waived twice

Kerr, Lawrence H. May 21, 1963 July 1,1963 Oct. 18, 1963

Dawe, Nicholas T. May 21, 1963 July 1,1963 Waived

Martin, Donald B. June 5, 1963 July 1, 1963 Oct. 16, 1963

LeBlane, Robert A. May 21, 1963 July 1,1963

Campbell, Michael J. May 21, 1963 July 1, 1963

Weinberg, Leonard May 21, 1963 July 1,1963 Oct. 28, 1963

It was stipulated that these foremen of linemen performed their duties as foremen of linemen, and received the salary appropriated therefor, from the respective dates of their promotions as such, as above set forth, until their respective layoffs from their duties as foremen of linemen in 1963, as above set forth, and that all of said foremen of linemen had been certified from a promotional eligible list, and had accepted promotion to the position of foreman of linemen on the respective dates set forth above.

The linemen asked declarations of their rights to the position of lineman and an injunction restraining the defendant commissioner of the Department of Streets and Sanitation of the City of Chicago, and the Civil Service Board, the comptroller and treasurer of the City from employing or paying as linemen in the classified service any persons who were certified and promoted to the rank of foreman of linemen.

It is the appellants’ theory of the case that the rules of the Civil Service Commission of the City of Chicago have the force of law and must be considered and interpreted in the same manner as are statutes. They further contend that rule IX, sec 1 of the rules of the Commission, which defines the procedures to be followed by the Commission when layoffs occur in the classified service, is a valid and legal rule; that because that rule invests the Commission with authority to place a laid off foreman of linemen on both a foreman’s and lineman’s reinstatement list, it does not deprive laid off linemen of rights, if any, they may have to be placed on a lineman’s reinstatement list. The appellants also contend that rule IV of the Commission’s rules which regulates certification procedures is not in conflict with rule IX. Finally, they contend that the trial court erred when it denied appellants’ motion to reopen the case before final judgment for the purpose of introducing further testimony from James T. Osborne, secretary of the Civil Service Commission of the City of Chicago, as to his interpretation of the Civil Service rules.

The appellees claim, on the other hand, that the Civil Service Commission is without power or authority to reinstate foremen of linemen to the position of lineman or reinstatement list for that position after the foremen accepted promotion from the position of lineman to the position of foreman, and had been permanently separated from the position of lineman. They also argue that rule IX, sec 1 of the rules of the Civil Service Commission, insofar as it purports to authorize such action, is illegal and void as against public policy. They further contend that rule IX, sec 1 does not, by its terms, authorize reinstatement in a lower position, unless the higher position is abolished, and there being no proof that the position of the foreman of linemen was abolished, the appellants were not entitled to placement on the list for, or in the position of, lineman.

The Court below found that rule IX, sec 1 of the rules of the Civil Service Commission did not, and does not authorize the Commission to place the names of the appellants or other civil service foremen of linemen, upon the reinstatement list for the position of lineman in the classified civil service of the Department of Streets and Sanitation of the City of Chicago, but said persons were, and are entitled to placement upon the reinstatement list for the position of foreman of linemen in said department and to appointment or reinstatement to said position of foreman of linemen, as vacancies occur. The court also found that the Civil Service Commission acted illegally in placing the names of the foremen of linemen on the reinstatement list for lineman, stating that the linemen whose names were on the reinstatement list for the position of lineman prior to July 1, 1963 were entitled to be appointed to vacancies occurring in the rank of lineman in the months of July and October, 1963, in the order of their seniority or certification as linemen and said plaintiffs have been prevented from performing their duties as linemen and from receiving the salary appropriated therefor and attached thereto, from the dates of the appointment of foremen of linemen to vacancies in the position of lineman.

The appellants argue that rules IV and IX of the Civil Service Commission are not in conflict, are valid rules and permit foremen of linemen to place their names both on the reinstatement list for foreman and the list for lineman. It is urged that rule IV deals with the procedure to be followed when an employee is promoted to a higher grade in the civil service, while rule IX deals with procedures to be followed in case of layoffs.

According to the appellees, once the appellant workers accepted employment as foremen of linemen, they gave up all rights to the job of lineman and have no right to be reinstated in that position without retaking a civil service examination and taking their places at the bottom of the civil service list. In support of this proposition, they point to rule IV of the Civil Service Commission which reads, in part, “Employees accepting certification from a promotion register are thereby permanently separated from the positions formerly held by them.” People ex rel. Hurley v. Graber, 405 Ill 331, 90 NE2d 763 (1950), is also cited for this proposition. The appellants point out that when this rule is read in context it becomes clear that this provision is merely a self-executing one whereby employees are permanently separated from the position which they formerly held when they accept promotion.

By its terms, there is nothing in this section which would deal with the problem which faces the court in this matter. When interpreting a statute, the court must read it as a whole. Gannon v. Chicago, Milwaukee, St. Paul and Pacific Railway Co., 22 Ill2d 305, 175 NE2d 785 (1961); Huckaba v. Cox, 14 Ill2d 126, 150 NE2d 832 (1958). The same method of interpretation is applicable to interpreting the rules of the Civil Service Commission. We feel that the appellees have taken a sentence out of context in an attempt to make it stand for something that has not in any way been stated in the Commission rules. The section in which this sentence appears deals with the appointment of a worker to another position. Upon accepting promotion to the other position, the worker is automatically severed from his former position. Clearly, this must be so in order that a worker not be certified as holding two jobs at once. It is provided for as an automatic result of promotion in order to save administrative steps in conjunction with promotions. Were this rule not in effect, it would be necessary to appoint a person to a new position in one step and remove him from his old position as another separate action. Under this rule, both steps may be accomplished at once. In our opinion this is all the rule was intended to do. After carefully considering People ex rel. Hurley v. Graber, supra, we have concluded it is not relevant to the case at bar. That case dealt with the question of whether or not the Civil Service Commission had the power to demote persons once they have been certified to their positions. During the course of that opinion it was stated that under the civil service rules when a person accepted a promotion he was permanently severed from his former position. A reading of that opinion, however, will reveal that the Supreme Court had a case before it which was in no way similar to the one at bar, and we do not feel that it can properly be used as authority for disposing of the matter now before us. The appellees have also cited People ex rel. Massey v. City of Chicago, 35 Ill App2d 377, 183 NE2d 3 (1962), a case dealing with the resignation of a civil service patrolman from his position. As resignations are not involved in the case at bar, it has no bearing here and we need not discuss it.

Rule IX of the Commission’s rules states in part:

“Lay-offs.
“. . . Persons laid off . . . shall be entitled to have their names placed on the reinstatement list according to the seniority of their certification. Any . . . employe whose position has been abolished may, upon application, have his name placed on the reinstatement list in any lower rank or grade from which he was promoted. . . . Any officer or employe who elects to accept certification to such position in any lower rank or grade shall remain on the reinstatement list of the position from which he was separated and on the reinstatement list of any intermediate rank or grade in which he has seniority rights, and he shall be eligible to reinstatement in any vacancy occurring in such position in accordance with his seniority rights therein.”

We believe this covers the situation before us. It says quite clearly that one who has been laid off due to lack of work or funds may sign up for reinstatement in the position in which he was most recently employed, and also for “any lower rank or grade from which he was promoted.” In this case it is undisputed that the appellant foremen had been promoted from linemen to foremen of linemen. Under this rule, therefore, they were entitled to have their names on the reinstatement lists both for foreman of linemen and for lineman.

The appellees argue that this section of rule IX does not purport to authorize placement upon a list for a lower position unless the position from which the employee is laid off has been “abolished” by competent authority. We have quoted just above what we consider to be the controlling portion of the rule in question. The rule is set out in its entirety at the beginning of this opinion. The appellees point to the phrase “Any . . . employe whose position has been abolished . . .” and argue that for the purposes of reinstatement in a lower class, the position of foreman of linemen had not been abolished. They argue, “There is manifestly a difference between reducing the number of employes working in a position and abolishing a position.” A reading of the section as a whole, however, shows that this was not the intention of those who drafted it, for the section goes on to provide that the one who was separated from his position because it was abolished “shall remain on the reinstatement list of the position from which he was separated.” If the position had been “abolished” in the sense appellees want to use the term there would be no seniority list for it. A person “whose position has been abolished” must be read to mean that abolition occurs when a person has been laid off from his position.

Looking at the facts of the case before us, the Bureau of Electricity of the Department of Streets and Sanitation employed 44 foremen of linemen. Due to a shortage of work 15 of these foremen’s jobs were can-celled. It can be said without in any way stretching the English language that these 15 jobs were abolished. For the word “abolished” to be used properly it is not necessary that every foreman of linemen be laid off and that a decision be made that no more are to be hired for the future. For the above reasons we conclude that the jobs of the appellant linemen were abolished when the layoffs occurred.

It is urged by the appellees that an interpretation such as the one we have made renders rule IX in conflict with rule IV. They argue that one cannot be permanently separated from his earlier position and still retain rights to reinstatement. This is not so. Eule IV deals only with the standard procedure to be followed when a civil service worker is promoted. It in no way purports to deal with the problem of what happens to the workers when layoffs occur. It is rule IX which addresses itself to this situation, and we feel that it is clear in its terms; the Civil Service Commission acted properly in allowing the laid off foremen to place their names on both reinstatement lists.

The appellees next argue that an interpretation of the rules such as we have made does not insure that an employee with the longest service shall be the first reinstated after a layoff occurs. They point to rule V, set out above, as supporting this proposition. They make their argument only by insisting that a foreman of linemen is totally different from a lineman and that the time one spends as a foreman cannot be counted as time spent as a lineman. We think that the time spent as a foreman should count toward seniority as a lineman. Apparently appellees argue that if one accepts the position of foreman with the advantages which are a part of the promotion, he should not be permitted to hold the advantages of his certification as a lineman. They are, in a manner, accusing the appellant foremen of wanting to have their cake and eat it too. While we have sympathy for all workers laid off from their jobs in a situation such as this, we must note that as a general rule workers with the most seniority are those who are allowed to keep their jobs when layoffs occur. The city is entitled to have the most experienced workers at their jobs. The actions of the Civil Service Commission were designed to have this effect. No public policy is being violated by the interpretation of the rules made by the Commission.

Our decision makes it unnecessary for us to consider the question of whether or not the court below should have permitted the appellants to introduce testimony from one of the drafters of the civil service rules as to the meaning of the word “abolished.”

For the reasons above stated, the judgment order is reversed.

Judgment reversed.

LYONS and BURKE, JJ., concur.


author: PRESIDING JUSTICE BRYANT.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Pedro R. Garcia, Defendant-Appellant.
    Gen. No. 49,976.
    First District, Second Division.
    February 8, 1966.
    Rehearing denied March 21, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall J. Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Edward J. Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE BRYANT.

Not to be published in full.


author: MR. JUSTICE BURKE

text:
    LaSalle National Bank, a National Banking Association, Trustee Under Trust Agreement Dated October 1, 1962, and Known as Trust No. 30016, Plaintiff-Appellee, v. City of Chicago, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 50,360.
    First District, Second Division.
    February 8, 1966.
    Rehearing denied March 25, 1966.
    Opinion modified April 14, 1966.
    Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin, Marvin E. Aspen and Ronald S. Cope, Assistant Corporation Counsel, of counsel), for appellant.

      Dwight McKay, of Chicago (Sidney Z. Karasik and Paul Peter Black, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendant appeals from a decree for the plaintiff which followed the recommendations of a Master. The complaint sought a declaratory decree to enjoin the enforcement of the Zoning Ordinance of the City of Chicago as applied to plaintiff’s realty, located at 1101-15 East 63rd Street, Chicago, and to compel the city to issue required permits and licenses for the construction of a gasoline station.

The property has a frontage on the south side of East 63rd Street of 153.2 feet and a depth of 100 feet on the east side of Greenwood Avenue, improved with a part one story and a part two story store and office building. Three of the stores in the building are rented. The parcel is zoned B3-3. Plaintiff wishes to erect a gasoline station on the premises with two driveways on 63rd Street and two driveways on Greenwood Avenue. This use is prohibited in a B3-3 zone. In order to erect a gas station plaintiff needs a B4 classification.

The property is situated in the middle of a B3-3 zone which extends from Drexel on the west to 100 feet past Woodlawn on the east. 63rd Street is an east-west street and the north-south streets intersecting it within the zone, starting with the western-most street, are Drexel, Ingleside, Ellis, Greenwood, University and Woodlawn. To the west of the B3-3 zone, in which the subject property is located, is a B5-3 zone which extends from Drexel on the east to one block past Cottage Grove Avenue on the west, a distance of 4 blocks. To the east of the B3-3 zone is a B4-3 zone. This latter zone contains an area referred to as “baby skid row.” North Of 63rd Street the zoning is primarily residential. ’

63rd Street is a major traffic artery and Greenwood Avenue is a residential, southbound, one-way street. The Chicago Transit Authority owns and operates an elevated railroad in 63rd Street. The property uses along 63rd Street, one block east and one block west of the subject property on both sides of the street, are primarily one and two story buildings containing stores with some apartments or offices on the second floors. There are a few three story buildings on the street. The businesses along the street consist primarily of grocery stores, barber shops, record stores, meat markets and currency exchanges. There is a bank at the northwest corner of 63rd Street and Woodlawn Avenue. There are also some real estate offices. All of these uses fall within the B3-3 zoning classification. One block sought and a half block east of the subject property is the Wadsworth Elementary School.

To the south of the subject property and immediately adjacent thereto, is an apartment building containing 40 apartments and some stores on the ground floor. The warehouse dates back to the early 1920’s. Plaintiff’s Exhibit 3 indicates that there are over 150 uses in this area, which demonstrates that the area conforms with the zoning. The 4 uses cited by the City were established prior to the passage of the ordinance and are all subject to its amortization provisions. The beneficial owner of the subject property is an experienced real estate man who has been active in the Woodlawn area since he entered the real estate business in 1948. He was familiar with the existing zoning ordinance when he purchased the real estate. Plaintiff argues that zoning- is “a form of public condemnation without compensation.” There is nothing in the record to indicate that the beneficial owner has lost anything by this deal. It is reasonable to conclude that the price paid was in keeping with the zoning classification. The City says that the plaintiff wants a B4 use for a B3 price. Plaintiff testified that the neighborhood has remained substantially unchanged. There was no testimony offered as to how much he paid for the property. When he bought the property he felt he could remodel it and turn it into something “that would be a pride to the neighborhood.” He says his plans were changed because he was misled by the financial statement he got from the prior owners and because a fire burned down one of the buildings on the premises.

The first point urged by the City is that there is a presumption of validity in favor of the zoning ordinance adopted pursuant to a legislative grant; that one who attacks the ordinance has the burden of overcoming the presumption with clear and convincing proof that the ordinance is arbitrary, unreasonable and without substantial relation to the public health, safety, morals and welfare, citing Urann v. Village of Hinsdale, 30 Ill2d 170, 195 NE2d 643; LaSalle Nat. Bank v. City of Chicago, 6 Ill2d 22, 126 NE2d 643; Liberty Nat. Bank v. City of Chicago, 10 Ill2d 137, 139 NE2d 235 and other cases. Plaintiff answers that the presumption of validity which arises from the enactment of the zoning ordinance was overcome by clear and convincing proof that the amended zoning ordinance, as applied to the subject property, was arbitrary, unreasonable and without real and substantial relation to the public health, safety, morals and welfare. Plaintiff points out that on May 29, 1957, the City adopted the comprehensive amendment to the zoning ordinance and argues that by the amendment the zoning along 63rd Street was segmented into various types of business districts; that under the ordinance the property falls into a B3-3 general retail district; that for the first time since 1923, the date of the original zoning ordinance, a gasoline service station is not a permitted use in the district; that the testimony of all the witnesses confirmed that there was no substantial change in the development of the area from 1923 to 1957, which could justify the reclassification and restriction entailed by the 1957 amendment as applied to the subject property. Plaintiff insists that under these circumstances the presumption of validity of the amendatory zoning ordinance of 1957 was overcome; that the presumption of validity is rebutted where the evidence shows that there has been no substantial change in circumstances justifying a zoning reclassification; that the same considerations which justify an original zoning ordinance must attend the amendment of that zoning ordinance and that it was incumbent upon the City to show that changed circumstances in the neighborhood required changes in the zoning, citing Zilien v. City of Chicago, 415 Ill 488, 114 NE2d 717. Plaintiff says that where the nature and character of the neighborhood has not changed and the amendatory zoning ordinance fails to bear a direct relationship to the public good, the courts have steadfastly refused to uphold the amendatory ordinance, citing Pioneer Trust & Sav. Bank v. Village of Oak Park, 408 Ill 458, 97 NE2d 302; Metropolitan Life Ins. Co. v. City of Chicago, 402 Ill 581, 84 NE2d 825, and People v. City of Chicago, 402 Ill 321, 83 NE2d 592.

The zoning area in which the subject property is located is a neighborhood retail type of business district known as a general retail district. These uses fall within the B3-3 zoning classification. The area north and south of 63rd Street is residential and institutional. One block south and a half block east of the subject property is the Wadsworth Elementary School. There is no gas station on 63rd Street from Lake Michigan on the east to Eberhart Avenue on the west, a distance of one and a half miles. The only nonconforming uses in the entire area are a movie theater located in the block between University and Woodlawn, a furniture warehouse adjacent to the subject property, a garage east of the warehouse to the rear of the property and facing out on a partial alley and a dry cleaning establishment in the block to the west of the subject property on the south side of 63rd Street. The testimony indicates that these 4 uses were built prior to 1957 when the present ordinance went into effect and are legal nonconforming uses. The warehouse dates back to the 1920’s. The Chancellor made no determination as to which of the uses in the zone of the subject property conforms and which fails to conform to the B3-3 classification. We conclude that this finding is not sufficient to warrant the declaring of the ordinance unconstitutional in its application to the subject property. There is nothing to indicate what is meant by the term “immediate vicinity.” The Chancellor considered uses as far away as Stony Island and Cottage Grove Avenues. These streets are located blocks away in different zones, and uses established in those zones bear no relationship to the subject property. No case decides that all of the uses in the zone in which the subject property is located need to be conforming. On the contrary, the enabling legislation specifically provides for the situation where there are nonconforming uses in a zone. Ill Rev Stats 1965, chap 24, § 11-13-1, provides that the powers conferred shall not be exercised so as to deprive the owner of any existing property of its use or maintenance nor the purpose to which it is then lawfully devoted, “but provisions may be- made for the gradual elimination of uses, buildings and structures which are incompatible with the character of the districts in which they are made or located. . . .”

In City of Aurora v. Burns, 319 Ill 84, 149 NE 784, the court upheld the validity of a zoning ordinance although there were 12 nonconforming grocery stores scattered throughout the district. In Cosmopolitan Nat. Bank of Chicago v. City of Chicago, 22 Ill2d 367, 176 NE2d 795, the court upheld the -validity of an R3 zone although adjacent to the subject property was a nonconforming garage. In Exchange Nat. Bank of Chicago v. County of Cook, 25 Ill2d 434, 185 NE2d 250, the court upheld the validity of the zoning ordinance although 31 nonconforming town houses were recently built within 600 feet of the subject property. The existence of nonconforming uses can be assumed in any zone. This fact in itself cannot invalidate the zoning ordinance. The evidence shows that the area is 96% in conformity with the zoning. The 4 uses cited by the City were established prior to the passage of the ordinance and are all subject to its amortization provisions. The area conforms with a B3-3 classification and for that reason is zoned B3-3. The zone is as large as many other zones in the City. In many areas of the City, especially on main traffic arteries, the zoning ranges from B3 to B4 to B5. For example, on 63rd Street at Halsted, the zoning is B3-3, B3-4, B4-2, B5-2 and Cl-2. All of these zones in fact, are smaller than the zone in which the subject property is located. Main streets in any large city do not develop along one line. The zoning here in question is made up of almost entirely B3 uses and the subject property is located in its center. It is axiomatic that zoning boundaries must begin and end somewhere. Bennett v. City of Chicago, 24 Ill2d 270, 181 NE2d 96. The boundary lines in the case at bar begin and end around the area consisting of B3 uses.

The Zilien case, relied upon strongly by plaintiff, deals with undeveloped property owned by the plaintiff therein prior to the change in zoning. The court said, page 494: “It would appear . . . that certain of the blocks were arbitrarily singled out for rezoning to business use.” In the instant case the land is fully developed with B3 uses and this fact constitutes a rational basis for zoning the area B3. In addition, there was an equitable situation involved in Zilien not available to the plaintiff herein. The court in Zilien (415 Ill p 493), emphasized that the owner “has the right to rely upon the rule of law that the classification of his property will not be changed unless the change is required for the public good.” Here, the beneficial owner of the subject property purchased the property with full knowledge of the existing zoning. He placed no reliance on the existing classification.

The challenged zoning ordinance prohibits the erection of a gas station at this location. This is a legitimate legislative finding and the plaintiff failed to show that the restriction was arbitrary, unreasonable or capricious. The beneficial owner of the subject property testified that no one else has been permitted to build a gas station along 68rd Street in the zone in which the subject property is located. The zoning ordinance serves to protect the school children who attend a nearby school and the residents of the block on which the plaintiff’s proposed gas station would be located, from a serious traffic hazard and it bears a reasonable relation to the public health, safety, morals and welfare. The zoning ordinance preserves the integrity of the area which serves as a center of social and civic activity. A breakdown in the integrity of this zone will mean the imposition of unwanted B4 uses.

Where the very best that can be said of plaintiff’s position is that a legitimate dispute may exist as to the desirability of the zoning classification imposed, the ordinance must be upheld, as the courts cannot substitute their judgment for that of the duly constituted legislative body of the municipality. See Exchange Nat. Bank of Chicago v. County of Cook, 25 Ill2d 434, 185 NE2d 250; Vedovell v. City of Northlake, 22 Ill2d 611, 177 NE2d 124; Cosmopolitan Nat. Bank of Chicago v. City of Chicago, 22 Ill2d 367, 176 NE2d 795, and LaSalle Nat. Bank v. Chicago, 6 Ill2d 22, 126 NE2d 643.

The zoning ordinance was passed pursuant to the power conferred upon the City by the legislature. The ordinance bears a reasonable relation to the public health, safety and welfare of the people. Therefore the decree is reversed and the cause remanded with directions to dismiss the complaint for want of equity.

Decree reversed and cause remanded with directions.

BRYANT, P. J. and LYONS, J., concur.


text:
    Norman Johnson, Plaintiff-Appellee, v. Darin & Armstrong, Inc., a Corporation, Defendant-Appellant. Darin & Armstrong, Inc., a Corporation, Third-Party Plaintiff-Appellant, v. Tri-City Roofing & Sheet Metal Works, Third-Party Defendant-Appellee, and Michael Flynn Manufacturing Company, Third-Party Defendant-Appellee.
    Gen. No. 50,437.
    First District, Second Division.
    February 8, 1966.
    Pentis and Tourek, of Chicago (James M. Tourek, of counsel), for appellant.
    Maragos & Richter, of Chicago, for Tri-City Roofing & Sheet Metal Works, third-party defendant-appellee.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This appeal comes from an order entered September 10, 1964, in the Circuit Court of Cook County which order dismissed Count II of the complaint of the third party plaintiff.

The complaint was originally filed March 19, 1963 by Norman Johnson with Darin & Armstrong, Inc. as the defendants. In this complaint it was alleged that Darin & Armstrong was a building construction contractor and was in charge of the construction of a building being erected by R. R. Donnelly & Sons at 1900 S. Prairie Avenue, Chicago. Johnson said he was an employee of the Superior Construction Company, a subcontractor of Darin & Armstrong, engaged to install metal window frames in the building.

The complaint continues to allege that the window frames were then being installed on the second story of said building, and in order to reach the place where Johnson was to work it was necéssary for him to climb a ladder which was resting on the ground floor with its top leaning against the edge of the second floor, inside the building. At the time the plaintiff climbed the ladder on his way to the place of work on the second story, the ladder was resting on the rough concrete floor of the ground floor, which it is said, furnished a secure and firm footing for the ladder.

It is alleged that while Johnson was working on the second story of the building certain employees of Darin & Armstrong were installing wooden flooring on the ground floor of the building, at the place where the ladder was standing, and as the work of installing the wooden flooring progressed defendant’s servants or agents moved the ladder and placed it with its feet on the newly-installed wooden flooring with its top again leaning against the edge of the second floor, so that its position was approximately the same as it was when plaintiff climbed it, but its feet were on the newly-installed wooden flooring instead of being on the rough concrete. The men did not warn Johnson that the ladder had been moved, and as he was coming down the ladder it slipped on the new wooden floor causing him to fall and sustain injuries.

It is alleged that the new wooden floor was slippery and did not afford a secure base for the ladder. A cause of action was then alleged under the Structural Work Act, Ill Rev Stats 1961, chap 48. There is also a Count II to this complaint, alleging the same basic facts and claiming common law negligence.

The answer filed by Darin & Armstrong denied all the allegations of Johnson’s complaint, and on December 27, 1963, filed a third party complaint against Michael Flynn Manufacturing Company and Tri-City Roofing and Sheet Metal Works. Count II of this third party complaint alleged that Tri-City Roofing had a contract with Darin & Armstrong in which it was agreed that:

“Tri-City Roofing and Sheet Metal Works agrees to protect, defend, indemnify and hold harmless Darin and Armstrong, Inc., from all liabilities, claims or demands for injury or damage to any person or property arising out of or occurring in connection with the performance of this order.”

It was alleged that Darin & Armstrong had the right to believe that Tri-City Roofing would take such measures as to insure the safety of workmen engaged in construction and would perform its duties under the Structural Work Act.

It was further alleged that Tri-City Roofing did not perform its contract in that it did not insure the safety of Johnson in the use of the ladder which fell causing his injuries. Darin & Armstrong said it took no active part in the construction work being done by Tri-City Roofing. The complaint ended by asking that if judgment be entered against Darin & Armstrong in the principal suit, that judgment should be entered against Tri-City Roofing and in favor of Darin & Armstrong so that it would be held harmless according to the provisions of the contract.

Tri-City Roofing then filed a motion to strike Count II of the third party complaint (that being the part that pertained to it). The Court below made a finding as follows:

“(a) That the complaint filed herein by Norman Johnson, charges third party plaintiff with only one act of active negligence under the Scaffolding Act of the State of Illinois.
“(b) That the injury of Norman Johnson, as alleged in his complaint, did not arise from work performed by Tri-City Roofing & Sheet Metal Works.”

On such finding, the third party complaint was dismissed.

The appellant’s theory of the case is that the court below erred in holding that allegations of negligence in the principal complaint against only it precluded it from maintaining a third party complaint against a subcontractor, alleging negligence of the subcontractor, and a contractual duty of indemnity owed by the subcontractor. Darin & Armstrong also contends that the court below erred in finding in favor of Tri-City Roofing on a factual issue — the question of whether or not the injury to Johnson arose from the work performed by Tri-City.

Neither Tri-City Roofing nor Johnson have appeared in this court, either by way of briefs or oral argument.

A problem such as the one at bar was considered in Rovekamp v. Central Const. Co., 45 Ill App2d 441, 195 NE2d 756 (1964). There it was held that when a worker brought an action under the Structural Work Act against a general contractor, the general contractor had the right to bring a third party complaint against the subcontractor. There the third party defendant was the original plaintiff’s immediate employer, which is not the case here. This fact, however, does not seem to us to be controlling in the case at bar. If Darin & Armstrong have an action against Tri-City Roofing resulting from the injury to Johnson, then Darin & Armstrong have a right to file a third party complaint so that the entire matter may be cleared up in one proceeding. There is no claim that the third party complaint does not state a cause of action; Darin & Armstrong must be given the opportunity to prove their case. For these reasons the order of the Court below is reversed and the cause is remanded, with directions to overrule the motion to dismiss and for further proceedings.

Order reversed and cause remanded with directions.

LYONS, and BURKE, JJ., concur.