City of Chicago v. Miller

• Decision Date: 01 February 1963
• Docket Number: No. 37328,37328
• Citation: 188 N.E.2d 694,27 Ill.2d 211
• Parties: The CITY OF CHICAGO, Appellee, v. Hymen MILLER et al., Appellants.
• Court: Illinois Supreme Court

Page 694

188 N.E.2d 694

27 Ill.2d 211

The CITY OF CHICAGO, Appellee, v. Hymen MILLER et al., Appellants.

No. 37328.

Supreme Court of Illinois.

Feb. 1, 1963.

Rehearing Denied March 27, 1963.

Harry G. Fins, Favil David Berns, and Samuel B. Bass, Chicago, for appellants.

John C. Melaniphy, Corp. Counsel, Chicago (Sydney R. Drebin and John J. O'Toole, Asst. Corp. Counsel, of counsel), for appellee.

SOLFISBURG, Chief Justice.

The city of Chicago brought suit in the circuit court of Cook County against the defendants to compel them to make certain improvements to a building owned by them so that the building would comply with certain provisions of the municipal code of Chicago. The case was heard by the trial court without a jury. The defendants submitted no evidence, and at the conclusion of the plaintiff's evidence the court enterd a decree finding that the city had proved that the defendant's building did not comply with the municipal code in certain respects and ordering the defendants to make improvements to their property so as to bring it in compliance with the code. The trial judge certified that the validity of a municipal ordinance was involved and the public interest required an appeal to this court, and the defendants have appealed.

In addition to contesting the validity of the ordinances, defendants contend that the decree of the trial court is erroneous in certain other respects, and we shall first consider these contentions. This action was brought under the authority of section 23-70.3 of the Revised Cities and Villages Act (Ill.Rev.Stat.1959, chap. 24, par. 23-70.3) which provides, in substance, that if the appropriate official of any municipality determines upon due investigation that any building in the city fails to conform to the minimum standards of health and safety as set forth in the applicable ordinances of the city, and the owner of the property fails, after due notice, to cause the property to conform to the ordinances, the municipality may make application to any court of competent jurisdiction for an injunction requiring compliance. The defendants argue that a prosecution by a municipality for the violation of an ordinance is a common-law action in which the defendants are entitled to a trial by jury, and defendants contend that since this proceeding involves an alleged violation of a municipal ordinance that they are entitled to a trial by jury in an action at law despite the provisions of this statute. A similar contention was advanced in Village of Spillertown v. Prewitt, 21 Ill.2d 228, 171 N.E.2d 582, where we affirmed a decree granting an injunction against the operation of a strip mine. We held that prosecutions for day-to-day violations of the ordinance prohibiting such an operation would not serve the intent of the ordinance to protect the public. We held that a court of equity had jurisdiction and that the defendant was not entitled to a trial by jury. Under this authority the city here had the power to proceed in equity even in the absence of the statute, and we therefore hold that the procedure was authorized and did not deprive the defendants of the right to trial by jury.

The defendants also argue that the city was estopped from obtaining the relief sought by its complaint. The evidence showed that this building was constructed in 1899 under a permit issued by the building department of the city of Chicago. Defendants contend that after a lapse of more than 60 years since the original construction of the building the city should be estopped from complaining about any building violations. This argument completely ignores the fact that the violations complained of in this case have nothing to do with the original erection of the building but deal with violations of the present municipal code, which was enacted in 1949 and was made applicable to existing buildings in 1956. The mere fact that the building was originally constructed under the authority of a permit issued by the city in no way estops the city from bringing an action to compel compliance with the existing code.

In further support of the defendants' estoppel argument, they contend that the city is estopped from demanding compliance with the code by reason of the fact that the defendants purchased the building in 1957, allegedly in reliance upon certain statements by a city employee that the building did not violate the code. The defendant Hymen Miller testified that before he bought the building he went to the building department of the city and told some person in the office that he intended to buy this building and wanted to see what condition it was in. According to this defendant, he was told that it looked pretty good; that there were inspection records and they all seemed to be o.k.; and that there did not seem to be anything drastically wrong according to the records. Defendant further testified that he also inspected the building and could see no reason why he should not buy it. There was no evidence to indicate that the defendant checked the municipal code to see if the building complied with the code. Defendant testified that he had an attorney at the time of the closing of the real-estate purchase but that he did not ask his attorney to check and see whether the building complied with the code because the defendant felt that he was just as qualified as the attorney would be. It is settled that as a general rule a city cannot be estopped by an act of its agent beyond the authority conferred upon him. This general rule is qualified to enable a party to invoke the doctrine where his action was induced by the conduct of a municipal official and where, in the absence of such relief, he would suffer a substantial loss. (Cities Service Oil Co. v. City of Des Plaines, 21 Ill.2d 157, 171 N.E.2d 605.) In that case we held the doctrine applicable because of special circumstances which are not present here. We pointed out that the property owner there had attempted to secure a copy of the ordinance relating to service stations and that the city officials had furnished him with a copy of an ordinance that was no longer in existence and also pointed out that the property owner had expended substantial sums in the construction of the service station before the permit was revoked. We stated in that case that if one is aware of an applicable ordinance or makes no attempt to know of it, even the issuance of a permit contrary to the provisions of the ordinance does not create an estoppel. In the present case the defendants made no attempt to ascertain the applicable provisions of the code. No permit was issued and the defendants relied simply on the oral representations of an unnamed person in the building department that so far as that person could see from the file there were no violations. In Gregory v. City of Wheaton, 23 Ill.2d 402, 178 N.E.2d 358, the property owner claimed that the city was estopped from complaining about a multiplefamily use of property in a single-family zone. The city had issued a permit authorizing the construction of a stairway to a third-floor apartment and the property owner contended that the issuance of this permit estopped the city from complaining about a violation of the zoning ordinance. We held that the issuance of the permit and the actual commencing of the construction of the stairway were insufficient to take the case out of the general rule so as to make the doctrine of estoppel applicable. The facts in the present case upon which defendants seek to create an estoppel are not as persuasive as those in Gregory, where we held the doctrine inapplicable. We hold that the general rule is applicable to the present case and the city is not estopped.

The defendants also contend here that the city is barred by laches. This contention is again based upon the fact that the building had been in existence since 1899 and no action had been taken by the city to compel compliance with the building code. As we have heretofore pointed out, the original construction of the building is not involved here and it is entirely immaterial how long the building had been in existence. Furthermore, the doctrine of laches is not applicable to a governmental unit in the exercise of its governmental rights and powers. People ex rel. Nudelman v. Superior Petroleum Co., 372 Ill. 546, 25 N.E.2d 30.

It is also argued that the city failed to bring itself within the terms of the statute authorizing a prosecution of this action. As we have heretofore pointed out, this statute provides for an investigation and determination by an appropriate officer of a municipality. The defendants contend that the only appropriate officer qualified to make such an investigation is the commissioner of buildings of the city of...