Kinney v. City of Joliet
| Decision Date | 24 January 1952 |
| Docket Number | No. 32134,32134 |
| Citation | 411 Ill. 289,103 N.E.2d 473 |
| Parties | KINNEY et al. v. CITY OF JOLIET et al. |
| Court | Illinois Supreme Court |
Blatt & Blatt, and Eugene C. Shutts, Joliet (George N. Blatt, Sr., Joliet, of the deed was induced by representations
Francis A. Dunn, Murphy & Anderson and John B. Anderson, Jr., Joliet, for appellees.
Plaintiffs, Ray Kinney and others, owners of residence property in the vicinity of thirteen lots in the city of Joliet, filed suit in the circuit court of Will County against said city seeking to restrain enforcement of an ordinance by which such lots were rezoned from a residence to a business classification. Upon motion, Hansen and Petersen Company, a corporation, as owner of twelve of said thirteen lots, was permitted to intervene as a party defendant and it adopted the answer of the city as its answer to the complaint. The circuit court, after hearing, found the issues for the defendants and dismissed the complaint for want of equity. The trial court certified that the validity of an ordinance is involved and plaintiffs appeal directly to this court.
The general zoning ordinance of the city of Joliet was adopted in 1939 and classified the property in question as class 'R-1,' defined as one-family residences. Most of the properties in the area were given a like classification although a few, including one just across the street, were classified 'B-1,' defined as 'building local.' Other properties in the general area have, by ordinance, been reclassified from residential to business property.
A petition was filed with the zoning commission to permit the use of the property in question for business purposes and, after complete failure of consideration and restored commission made findings of fact and recommended to the city council that the petition be granted. The petition does not appear in the record, but since the legislative authorities and the parties hereto, throughout their pleadings and briefs, refer to the action, as a reclassification, we will consider the change as having been made under section 73-8 of the Revised Cities and Villages Act. Ill.Rev.Stat.1951, chap. 24, par. 73-8.
Following the recommendation of the zoning commission, the city council passed the ordinance complained of, whereby the original zoning ordinance was amended by reclassifying the property in question from 'R-1' to 'B-1.' Suit was then instituted by plaintiffs praying that the rezoning ordinance be declared invalid and that the defendants be enjoined from enforcing the provisions of such ordinance. The complaint alleged that the plaintiffs and others in the area were young people raising families; that grocery stores and other retail stores had long been established immediately east of the property in question; that the intervening defendant corporation is negotiating a sale of said lots for a super food market and parking area in connection therewith; that plaintiffs and others appeared before the zoning commission to protest the reclassification of the lots and that the enforcement of the reclassification would work an irremediable injury to the property rights of owners in the vicinity and endanger the personal safety of the plaintiffs and their children. The answers of the defendants alleged that the commission, after due notice and hearing, recommended that the property be reclassified; that the recommendation was a reasonable exercise of authority and that the passage of the ordinance was a reasonable exercise of legislative discretion vested by law in the city council. The court below entered a decree finding that the ordinance was in the public interest and bore substantial relation to the public health, safety, comfort, morals and welfare; that there was not sufficient reason for the court to interfere with the legislative judgment of the city of Joliet and dismissed the complaint for want of equity.
Defendants have properly raised the point that plaintiffs failed to comply with Rule 39 of this court, Ill.Rev.Stat. c. 110, § 259.39 in that they failed to follow their statement of facts with a statement of errors relied upon for reversal. The purpose of the rule is to present to courts of review the questions which they are called upon to review, without being compelled to search the brief and argument to ascertain the issues. The order in which the brief presents the issues is not jurisdictional but a reviewing court may determine whether or not its rules have been substantially complied with. Gyure v. Sloan Valve Co., 367 Ill. 489, 11 N.E.2d 963. While there is a serious question whether the rules have been substantially complied with, we are able to determine from an examination of the entire brief the major questions involved and will not dismiss the appeal. By this failure to dismiss, we are not condoning 'shotgun' appeals nor is our decision to pass upon the appeal authority for the proposition that the rules may be disregarded. The law with reference to zoning is voluminous and we cannot hope to cover the whole field. The case at bar will therefore be considered from the standpoint of the clear-cut issues which are recognized by the parties in the briefs and arguments.
One of the principal contentions of the plaintiffs is that to sustain a rezoning of property it must affirmatively appear that the public welfare, health, comfort or safety requires the reclassification. It is argued that the rule relative to rezoning is different from original zoning in that originally there is a presumption that the legislative authorities exercised their legislative discretion, but that no such presumption exists in case of rezoning. We have consistently held that the presumption applies in both cases. An ordinance enacted in the exercise of power conferred upon a municipality enjoys a presumption in favor of its validity, and it is incumbent upon one attacking it as unreasonable and oppressive to show affirmatively and clearly that such charge is true. Zadworny v. City of Chicago, 380 Ill. 470, 44...
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Midland Elec. Coal Corp. v. Knox County
... ... Kinney v. City of Joliet, 411 Ill. 289, 103 N.E.2d 473; County of Du Page v. Henderson, 402 Ill. 179, 83 ... ...
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Wakefield v. Kraft
...action. N.W. Merchants Term. v. O'Rourke, 191 Md. 171, 191, 60 A.2d 743; Kracke v. Weinberg, Md., 79 A.2d 387, and Kinney v. City of Joliet, 411 Ill. 289, 103 N.E.2d 473. The Court will not substitute its judgment for that of the legislative body if the question decided was fairly debatable......
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La Salle Nat. Bank v. City of Chicago
... ... 291, 99 N.E.2d 144; Neef v. City of Springfield, 380 Ill. 275, 43 N.E.2d 947. The same principle applies to amendatory ordinances. Kinney v. City of Joliet, 411 Ill. 289, 103 N.E.2d 473; Trust Company of Chicago v. City of Chicago, 408 Ill. 91, 96 N.E.2d 499. Where there is room for a ... ...
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Zang & Sons, Builders, Inc. v. Taylor
... ... O'Rourke, 191 Md. 171, 191, 60 A.2d 743; Kracke v. Weinberg [197 Md. 339], 79 A.2d 387, and Kinney v. City of Joliet, 411 Ill. 289, 103 N.E.2d 473. The Court will not substitute its judgment for ... ...