People ex rel. Roos v. Kaul
| Citation | 134 N.E. 740,302 Ill. 317 |
| Decision Date | 06 April 1922 |
| Docket Number | No. 14267.,14267. |
| Parties | PEOPLE ex rel. ROOS v. KAUL et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Petition by the People, on the relation of Edward Roos, for a writ of mandamus against Henry Kaul and others. Judgment of dismissal, and relator appeals.
Reversed and remanded, with directions.
Appeal from Superior Court, Cook County; Jacob H. Hopkins, judge.
Fyffe & Clarke, and Cooke, Sullivan & Ricks, all of Chicago (George A. Cooke, of Chicago, of counsel), for appellant.
Litsinger, Healy & Reid, of Chicago (Daniel M. Healy, of Chicago, of counsel), for appellees.
The people, on the relation of Edward Roos, filed in the superior court of Cook county a petition for a writ of mandamus commanding the mayor, commissioners, clerk, and commissioner of buildings of the village of Forest Park to issue to the relator a permit for the erection of a factory in the village. A trial was had before the court, and a judgment was entered denying the writ and dismissing the petition. The relator appealed. The appeal was allowed direct to this court; the trial court certifying that the validity of a municipal ordinance is involved. The appellant also attacks the validity of a statute.
The petition alleges relator resides in Cook county; that he proposes to erect in the village of Forest Park a factory for the manufacture of kitchen cabinets; that the village is under the commission form of government; that November 26, 1920, relator (hereafter called appellant) applied for a permit to build his factory, which was refused. The petition describes the proposed location of the factory. There is no dispute about appellant having complied with all the requirements of the ordinances as to the character and plans of the proposed building, but the officers refused to grant a permit. Appellees answered the petition, alleging the passage of an ordinance March 22, 1920, prohibiting the location of the proposed factory within 1,000 feet of any church or public school in the village, and the answer alleged the proposed location was within 1,000 feet of a church and within 1,000 feet of public schools in the village. The answer further alleged as another ground for refusing to grant the permit that proceedings were pending before the board of local improvements of the village to extend Thomas avenue from the north line of Harrison street to the Illinois Central Railroad by condemning a strip 66 feet wide through the land proposed to be used as a factory site.
The ordinance prescribing the limits within which certain mentioned enterprises, including factories, cannot be located was passed by the village March 22, 1920, pursuant to paragraph 82 of section 1 of article 5 of the Cities and Villages Act, as amended in 1919 (Hurd's Rev. St. 1919, c. 24, § 62). Said paragraph is as follows:
The ordinance is entitled ‘An ordinance controlling the location and regulating the use and construction of’-enumerating the same enterprises mentioned in the statute. Section 1 of the ordinance is as follows:
‘It shall be unlawful for any person, firm or corporation to keep, conduct, operate, locate, build or construct any brewery, distillery, livery, boarding or sale stable, wagon repair shop, blacksmith shop, foundry, machine shop, public garage, private garage or stable designed for the use of five or more vehicles, hangar, laundry, brick yard, planing mill, flour mill, box factory, lead factory, steel factory, iron factory, ice plant, either for the manufacture or storing of ice, factory or other manufacturing establishment using machinery, emitting offensive or noxious fumes, odors or noises, or storage warehouse, within the limits of the village of Forest Park within 1,000 feet of any building used as and for a hospital, church, or public or parochial school or the grounds thereof.’
The penalty for the violation of the ordinance is not less than $25 nor more than $100 for the first and each subsequent offense, and every day the enterprise is being constructed or maintained is a separate violation of the ordinance.
Forest Park is about two miles west of the western limits of the city of Chicago and joins the west boundary of Oak Park, from which it is separated by Harlem avenue. It is bounded on the north by the village of River Forest, on the west by the Desplaines river, and on the south by Sixteenth street, and has a population of 10,000 or 11,000. The Baltimore & Ohio Chicago Terminal Railroad, the Chicago & Great Western Railroad, the Illinois Central Railroad, and the Soo Line run through the village east and west near its center, from north to south. Adjoining the right of way of the steam railroads, running substantially parallel with them, is the Elgin, Aurora & Chicago Electric Railway, which has a system of double tracks and does a freight and passenger business. All these railroad tracks are on the surface of the ground. South of the railroad tracks and west of Desplaines avenue none of the territory is platted into lots and blocks and is occupied chiefly by cemeteries. Only a small part of the territory north of the railroad tracks and west of Desplaines avenue appears to be subdivided, and the unsubdivided territory is occupied by an old folks' home and for cemetery purposes. Desplaines avenue extends in a northeasterly and southwesterly direction from the south limits of the village to Randolph street, which is within a few blocks of the northern limits of the village. It practically constitutes the west boundary of the village at present , for all the territory that is west of Desplaines avenue and south of the railroad tracks, and most of it north of the tracks, is not subdivided. There is a tract of land about three-fifths of a mile in length, extending from Harlem avenue, the east boundary of the village, west to Desplaines avenue, having for its north boundary the railroad rights of way and tracks and its south boundary Harrison street, an east and west street, which tract has never been subdivided. It is approximately 200 feet wide at its east end and 600 feet wide at its west end, where it adjoins Desplaines avenue. It is intersected by three north and south streets, Circle avenue, Hannah avenue, and Beloit avenue. The proposed factory site is that part of said unsubdivided tract bounded on the east by Hannah avenue, on the west by Beloit avenue, and on the south by Harrison street. It covers a space approximately equal to a city block, being about 600 feet long and 500 feet deep. Across Hannah avenue, east of it, is located the factory of the Ed Roos Company, which is substantially of the same character as the proposed factory. It has been in operation since 1918, and its property extends from Hannah avenue east to Circle avenue and south from the railroad rights of way to Harrison street. On account of the railroad facilities this unsubdivided tract lying immediately south of the railroad rights of way is very desirablefor sites for industrial enterprises. The Baltimore & Ohio Chicago Terminal Transfer Company is a belt line connecting with every railroad going in and out of Chicago and has switch tracks along its entire line. The proof was that the value of the proposed site for industrial purposes is $132,000, that its value for residential purposes in its unsubdivided condition is $20,000, and that it would cost approximately $20,000 to subdivide and plat it.
It is difficult to describe in words the territory, streets, and railroads so as to visualize the situation to one reading the description without a map or plat before him, and we do not think it practicable to incorporate a plat in this opinion, but from reading the evidence with the plat before us the conclusion seems warranted that there is no site available to appellant which is suitable for the proposed factory outside the restricted area. There is some property south of Harvard street, which is two blocks south of Harrison street, not within the restricted limits, and four small factories are located there, but the property in that part of the village is otherwise occupied...
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