City of Chicago v. Reuter Bros. Iron Works, Inc.

• Citation: 75 N.E.2d 355,398 Ill. 202
• Decision Date: 17 November 1947
• Docket Number: No. 29785.,29785.
• Parties: CITY OF CHICAGO v. REUTER BROS. IRON WORKS, Inc.
• Court: Supreme Court of Illinois

398 Ill. 202

75 N.E.2d 355

CITY OF CHICAGO

v.REUTER BROS. IRON WORKS, Inc.

No. 29785.

Supreme Court of Illinois.

Sept. 18, 1947.

Rehearing Denied Nov. 17, 1947.

Appeal from Municipal Court of Chicago; Joseph H. McGarry, judge.

Reuter Bros. Iron Works, Inc., was convicted of a violation of a zoning ordinance of the City of Chicago, by operating its manufacturing plant on land zoned as a family residence district, and it appeals.

Judgment reversed.

Levinson, Becker & Peebles, of Chicago (Don M. Peebles and Halbert O. Crews, both of Chicago, of counsel), for appellant.

Barnet Hodes, Corp. Counsel, and Benjamin S. Adamowski, Corp. Counsel, on rehearing, both of Chicago (L. Louis Karton and Herman Smith, both of Chicago, of counsel), for appellee.

FULTON, Justice.

This is an appeal by the defendant from a judgment of the municipal court of Chicago, finding the defendant guilty of a viotion of section 5 of the zoning ordinance of the city of Chicago, by operating its manufacturing plant on land zoned as a ‘Family Residence District.’

The amended complaint charged that the defendant operated its plant for the fabricating and manufacturing of structural steel in violation of sections 4 and 5 of the 1944 zoning ordinance of the city of Chicago and also charged that the defendant operated its plant in violation of the zoning ordinance of 1923. By its answer the defendant set up that under the 1923 ordinance the property was zoned as a manufacturing district; that in 1940 the defendant secured a building permit and a use permit from the city for the property, which recited that the building was located in a manufacturing district and was to be used for the purpose of metal fabrication; that said property had been used for such purposes continuously since said time and that subsequent to the granting of said permits and the use of said premises for manufacturing purposes the zoning ordinance of 1943 was amended, placing the property used by the defendant in a residential classification, but that defendant's use of said premises cannot be altered by said subsequent amendment. The defendant, by its answer, also asserted that it had not violated the 1923 zoning ordinance in its use of said premises, because the provision of that ordinance prohibiting the use of the premises for fabricating metals in such a manner which would emit noises of a ‘disagreeable or annoying nature’ was unconstitutional as not being sufficiently specific.

At the hearing there was little dispute as to the nature of defendant's business. Five witnesses testified for the city upon the question of the nature and extent of the noise, and eight witnesses testified upon the same question for the defendant. The witnesses for the city testified that they were annoyed by the noises coming from the plant and those for the defendant were equally certain that the noises were not disagreeable nor were they annoying.

The challenged section of the zoning ordinance of 1923 is as follows: M-1 Use-An M-1 use shall include such storage manufacturing or other uses of property coming within the definition of an M-use as do not injuriously affect the occupants of adjacent uses and are so operated that they do not emit dust, gas, smoke, noise, fumes, odors, or vibrations of a disagreeable or annoying nature. * * * Fabricating, other than snap riveting or processes used in bending and shaping of metal which emit noises of a disagreeable or annoying nature, for assembling metal products, forging of metals, melting, casting of metals or manufacturing of steel or alloys or steel from iron, provided no cupola is employed; and further provided no operation is contrary to the general definition of an M-1 use.'

The city contends that the defendant has violated the 1944 ordinance because its use of the property, not being in accordance with its permit, violated the 1923 ordinance, and, therefore, the use of the property being unlawful, it is not entitled to any protection as a nonconforming use. The appellant contends that, inasmuch as the judgment of the trial court found the defendant guilty of a violation of section 5 of the 1944 zoning ordinance, the verdict was not responsive to the issues in the cause which were limited to the violation of the 1923 ordinance, and that for that reason the case must be reversed. The defendant further contends that, even if this were not so, the cause must be reversed because the ordinance of 1923 is so vague and indefinite in using the words ‘of a disagreeable or annoying nature’ that persons of common intelligence, who desire to comply therewith, must necessarily guess as to its meaning.

We first pass to the question of the constitutionality of the ordinance of 1923 which provides for the use of this district for limited manufacturing purposes. In support of its argument, the defendant relies heavily upon Parks v. Libby-Owens-Ford Glass Co., 360 Ill. 130, 195 N.E. 616,Boshuizen v. Thompson & Taylor Co., 360 Ill. 160, 195 N.E. 625, and Vallat v. Radium Dial Co., 360 Ill. 407, 196 N.E. 485, 487, 99 A.L.R. 607. These cases involved the Occupational Diseases Act, which provided that any employer carrying on work which might produce any illness should adopt ‘reasonable and approved devices' for the prevention of industrial or occupational diseases. In the Vallat case, while construing this provision of the statute, this court said generally: ‘In order that a statute may be held valid, the duty imposed by it must be prescribed in terms definite enough to serve as a guide to those who have the duty imposed upon them. * * * if the duty is imposed by statute through the use of words which have not yet acquired definiteness or certainty and which are so general and indefinite that they furnish no such guide, the statute must be declared to be invalid. When it leaves the Legislature a law must be complete in all its terms, and it must be definite and certain enough to enable every person, by reading the law, to know what his rights and obligations are and how the law will operate when put into execution.’

The city argues on this point that while the above holdings are correct in the general line of cases, in these holdings the words used in the statute had no well-defined meaning in the particular industry and were unknown to common law and therefore they were properly held void for want of certainty. They further state that where the words used possessed the requisite certainty because of a well-settled common-law meaning ...