Du Page Cnty. v. Henderson

• Decision Date: 19 January 1949
• Docket Number: No. 30791.,30791.
• Citation: 402 Ill. 179,83 N.E.2d 720
• Parties: DU PAGE COUNTY v. HENDERSON et al.
• Court: Illinois Supreme Court

402 Ill. 179

83 N.E.2d 720

DU PAGE COUNTY

v.HENDERSON et al.

No. 30791.

Supreme Court of Illinois.

Jan. 19, 1949.

Appeal from Circuit Court, Du Page County; Harry W. McEwen, judge.

Suit by County of Du Page against Clare S. Henderson and another to enjoin defendants from using their property for a purpose contrary to zoning ordinance enacted under authority of County Zoning Act, Smith-Hurd Stats. c. 34, s 152i et seq. From adverse decree, the defendants appeal.

Affirmed.

George E. Woods, Donald L. Vetter and Weaver & Weaver, all of Chicago, for appellants.

Lee E. Daniels, State's Atty., of Wheaton (John S. Woodward and Charles W. Hadley, both of Wheaton, of counsel), for appellee.

CRAMPTON, Justice.

This is a direct appeal from a decree of the circuit court of Du Page County, involving the validity of a zoning ordinance enacted under the authority of the County Zoning Act. The county of Du Page sought to enjoin the defendants-appellants, Clare S. Henderson and his wife, Elsie, from using their property for a purpose contrary to the ordinance. The answer of appellants admitted such use but alleged the ordinance to be subject to various constitutional objections. The decree enjoined them from so using the property, and this appeal followed.

The board of supervisors zoned the unincorporated areas of the county into seven districts, (1) ‘E’ (Estate), (2) ‘R’ (Residence), (3) ‘F’ (Farming), (4) ‘B-1’ (Business), (5) ‘B-2’ (Business), (6) ‘I-1’ (Industrial) and (7) ‘I-2’ (Industrial). The involved property is within the ‘F’ zone. In that zone the uses permitted under ‘E’ and ‘R’ are also permitted in addition to 22 other uses, one of which is farming and truck gardening.

The basic facts can be summarized very briefly after we describe the territory wherein the properties of appellants and of appellee's witnesses are located, namely Lisle Township, which is a congressional one of 36 sections. In the west part thereof is Naperville, in the east is part of Belmont, the two being connected by U. S. Route 34. Cutting the township north and south is State Route 53. Where the two routes intersect is the unincorporated village of Lisle. Approximately two miles south of Lisle in the southwest quarter of section 23, Route 53 is crossed by an east and west highway known variously as ‘Good Ridge Road,’ ‘Goodrich Road,’ and ‘Hobson Road.’ We shall use the last appellation herein. Extending north from the intersection of the two roads along the east side of Route 53, the land is divided into lots of small acreage for assessment purposes, except for a plot at the intersection devoted to district school purposes. A subdivision covers territory on both sides of Route 53 between section 23 and Lisle. About one and one-half miles west of the intersection, and on the north side of Hobson Road is another subdivision in the southwest quarter of section 22. The testimony of witnesses and the maps in evidence clearly establish the fact that the township is largely devoted to farming uses. There are exceptions, such as areas adjoining Naperville and Belmont, and around Isle, zoned for residential purposes. A considerable acreage is devoted to the use of Catholic orders. Small areas zoned for business are interspersed through the township, the closest of such to the intersection of Route 53 and Hobson Road being on the former in section 26. On the west side of Route 53 in section 23 are the abandoned grounds of a defunct golf club on which is a gravel pit of undertermined size and use. Small, but seemingly sufficient, industrial zones are found adjoining Naperville and Belmont, in Lisle, and is section 15.

Insofar as Lisle Township is concerned, the evidence demonstrates a progressive infiltration of people acquiring small acreages in the ‘F’ district for residential purposes. Each instance required the outlay of considerable money for the procurement of the ground, construction of the dwelling and appurtenances. The infiltration is further evidenced by the establishment of the two subdivisions for residential use, both relatively close to the property of the appellants. The one to the north on Route 53 is laid out in 19 blocks containing 371 lots. The one to the west on Hobson Road has eight acreages ranging from 3 to 10 acres each in the part situated in the township. Additionally, there are the acreages of those township residents, living fairly close to defendants, who appeared as witnesses for the appellee. Those witnesses either resided on the lots created for assessment purposes along the east side of Route 53 north of its intersection with Hobson Road, or along the latter road west and east of the intersection.

The appellants said in the lower court, and say here, that the ordinance, insofar as it bears upon them adversely in this instance, contravenes sections 2 and 13 of article II of the constitution of 1870, Smith-Hurd Stats., because it (a) takes their property without just compensation, (b) is unreasonable and arbitrary, and (c) bears no substantial relationship to public safety, morals or general welfare. It is also charged to be a capricious invasion of their property rights; and, even though the ordinance be held valid, the decree should be reversed and the complaint dismissed for want of equity due to the slight public benefit, if any, as compared to the extreme hardship upon them. There are two other objections we will consider later.

The county zoning ordinance was adopted in 1935. The appellants purchased lot 4 of the assessment division in January, 1941, and erected a dwelling thereon. In that structure, appellant Clare S. Henderson installed machine tools for manufacturing machines under a contract with the army. Because of the war, the manufacturing activity was never challenged as a violation of the ordinance. Subsequently, in 1944, the equipment was moved from the dwelling to a building on the lot and the manufacturing continued. A punch press was installed in a garage on the lot in January, 1945, and was removed therefrom and sold in October of that year when neighbors objected to the noise from its operation. On the north 65 feet of lot 4 the appellants erected a building in the latter part of 1945, and in January, 1946, they installed machinery therein and used the premises and machinery for the processing of ground flat carbon tool steel stock, which they sell to manufacturers. This activity is not predicated upon any government contract. This particular building is about 105 by 41 feet and about 350 feet from the center of Route 53. In October, 1945, the appellant Clare S. Henderson applied to the zoning board of appeals of the county for a variation in zoning, so he could conduct his manufacturing business, subject to certain conditions we need not state. This application was denied.

The appellants also owned another tract of five acres north of and adjacent to lot 4. Thereon they built a new residence, and a son-in-law did likewise. In March, 1946, they sold all of lot 4, except the north 65 feet containing the factory building, to Norbert Rennecke for residential purposes. The appellants gave further recognition of the zoning ordinance, and of the fact they were restricted by it in respect to the manufacturing venture, when application was made for a permit to erect the building on the 65-foot strip of lot 4. The application was for the construction of a barn, 104 by 40 feet, to be used to ‘house stock, poultry and miscellaneous storage.’ If any such use was made of the structure, it was merely a token use, for it was almost immediately used to house the manufacturing venture. The type of construction used belies the professed use to which it presumably was to be put.

The police power of the State is that power required to be exercised in order to effectually discharge within the scope of the constitutional limitations its paramount obligation to promote and protect the public health, safety, morals, comfort and general welfare of the people. The enactment into law of ‘An Act in relation to county zoning’ in 1935 (Ill.Rev.Stat.1947, chap. 34, par. 152i et seq.) was a delegation of that power to the counties to be exercised by them for the accomplishment of those purposes in order to benefit county residents outside of incorporated cities and villages.

The owner of property does possess the right under constitution of the State to use his property as he so desires; and this includes the engaging in any common occupation of life, for such is a part of his right to life, liberty, property and the pursuit of happiness. It is one of the natural rights guaranteed to him by the constitution. Const.1870, art. II, sec. 1; Frazer v. Shelton, 320 Ill. 253, 150 N.E. 696, 43 A.L.R. 1086. A person's business, profession or occupation is ‘property’ within sections 1 and 2 of article II relating to due process of law and the right to liberty and the pursuit of happiness. Lasdon v. Hallihan, 377 Ill. 187, 36 N.E.2d 227. This individual right is not unqualified. It does have to yield to the higher and greater right of the best interests of the people. Phipps v. City of Chicago, 339 Ill. 315, 171 N.E. 289. This holds true though a proper exercise of the police power brings about a material financial loss, for that cannot stand in the way of public welfare, the latter not being susceptible to being impeded or thwarted by a private loss which is incident to the exercise of that power. Hadacheck v. Sebastian, 239 U. S. 394, 36 S.Ct. 143, 60 N.Ed. 356, Ann.Cas.1917B, 927. The justification for a zoning ordinance reducing the value of some individual rights is the greater benefit accruing to the public as a whole; and this includes the limitation of the potential value of a particular parcel of property. Neef v. City of Springfield, 380 Ill. 275, 43 N.E.2d 947. This court has no right to question legislative policy. When the legislature has determined what is a proper exercise of the police power, this court...