People ex rel. Goldman v. Harrison

• Decision Date: 05 December 1906
• Citation: 223 Ill. 540,79 N.E. 164
• Parties: PEOPLE ex rel. GOLDMAN v. HARRISON, Mayor, et al.
• Court: Illinois Supreme Court

223 Ill. 540

79 N.E. 164

PEOPLE ex rel. GOLDMAN

v.HARRISON, Mayor, et al.

Supreme Court of Illinois.

Oct. 23, 1906.

Rehearing Denied Dec. 5, 1906.

Appeal from Branch Appellate Court, First District.

Mandamus by the people, on relation of Samuel Goldman, against Carter H. Harrison, mayor, and others. Relator appeals from a judgment of the Branch Appellate Court reversing a judgment of the superior court of Cook county. Affirmed.E. N. Zoline, for appellant.

William D. Barge (James Hamilton Lewis, Corp. Counsel, of counsel), for appellees.

Samuel Goldman filed his petition in the superior court of Cook county against Carter H. Harrison and the city of Chicago for a mandamus to compel the issuance of a license to keep a junk shop at 152 Cleveland avenue, in Chicago. The petition contained averments showing that the petitioner had complied with the ordinance relating to the issuing of junk shop licenses, and that he was the owner of the premises, and that he had conducted a junk shop therein for the past 14 years, and had an established business, which would be lost if the license was not granted to him. The petitioner also sets out, and the answer of respondents relies upon, amended section 49 of the building ordinance of the city of Chicago, which is as follows: ‘It shall not be lawful for any person, firm or corporation to locate, build, construct or maintain on any street or alley in the city of Chicago, in any block in which two-thirds of the buildings on both sides of the street are used exclusively for residence purposes, any building for a livery stable, gas reservoir, blacksmith shop, foundry, packing house, rendering plant, soap factory, tannery, brewery or distillery, grain elevator, junk shop, or laundry to be run by machinery, without the written consent of a majority of such property owners, according to frontage on both sides of such alley or street. Such written consent shall be obtained and filed with the commissioner of buildings before a permit issued for the construction or keeping of such building: Provided, that in determining whether two-thirds of the buildings on both sides of the street are used exclusively for residence purposes, any building fronting upon another street and located upon a corner lot shall not be considered.’ Appellant did not comply with the above section of the building ordinance, but tendered an issue of fact that the block within which petitioner's premises were situated was a block wherein more than one-third of the buildings on both sides or the street were used for business purposes, and that two-thirds of said buildings were not used exclusively for residence purposes. In his replication to respondent's answer, which set up and relied upon the above ordinance, petitioner replied that the above section of the building ordinance was unconstitutional and void, and for that further reason he was not required to obtain the written consent of the majority of the property owners whose property fronted on said street. By agreement of parties the jury was waived, and the cause tried by the court. Evidence was introduced by both parties as to the occupancy of the various buildings on both sides of Cleveland avenue in the block in which petitioner's premises are located, and the court decided the case on this single issue in favor of the petitioner, and awarded a peremptory mandamus, as prayed for. No propositions of law were submitted to the trial court. The respondents excepted to the judgment, and prayed an appeal to the Appellate Court for the First District, where, upon a consideration of the evidence, the Appellate Court reversed the judgment of the superior court, and made the following finding of facts: ‘The court finds as a fact that at the time the relator made an application for a license to keep a junk shop at 152 Cleveland avenue, Chicago, as stated in the petition herein, and from that time until the filing of said petition, two-thirds and more of the buildings on both sides of the street in the block in which said building, 152 Cleveland avenue, was situated were used exclusively for residence purposes.’From the judgment of the Appellate Court petitioner below, by his appeal, brings the case to this court, and asks a reversal, on the grounds that the Appellate Court had no jurisdiction of the subject-matter, and that the ordinance in question, if construed to apply to buildings erected and used as junk shops prior to its passage, is retrospective, unconstitutional, and void.

VICKERS, J. (after stating the facts).

Under our statutes and numerous decisions of this court, the finding of facts by the Appellate Court is final and conclusive as to all matters of fact in controversy in this cause. Hurd's Rev. St. 1905, c. 110, § 88; Williams v. Forbes, 114 Ill. 167, 28 N. E.Williams v. Forbes, 114 Ill. 167, 28 N. E. E. 384; Northwestern Brewing Co. v. Manion, 145 Ill. 182, 34 N. E. 50;Lenz v. Harrison, 148 Ill. 598, 36 N. E. 567;Aachen & Munich Fire Ins. Co. v. Crawford, 199 ill. 367, 35 N. E. 134. The only question that can be determined by this court in a case where the reversal in the Appellate Court is the result of a finding of the facts wholly or in part different from the trial court, is whether the Appellate Court has erred in applying the law to the facts so found. See cases above cited. If, however, the Appellate Court had no jurisdiction of the...