Phelps v. Bd. of Appeals of City of Chicago

• Citation: 325 Ill. 625,156 N.E. 826
• Decision Date: 10 June 1927
• Docket Number: No. 16499.,16499.
• Parties: PHELPS v. BOARD OF APPEALS OF CITY OF CHICAGO.
• Court: Supreme Court of Illinois

325 Ill. 625

156 N.E. 826

PHELPS

v.BOARD OF APPEALS OF CITY OF CHICAGO.

No. 16499.

Supreme Court of Illinois.

April 20, 1927.

Rehearing Denied June 10, 1927.

Error to Circuit Court, Cook County; George Fred Rush, Judge.

Application for a permit to build a church and school on a parcel of land, objected to by Robert G. Phelps and others. Petition for certiorari to review the proceedings of the board of appeals of the city of Chicago sustaining the action of the commissioner issuing the permit was dismissed by the circuit court, and objector named brings error.

Writ dismissed.

Duncan, J., dissenting.

Cleland, Lee & Phelps, of Chicago (Robert G. Phelps, of Chicago, pro se), for plaintiff in error.

Francis X. Busch, Corporation Counsel, of Chicago (Daniel V. Gallery, William L. Sullivan, Barnet Hodes, and Thomas J. Sheehan, all of Chicago, of counsel), for defendant in error.

DE YOUNG, J.

On May 8, 1924, an application was made to the commissioner of buildings of the city of Chicago, on behalf of the Catholic bishop of Chicago, for a permit to build a church and school on a parcel of land located at the northwest corner of Longwood drive and West 101st place, in that city. A protest, signed by substantially all of the residents and owners of property in the block which included the parced of land in question, that the zoning ordinance of the city excluded buildings of the character proposed from the location, was filed with the commissioner. Notwithstanding this protest, the desired permit was issued on May 10, 1924, without notice to any of the objectors. An appeal was taken to the board of appeals created by the zoning ordinance. A hearing followed, and the board sustained the action of the commissioner. Within thirty days after that decision Robert G. Phelps, one of the objectors, filed in the circuit court of Cook county his petition for a writ of certiorari to review the proceedings, of the board of appeals. The writ was issued, and the board in its return certified a complete transcript of the evidence and the proceedings in the cause. The hearing in the circuit court was had upon the petition and the return, and the court quashed the writ of certiorari and dismissed the petition. This writ of error is prosecuted by the petitioner for a review of the record.

[1] The defendant in error, the city of Chicago, has filed a motion to dismiss the writ of error for want of jurisdiction. In opposition to that motion, the plaintiff in error suggests that certain portions of the zoning ordinance of the city of Chicago are unconstitutional and invalid. Neither in the petition for the writ of certiorari filed in the circuit court, nor in the assignment of errors upon the action of the board of appeals, was there any contention that any part of the zoning ordinance was invalid. On the hearing in the circuit court, the validity of the zoning ordinance was not assailed, nor was there a ruling upon the question. In his assignment of errors in the court, the plaintiff in error for the first time asserts the invalidity of certain provisions of the zoning ordinance. It has been held uniformly that a constitutional question cannot be urged in this court unless the question was in some way presented to the trial court for its decision and preserved for review. Albrecht v. Omphgent Township, 324 Ill. 200, 154 N. E. 898;Davis v. Industrial Com., 297 Ill. 29, 130 N. E. 333, 15 A. L. R. 732;McNeil & Higgins Co. v. Neenah Cheese Co., 290 Ill. 449, 125 N. E. 251;People v. Rawson, 278 Ill. 654, 116 N. E. 123;Moses v. Royal Indemnity Co., 276 Ill. 177, 114 N. E. 554;Wennersten v. Sanitary District, 274 Ill. 189, 113 N. E. 148.

[2] The question presented to the board of appeals for determination was the construction, and not the validity, of certain provisions of the zoning ordinance. In the circuit court it was insisted that the action of the board of appeals was illegal because its interpretation of the zoning ordinance was erroneous. While this court has jurisdiction, by direct appeal from or writ of error to the trial court, of a case in which the validity of a municipal ordinance is involved and in which the trial judge certifies that in his opinion the public interest requires such direct review, yet this court does not have jurisdiction, by such direct appeal or writ of error, of a case in which the question to be determined is merely the construction, and not he validity, of a municipal ordinance. Practice Act, § 118 (Smith-Hurd Rev. St. 1925, c. 110); Village of La Grange Park v. Jarecki, 321 Ill. 177, 151 N. E. 538.

[3][4]The instant writ of error was sued out prior to the enactment of section 3a of the Zoning Law (Laws of 1925, p. 244), which provides:

‘Appeals shall lie to and writs of error from the Appellate or Supreme Court to review the final orders, judgments or decrees of the court. Appeals or writs of error in this section allowed shall be subject to the limitations of ‘An act in relation to practice and procedure in courts of record,’ approved June 3, 1907, as amended.'

Plaintiff in error, however, contends that a property right is here asserted, and that, when personal liberty or a property right is involved in a cause and no specific review of the particular proceeding, or right thereto, is provided by statute, a writ of error is available as a constitutional or common-law right. A writ of error is a writ of right by the common law, and may be prosecuted in all cases involving liberty or property rights unless prohibited by statute. State of Illinois v. Ajster, 318 Ill. 230, 149 N. E. 297,People v. Emmerson, 294 Ill. 219, 128 N. E. 385;Haines v. People, 97 Ill. 161. Section 91 of the Practice Act (Smith-Hurd Rev. St. 1925, c. 110) authorizes writs of error from the Supreme and Appellate Courts to review the final judgments of inferior courts ‘in any suit or proceeding at law or in chancery.’ The phrase ‘suit or proceeding at law or in chancery’ includes every claim or demand in a court of justice which was known at the adoption of our Constitution as an action at law or a suit in chancery, and also all actions since provided for, in which personal or property rights are involved of the same nature as those previously enforced by actions at law or in chancery, but does not include special statutory proceedings involving rights and providing remedies which are not of the kind previously enforced either at law or in chancery. Douglas v. Hutchinson, 183 Ill. 323, 55 N. E. 628;Christensen v. Bartelmann Co., 273...