Dunne v. Rock Island Cnty.

• Decision Date: 05 June 1918
• Docket Number: No. 11870.,11870.
• Citation: 119 N.E. 591,283 Ill. 628
• Parties: DUNNE v. ROCK ISLAND COUNTY et al.
• Court: Illinois Supreme Court

283 Ill. 628

119 N.E. 591

DUNNE

v.ROCK ISLAND COUNTY et al.

No. 11870.

Supreme Court of Illinois.

April 17, 1918.

Rehearing Denied June 5, 1918.

Appeal from Circuit Court, Rock Island County; W. T. Church, Judge.

Bill by Edward M. Dunne, Catholic Bishop, against the County of Rock Island and another. From a decree dismissing the bill, complainant appeals. Reversed and remanded, with directions.

J. F. Murphy and J. T. & S. R. Kenworthy, all of Rock Island, for appellant.

Floyd E. Thompson, State's Atty., and Searle & Marshall, all of Rock Island, for appellee Rock Island County.

Shallberg & Harper, of Moline, for appellee Paul H. Lorenz.

CARTWRIGHT, J.

On June 21, 1915, the appellant, Edward M. Dunne, Catholic bishop, filed in the circuit court of Rock Island county his bill in this case against the county of Rock Island, one of the appellees, praying for an injunction to restrain the erection of a jail on the public square in the city of Rock Island on the ground that it would be an infringement of his easement as the owner of abutting property sold by the county with reference to the public square. The facts averred in the bill are stated in Dunne v. County of Rock Island, 273 Ill. 53, 112 N. E. 342. The bill having been dismissed, this court held, on appeal, that on its face it stated a good cause of action, and the decree was reversed and the cause remanded, with directions that the parties be required to make up issues by proper pleadings for a final hearing. The cause was reinstated in the circuit court, and in the meantime the General Assembly amended section 1 of the act entitled ‘An act to revise the law in relation to jails and jailers,’ in force July 1, 1874, to read as follows:

‘There shall be kept and maintained, in good and sufficient condition and repair, a common jail in each county within this state, at the permanent seat of justice for such county. But it shall be unlawful to build a jail within two hundred feet of any building used exclusively for school purposes.’ Laws of 1915, p. 491.

The bill was amended by adding averments that the school building owned by the appellant had been for many years, and was then, used exclusively for school purposes, and that the jail building, if erected as proposed, would be within 96 feet of the building. The answer of the county admitted that complainant was a Catholic bishop and the owner in fee of the lots described in the bill, but denied that the building was used exclusively for school purposes, and alleged various grounds upon which it was claimed that the act of 1915 was unconstitutional and void. Paul H. Lorenz, who had contracted with the county to erect the building, intervened and was permitted to become a defendant. The issues were referred to a master in chancery to take the evidence and report the same with his conclusions. He took the evidence and reported the same with conclusions that the county commissioners did not dedicate the square to the public; that the municipality, the public, and the complainant had no rights of property or otherwise in the square; that the county might erect the new jail on the square without hindrance, and that the complainant, by permitting buildings on the square, had lost his right to the application of the inhibition against the erection of the jail. The cause was heard on exceptions to the master's report, which were overruled, and the report was approved and confirmed and the amended bill dismissed for want of equity at the costs of the complainant. From that decree this appeal was prosecuted.

The original bill, which the court found on the former appeal stated a good cause of action on its face, was based on the alleged dedication of the public square to be kept open and free from encroachment for the uses and purposes named in the town plat and the right of the complainant derived from the ownership of lots abutting on the square, but on the reinstatement of the cause there were added, by amendment, averments which brought the complainant's property within the terms of the act of June 24, 1915, whereby the General Assembly had forbidden the erection of a jail within 200 feet of a building used exclusively for school purposes. An issue of fact was made up on the averment that the building was used exclusively for school purposes, and an issue of law as to the validity of the act. If the building was used exclusively for school purposes and the act did not violate constitutional provisions for its enactment or interfere with constitutional rights, other questions raised concerning rights claimed under the original bill are eliminated and not to be considered.

The evidence concerning the uses of the school building was that it was built in the summer of 1912 at a cost of $55,000, was three stories in height, and had been continuously occupied since it was built, nine months in the year, for a school, attended by from 380 to 460 scholars, in which all the branches of study taught in the public schools were taught and also commercial courses and music. There were fourteen teachers, a kindergarten, eight regularly organized grades, and a night school. The first story was a large room used for the school entertainments, recitals by the music scholars, and as a playroom for kindergarten children in bad weather. Back of that room were two rooms used as a lunchroom and toilet rooms for the children. The second floor was divided into rooms for classes and for teaching music and elocution, and the rooms on the third floor were similar to those on the second. During school hours no other business was conducted in the building and no part of it was ever rented to others for any period. The boys of the school had a club, called the Booster's Society, which met three or four times a year at night in the elocution room on the second floor and paid nothing for the accommodation. No other use was ever made of any part of the building except temporarily as an accommodation and interfering in no manner with the school. The Lady Foresters, a sororal order, met on the last Sunday of the month in a room in the building and paid $20 to cover janitor service, light, and heat. There was an altar society of the adjacent Catholic church taking care of the linen, vestments, and appurtenances of the altar, and it had sometimes held its meetings in the anteroom of the school. After the bill was filed, on two evenings during the summer vacation of 1915 a women's drill team of the Royal Neighbors of America desiring a room with a piano in it was permitted to use the hall in the school for practicing a drill and marching, and they paid $2 for the accommodation.

It is contended by counsel for the appellant that if the primary use of a building is for a certain purpose it is to be regarded as the exclusive use under the holding in First Congregational Church v. Board of Review, 254 Ill. 220, 98 N. E. 275,39 L. R. A. (N. S.) 437, and by counsel for the appellees that the word ‘exclusively’ is to be given an interpretation so strict that nothing must be done in a building within the terms of the act except conduct a school. These are extreme views, and on the one hand the use may be a primary or principal one but not exclusive, and on the other hand in determining whether the use is exclusive the term is not to receive an unreasonably narrow and constricted construction. There is, perhaps, no building erected for a particular use, without which it would never be constructed or used, no part of which is ever used for any other purpose. School buildings are frequently used in political campaigns for political meetings, and at other times for lectures or social entertainments, and in time of war for patriotic meetings. Churches are used for marriages, charitable societies, and social entertainments. Property of each must be used exclusively for its purpose to be exempt from taxation. If the act is to receive a strict construction, the rule is of value only in finding the real meaning of the statute, and ‘the paramount duty of the judicial interpreter is to put upon the language of the Legislature, honestly and faithfully, its plain and rational meaning and to promote its object.’ Armour & Co. v. Industrial Board, 275 Ill. 328, 114 N. E. 173.

The decisions in reference to taxation have never given such a restrained and confined definition of ‘exclusive’ use as is claimed in the argument for the appellees. In First Methodist Episcopal Church v. City of Chicago, 26 Ill. 482, the court held that the first story of the church building, occupied for stores, banking business and the like, and the second story, used for lawyers' and doctors' offices and other business purposes, were not exempt from taxation, but the main body of the third and fourth stories, used for religious purposes, was exempt, thereby separating the uses of the same building. In Presbyterian Theological Seminary v. People, 101 Ill. 578, the law only exempted from taxation the land upon which the institution was located and that land was exempt, but a separate tract of 20 acres, separated from that tract, on which no buildings were located, was not exempt. In People v. Young Men's Christian Ass'n, 157 Ill. 403, 41 N. E. 557, the association had an extensive fivestory brick and stone building, part of which was rented to tenants at an aggregate rental of $11,000, consisting of a bank, title guaranty and abstract company, and a number of lawyers, dentists, doctors, and insurance agents. No society, organization, or person had any right in the building of the appellantas tenant or otherwise, nor was permitted to make any use of any part of it except by permission for a temporary use and as an accommodation. The property therefore came within the terms of the act of June 24, 1915.

The complainant had a right to maintain his suit under the act in question, which was passed for the protection of property used for school purposes, because a violation of the act would...