Liberty Nat. Bank of Chicago v. Metrick
| Decision Date | 27 November 1951 |
| Docket Number | No. 32098,32098 |
| Citation | 102 N.E.2d 308,410 Ill. 429 |
| Parties | LIBERTY NAT. BANK OF CHICAGO v. METRICK et al. |
| Court | Illinois Supreme Court |
Harry G. Fins, Chicago, for appellant.
Gottlieb & Schwartz and Jesmer & Harris, both of Chicago (Claude A. Roth and H. R. Begley, both of Chicago, of counsel), for appellees.
The Liberty National Bank of Chicago, as trustee under a certain trust, brought suit against the Metrick Electric Company and the Checker Taxi Company, praying for a mandatory injunction to compel the removal of a metal telephone pole inserted along the edge of the sidewalk abutting premises claimed to be owned by the plaintiff. Appellees filed a motion to dismiss the complaint. The trial court sustained the motion and dismissed the complaint for want of equity. The decretal order contained a certificate of the trial judge that the validity of a municipal ordinance is involved and that public interest requires that an appeal be taken directly to this court.
In view of the fact that the decree of the trial court was rendered upon a motion to strike the complaint, it becomes necessary to detail, with some particularity, the facts alleged in the amended complaint. The pertinent allegations of the amended complaint are that the plaintiff was the owner of a certain lot in the city of Chicago, improved with a two-story, brick, store building in front of which, between the building and the street, was a public sidewalk. It is then alleged that the city council of the city of Chicago passed an ordinance authorizing the commissioner of streets and electricity to grant permission to the Checker Taxi Company to erect a post in the parkway near its cabstand on the street in front of plaintiff's building, for the purpose of installing a telephone box. The metal post and telephone box were accordingly installed on the sidewalk adjacent to the cabstand of the taxi company, about 2 1/2 feet from the curb line of the public street. It is also alleged that the ordinance passed by the city is null and void, is unreasonable and arbitrary, and that the erection of the pole deprived plaintiff of its property without due process of law, and violated its constitutional right that private property cannot be taken or damaged without just compensation.
The gist of the motion to dismiss the amended complaint was that the complaint failed to state a cause of action; that it failed to set out any interest of the plaintiff in the subject matter thereof; that erroneous conclusions of law were alleged; that no resulting damage to plaintiff appeared in the complaint; that plaintiff was not the proper party to bring the action for an injunction; and that plaintiff was not entitled to any remedy either at law or in equity on account of anything alleged in the complaint.
The final order of the trial court sustained the motion to dismiss the amended complaint, and, the plaintiff having elected to stand by its amended complaint, the suit was dismissed for want of equity. The order also overruled the contentions of the plaintiff that the acts of the defendants were in violation of plaintiff's rights under section 13 of article II of our State constitution, S.H.A., which guarantees that private property cannot be taken or damaged without just compensation, and also were in violation of the due process clause of our State constitution. At the end of the decree was a statement of the trial judge certifying that there was involved in the case, and in the final order and judgment of the court, the validity of a municipal ordinance as set forth in the amended complaint, and that in his opinion public interest required a direct appeal to this court.
Appellant invokes the jurisdiction of this court to entertain a direct appeal on the theory that there is involved in this case (1) the validity of a municipal ordinance; (2) a construction of the constitution; and (3) a freehold. This court has only such appellate jurisdiction as is conferred upon it by law. Perlman v. Thomas Paper Stock Co., 378 Ill. 238, 37 N.E.2d 815. If it appears that this court is without jurisdiction of the appeal, we are bound to decline to proceed in the cause. Flanagan v. Wilson, 375 Ill. 179, 30 N.E.2d 647; Prudential Ins. Co. v. Hoge, 359 Ill. 36, 193 N.E. 660.
The trial judge certified that there was involved in the final order and judgment entered in the cause the validity of a municipal ordinance as set forth in the amended complaint. The complaint alleges that on November 15, 1950, the city council of the city of Chicago passed the following: 'Ordered, that the Commissioner of Streets and Electricity be and he is hereby authorized and directed to grant permission to the Checker Taxi Company to erect a post in parkway on north side of W. 35th Street and within the Cabstand No. 274 space west of S. Halsted Street for the purpose of installing a telephone box.' This allegation shows that the order of November 15, 1950, was not styled in accordance with section 10-1 of the Revised Cities and Villages Act. Section 10-1 prescribes that the style of an ordinance in cities shall be: 'Be it ordained, by the City Council of _____.' (Ill.Rev.Stat.1949, chap. 24, sec. 10-1.) The style of the ordinance,-that is, the enacting clause,-which expresses upon the face of the ordinance the authority by which it is enacted, is an essential and indispensable part thereof, and compliance with the statutory requirement is mandatory. City of Carlyle v. Nicolay, 333 Ill. 562, 165 N.E. 211. The order of the city council of November 15, 1950, was nothing more than a mere resolution and in no sense an ordinance. Bullis v. City of Chicago, 235 Ill. 472, 85 N.E. 614; Chicago and Northern Pacific Railroad Co. v. City of Chicago, 174 Ill....
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