Welton v. Hamilton

• Decision Date: 03 June 1931
• Docket Number: No. 19259.,19259.
• Citation: Welton v. Hamilton, 344 Ill. 82, 176 N.E. 333 (Ill. 1931)
• Parties: WELTON et al. v. HAMILTON et al.
• Court: Illinois Supreme Court

344 Ill. 82

176 N.E. 333

WELTON et al.

v.HAMILTON et al.

No. 19259.

Supreme Court of Illinois.

April 23, 1931.

Motion for Leave to File Second Petition for Rehearing June 3, 1931.

Certiorari by Maude W. Welton and another directed to Eva H. Hamilton and others, as the zoning board of appeals of the city of Chicago, requiring it to certify to the superior court a transcript of its order on the appeal of Maurice L. Bein, from an order of the commissioner of buildings disapproving application for building permit. Judgment quashing the writ, and petitioners appeal.

Reversed and rendered.

Appeal from Superior Court, Cook County; Joseph H. Fitch, judge.

Winston, Strawn & Shaw, of Chicago (Harold Beacom, Paul H. Moore, and A. D. Welton, Jr., all of Chicago, of counsel), for appellants.

Samuel A. Ettelson, Corp. Counsel, Frank J. Corr, Cora B. Hirtzel, Barnet Hodes, and Sonnenschein, Berkson, Lautmann & Levinson, all of Chicago (John Lyle Vette, Maurice Berkson, and Isaac E. Ferguson, all of Chicago, of counsel), for appellees.

DUNN, C. J.

Maude W. Welton and Rebecca S. Chandler sued out of the superior court of Cook county a writ of certiorari directed to the zoning board of appeals of the city of Chicago requiring it to certify to the superior court a transcript of its order of March 27, 1928, on the appeal of Maurice L. Bein, purporting to act for the 40 East Oak Street Building Corporation, from an order of the commissioner of buildings of the city of Chicago disapproving his application for a permit to erect a twenty-story apartment building at Nos. 36 to 42 East Oak street, because the building proposed to be built did not conform to the requirements of the zoning ordinance, together with all its proceedings on such writ. The board of appeals made a return of its proceedings, and the court, upon a hearing, ordered the writ quashed. The petitioners have appealed, assigning as error, among other things, that the statute authorizing the creation of the board of appeals and the ordinance creating such board are unconstitutional, and the court erred in holding otherwise.

The following is the order made by the board of appeals:

‘Board of Appeals, City of Chicago,

‘603 City Hall.

‘Cal. No. 90-28-Z

‘Map No. 21 Sec. 3

‘Minutes of meeting

‘March 27, 1928.

‘Appellant: Maurice L. Bein

‘Appearances for: Barnet Hodes, Attorney

‘Appearances against: ________

‘Premises affected: 36-42 E. Oak street.

‘Subject: Appeal to vary the requirements of the zoning ordinance.

‘Action of board: ________

‘Appeal granted. The vote

+-----------------------------------------------+
                ¦                   ¦Affirmative¦Negative¦Absent¦
                +-------------------+-----------+--------+------¦
                ¦“Eva H. Hamilton   ¦           ¦        ¦      ¦
                +-------------------+-----------+--------+------¦
                ¦“James A. Creighton¦           ¦        ¦      ¦
                +-------------------+-----------+--------+------¦
                ¦“John A. Lind      ¦           ¦        ¦      ¦
                +-------------------+-----------+--------+------¦
                ¦“Louis J. Meyers   ¦           ¦        ¦      ¦
                +-------------------+-----------+--------+------¦
                ¦“John E. Traeger   ¦           ¦        ¦      ¦
                +-----------------------------------------------+
                

‘The resolution:

‘Whereas, Maurice L. Bein, for the 40 East Oak Street Building Corporation, owner, heretofore applied to the commissioner of buildings for a permit for the erection of a 20-story apartment hotel building on premises at 36-42 East Oak Street; and

‘Whereas, the proposed building is to be located in a fourth volume commercial district and would exceed by 141 feet the alley line height limit and would violate the volume district regulations of the zoning ordinance; and

‘Whereas, the commissioner of buildings on March 12, 1928, in acting upon the said application rendered the following decision: ‘Application not approved. Proposed improvement does not conform with requirements of zoning ordinance;’ and

‘Whereas, an appeal under the law has now been taken to the board of appeals to vary or modify the provisions of the zoning ordinance so as to permit the erection of the proposed building; and

‘Whereas, said appeal was taken on the 14th day of March, 1928, by filing with the commissioner of buildings and with the board of appeals a notice of appeal, specifying the grounds thereof; and

‘Whereas, an inspection of the premises was made by members of the board; and

‘Whereas, a public hearing was held on this appeal by the board of appeals at its regular meeting held on March 20, 1928, after giving due notice thereof to the parties; and

‘Whereas, the board of appeals, having fully heard the testimony and arguments of the parties and being fully advised in the premises, finds that in this case there is unnecessary hardship in the way of carrying out the strict letter of the zoning ordinance, and that the spirit of the zoning ordinance may be observed, public safety and welfare secured and substantial justice done by permitting the erection of the proposed building. It is therefore

‘Resolved, That the board of appeals, by virtue of the authority conferred upon it, does hereby make a variation in the application of the volume district regulations of the zoning ordinance, and that the appeal be and it hereby is granted on condition that all permits necessary for the prosecution of the work shall be obtained within six months and the building completed within twelve months after the date of this action, and the commissioner of buildings is hereby ordered to issue a permit herein in conformity with the provisions of this resolution; and

‘Resolved, further, that plans in triplicate shall be approved by the board before a building permit is issued herein.’

The order shows that the proposed building is to be erected in a fourth volume commercial district, and section 19 of the zoning ordinance, which is attached to the return, provides that ‘(c) for each one foot that a building or portion of it is distant from the center line of any alley, such building, or such portion thereof, may be erected nine feet in height, provided this regulation shall not be applied along that part of an alley for the 55 feet of its length nearest the street which the alley intersects.’ Plans of the building and plats of the locality show that the property of the 40 East Oak Street Building Corporation on which it proposes to erect the hotel was purchased about a year before the hearing by the board of appeals, after the passage of the zoning ordinance, is situated on the north side of East Oak street, on which it fronts 91 feet and 9 inches, and extends back 100 feet and 8 inches to an alley 16 feet wide. Immediately north of the alley, opposite the rear of the proposed building, are the premises of the appellants, extending 150 feet from a point about 10 feet east of the proposed building to a point about 50 feet west of it. These premises front on the south side of East Bellevue place, are of the same depth as the 40 East Oak Street Building Corporation's property, and are owned severally, the east 39 feet by Mrs. Welton and the west 111 feet by Mrs. Chandler.

It is contended by the appellants that the authority attempted to be conferred upon the city council by the Zoning Act to establish a board of appeals is in excess of the constitutional limitation of the legislative power, because it confers upon the board of appeals authority to determine and vary the application of the zoning regulations without restriction; that the ordinance is invalid because the statute authorizing its appointment is unconstitutional, and because it contains no general or specific rules in accordance with which the board of appeals may determine and vary the application of the ordinance, as required by the statute; and that the order of the board of appeals is void because it is arbitrary, is not based upon any finding of facts, and is not justified by the evidence.

All the legislative power of the state is vested by the Constitution in the General Assembly, consisting of a Senate and House of Representatives, and, this power may not be delegated. People v. Election Com'rs, 221 Ill. 9, 77 N. E. 321,5 Ann. Cas. 562;Rouse v. Thompson, 228 Ill. 522, 81 N. E. 1109. The Legislature must decide what the law shall be, and a law must be complete in all its terms and conditions when it leaves the Legislature. Arms v. Ayer, 192 Ill. 601, 61 N. E. 851,58 L. R. A. 277, 85 Am. St. Rep. 357;Sheldon v. Hoyne, 261 Ill. 222, 103 N. E. 1021. Any law which vests in the discretion of administrative officers the power to determine whether the law shall or shall not be enforced with reference to individuals in the same situation, without any rules or limitations for the exercise of such discretion, is unconstitutional. Board of Administration v. Miles, 278 Ill. 174, 115 N. E. 841;Kenyon v. Moore, 287 Ill. 233, 122 N. E. 548;Jackson v. Blair, 298 Ill. 605, 132 N. E. 221. The principle has long been recognized, and is repeatedly announced in our decisions as well as those of other courts, that, while the Legislature cannot delegate its general legislative authority, ‘still it may authorize many things to be done by others which it might properly to itself. * * * Necessarily, regarding many things especially, affecting local or individual interests, the legislature may act either mediately or immediately. We see, then, that while the legislature may not divest itself of its proper functions, or delegate its general legislative authority, it may still authorize others to do those things which it might properly, yet cannot understandingly or advantageously do itself. Without this power legislation would become oppressive, and yet imbecile. Local laws almost universally call into action, to a greater or less extent, the agency and discretion, either of the people or individuals, to accomplish in detail what is authorized or required in general terms. The object to be accomplished, or the thing permitted may be specified, and the rest...