Moskal v. Catholic Bishop of Chicago

• Decision Date: 03 July 1942
• Docket Number: Gen. No. 42177.
• Citation: Moskal v. Catholic Bishop of Chicago, 315 Ill.App. 461, 43 N.E.2d 206 (Ill. App. 1942)
• Parties: MOSKAL v. CATHOLIC BISHOP OF CHICAGO ET AL.
• Court: Appellate Court of Illinois

315 Ill.App. 461

43 N.E.2d 206

MOSKAL

v.CATHOLIC BISHOP OF CHICAGO ET AL.

Gen. No. 42177.

Appellate Court of Illinois, First District, Third Division.

July 3, 1942.

Appeal from Circuit Court, Cook County; C. J. Harrington, Judge.

Suit by Frank J. Moskal against the Catholic Bishop of Chicago and another to declare null and void an ordinance vacating a portion of an alley and to enjoin the erection of a church on the vacated portion of the alley. From a decree dismissing the complaint for want of equity, the complainant appeals.

Affirmed. Beckman, Healy, Reid & Hough, of Chicago, for appellant.

Barnet Hodes, Corp. Counsel, and Kirkland, Fleming, Green, Martin & Ellis, all of Chicago, for appellees.

HEBEL, Justice.

The plaintiff's complaint prays for a decree to declare null and void an ordinance vacating a portion of an alley and to enjoin the erection of a church on the vacated portion of the alley. The court dismissed the complaint for want of equity after hearing before a Master and argument on exceptions to his report. The City of Chicago, a municipal corporation, appellee herein, states that in the trial court this appellee interposed a defense based upon the proposition that the ordinance herein questioned is valid; that the law supporting this proposition is sufficiently brought to the attention of this court by the brief and argument filed herein by the appellee, Catholic Bishop of Chicago, a corporation sole; and that for this reason the appellee, City of Chicago, adopts the brief and argument for the appellee, Catholic Bishop of Chicago, upon that proposition and deems it unnecessary to file herein a separate brief and argument in support thereof.

The facts involved in this proceeding have to do with the vacation of part of an alley in the block in the City of Chicago, bounded by 25th Street, Keeler Avenue, 25th Place, and Kildare Avenue. The alley extended from Keeler Avenue west to Kildare Avenue and is midway between 25th Street and 25th Place; its width 16.8 feet. Defendant owned the land at the corner of 25th Street extending 131.242 feet westward from Keeler Avenue, and a frontage of 125 feet on Keeler extending southward from 25th Street to the alley. It also owned the land south of the alley to 25th Place, with a frontage on Keeler Avenue of 125 feet and a frontage on 25th Place of 131.125 feet.

Immediately west of this 131.125 feet on 25th Place is the property owned by plaintiff--a piece of ground with 51 feet frontage on 25th Place on which is plaintiff's residence. The value of plaintiff's property was about $35,000.

At the request of defendant, the City council, on April 23, 1941, passed an ordinance vacating 115.25 feet of the east end of the alley and dedicating the west 16 feet of defendant's lot facing 25th Place as a part of an alley in its place. This means that the whole of the east and west alley is closed from a point 115.25 feet west of Keeler Avenue, thus shutting off ingress and egress to and from Keeler Avenue. The dedicated 16 foot alley would run immediately alongside and the whole length of plaintiff's property and leave only ingress and egress to and from 25th Place instead of from Keeler Avenue.

Plaintiff states that this vacation ordinance was passed to enable defendant to build its church across the vacated portion of the alley, and that there was no other purpose; that an attempt was made to show that there was some benefit to the public, but that an examination of the evidence will disclose that the attempt failed; that, thus, defendant attempted to show that by cutting off access to Keeler Avenue the public was benefited because, Keeler Avenue being a stop street, there was danger in passing thereon from the alley; suggest that it is obvious that this is no public benefit, because if a person wanted to drive on to Keeler Avenue or across it, that same danger would be met wherever the crossing was attempted; that the danger would not be in driving from the alley; but it would be in turning into the street, and this danger would be present whether one drove into that street from the alley or from 25th Place; that the closing of the alley and compelling eastbound traffic in the alley to turn south in the proposed 16 foot alley would bring the traffic into 25th Place, but would not, by means of the alley, eliminate the danger of crossing Keeler Avenue; and that the only difference would be that in one case the traffic would enter or cross Keeler Avenue at the alley, in the other case at 25th Place.

The defendant, Catholic Bishop of Chicago, a corporation sole, does not question the plaintiff's statement of facts, but questions his statement and contention that the public interest was not served in any manner by the vacation ordinance, and contends that the ordinance in question is valid and that the plaintiff is not entitled to injunctive relief. Defendant's theory is that the vacation of alleys is a legislative function within the discretion of a city council and that courts will not substitute their judgment for that of the city council unless it clearly appears that the vacation was made solely for private purposes, and that here the vacation of that portion of the alley in question was not solely for private purposes, but was for the benefit of the public.

It is urged, in favor of the validity of the ordinance, that the legislature, by statute, Ill.Rev.Stat.1939, Ch. 145, Par. 1, has conferred upon cities the express power to vacate streets and alleys, the title to the vacated portions vesting in the abutting owners, unless the instrument of dedication expressly provides otherwise; that this statute has been held valid in People v. City of Chicago, 321 Ill. 466, 152 N.E. 141, and Nielsen v. City of Chicago, 330 Ill. 301, 161 N.E. 768. Section 1 of the above statutes provides: “Whenever the city council of any city, or the board of trustees of any village or town, whether incorporated by special Act or under any general law, or the council of any city or village operating under the commission or managerial form of government, shall determine that public interests will be subserved by vacating any street or alley, or part thereof, within their jurisdiction, they may by ordinance vacate such street or alley, or part thereof; provided that any such ordinance shall be passed by the affirmative vote of at least three-fourths of the members of such city council or of such board of trustees or of such council, authorized by law to be elected; such vote to be taken by ayes and noes and entered on the records of such council or board. Such corporate authorities, in behalf of any such city, town or village, may in such case contract for and receive from the owner or owners of property abutting upon such street or alley, or part thereof, so vacated, compensation in an amount which, in the judgment of such corporate authorities, shall be equal to the benefits which will accrue to the owner or owners of such abutting property by reason of such vacation. The validity of any such vacation shall not be questioned by reason of the payment of any such compensation, nor by reason of benefits specially accruing therefrom to the owner or owners of abutting property. The determination of such corporate authorities that the nature and extent of the public use or public interest to be subserved is such as to warrant the vacation of such street or alley, or part thereof, so vacated, shall be final and conclusive, and the passage of such ordinance shall be sufficient evidence of such determination, whether so recited in the ordinance or not. The relief to the public from further burden and responsibility of maintaining such street or alley, or part thereof, so vacated, shall constitute a public use or public interest authorizing such vacation. When property is damaged by the vacation or closing of any street or alley, the same shall be ascertained and paid as provided by law.” Section 2 of this act vests the title to the vacated street or alley in the then abutting owners, unless the instrument dedicating the street or alley expressly provides otherwise.

It appears that the ordinance in question was passed, pursuant to this statute, by the affirmative vote of three-fourths of the members of the city council. The ordinance (vacating the east 115.25 feet of the alley) required the Catholic Bishop of Chicago, a corporation sole, within 60 days (1) to dedicate 16 feet of its property as a public alley, (2) to pay to the city the sum of $100, which sum in the judgment of the city council will equal the benefits accruing to the Catholic Bishop, and (3) to pay into the city treasury a sum sufficient to defray the costs of paving the entrances and fixing the curbing on both the old and new alleys. And it appears that the above conditions have been satisfied by the Catholic Bishop.

The preamble to the ordinance reads as follows:

“Whereas, the City Council of the City of Chicago, after due investigation and consideration, has determined that the nature and extent of the public use and the public interest to be subserved is such as to warrant the vacation of part of alley described in the following ordinance; therefore,

“Be it Ordained by the City Council of the City of Chicago:”

And the ordinance provides that the portion of the alley was vacated: “inasmuch as the same is no longer required for public use and the public interest will be subserved by such vacation.”

It appears to be well settled that whether a street or alley should be vacated is a legislative and not a judicial question. Nielsen v. City of Chicago, 330 Ill. 301, 161 N.E. 768;Hoerrmann v. Wabash Railway Co., 309 Ill. 524, 141 N.E. 289. And courts will not interfere with the discretion manifested by a city council in the exercise of its legislative power, except where that power is being exercised solely for private purposes (which it is urged is not the fact in this case). And it would appear further that an...