People ex rel. Franchere v. City of Chicago
| Decision Date | 11 June 1926 |
| Docket Number | No. 17274.,17274. |
| Citation | 152 N.E. 141,321 Ill. 466 |
| Court | Illinois Supreme Court |
| Parties | PEOPLE ex rel. FRANCHERE v. CITY OF CHICAGO et al. |
OPINION TEXT STARTS HERE
Action for mandamus by the People, on the relation of Gabriel Franchere, Jr., against the City of Chicago and others. From judgment for defendants, relator appeals.
Affirmed.
Appeal from Circuit Court, Cook County; Oscar M. Torreson, judge.
E. S. & J. W. Cummings, of Chicago (E. S. Cummings, of Chicago, of counsel), for appellant.
Francis X. Busch, Corp. Counsel, Frank T. Huening, Carl H. Lundquist, and Harry A. Biossat, all of Chicago (Samuel A. Ettelson, of Chicago, of counsel), for appellees.
This is an appear from a judgment of the circuit court of Cook county dismissing at petitioner's costs a petition for mandamus brought in the name of the people of the state of Illinois, on the relation of Gabriel Franchere, Jr., against the city of Chicago, its appropriate officers, and the Lincoln State Bank of Chicago, seeking the removal of a building alleged to be erected by the Lincoln State Bank upon a public alley under the control and direction of the city of Chicago.
The place in question was formerly an alley between Wabash avenue and State street (north and south streets) and Thirty-First and Thirty-Second streets (east and west streets), and extends south from Thirty-First street towards Thirty-Second street. It is L-shaped, and runs about 110 feet south and then about 50 feet east to an alley about 20 feet wide running through the block from Thirty-First to Thirty-Second streets. The width of that part running north and south is 11.5 feet, and the width of that part extending east is 15 feet. The through alley is about 150 feet east of State street, and the place in question is about 50 feet west of this through alley. The lots abutting upon the alley affected by the proceedings in question are described as lots 1 to 6, both inclusive, in C. H. Walker's subdivision of lots 2, 3, 6, 7, 10, 42, 43, 46, 47, and 50, in block 3, in C. H. Walker's subdivision of that part north of the south 60 acres of the west half of the northwest quarter of section 34, township 39 north, range 14 east of the third principal meridian, in Cook county, Ill.
The petition described the property and the alleged alley as above stated, and alleged the ownership of the relator of lot 2; the ownership of the Lincoln State Bank of Chicago of lot 3, the north half of lot 4, and of a longterm leasehold interest in the west 24 feet of lot 6; the platting of the subdivision by C. H. Walker prior to the year 1871; the acceptance thereof by the city of Chicago; the recording of such plat in the office of the recorder of deeds of Cook county, and the subsequent resubdivision of lots 2, 3, 6, 7, 10, and lots 42, 43, 46, 47, and 50, in block 3, of said original subdivision; the acceptance thereof by the city of Chicago and the recording of the plat of said resubdivision in the recorder's office of Cook county, wherein and whereby said L-shaped alley was duly dedicated to the city of Chicago as and for a public alley; that from that time the alley had been used by the abutting property owners and by the public at large as and for a public alley; that the city of Chicago had at all times governed and controlled the alley and exercised jurisdiction over the same as and for a public alley; that on the 18th day of June, 1924, the city of Chicago passed a certain ordinance purporting to vacate the 110 feet of the alley extending south from Thirty-First street, which ordinance was set forth in full in the petition; that the city of Chicago had no power and authority to pass the ordinance; that the same was and is wholly void and of no force and effect whatsoever; that the ordinance is contrary to the provisions of section 22 of article 4, section 14 of article 2, and section 1 of article 9 of the state Constitution; that no public interest was served by the passage of the ordinance, and that the sole purpose of the ordinance was to benefit the Lincoln State Bank; that the provision of the ordinance making the same conditional upon the payment by the Lincoln State Bank to the city of Chicago, as compensation for the benefits which would accrue to the owners of the property abutting on the alley by the vacation of the alley, the sum of $6,325, is wholly void and contrary to the statutes of the state; that at the time of the passage of the ordinance the Lincoln State Bank was not the sole and only owner of property abutting upon the alley; that the owner of the west 24 feet of lot 6 was and is the Chicago Title & Trust Company, as trustee of the estate of William D. Kerfoot, deceased; that Joseph Simon and Leah Simon, his wife, were the owners of lot 5 and the south half of lot 4; that the heirs at law of Joseph I. Geraty, deceased, were the owners of lot 1; that the city of Chicago had no power or authority to charge any one abutting property owner with compensation for benefits which would accrue to such owner by vacation of such alley, but was required to contract with all the owners of property abutting upon such alley benefited by the vacation thereof, and therefore the ordinance was wholly void; that the statute relating to the vacation of streets and alleys, and upon which the ordinance was based, is contrary to the provisions of section 22 of article 4 and section 1 of article 9 of the Constitution, and the ordinance based thereon is therefore void; that immediately upon the passage of the ordinance the Lincoln State Bank paid to the city of Chicago the sum of $6,325, as required by the ordinance, and caused to be recorded in the recorder's office of Cook county a certified copy of the ordinance; that on the 4th day of July, 1924, the bank took possession of so much of said alley as lies between lot 6 on the east and lot 3 and the north half of lot 4 on the west thereof, and it caused a deep excavation to be made therein and foundation and brick walls to be built, extending east and west across the alley and connecting a building located on lot 6 with a building located on lots 3 and 4, so that when said changes are completed the two buildings will be one entire building; that thereby permanent obstructions are being made and created in the alley, and that the relator and the other abutting property owners and the general public are and will be permanently prevented from making use of the alley; that the relator had made a demand on the Lincoln State Bank, the city of Chicago, the superintendent of public works, and the superintendent of streets and alleys to remove said obstructions, and that they had refused to do so although it was their duty to remove the same. The prayer of the petition was that the writ of mandamus issue commanding the respondents, the city of Chicago, Albert A. Sprague, commissioner of public works, Thomas Byrne, superintendent of streets and alleys, and the Lincoln State Bank, to remove the obstructions placed in the alley, leaving the alley to its full width and length free and open for public use.
The answer of the Lincoln State Bank denied the allegation of the petition that the city council of the city of Chicago had no power or authority to pass the ordinance; denied that the ordinance was void and of no force and effect; denied that the ordinance was in violation of the Constitution and that no public interest was served by the passage of the ordinance; denied that the statute relating to the vacation of streets and alleys, upon which the ordinance was based, was a violation of the provisions of the Constitution; admitted that the Lincoln State Bank had obstructed the alley as stated in the petition, but denied that it was the duty of the respondents to remove such obstruction. All other allegations of the petition were admitted by the answer.
A joint and several amended answer of the city of Chicago, Albert A. Sprague, as commissioner of public works, and Thomas Byrne, as superintendent of streets and alleys, was filed. This answer was substantially the same as that of the Lincoln State Bank, the admissions and denials in such answer conforming practically to the admissions and denials in the answer of the Lincoln State Bank. Replications were filed to the answers.
The evidence on behalf of the petitioner showed: That on October 17, 1923, there was presented to the city council an ordinance providing for the vacation of the alley in question, which was referred to the committee on local industries, streets and alleys. That at a meeting of the finance committee of the council held on April 9, 1924, the committee on compensation submitted to the finance committee, with its recommendation, the following:
+------------------------------------------------------+
¦Committee on Compensation, April 9, 1924. ¦
+------------------------------------------------------¦
¦Name. ¦Privilege. ¦Compensation.¦
+------------------+---------------------+-------------¦
¦Lincoln State Bank¦Vacation of alley S. ¦ ¦
+------------------+---------------------+-------------¦
¦of Chicago. ¦State street, E. 31st¦ ¦
+------------------+---------------------+-------------¦
¦ ¦street, E. 32nd ¦ ¦
+------------------+---------------------+-------------¦
¦ ¦street and Wabash ¦ ¦
+------------------+---------------------+-------------¦
¦ ¦avenue. ¦$6,325 00 ¦
+------------------------------------------------------+
That the recommendation was concurred in. That at a meeting of the city council held on June 18, 1924, it was moved to proceed to a consideration of the report of the committee on local industries, streets, and alleys on an ordinance providing for the vacation of the alley in question, which motion prevailed. That thereupon a motion...
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