State Bank & Trust Co. v. Village of Wilmette

• Decision Date: 13 December 1934
• Docket Number: No. 22541.,22541.
• Citation: 193 N.E. 131,358 Ill. 311
• Court: Illinois Supreme Court
• Parties: STATE BANK & TRUST CO. et al. v. VILLAGE OF WILMETTE.

358 Ill. 311

193 N.E. 131

STATE BANK & TRUST CO. et al.

v.VILLAGE OF WILMETTE.

No. 22541.

Supreme Court of Illinois.

Oct. 22, 1934.

Rehearing Denied Dec. 13, 1934.

Bill by the State Bank & Trust Company, trustee, and others against the Village of Wilmette. From the decree, the defendant appeals.

Affirmed.

Appeal from Superior Court, Cook County; Robert E. Gentzel, judge.

Kirkland, Fleming, Green & Martin, of Chicago (Willis D. Nance, A. H. Stuart, David Fisher, and William H. Symmes, all of Chicago, of counsel), for appellant.

Heth, Lister & Collins, of Chicago (Ralph D. Shanessy, of Evanston, of counsel), for appellees.

STONE, Justice.

Appellant seeks reversal of a decree of the superior court of Cook county declaring void a zoning ordinance, and amendments thereto, of the village of Wilmette, and enjoining the village authorities from enforcing said ordinance in so far as the same may tend to prevent appellees constructing on their lots at the northwest corner of Main street and Lake avenue, in said village, a public garage, gasoline filling station, oil filling station, gasoline or oil pump or pumps.

Appellees, who are the owners and lessees of the lots affected, made application to the proper village officer for a permit to erect a public garage, with two sets of gasoline pumps located outside of the building, on said lots. Following a refusal to issue the permit they filed their bill, alleging the invalidity of the zoning ordinance, and amendments thereto, as to the lots in question, in that they deny to appellees the lawful use of their property without due process of law and deny them equal protection of the laws, in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States and section 2 of article 2 and section 22 of article 4 of the Constitution of the State of Illinois. The prayer of the bill is that the ordinance, and the amendments thereto, be decreed to be void, and that an injunction issue restraining the village authorities from enforcing said ordinance and interfering with the construction and operation of the garage and gasoline pumps. The answer was, in effect, a general denial of the material allegations of the bill.

Wilmette, a village of some 15,000 inhabitants, is situated north of the city of Evanston and south of the village of Kenilworth, in Cook county. In 1922 the village passed a comprehensive zoning ordinance dividing the viHage into ‘A residential,’ ‘B commercial,’ and ‘C industrial’ districts. At that time Main street was about twenty-five feet wide from curb to curb and extended from the south limits of the village parallel to and adjacent to the west line of the right of way of the Chicago & Northwestern Railroad. The ordinance zoned the lots in question and all lots abutting on Main street from Lake street north to the village limits in ‘A residential’, district. In 1923 the ordinance was amended, zoning the aforesaid lots abutting on Main street as in ‘B commercial’ district. In 1928 the state of Illinois, with the village and the county of Cook, widened Main street to a width of fifty-two feet and paved it. To pay for this improvement, special assessments were levied against the lots abutting on Main street, including the appellees' lots. Upon completion of the new pavement Main street became an integral part of one of the arterial state highways, commonly known as and called the Green Bay road. Lake avenue, from Lake Michigan west to Waukegan road, is an important east and west street, designated as county route ‘QT.’ The evidence shows that on a rainy day during the hearing a count was taken of vehicles and pedestrians passing the intersection of Lake avenue and Main street, showing that between 7 a. m. and 7 p. m. a total of 7,366 vehicles and 332 pedestrians passed. By the zoning ordinance as amended in 1923 all the lots in the village abutting on Main street, except the first two blocks, part of the fourth and all of the fifth block south of Lake street, were zoned in ‘B commercial’ district. The plats introduced in evidence show five garages in this ‘B commercial’ district and one on Central avenue between Main street and Park avenue, the latter being in an ‘A residential’ district. This ordinance as then amended excluded from ‘B commercial’ district filling stations but did not exclude garages.

Prior to March 1, 1932, appellees Shimonek and Hawekotte made application to the village board for a permit to erect a gas and service station on the lots in question, which application was referred to the zoning board, with instructions to investigate and report back. On April 22, 1932, appellees made application for a building permit to erect on the lots in question a garage and sales building sixteen feet high, constructed of Brick with concrete foundations and a composition roof, and paid the required permit fee. On April 23, 1932, an amendment to the zoning ordinance was before the village board, which amendment excluded public garages and filling stations from the ‘B commercial’ district. A hearing was then had thereon. Appellees attended the hearing and protested in writing against the adoption of the amendment. The zoning commission reported favorably on the amendment and on May 3, 1932, the board of trustees adopted it. The permit sought by appellees was thereupon denied and appellees filed this bill. The chancellor, after a full hearing before him, entered a decree in conformity with the prayer of the bill, finding the ordinance and amendments thereto void and perpetually enjoining the village and its officers from interfering with complainants in the erection and maintenance of a public garage and gasoline filling station, subject to the right of the village to require the payment of a garage license fee and subject to compliance by appellees with the building ordinances of the city. Appellants prayed an appeal to this court. The chancellor entered the appropriate certificate as to the validity of the ordinance involved and granted the appeal.

The points relied upon are: (1) The ordinances are a legitimate exercise of the police power, as the classificationhas a rational relation to the public health, morals, safety, and general welfare, and is therefore valid as reasonable exercise of the police power; and (2) the chancellor erred in the exclusion of certain evidence offered by appellant.

In support of its first contention, appellant's counsel review the evidence at length and argue that under the law applicable to the facts the decree should be reversed. They say: (a) It is not even debatable that a garage and filling station located on the lots in question would adversely affect the health, safety, comfort, morals, and welfare of the adjoining residential neighborhood; (b) there is no justification for placing a garage and filling station of these lots adjoining a residential district; and (c) the restriction excluding garages and filling stations from the lots in question being a reasonable one, the fact that it might work a hardship on the owner of the property does not afford ground for holding the ordinance unconstitutional. They urge, also, that the ordinance changing the classification does not destroy any vested interest.

The question first to be determined is whether the ordinance and its amendments have for their object the preservation of the public health, morals, comfort, safety, or welfare and reasonably so tended, or whether they amount to an invasion of the property rights of appellees and constitute an unreasonable restriction on the use of their property. The privilege of every citizen to use his property according to his own will is both a liberty and a property right. Liberty includes not only freedom from servitude and restraint, but also the right of every man to be free in the use of his powers and faculties to pursue such occupation or business as he may choose and to use his property in his own way and for his own purposes, subject only to the restraint necessary to secure the common welfare. Bjork v. Safford, 333 Ill. 355, 164 N. E. 699, 61 A. L. R. 561;Haller Sign Works v. Physical Culture Training School, 249 Ill. 436, 94 N. E. 920,34 L. R. A. (N. S.) 998;Ruhstrat v. People, 185 Ill. 133, 57 N. E. 41,49 L. R. A. 181, 76 Am. St. Rep. 30;Frorer v. People, 141 Ill. 171, 31 N. E. 395,16 L. R. A. 492. Both liberty and property are subject to the police power of the state, under which new burdens may be imposed upon property and new restrictions placed on its use when the public welfare demands it. The police power is, however, limited to enactments having reference to the public health, comfort, safety, and welfare. An act which deprives a citizen of his liberty or property rights cannot be sustained under the police power unless a due regard for the public health, comfort, safety, or welfare requires it. Bjork v. Safford, supra; Catholic Bishop v. Village of Palos Park, 286 Ill. 400, 121 N. E. 561;People v. City of Chicago, 261 Ill. 16, 103 N. E. 609,49 L. R. A. (N. S.) 438, Ann. Cas. 1915A, 292;Bessette v. People, 193 Ill. 334, 62 N. E. 215,56 L. R. A. 558;Bailey v. People, 190 Ill. 28, 60 N. E. 98,54 L. R. A. 838, 83 Am. St. Rep. 116; Ruhstrat v. People, supra. The legislative determintion as to what is a proper exercise of police power is not conclusive. Whether the means employed have a real, substantial relation to the public health, comfort, safety, or welfare, or are arbitrary of unreasonable, is a question which is subject to review by the courts, and in determining that question the courts will disregard mere forms and will interfere for the protection of rights injuriously affected by arbitrary and unreasonable action. Western Theological Seminary v. City of Evanston, 325 Ill. 511, 156 N. E. 778;City of Aurora v. Burns, 319 Ill. 84, 149 N. E. 784. The governmental power to interfere, by zoning regulations, with the general rights of the land owner by restricting the character of...