Danielson v. City of Rockford

• Decision Date: 01 September 1949
• Docket Number: Gen. No. 10336.
• Citation: 87 N.E.2d 660,338 Ill.App. 347
• Parties: PEOPLE ex rel. DANIELSON v. CITY OF ROCKFORD et al.
• Court: United States Appellate Court of Illinois

338 Ill.App. 347

87 N.E.2d 660

PEOPLE ex rel. DANIELSON

v.CITY OF ROCKFORD et al.

Gen. No. 10336.

Appellate Court of Illinois, Second District.

Sept. 1, 1949.

Appeal from Circuit Court, Winnebago County; William B. Dusher, Judge.

Petition by the People of the State of Illinois, on the relation of Axel Danielson, against the City of Rockford, a municipal corporation, and Fritz Oberg, inspector of such city for mandamus to compel the defendants to issue building permits. From the judgment, defendants appeal.

Reversed.Charles S. Thomas and Welsh & Welsh, Rockford, for appellants.

Large, Reno & Zahm, Rockford, for appellee.

WOLFE, Presiding Justice.

On March 4, 1948, the appellee, Axel Danielson, made application to Fritz Oberg, the building inspector of the City of Rockford, for permits to erect four buildings in that city and each designated for use and occupancy by four families, and commonly known as four-family apartments. The buildings were to be constructed on three lots which are located in the territory, or area designated by the zoning ordinance of the city as, ‘B_____ Residential Districts.’ Applicable to ‘B_____ Residential District,’ the zoning ordinance provided at the time the permits were requested, in part, that, ‘no building shall be erected or altered except for one or more of the following uses. * * * 2. Two Family Dwellings.’ It appears from the pleadings that the building inspector refused to issue the permits on the sole ground that the zoning ordinance allowed only two-family dwellings to be erected in the zoning district where the buildings were to be erected.

The appellee on April 5, 1948, filed his petition in the Circuit Court of Winnebago County for a writ of mandamus to compel the City of Rockford and Oberg to issue building permits for the erection of the buildings. The petition in substance alleges that plans and specifications of the buildings in compliance with the ordinance of the city, were submitted to Oberg and that he refused to issue the permits. The appellee hereinafter will be referred to as the petitioner and the City of Rockford and Fritz Oberg as the respondents.

Respondents filed their answer admitting petitioner's ownership of the lots and that the plans and specifications for the buildings complied with the applicable building code of the city. The answer alleges that the permits were refused, because the area wherein the lots are located is zoned as ‘B_____ Residential District’ under the Zoning Ordinance then in force and that as such ‘Residential’ classification four-family apartments were not permitted.

The petitioner filed his reply to the answer admitting that there is and was on March 4, 1948, a certain alleged or pretended Zoning Ordinance of the City of Rockford in alleged or pretended force and effect in and by which said alleged or pretended ordinance the lots described in the complaint, were classified as ‘B_____ Residential District,’ as set forth in the answer of the respondents. Admits that petitioner's application for building permits was made to Oberg for the purpose of construction and erection upon the lots four-family apartment buildings. The reply further alleges that the Zoning Ordinance is void and of no force and effect; that the said ordinance insofar as it attempts to define Class ‘A,’ ‘B’ and ‘C’ Residential Districts is purely capricious, arbitrary and discriminatory, and that the same bears no relation whatsoever to the preservation of the public health, morals, comfort and welfare; that said ordinance is an invalid exercise of the City of Rockford of its police power and constitutes a taking of petitioner's property without just compensation contrary to Section Thirteen of Article Two of the Constitution of the State of Illinois, Smith-Hurd Stats., and further that said ordinance constitutes a taking of the property of the petitioner without due process of law, contrary to Section two of Article Two of the Constitution of the State of Illinois; that said ordinance deprives petitioner of his property and renders the same of little or no value to him; that by reason of the foregoing, the matters and things set forth in the respondents' answer constitutes no reason for the denial of the writ of mandamus as prayed in petitioner's complaint.

The respondents filed their answer to the reply denying each allegation of the reply.

There was a hearing before the court and a decree rendered awarding the writ as prayed in the complaint. The trial judge refused to certify that the validity of a city ordinance is involved. The respondents have appealed.

It does not appear from the decree that the trial court held that the ordinance, or any part thereof, as being so arbitrary and unreasonable as to result in confiscation of petitioner's property without just compensation, or without due process of law. In other words, the court did not decide that the ordinance, or any part thereof, is an unreasonable or improper exercise of the police power contrary to constitutional limitations on the police power delegated to cities of this state by our legislature to enact zoning ordinances. This court does not have jurisdiction to determine the question of the validity of an ordinance of a municipal corporation where the construction of a constitutional provision is involved. City of Aurora v. Burns, 319 Ill. 84, 149 N.E. 784;Harmon v. City of Peoria, 373 Ill. 594, 27 N.E.2d 525;City of Chicago v. Krema Trucking Co., 401 Ill. 411, 82 N.E.2d 338;City of Greenville v. Nowlan, 279 Ill.App. 311;Pollack v. Du Page County, 371 Ill. 199, 20 N.E.2d 273.

It is contended by the respondents that the court assumed and exercised a legislative function in rendering the decree. In the case of Welton v. Hamilton, 344 Ill. 82, 176 N.E. 333, the Supreme Court held that Section 3 of the Zoning Act of 1923, which authorized the board of appeals, created by the act, to vary or modify the...