We had three decisions involving the exercise of the power of eminent domain by municipalities; these decisions repeated and applied the established general principles as to the amount of property which may be condemned for a public purpose and as to the elements in setting damages for the land taken or not taken.

In Chicago vs. Newberry Library, 7 Ill. 2nd 283, the Court was called upon to pass on the validity of an ordinance for the establishment of a municipal parking lot and providing for condemnation of the land needed. The Court applied the familiar rule that the governing body of a municipality having the power to condemn land for a public purpose, had the power to condemn land not only immediately needed but sufficient land to take care of anticipated future needs for the purpose. The general rules were repeated that the decision of the governing body that the land is needed for the improvement under consideration, will not be interfered with by the Courts excepting in the event that this decision is shown to be clearly unreasonable.

Waukegan vs. Stanstak, 6 Ill. 2nd 594, was an action by the City of Waukegan, acting as a special school district under its incorporation Act of 1859, to condemn land for school purposes. The Court held that the discretion of the governing body as to the amount of land needed for present and future needs was not shown to have "been abused, and over-ruled objections that the school district was condemning an excessive amount of land for the purpose.

In this Waukegan case, the issue was raised as to whether the School District had lost its character as a special school district by reason of the city having adopted the General Cities and Villages Act. The original special Act creating the City of Waukegan as passed in 1859 gave it the powers of a school district and, in effect, made it a special school district. The Court held that the fact that the City of Waukegan later adopted the General Cities and Villages Act did not affect its powers as a special school district; and that consequently, it was not bound by the statutes applying to school districts under the General Act requiring a referendum before the selection of a school site.

The third case involving the law of eminent domain when exercised by a municipal corporation was Chicago vs. Equitable Life Assurance Society, 8 Ill. 2d 341. Here the Court reviewed the rules governing the determination of the value of the land taken and the rules governing the damages to property taken.

Romadka vs. Jensen, 7 Ill. 2d 202, was an action to compel the removal from areas platted as roads, that subdivision outside any city or village, certain fences that had been erected over a period of years. The action was brought by the owners of some lots in the subdivision against the owners of other lots who had erected such fences; although it appeared that some of the defendants were joint owners, the spouses were not made defendants. The Court held that any person who purchased a lot as shown on a recorded subdivision plat was entitled to rely upon any stretts designated in the plat and could bring suit to compel removal of obstructions from such streets, even though the streets had never been actually used as highways. The Court also held that it was not necessary to join the wives of the joint owners as parties defendant in this proceeding.

We have three decisions in which the Supreme Court was called upon to hold the zoning ordinances invalid because of unreasonableness, on the ground that the ordinances restricted the property to uses other than that which would be the most profitable to the owner, and in which the contention was made that the ordinance was void as being unreasonable and confiscatory. In each of these decisions the opinion repeats the general rule, that a zoning ordinance like other ordinances, must be assumed to be reasonable and that the burden is upon the one contesting the validity of the ordinance to show clearly and affirmatively that the ordinance is unreasonable and void. No new principles for determining for the validity of an ordinance attacked on the grounds of unreasonableness, or for being confiscatory, were laid down in these decisions.

In Exchange National Bank vs. Cook County, 6 Ill. 2nd 419, the Court held that on the facts shown the ordinance restricting the land for residential purposes only was unreasonable and void. In this decision too, the Court held that where the owner of properly has requested and been denied rezoning, and where he has executed or is negotiating a contract of sale, a sufficient dispute exists to enable him to bring action for a declaratory judgment.

In Krom vs. City of Elmhurst, 8 Ill. 2nd 104, the Court found that the plaintiff there had shown the ordinance unreasonable in zoning the property for residential purposes since it was so located that it was not suited for such purposes but was well suited, and much more valuable, for commercial or manufacturing purposes.

In First National Bank of Lake Forest vs. Lake County, 7 Ill. 2nd 213, the Court found on the facts that an ordinance restricting property, to residential use only was valid and was not void as being unreasonable or confiscatory, even though the property was worth much more for commercial uses than for residential uses.

An order by a zoning board of appeals permitting a variance was held invalid in Lindberg vs. Springfield, 8 Ill. 2nd 254. The suit was brought by owners of neighboring property to restrain the granting of the variance on the grounds that the order granting the variance did not recite the facts upon which the grant was made, as required by statute. The order merely recited that there were practical difficulties and hardships, which recital the Court held was not a finding of fact sufficient to warrant the granting of the variance.

Dube vs. Chicago, 7 Ill. 2nd 313, was an action by the owners of certain factory to restrain the city, from prosecuting them for a violation of a provision of the zoning ordinance which prohibited operations causing unusual noises. The plaintiff had, prior to the enactment of the ordinance, operated a factory for the manufacture of garbage cans and similar metal articles. Later, after the adoption of the ordinance, the factory commenced work in repairing turrets on tanks, and the manufacture of larger metal articles which involved the use of additional machinery including air hammers and riveting machines. The Court held that the newer use involving the additional machinery could not be considered a continuation of the previous lawful non-conforming use, since although it was still manufacturing, the change in the type of manufacturing and the use of the new and different type machines was a different use from that which had previously, been made when the factory manufactured small metal articles.

In Garner vs. DuPage County, 8 Ill. 2nd 155, it appeared that the owners of property not affected by an amending ordinance sued to have the amending ordinance held void. The amending ordinance changed from farming use to an industrial use certain land located in DuPage County. The Court found that the property owned by the

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* Paper delivered before Municipal Attorneys' Section of the 43rd Annual Convention of the Illinois Municipal League, Springfield, Illinois, November 12th, 1956.

plaintiffs was not adjoining the property affected by the zoning ordinance, and that the plaintiffs had not shown that they were injured in any special way by the rezoning. Consequently the Court held that the plaintiff had no right to maintain the action.

The decision cites the earlier cases on the rights of owners of neighboring property to contest the validity of an ordinance zoning a piece of property not owned by them. As has been noted in earlier discussions of such decisions, the rule seems to be that the owner of property immediately adjacent to that affected by a zoning ordinance has the right to contest its validity, but that the owners of any other property, not immediately adjacent, must show special damage to enable them to bring an action. This is an application of the general rule that one who does not suffer special damage by reason of a legislative act, but whose damage is merely the same as affects any member of the general public, cannot maintain an action to contest the validity of the legislative act.

A 1953 amendment adds to paragraph 73-9 of Chapter 24, a provision authorizing the allowance of attorneys to any plaintiff who brings action to prevent violation of a municipal ordinance in the event a permanent injunction is decreed. In Pasfield vs. Donovon, 7 Ill. 2nd 563, the Supreme Court held this provision of the statute valid.

The decision in River Forest State Bank vs. Hillside, 6 Ill. 2nd 451, involved the validity of a village ordinance providing that no permits would be issued for the construction of a residence building unless that building was on a street served by the municipal sanitary sewer system. From the facts it appeared that a subdivision had been laid out at a time when there was in force in the village an ordinance permitting septic tanks under certain conditions and with certain restrictions, with which restrictions this subdivision complied. Later an ordinance was passed providing that no permit would be issued for the construction of a residence building unless connections with the municipal sanitary sewer system were available. The Court held—or rather stated in the opinion—that "it is evident that pursuant to the police power of the village to protect the health and safety, of residents, the village may properly enact an ordinance requiring that public sewer facilities must be provided before a building permit will be issued." But the decision was that as applied to this particular piece of property the ordinance was so unreasonable and arbitrary that it was void.

There are two distinctly interesting features to this opinion. It is the first application to any ordinance other than a zoning ordinance, in Illinois, of the doctrine that an ordinance may be valid and within the general police powers of the municipality but void in its application to a particular piece of property. Although this principle has been announced and applied many times in cases involving a zoning ordinance, so far as I know, this is the first application of this principle to an ordinance passed under the general power to protect or regulate the public health.

It is also interesting to note that so far as the written opinion shows, the attention of the Court was not called to paragraph 23-70.1 of Chapter 24 granting the power "in municipalities of more than 500,000 or municipalities lying wholly or partly within a radius of thirty miles of the corporate limits of municipalities of more than 500,000 inhabitants, to prohibit the erection of buildings for habitation on any lot or parcel of land within the municipality unless a highway, road, street, or way for public service facilities improved with water mains and sanitary sewers is provided to serve said parcel of land."

In People vs. Illinois Municipal Retirement Fund Board, 6 Ill. 2nd 405, it appeared that the City of Chester had adopted an ordinance electing to participate in the Illinois Retirement Fund under Revised Statutes Chapter 24, paragraph 1178. In pursuance of this ordinance, the municipality had sent certain forms to the offices of the Illinois Municipal Retirement Fund, but had not completed its forms by supplying all the requests for information, and no tax rate for the Fund had been set.

No contributions were made by either the city or any of its employees. An ordinance repealing the one electing to come under the Retirement Act was passed some ten months after the first measure. The Supreme Court held that once having elected by the enactment of an appropriate ordinance, to participate in the Illinois Municipal Retirement Fund the city could not rescind this action. Having passed the ordinance, the city was compelled to continue with the program and to make the contributions required by law, and an attempted revocation of the original ordinance was void.

(Note: The Illinois Municipal Retirement Fund Act applies automatically, to municipalities of over ten thousand population, and can be adopted by ordinance in other municipalities. This Act provides that a municipality which reaches the population of ten thousand after having elected to come under the Federal Social Security Act may continue under the Federal Social Security Act without complying with the provisions of the municipal Retirement Fund Act. There is no provision, however, for a municipality which has elected to come under the Social Security provisions, and later —either by reaching a population of five thousand or by election — comes under the mandatory policemen (or firemen's) pension law. Since the Federal Social Security Act prohibits withdrawing from the system thereby established for a period of five years after first coming under the Act, some municipalities are in the position of having to make contributions to both the Federal Social Security Fund and the mandatory police or firemen's Pension Fund.)

Arends vs. the Police Pension Fund, 7 Ill. 2nd 244, involved the interpretation of that provision requiring ten per cent of license fees to be turned over to the pension fund and the provision of the Public Board of Health Act applying to cities of over 100,000 population, which provided that the revenue collected in the enforcement of ordinances under the jurisdiction of the Public Board of Health be turned over to the Public Board of Health. The Court held that ten per cent of all revenue collected from license fees, whether enforced under the jurisdiction of the Public Board of Health or not, was to be turned over to the police pension fund.

In Dowcett vs. East Moline, 8 Ill. 2nd 560, it appeared that the ordinance providing for the election on the question of issuing the bonds was published in full in a newspaper, that ordinance including within it a copy of the election notice. The notice of the election was not separately published. The Court held that this was sufficient publication since the notice as contained in the ordinance was complete in telling the time, place and issues of the election.

The decision also involves the adequacy of precinct boundaries, the descriptions were held sufficiently adequate in this case under the ruling that precinct boundary descriptions are not construed with same exactness as descriptions in grants or conveyances of land.

In this case too, the Court held that a taxpayer had the right to seek an injunction to prevent the issuance of water revenue bonds where the bond ordinance provided that the city would pay from its general fund for water used in its fire hydrants. There have been decisions holding that a taxpayer as such could not maintain an action to restrain the issuance of water revenue bonds. The form of the ballot used in a park district election on the questions of issuing bonds to finance the construction of a swimming pool was held sufficient in Dick

vs. Roberts, 8 Ill. 2nd 215, although the language is not precisely that prescribed by statute. The decision also holds that the Act permitting park districts to finance the cost of a swimming pool by issuing revenue bonds does not take away the power of such park districts to finance the cost of such improvements by general obligation bonds.

The ordinance for the issuance of parking meter bonds considered in Cherry vs. Rock Island, 8 Ill. 2nd 97, provided among other things that the city might at its discretion provide facilities for free off street parking not to exceed ten per cent of the area of the off street parking facilities the revenue from which was to be used to pay off the bonds. The Court held that this provision was not an unwarranted restriction on the part of the municipality and did not invalidate the ordinance or the bond issue. This decision reviews the earlier decisions in Illinois on the validity of parking meter ordinances.

In Starwalt vs. New York Central Railway, 7 Ill. 2nd 273, it appeared that the city of Mattoon had been authorized by referendum to levy a special tax for fire protection purposes under paragraph 39-1 of Chapter 24 and a special tax for police protection purposes under paragraph 53.1-1 of Chapter 24. In addition to levying taxes under these provisions the city also appropriated and levied for police purposes and lire department purposes in the general corporate tax levy. Objection was made on the ground that when by referendum the tax for ponce protection purposes and for fire protection purposes was authorized, that the municipality then had no right to levy for such items in the levy for general corporate purposes. The Court held that the statute permitting a special levy for police protection or for fire protection purposes permitted an additional tax, not an alternative tax, and that the City could properly levy, for these purposes in the general corporate tax levy and in addition make a special levy as authorized by statute.

In People vs. St. Louis etc. Ry., 7 Ill. 2nd 492, the levy of a park district was attacked. The voters of the district had by referendum authorized a certain rate, but later the park district act was amended so as to set a lower rate for the maximum that could be levied. The Court held that the later act placed a ceiling on the levy, and the district could not levy up to the amount authorized by the voters at the earlier referendum.

Another decision which may be of interest, although it does not involve a city or village, is People vs. Chicago etc. Ry., 8 Ill. 2nd 373, the opinion in this case covering quite a few of the general rules applicable to tax levy and general appropriation ordinances.

The Evanston Sunday Closing Ordinance was held valid in Humphrey vs. Evanston, 7 Ill. 2nd 402. The ordinance in question is a comprehensive Sunday closing ordinance, covering practically all types of business, and the particular section involved here was one prohibiting retail or wholesale sales of any commodities other than drugs, medicines, food or drink, gasoline and other specified articles presumably for emergency needs only.

The validity of the ordinance was raised by an automobile sales agency. The Court held the Sunday closing ordinance valid, and in the course of the opinion reviewed thoroughly the history of Sunday closing laws. The objections that the Sunday closing law was invalid as being discriminatory on the basis of religious beliefs was raised, but the Court refused to consider it because there was no allegation that any of the plaintiffs were members of a religious group that did not hold Sunday as a sacred day.

West Frankfort vs. Fullop, 6 Ill. 2nd 609, was an action by the city of "West Frankfort to restrain the defendant from drilling or operating oil or gas wells near the source of water supply of the city, but eight miles outside the city limits. Paragraph 75-3 of Chapter 24 of the Revised Statutes authorizes the municipality to prevent or punish pollution or injury to its water supply system within ten miles beyond the corporate limits. The Court held the ordinance prohibiting drilling or operating oil wells within a designated area around a lake which formed the water supply of the city, to be valid. However tbe cause was reversed and remanded for trial, to determine whether or not under the method used for drilling or operating oil wells there was any actual danger of pollution to the water supply system. Apparently the Court was not prepared to state that the municipality could not flatly prohibit oil drilling or oil well operation but indicates strongly that the municipality has the power to regulate such activities outside its corporate where such regulation is reasonably designed to protect the municipal water supply system.

It may be of interest to note the decision in People vs. Hursey, 7 Ill. 2nd 527, construing certain provisions of the Public Housing Authority Act; and although the enforcement of the sales tax is not a municipal problem as the statute now reads, the decisions on the construction of this sales tax law may be of interest. In Paris vs. Lyons, 8 Ill. 2nd 579, the Court held that installing carpets on special order was not subject to the retailer's occupation tax; and in Belleville Shoe vs. the Department of Revenue, 7 Ill. 2nd 574, the Court held that the sale of combat shoes to the United States army by a manufacturer was a retail sale subject to the retail sales tax. (7 Ill. 2nd 574.)

Dube vs. Chicago, 7 Ill. 2nd 313, was reviewed above in the subdivision on zoning but in addition to the zoning question the Court mentioned that the power to define and abate nuisances grants authority to prohibit types of activity that cause noises; in other words, loud noises are recognized as a legal nuisance.