Voisard v. Lake County

• Court: Appellate Court of Illinois
• Writing for the Court: Bruno W. Stanczak, State's Atty., Waukegan, Stanley Grosshandler, Asst. State's Atty., Highland Park, Jacob Bloom, Chicago; SPIVEY; CROW, P. J., and WRIGHT
• Citation: Voisard v. Lake County, 169 N.E.2d 805, 27 Ill.App.2d 365 (Ill. App. 1960)
• Decision Date: 01 November 1960
• Docket Number: Gen. No. 11340
• Parties: Andrew VOISARD and Georgia Voisard, Appellees, v. COUNTY OF LAKE, a Body Politic, and Thomas J. Moran, State's Attorney in and for the County of Lake, State of Illinois, et al., Appellants.

Page 805

169 N.E.2d 805

27 Ill.App.2d 365

Andrew VOISARD and Georgia Voisard, Appellees, v. COUNTY OF LAKE, a Body Politic, and Thomas J. Moran, State's Attorney in and for the County of Lake, State of Illinois, et al., Appellants.

Gen. No. 11340.

Appellate Court of Illinois, Second District, Second Division.

Nov. 1, 1960.

Bruno W. Stanczak, State's Atty., Waukegan, Stanley Grosshandler, Asst. State's Atty., Highland Park, Jacob Bloom, Chicago, J. E. Bairstow, Waukegan, for appellants.

McClory, Bairstow & Anderson, Waukegan, for appellees.

SPIVEY, Justice.

This appeal from the Circuit Court of Lake County involves a suit for declaratory judgment. The cause was referred to a Special Master for hearing and report. The objections to the Master's report stood as exceptions before the court. The final order and decree was favorable to the plaintiffs.

Plaintiffs' amended complaint alleged inter alia that they were the owners of a certain parcel of real estate in Lake County, Illinois, which was zoned as an R-1 District; that in the month of June, 1957, they commenced the operation of a private school on the premises; that the school offered a general educational curriculum for kindergarten and grades one through three; that the school served the public school district in which the premises is located or a parish or similar local area; that a large number of children had enrolled in the summer session to be conducted during the months of July and August 1958; that the State's Attorney of Lake County had notified plaintiffs to cease their operation as being in violation of the Lake County Zoning Ordinance. The amended complaint prays judgment declaring their operation known as Vernon Oaks Private School to be a school within the meaning of the Zoning Ordinance and for injunctive relief.

Plaintiff, Andrew Voisard, filed his complaint for declaratory judgment on January 15, 1958, following receipt of a letter dated January 13, 1958, from the State's Attorney of Lake County ordering him to cease operations of his enterprise in that it was not a school as contemplated by the Lake County Zoning Ordinance.

On January 21, 1958, the defendants County of Lake and Thomas J. Moran, State's Attorney, filed their answer.

A hearing before the special master on the issues joined by the complaint and answer commenced on February 27, 1958. Thereafter, on March 7, 1958, certain other persons were granted leave to intervene. Intervenors filed their separate answer on the same date.

Further hearings before the Special Master were resumed through April 24, 1958.

On May 15, 1958, the plaintiff was granted leave to join Georgia Voisard as an additional party plaintiff and to file their amended complaint.

The amended complaint was identical to the original complaint except there was added thereto a paragraph alleging that the plaintiffs had accepted a large number of application for a session to be conducted in the months of July and August, 1958.

It appears from the record that the purpose of the amendment was to obtain a declaration as to plaintiffs' prospective operations.

The County of Lake and the intervenors each filed separate answers to the amended complaint and counterclaims for declaratory judgment and injunctive relief. They each by their counterclaims prayed the court to declare that the operation of the Vernon Oaks Private School was not a school within the meaning of the Zoning Ordinance. The relief prayed by the intervenors differs only in that it asks that the declaration be made as to each of the three separate sessions.

In addition to the assignments of error herein, the defendants claim that the issues in this cause have become moot by reason of the conclusion of the 1958 summer session and so, this proceeding should be dismissed. It is true that all contemplated acts referred to in the amended complaint have long since been performed and the defendant can reasonably contend that the questions raised in the action for declaratory judgment now cease to exist. 'The general rule is that when a reviewing court has notice of facts which show that only moot questions of mere abstract propositions are involved or where the substantial questions involved in the trial court no longer exist, it will dismiss the appeal or writ of error.' People v. Redlich, 402 Ill 270, 83 N.E.2d 736, 741.

The question of moot issues frequently occurs in this field of litigation and often-times the reviewing court is powerless to effectively deal with such causes even though action is indicated. For instance, in Maywood Park Trotting Ass'n v. Illinois Harness Racing Comm., 15 Ill.2d 559, 155 N.E.2d 626, 628, the Supreme Court expressed a desire to reverse the cause but was unable because the issues were moot. In that case, the court said, 'We recognize the practical difficulty of obtaining an adjudication of the legal rights of the parties involved before the expiration of the anual racing season. However, the task of providing a more expeditious procedure for review of the proceedings * * * does not rest with the judiciary. Relief must be sought before the legislature.'

Fundamentally, the same problems exist in this case as existed in Maywood Park Trotting Ass'n v. Illinois Harness Racing Comm. From a practical standpoint, judicial review would not be possible during the time consumed in a session of the school. If this cause is in fact moot, it is possible that neither side could ever secure a review of the action of the lower court. Certainly, this is not desirable where, as here, it is a matter of public as well as private interest that the status of this operation be determined.

'But when the issue presented is of substantial public interest, a well-recognized exception exists to the general rule that a case which has become moot will be dismissed on appeal. See cases collected in 132 A.L.R. 1185. Among the criteria considered in determining the existence of the requisite degree of public interest are the public or private nature of the question presented, the desirability of an authoritative determination for the future guidance of public officers, and the likelihood of future recurrence of the question.' People ex rel Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769, 772, 30 A.L.R.2d 1132.

Applying this exception to the present case, we feel compelled to review this cause even without deciding if the cause is, in fact moot. The County of Lake is a party and we conclude that in this case this exhibits sufficient public interest. That the issues will recur in one form or another unless we hear the cause on the merits is a certainty and so, practically, it is highly desirable that the cause not elude review. Therefore, without deciding that the cause is or is not moot, we find that public interest requires and judicial precedent permits us to examine the actions of the trial court.

The principal contention advanced by the appellants is that the plaintiffs failed to establish as a matter of law and fact that their operation was a school within the meaning of the Lake County Zoning Ordinance.

The Zoning Ordinance in question provides,

'Section 3-R-1 District

'(5-Acre Residential Tracts)

'In R-1 District the only uses permitted are:

'1. Single family residences, * * *

'2. Schools, including parochial and other private schools, teaching a general educational curriculum and serving a public school district, parish, or similar local area, but not including student dormitories and colleges; dancing, music, or nursery schools; or business, trade, vocations, or professional schools.

'3. * * *

'4. * * *

'5. * * *'

Both parties agree that the basic issue is whether or not the plaintiffs have sustained the burden proof in showing that their enterprise is (1) a school, (2) teaching a general educational curriculum and (3) serving a public school district, parish, or similar local area as contemplated by Section 3, R-1-2 of the Lake County Zoning Ordinance.

The Plaintiffs Andrew and Georgia Voisard were prior to the commencement of the instant enterprise certified teachers in the public schools of Illinois. In addition to his teaching in a public school, Andrew Voisard for a number of summers had operated a private business enterprise known as the Playmore Day Camp.

The premises in question was improved with a two-story frame residence with bedrooms and kitchen upstairs and two classrooms, hallway and two lavatories downstairs, and a cement block building containing twenty-five hundred square feet divided into two classrooms and two washrooms. Subsequent to its purchase other improvements to its sanitary facilities and playground equipment including an out door swimming pool were added.

Prior to the commencement of his operation, Andrew Voisard visited with several of the neighbors about their proposed enterprise. From the evidence as abstracted it is fair to say that he intended to operate a summer day camp.

The Supreme Court of Illinois has on several occasions defined the word 'school' as it would apply to tax exemptions under Article 9 of the Constitution of the State of Illinois, S.H.A.

In People ex rel. McCullough v. Deutsche, etc., Gemeinde, 249 Ill. 132, 94 N.E. 162, 164, it was said,

'A school, within the meaning of the constitutional provisions, is a place where systematic instruction in useful branches is given by methods common to schools and institutions of learning, which would make the place a school in the common acceptation of the word. What are called schools are conducted for teaching dancing, writing, deportment, and other things, which are not schools in the ordinary sense.' Quoted with approval in Turnverein 'Lincoln' v. Board of Appeals, 358 Ill. 135, 192 N.E. 780.

The Supreme Court in Coyne Electrical School v. Paschen, 12 Ill.2d 387, 146 N.E.2d 73, 77, said,

'On the basis of the foregoing decisions it is manifest that two things are necessary to qualify a private institution for tax exemption...