Vill. of Riverside v. Kuhne

Decision Date22 May 1947
Docket NumberNo. 29846.,29846.
Citation397 Ill. 108,73 N.E.2d 286
PartiesVILLAGE OF RIVERSIDE v. KUHNE.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Appeal from Criminal Court, Cook County; Peter H. Schwaba, judge.

Eugen Kuhne was convicted of violating a zoning ordinance of the village of Riverside, and he appeals.

Cause transferred to the Appellate Court for the First District.

Lipman & Lochtan, of Chicago (David I. Lipman and Harry G. Fins, both of Chicago, of counsel), for appellant.

Tenney, Sherman, Rogers & Guthrie, of Chicago (S. Ashley Guthrie, of Chicago, of counsel), for appellee.

STONE, Justice.

Defendant appeals from a judgment of the criminal court of Cook county finding him guilty of violating the zoning ordinance of the village of Riverside and assessing a fine of $25 and costs. The appeal is taken directly to this court on the theory that the validity of a municipal ordinance is involved.

On October 3, 1944, a complaint was filed before a police magistrate charging the defendant with unlawfully using the premises therein described for business purposes in violation of the zoning ordinance of the village of Riverside. The defendant was found guilty and adjudged to pay a fine of $25. An appeal was taken to the criminal court of Cook county. In that court the cause was docketed as a quasi criminal case, entitled, The People of the State of Illinois v. Eugene Kuhne.’ After a trial de novo the defendant was again found guilty and a fine assessed against him in the sum of $25 and costs. A few days after judgment had been entered, a motion was allowed to vacate the judgment and to substitute the village of Riverside as party plaintiff. Judgment was then entered in favor of the new plaintiff in substantially the same from as the previous judgment. After this judgment was entered defendant filed a motion in arrest of judgment, a motion to expunge the purported judgment, and a motion for a new trial. In each motion the defendant asserted that the zoning ordinance was void because it deprived him of his property without due process of law and denied him equal protection of the law as guaranteed by the Federal and State constitutions. The motions were overruled by the trial court.

It is undisputed that the defendant resided with his family on the premises in question and that he had one room of the dwelling outfitted as an office, from which he operated his business as a realestate broker. The defendant's principal contention at the trial was that such accessory use of the property was permissible under the ordinance. This contention is carried throughout the brief and argument on appeal. Defendant's argument that the ordinance upon which the judgment is based is unconstitutional concludes with the statement, ‘Manifestly the ordinance of the village of Riverside as applied to Eugen Kuhne is invalid.’ It is nowhere contended that the ordinance is invalid generally, but only as it applies to defendant's particular use of the premises. This theory of the case raised only the question of the application of the ordinance and did not involve a determination of its validity. The construction or application of a statute or ordinance does not present a constitutional question. Pollack v. County of DuPage, 371 Ill. 199, 20 N.E.2d 273;City of Chicago v. Iroquois Iron and Steel Co., 361 Ill. 330, 197 N.E. 873;City of Chicago v. Peterson, 360 Ill. 177, 195 N.E. 636.

The only pleading in the case was the original complaint filed with the police magistrate. Not only was no objection made as to the validity of the ordinance when it was offered in evidence, but it was admitted by stipulation of the parties. During the course of the trial no objection was made to any evidence, nor was any question presented which required the court to pass on the validity of the ordinance or any constitutional question. At no time prior to judgment did the defendant raise any question as to the validity of the ordinance. On the contrary, he defended on the theory that the acts with which he was charged did not amount to a violation of the ordinance. The validity of the ordinance might have been involved in this suit had the defendant objected to the admission of the ordinance in evidence, and to the admission of any evidence under it, at the same time preserving...

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12 cases
  • First Nat. Bank & Trust Co. v. City of Evanston
    • United States
    • Illinois Supreme Court
    • 18 March 1964
    ...N.E.2d 65 (dissenting opinion); American Smelting & Refining Co. v. City of Chicago, 409 Ill. 99, 98 N.E.2d 710; Village of Riverside v. Kuhne, 397 Ill. 108, 73 N.E.2d 286; Pollack v. County of Du Page, 371 Ill. 199, 20 N.E.2d 273; City of Chicago v. Iroquois Iron and Steel Co., 361 Ill. 33......
  • Spaulding School Dist. No. 58 v. Waukegan City School Dist. No. 61
    • United States
    • Illinois Supreme Court
    • 22 January 1960
    ...as to authorize a direct appeal. American Smelting & Refining Co. v. City of Chicago, 409 Ill. 99, 98 N.E.2d 710; Village of Riverside v. Kuhne, 397 Ill. 108, 73 N.E.2d 286; Pollack v. County of Du Page, 371 Ill. 199, 20 N.E.2d 273. Yet, in the La Salle National Bank case, it was held that ......
  • Angelini v. Snow
    • United States
    • United States Appellate Court of Illinois
    • 27 January 1978
    ... ... (Village of Riverside v. Kuhne (1947), 397 Ill. 108, 73 N.E.2d 286; Davis v. Davis (1971), 131 Ill.App.2d 459, 268 N.E.2d ... ...
  • La Salle Nat. Bank of Chicago v. Cook County
    • United States
    • Illinois Supreme Court
    • 20 September 1957
    ...It has been established in American Smelting & Refining Co. v. City of Chicago, 409 Ill. 99, 98 N.E.2d 710; Village of Riverside v. Kuhne, 397 Ill. 108, 73 N.E.2d 286, and Pollack v. County of DuPage, 371 Ill. 199, 20 N.E.2d 273, that such a question involves only the application and constr......
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