First Nat. Bank & Trust Co. v. City of Evanston

• Decision Date: 18 March 1964
• Docket Number: No. 38162,38162
• Citation: 30 Ill.2d 479,197 N.E.2d 705
• Parties: FIRST NATIONAL BANK & TRUST CO., Trustee, Appellee, v. The CITY OF EVANSTON, Appellant.
• Court: Illinois Supreme Court

Page 705

197 N.E.2d 705

30 Ill.2d 479

FIRST NATIONAL BANK & TRUST CO., Trustee, Appellee, v. The CITY OF EVANSTON, Appellant.

No. 38162.

Supreme Court of Illinois.

March 18, 1964.

Jack M. Siegel, Corp. Counsel, and Russell A. Behrens, Asst. Corp. Counsel, Evanston, for appellant.

Howard, Howard & Hofert, Chicago (Marshall S. Howard, Chicago, of counsel), for appellee.

SCHAEFER, Justice.

This case involves the validity of the zoning ordinance of the city of Evanston as applied to certain property held in trust by the plaintiff, First National Bank & Trust Company. The property, which is a single corner lot at the intersection of Emerson Street and Ashland Avenue, is presently zoned for two-family residences. The beneficial owner entered into a contract to sell the property for use as a gasoline service station, a commercial use not allowed under the existing zoning classification. Plaintiff's application to obtain a variation permitting such use was denied, and in a declaratory judgment proceeding the circuit court of Cook County held the ordinance invalid as applied to the property in question. The court certified that the validity of an ordinance was involved and that the public interest required a direct appeal to this court (Ill.Rev.Stat.1961, chap. 110, par. 75), and the defendant has appealed.

The changes in the jurisdiction of this court, and in its administrative responsibilities, that have been made by the amended judicial article of the constitution which became effective January 1, 1964, S.H.A., make it appropriate to examine the basis upon which the jurisdiction of this court upon direct appeal in zoning cases may be predicated. Under section 2 of the original judicial article of the constitution of 1870 this court was vested with comprehensive appellate jurisdiction. Section 11 of that article, however, authorized the General Assembly to create appellate courts 'to which such appeals and writs of error as the general assembly may provide may be prosecuted from circuit and other courts.' The General Assembly created appellate courts in 1877, and thereafter the distribution of appellate jurisdiction between this court and the appellate courts was a legislative function. (People v. Watkins, 19 Ill.2d 11, 166 N.E.2d 433.) Under the statutory scheme, insofar as is here directly relevant, jurisdiction of this court on direct appeal existed when the validity of a statute or a construction of the constitution was involved, and when the validity of a municipal ordinance or a county zoning ordinance was involved and the trial judge had certified that in his opinion the public interest required a direct appeal. Ill.Rev.Stat.1961, chap. 110, par. 75.

The legislative scheme of jurisdiction imposed a heavy load of mandatory appellate jurisdiction upon this court. In a host of instances the jurisdiction of this court upon direct appeal appeared to be a response to the desires of particular litigants and to bear no relationship to a rational scheme of distribution between the appellate courts and the Supreme Court. A lengthy list could be compiled, but cases involving the dneial or revocation of barbers, beauticians and other licenses will suffice by way of illustration. Ill.Rev.Stat.1961, chap. 16 3/4, pars. 14.90, 26(h).

The purpose of the new judicial article seems clearly to have been to relieve this court of the bulk of its mandatory appellate jurisdiction and to establish instead a basic pattern of discretionary review of determinations of the Appellate Court. With respect to the jurisdiction of this court upon direct appeal, it provides: 'Appeals from the final judgments of circuit courts shall lie directly to the Supreme Court as a matter of right only (a) in cases involving revenue, (b) in cases involving a question arising under the Constitution of the United States or of this State, (c) in cases of habeas corpus, and (d) by the defendant from sentence in capital cases. Subject to law hereafter enacted, the Supreme Court has authority to provide by rule for appeal in other cases from the circuit courts directly to the Supreme Court.' Section 5.

This court has taken jurisdiction of cases involving the validity of zoning ordinances upon direct appeal, most frequently upon the certificate of the trial judge, but also in a great many cases in the absence of such a certificate, upon the ground that a construction of the constitution was involved. See e. g. La Salle Nat. Bank of Chicago v. County of Cook, 12 Ill.2d 40, 145 N.E.2d 65; Drovers Trust & Savings Bank v. City of Chicago (1959) 16 Ill.2d 589, 590, 158 N.E.2d 620; Illinois Nat. Bank & Trust Co. of Rockford v. County of Winnebago (1961) 19 Ill.2d 487, 489, 167 N.E.2d 401; Chicago Title and Trust Co. v. Village of Wilmette, 27 Ill.2d 116, 117, 188 N.E.2d 33; La Salle Nat. Bank v. City of Highland Park (1963) 27 Ill.2d 350, 189 N.E.2d 302; Treadway v. City of Rockford (1963) 28 Ill.2d 370, 378, 192 N.E.2d 351.

The former statutory phrase, 'construction of the Constitution' no longer appears, and jurisdiction upon direct appeal now exists 'in cases involving a question arising under the Constitution of the United States or of this State.' While this phrase is new in the distribution of appellate jurisdiction in Illinois, the expression 'arising under this Constitution' appears in article III of the constitution of the United States and the phrase 'arises under the Constitution, laws, or treaties of the United States' appears in the Congressional grant of 'federal question' jurisdiction to the federal district courts. (28 U.S.C.A. § 1331.) Many subtleties have accumulated about the phrase 'arises under' in the grant of federal-question jurisdiction to the federal district courts. (See e. g., Tennessee v. Union & Planters' Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511; London, 'Federal Question' Jurisdiction, 57 Mich.L.Rev. 835 (1959); Mishkin, The Federal 'Question' In The District Courts, 53 Colum.L.Rev. 157 (1953).) Those subtleties need not be here explored. Without describing them in detail, it may be said with certainty that it was not the intention to incorporate them in the determination of the jurisdiction of this court upon direct appeal.

In view of the clear purpose of the new judicial article to curtail the mandatory jurisdiction of this court upon direct appeal, the interpretation that has been applied by the Supreme Court of the United States to the phrase in the exercise of its appellate jurisdiction is, however, relevant. That court has developed the concept of a 'substantial' constitutional question as a criterion of its jurisdiction under this phrase. (Wolfson and Kurland, Jurisdiction of the Supreme Court of the United States, sec. 58; Ulman and Spears, Dismissed for Want of a Substantial Federal Question', 20 B.U.L.Rev. 501, (1940).) Although it has often been pointed out that the precise ingredients of the criteria applied by the Supreme Court of the United States in applying this concept are difficult to ascertain, it is nevertheless true that the 'substantial question' concept has enabled the Supreme Court to focus attention upon major constitutional issues and has preserved its energies from dissipation upon a host of cases that lacked major constitutional significance and were of interest primarily to the immediate parties. While this inexact criterion is not an ideal jurisdictional standard, it is nevertheless helpful in determining whether or not a question as to the validity of a zoning ordinance, when applied to a particular parcel of property, merits direct review in the highest court of the State.

A zoning ordinance is a unique type of legislation in that it must be comprehensive in the sense that it applies to all property within the municipality, and yet the regulations it prescribes are not uniform. Instead they are by hypothesis selective, and differ from one parcel of property to another. In recognition of this unique quality of zoning ordinances a unique judicial technique has been evolved to deal with challenges to their validity. A zoning ordinance may be held invalid as to one parcel of property but that invalidity does not infect the ordinance as a whole. It remains valid as to all other parcels of property. Such a determination with respect to a single parcel of property...