Lee v. City of Chicago

• Decision Date: 23 May 1945
• Docket Number: No. 28365.,28365.
• Citation: Lee v. City of Chicago, 390 Ill. 306, 61 N.E.2d 367 (Ill. 1945)
• Parties: LEE et al. v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

390 Ill. 306

61 N.E.2d 367

LEE et al.

v.CITY OF CHICAGO et al.

No. 28365.

Supreme Court of Illinois.

May 23, 1945.

Appeal from Superior Court, Cook County; John P. McGoorty, judge.

Suit by John H. S. Lee and others against the City of Chicago and others to restrain defendants from enforcing an ordinance. From a decree for plaintiffs, defendants appeal.

Affirmed.

Barnet Hodes, Corporation Counsel, of Chicago (J. Herzl Segal, Louis H. Geiman, and Sydney R. Drebin, all of Chicago, of counsel), for appellants.

John H. S. Lee, of Chicago, for appellees.

GUNN, Justice.

Appellees filed in the superior court of Cook county a complaint to restrain the defendants, the city of Chicago and its commissioner of buildings, from enforcing an ordinance providing, among other things, that no entertainments of certain classes designated ‘shall be produced, offered, presented, or carried on in any building not now devoted to such purposes within two hundred feet of any church, hospital or building used exclusively for educational purposes; said distance to be measured between the nearest point on the building within which it is proposed to produce, offer, present or carry on, such entertainment or entertainments and the nearest point on such church, hospital or building used exclusively for educational purposes.’ Issues were formed and evidence taken, and a decree was entered by the court ordering a writ of injunction to issue against enforcing the provisions of such ordinance by defendants, so far as it denies the right of the plaintiffs, or their lessees, to operate a theater upon the premises, and directing the commissioner of buildings to issue a permit. The trial court certified the validity of a municipal ordinance is involved in the case, and that in the opinion of the trial court the public interests require that an appeal be taken directly to this court.

The appellants contend a pure question of law, as to the validity of an ordinance prohibiting theaters within a given distance of a church or educational instruction, is involved. Appellees contend the enforcement of the ordinance would deprive the appellees of the use of their property, and that, owing to the peculiar location and surroundings of the property involved, no justifiable reason exists why the police power should be invoked against them. In other words, they contend that the ordinance involved in valid in its general aspects, and invalid as to its application to the property of appellees. This contention upon the part of the appellees requires an examination of the facts.

There is no dispute but that there is an ordinance which has been in effect for many years, prohibiting the operation of a theater within 200 feet of a church, hospital or building used for educational purposes, and which was in effect in the year 1919 when appellees acquired the property in question. It is also admitted that in 1923 a general zoning ordinance was enacted which zoned the territory, where appellees' property is located, as a commercial district, and among other things, permitted the location and operation of a theater.

The facts are substantially as follows: The property of plaintiffs is located approximately in the center of the block between Pearson street on the north and Chicago avenue on the south, and faces west upon Rush street. On the corner of Rush and Pearson streets to the north is located a seminary for the education of young men entering the priesthood. Chicago avenue and Pearson street run east and west; Rush street runs substantially north and south; a little over 300 feet to the east is North Michigan avenue. Immediately to the north of the seminary is a tavern called ‘The Pit’; and to the north of that in the same block two other saloons. To the west side of Rush street, in the block occupied by appellees' property, are two saloons and one cocktail lounge; and immediately south of Chicago avenue on the corner is a room occupied by a saloon. Immediately south from the seminary across the street 70 feet away is a seventeen-story office building. All of these places of entertainment, except the one on the south side of Chicago avenue, are less than 200 feet from the premises occupied by the seminary.

Appellees propose to use their premises for a theater, but there will be no opening to the public on Rush street, the plans calling for the use of property extending from Chicago avenue up to the south half of the west side of appellees' premises for a place of entrance and exit. As so planned, the entrance will be upon Chicago avenue approximately a block and one-half (certainly more than 200 feet) from the seminary premises. There will be no exit upon Rush street except a fire-escape exit for emergency purposes. The premises at the present time are occupied by three old brick buildings which produce a small amount of revenue. The construction of the theater, in addition to increasing the taxes, will give appellees about eight times as much return as in its present condition. Rush street is only three blocks long; Chicago avenue is a main east and west street, which intersects with North Michigan avenue about 300 feet to the east. The seminary is raising no objection to the location of the theater as proposed by appellees, and while the north building line of appellees' lot is approximately 140 feet from the seminary, the entrance to the proposed theater will be more than 200 feet away; and all of...