Keller v. Village of Oak Park

• Decision Date: 04 February 1915
• Docket Number: No. 9711.,9711.
• Citation: 266 Ill. 365,107 N.E. 636
• Parties: PEOPLE ex rel. KELLER v. VILLAGE OF OAK PARK.
• Court: Illinois Supreme Court

266 Ill. 365

107 N.E. 636

PEOPLE ex rel. KELLER

v.VILLAGE OF OAK PARK.

No. 9711.

Supreme Court of Illinois.

Dec. 16, 1914.

Rehearing Denied Feb. 4, 1915.

Appeal from Circuit Court, Cook County; Richard S. Tuthill, Judge.

Mandamus by the People, on the relation of C. L. Keller, against the Village of Oak Park. Judgment for relator, and defendant appeals. Reversed.

Frederick W. Pringle, of Chicago (Pringle & Fearing, of Chicago, of counsel), for appellant.

Walter S. Holden and G. Fred Rush, both of Chicago, for appellee.

FARMER, J.

On the relation of C. L. Keller a petition for a writ of mandamus was filed against the village of Oak Park, praying that the writ issue against said village and its officers, commanding them to issue a permit to the relator to build a public automobile garage and salesroom upon the property described in the petition. The petition alleges the relator owned the property upon which he proposed to erect a public garage, and that he had applied to the authorities for a permit to erect a building in accordance with plans and specifications accompanying the application, but that such permit was refused. The relator had not procured the consent of the property owners, as required by an ordinance of the village of Oak Park, which is as follows:

‘Section 1. It shall not be lawful for any person or corporation to locate, build, construct or maintain in the village of Oak Park, on any site where two-thirds of the buildings within a radius of 500 feet of the proposed site are used exclusively for residence purposes, a building for a public automobile garage * * * without the written consent of a majority of the property owners, according to frontage, within a radius of 500 feet of the proposed site of said building.’

The petition alleged the ordinance was void because unreasonable, arbitrary, unnecessary, and, in effect, prohibitive. An answer was filed by the village of Oak Park. The cause was heard by the court wit out a jury and a judgment rendered awarding the writ as prayed. The court certifiedthe validity of a municipal ordinance was involved, and the village has prosecuted an appeal to this court.

It is first contended by relator (hereafter referred to as appellee) that he was not required to procure the consent of the property owners, because two-thirds of the buildings within a radius of 500 feet of the proposed site were not ‘used exclusively for residence purposes.’ The proof showed there were 38 buildings used for residence purposes within the territory, 8 business buildings, 1 public garage, 1 church, 3 private barns, and 12 private garages. The barns and private garages were upon lots occupied as residences and used in connection with the residences. Appellee claims that only the buildings occupied as residences are entitled to be counted as property used for residence purposes, and that the private garages and barns used in connection with the residences are to be counted as buildings in determining the proportion of buildings used for residence purposes, and, so counting them, less than two-thirds of the buildings within a radius of 500 feet are used for residence purposes. We do not think this a reasonable construction of the ordinance.

The most important question is whether the ordinance passed by appellant was a reasonable and valid exercise of its power. Clause 82 of paragraph 62, c. 24, as amended in 1911 (Hurd's Stat. 1913, p. 270), conferred power upon cities and villages to direct the location and regulate the use and construction of garages within the limits of the city or village. Prior to that time municipalities had the same power with reference to breweries, distilleries, livery, boarding and sales stables, and some other kinds of business. Under the power thus conferred appellant had the right to direct the location of garages, and in the exercise of that power it passed the ordinance attacked.

In City of Chicago v. Stratton, 162 Ill. 494, 44 N. E. 853,35 L. R. A. 84, 53 Am. St. Rep. 325, the ordinance considered by the court made it unlawful for any person ‘to locate, build, construct, or keep in any block, in which two-thirds of the buildings are devoted to exclusive residence purposes, a livery, boarding, or sales stable, * * * unless the owners of a majority of the lots in such block fronting or abutting on the street consent, in writing, to the location.’ The ordinance required the consent of the property owners to be filed with the commissioner of buildings before a permit would be granted for the construction or keeping of such livery stable. A penalty was provided for the violation of the ordinance and a suit was brought to recover the penalty. The validity of the ordinance was attacked upon the ground that the city council was given power, by act of the Legislature, to direct the location and regulate the use and construction of livery stables, and that the council had by ordinance delegated that power to the owners of a majority of the lots in the blocks specified. The court held the ordinance was not invalid on that ground; that a statute empowering a city to direct the location of livery stables includes the power to prohibit or forbid their location within residence districts and to impose such conditions and restrictions in making such prohibition as the city council may see fit to impose. The ordinance was sustained as a valid exercise of power by the city.

The ordinance considered by the court in People v. Ericsson, 263 Ill. 368, 105 N. E. 315, made it unlawful for any person, firm, or corporation ...