La Salle Nat. Bank v. City of Chicago

• Decision Date: 24 May 1954
• Docket Number: No. 33114,33114
• Citation: 121 N.E.2d 486,3 Ill.2d 375
• Parties: LA SALLE NAT. BANK et al. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

Page 486

121 N.E.2d 486

3 Ill.2d 375

LA SALLE NAT. BANK et al. v. CITY OF CHICAGO.

No. 33114.

Supreme Court of Illinois.

May 24, 1954.

Rehearing Denied Sept. 20, 1954.

Tannenbaum & Polikoff, Chicago, for appellants.

Maurice J. Nathanson, and Cohon & Goldstein, Chicago, for appellees.

SCHAEFER, Chief Justice.

A judgment of the circuit court of Cook County declared invalid the frontage consent provisions of sections 136-6 and 136.1-6 of the Municipal Code of Chicago to the extent that they purported to restrict the rights of the plaintiffs to obtain a license to conduct a nursing home in the building located at 5517 North Kenmore Avenue, in Chicago. After this judgment was entered and while the case was pending upon appeal, the controverted license was issued, and as the matter now stands in this court the principal question is whether the case is moot.

The plaintiffs are the La Salle National Bank, as trustee, which holds title to the property in question, and Kenmore, Inc., a corporation authorized to operate a nursing home. The complaint alleged that Kenmore, Inc., had entered into a contract for the purchase of the property, and proposed to convert the existing building into a nursing home. The property is located in an apartment house district under the Chicago zoning ordinance, and under that ordinance a nursing home is a permitted use in such a district. But section 136.1-6 of the Municipal Code of Chicago provides that no license shall be issued to conduct a nursing home in any block in which two-thirds of the buildings fronting on both sides of the street on which the proposed home will face are devoted exclusively to residence purposes, unless written consents of the owners of a majority of the frontage on both sides of the street in the block in question are filed. Section 136-6, which is substantially the same, provides that no new frontage consents shall be required if the home has theretofore been licensed at the same location.

After describing the densely populated area in which the property is located, plaintiffs alleged that the uses of the surrounding property are so diversified and the area so intensely developed with large apartment buildings, hotels, rooming houses, and businesses, that to require consents to enable them to maintain a convalescent home is unreasonable, and that the frontage consent provisions are void as applied to their property and the purpose for which it was proposed to be used, because they violate plaintiffs' rights under sections 2 and 13 of article II of our constitution, S.N.A., 'and the 5th (sic) and 14th amendments to the Constitution of the United States.'

The complaint sought a declaration that the frontage consent provisions were invalid or inapplicable to the plaintiffs' property, an injunction restraining the defendant, the city of Chicago, from interfering with the proposed use of the property, and a writ of mandamus to compel the issuance of a permit.

In its answer, the city took the position that the plaintiffs could not use the property for the purpose desired until they complied with all applicable provisions of the Municipal Code, including the ordinances requiring frontage consents, and that the frontage consent requirement is both necessary and reasonable.

Frieda Markels and Verna L. Polikoff, and certain others, who alleged that they were owners of property in the block in question, were permitted to intervene. Their answers contained detailed allegations as to the uses to which the buildings in the block in question are put, and alleged the validity of the frontage consent provisions.

Considerable evidence was heard and a judgment order was entered holding that the proposed use of the property by plaintiffs was a permitted use under the Chicago zoning ordinance, and that the frontage consent provisions were invalid because they deprived plaintiffs of their property without due process of law. The trial judge has certified that the validity of a municipal ordinance is involved and that, in his opinion, the public interest requires a direct appeal. The sole defendant, the city of Chicago, did not appeal. This appeal was prosecuted by two of the intervenors, Frieda Markels and Verna L. Polikoff.

Plaintiffs have moved to dismiss the appeal on the ground that the case is now moot. A supporting affidavit states that on February 9, 1954, after the entry of the judgment below, the city of Chicago issued its license to Kenmore, Inc., to operate a nursing home at the location in question. A photostatic copy of the license is attached to the motion. The intervenors have filed countersuggestions to the motion to dismiss, arguing that the case has not become moot, and that even if it has, the appeal should not be dismissed.

A case is moot when it does not involve any actual controversy. Chicago City Bank & Trust Co. v. Board of Education, 386 Ill. 508, 54 N.E.2d 498. Where the issues involved in the trial court no longer exist, an appellate court will not review a case merely to decide moot or abstract questions, to establish a precedent, or to determine the right to, or the liability for, costs, or, in effect, to render a judgment to guide potential future litigation. Siefferman v. Johnson, 406 Ill. 392, 94 N.E.2d 317; Central States Import & Export Corp. v. Illinois Liquor Control Comm., 405 Ill. 58, 89 N.E.2d 903; Railway Express Agency, Inc., v. Commerce Comm., 374 Ill. 151, 28 N.E.2d 116; Chaitlen v. Kaspar American State Bank, 372 Ill. 83, 22 N.E.2d 673; People ex rel. Lawrence v. Village of Oak Park, 356 Ill. 154, 190 N.E. 286; People ex rel. Chancellor v. Sweitzer, 329 Ill. 380, 160 N.E. 747; Wick v. Chicago Telephone Co., 277 Ill. 338, 115 N.E. 550. Since the existence of a real controversy is an essential requisite to appellate jurisdiction, the general rule is that where a reviewing court has notice of facts which show that only moot questions or mere abstract propositions are involved, it will dismiss the appeal or writ of error even though such facts do not appear in the record. Siefferman v. Johnson, 406 Ill. 392, 94 N.E.2d 317; Tuttle v. Gunderson, 341 Ill. 36, 173 N.E. 175; Chaitlen v. Kaspar American State Bank, 372 Ill. 83, 22 N.E.2d 673; Kimball v. Kimball, 174 U.S. 158, 19 S.Ct. 639, 43 L.Ed. 932. From the necessity of the situation courts allow facts which affect their right and duty to proceed in the exercise of their appellate jurisdiction, but which do not appear in the record before it, to be proved by extrinsic evidence. Kimball v. Kimball, 174 U.S. 158, 19 S.Ct. 639, 43 L.Ed. 932; Mills v. Green, 159 U.S. 651, 16 S.Ct. 132, 40 L.Ed. 293; Dakota County v. Glidden, 113 U.S. 222, 5 S.Ct. 428, 28 L.Ed. 981; Tuttle v. Gunderson, 341 Ill. 36, 173 N.E. 175. Such a fact may be presented, as here, by motion supported by affidavit. Ebert v. Beedy, 113 Ill. 316. See: Chaitlen v. Kaspar American State Bank, 372 Ill. 83, 22 N.E.2d 673.

In the leading case of Mills v. Green, 159 U.S. 651, 16 S.Ct. 132, 133, the court said: 'The duty of this court * * * is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.'

In this case, the primary relief sought by plaintiffs was the issuance of a license. The basic issue made by the pleadings and determined by the judgment of the trial court was the validity of the frontage consent requirements. The license has now been issued, and by obtaining the...