Behnke v. President & Board of Trs. of Village of Brookfield

• Decision Date: 11 June 1937
• Docket Number: No. 24067.,24067.
• Citation: 9 N.E.2d 232,366 Ill. 516
• Parties: BEHNKE v. PRESIDENT AND BOARD OF TRUSTEES OF VILLAGE OF BROOKFIELD et al.
• Court: Illinois Supreme Court

366 Ill. 516

9 N.E.2d 232

BEHNKE

v.PRESIDENT AND BOARD OF TRUSTEES OF VILLAGE OF BROOKFIELD et al.

No. 24067.

Supreme Court of Illinois.

June 11, 1937.

Proceeding by John C. Behnke against the President and Board of Trustees of the Village of Brookfield and others for a writ of mandamus to require the village authorities to rezone his residence property into a commercial classification. From an adverse judgment, the defendants appeal.

Reversed and remanded.Appeal from Circuit Court, Cook County; Harry M. Fisher, judge.

Paul W. Pretzel, Village Atty., and Homer C. Dawson, both of Chicago, for appellants.

Clarence C. Taylor and Charles H. Borden, both of Chicago, for appellee.

ORR, Justice.

The officers of the village of Brookfield have appealed from a judgment of the circuit court of Cook county declaring a zoning ordinance unconstitutional. The action arose upon the verified petition of Behnke for a writ of mandamus to require the village authorities to rezone his residence property into a commercial classification, so he might operate a parking lot and erect a refreshment stand thereon. The petition, by leave of court, was amended to include a count challenging the validity of the ordinance under the State and Federal Constitutions. The lower court has certified that the validity of a municipal ordinance is in issue.

Our view of certain errors relied upon by the appellants renders unnecessary a determination of the constitutionality of the ordinance.

The zoning board of appeals of the village recommended that Behnke's property be given a commercial classification, notwithstanding the objections of some two hundred and fifty petitioners and the opposition testimony of numerous property owners and officers, directors, and teachers in nearby high schools. The president and the trustees of the village board refused to act upon the report and recommendation of the zoning board. When this fact came to the attention of the trial judge, he ruled that the action of the zoning board caused the burden of proof to shift from Behnke to the village authorities, and that the village should thereafter have the burden of proving that the ordinance was reasonable and valid. In this ruling the court erred.

The presumption is in favor of the validity of a zoning or other ordinance adopted pursuant to a legislative grant, and it is incumbent upon the property owner attacking it to affirmatively and clearly show its unreasonableness. Standard Oil Co. v. City of Danville, 199 Ill. 50, 64 N.E. 1110;People v. Village of Oak Park, 266 Ill. 365, 107 N.E. 636;Village of Western Springs v. Bernhagen, 326 Ill. 100, 156 N.E. 753;Rothschild v. Hussey, 364 Ill. 557, 5 N.E.(2d) 92;Punke v. Village of Elliott, 364 Ill. 604, 5 N.E.(2d) 389.

The phrase ‘burden of proof’ is a much abused term because it has been the tendency of courts and lawyers to use the phrase loosely to mean either the need of establishing the existence of a fact or facts by evidence which preponderates to a legally determined degree, or the task resting upon a party litigant, at any particular time during the trial, to create a prima facie case in his own favor or to destroy one when created by the opposing litigant. ‘Burden of proof’ should be restricted to the first situation, and burden of going forward with evidence is a more exact expression to use in denominating the second situation. 22 Corpus Juris, p. 67; Donovan v. St. Joseph's Home, 295 Ill. 125, 129 N.E. 1;Sellers v. Kincaid, 303 Ill. 216, 135 N.E. 429. The burden of proof rests upon Behnke, as he...