Recent Decisions Affecting Municipalities
THOMAS A. MATTHEWS, J.D., Legal Consultant, Illinois Municipal League

ANNEXATION

In East St. Louis v. Touchette, 14 Ill. Sec. 243, the court was concerned with the incorporation of the new City of Centreville. Following the filing of the petition for the incorporation of the new city, a petition was filed In the County Court, by the City of East St. Louis, to annex to East St. Louis a tract of land including some property lying within the proposed boundaries of the City of Centreville. The court held that an area lying within the boundaries described in a petition for the creation of a new municipality could not be annexed to another municipality prior to the incorporation of the new municipality. The court also held that any resident of Centreville, even though not a resident within the tract sought to be annexed to East St. Louis, was an interested party with the right to object to the annexation proceedings.

The right of the parties to take a direct appeal to the Supreme Court in this matter was also an issue. The Supreme Court found that to annex the territory involved to East St. Louis would in effect destroy the contiguity of the proposed new city of Centreville; and held that this being the case the very existence of the new city was an issue, and that a franchise was involved because of this and so a direct appeal was permitted. It is interesting to note that in Lindquist v. Island Lake, 407 Ill. 461, the Supreme Court held that no franchise was involved in proceedings to incorporate a new village, and hence a direct appeal on objection to the petition to hold the election to incorporate, was not permitted. There are earlier decisions, however, which hold that a franchise is involved in a proceeding to create a new city or village, permitting a direct appeal to the Supreme Court.

In Taylor v. Krupp, 14 Ill. Sec. 36, the court held that no franchise was involved in objections to a petition to annex property to a city, and therefore no direct appeal to the Supreme Court could be taken.

DISCONNECTION

The statute permitting the disconnection of a tract of 20 acres or more lying on the periphery of a newly created municipality, on petition filed within one year of the incorporation of the municipality, was again held valid in Bergis v. Sunnyside, 13 Ill. Sec. 50. The statute requires that the petition to disconnect be signed by a percentage of the electors residing in the area affected, and the court held that this did not mean necessarily registered voters since registration was not required for a municipal election in that municipality.

CITY COURTS

The decision in Hoagland v. Streeper, 12 Ill. Sec. 204, involves the chancery jurisdiction of a City Court. The Supreme Court held, in effect, that a City Court had full chancery jurisdiction over cases, with the power to appoint a receiver where the tacts warranted such action.

The opinion also discusses several matters that are now pending in an action in Court. According to the opinion in this case, when a municipality of another State, or the State itself, owns land in the State of Illinois, it owns that land subject to the laws of the State of Illinois. The action involved a bridge over the Missisippi River, formerly owned by St. Charles County of Missouri and presently owned by the State of Missouri itself; and involves the right of the City Court of Alton to appoint a receiver to operate the bridge and to require that tolls be paid to raise money to improve and maintain the bridge. The decision of the court in this case does not go into the merits of the right of the City Court to appoint the receiver on the facts, but merely holds that if the facts warranted it, the court, in the exercise of its chancery powers, could appoint a receiver. The Supreme Court of Illinois refused to issue a writ of mandamus to compel the City Court to expunge from its records the order appointing the receiver, but expressly declined to rule upon whether or not the facts warranted such appointment.

ELECTIONS

A petition to contest the election of a village clerk and police magistrate, and to hold the election void as to those officials, was involved in Hester v. Kamykowski, 13 Ill. Sec. 481. It appeared there that the ballot in a regular municipal election contained only the names of those nominated and did not contain any appropriate place to facilitate write-in votes; there was space on the ballot but the title of the offices to be voted upon was not printed excepting in the party column. The ballots also failed to have the words "Official Ballot" on the back thereof, and did not have the date of the election nor the polling place printed thereon. In addition, the ballots were on transparent paper that could be read through easily.

The court stated that irregularities in the form of a ballot in an election would not necessarily invalidate the election but that the cumulative effect of all of the defects apparent in this case did invalidate the election. However, it invalidated the election of only the two officers who were parties defendant to the petition, and the failure to have the other officers who were elected at that election named as parties, was held not a detect in the proceedings.

It is particularly interesting to note in connection with this case, that apparently the Supreme Court feels that In a municipal election there should be a place to facilitate write-in votes and that the titles of the offices to be filled at the election, with a blank under each title so as to facilitate a write-in by the voter of persons not nominated, is necessary to have the ballot proper.

Gulino v. Cerny, 13 Ill. Sec. 244, was an election contest in which certain ballots were counted for one candidate whose name was written in by the voter, without having the title of the office for which the candidate was running written in or printed in on the ballot. The court found that the contestant Gulino had widely advertised his campaign for the office of village president, although his name did not appear on the ballot, and held that a ballot with the name Gulino written on it, even though there was no statement above that name of the office for which the voter intended to vote, was to be counted as a vote for Gulino for village president. It appeared that in each case the name Gulino was written opposite the name of the candidate whose name was printed under the heading "Village President." The court also held that such write-in ballots should be counted even though the "x" before the name was not enclosed in a square.

OFFICERS

A justice of the peace, it was held in People ex rel. Romano v. Krantz, 13 Ill. Sec. 363, does not need to be a resident of the township for one year prior to his election. The Township Act requires that all township officers shall be residents of the township for one year prior to their election or appointment, just as the Cities and Villages Act has such a requirement for municipal officers. The Supreme Court held that the constitution does not prescribe a one year's residence for a justice of the peace, and consequently one is qualified to hold that

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office if he is a resident and voter within the township even though he has not resided therein for more than one year.

It would seem that the same rule might apply to the office of police magistrate in cities and villages.

PENSIONS

The police pension law provides that the pension fund shall be brought up to an amount having a reserve of $1,000 for each 1,000 inhabitants of a city or village. A percentage of all business license fees collected and a percentage of all fines for ordinance violations, together with other miscellaneous revenue, must be paid into the police pension fund; and a tax is permitted it necessary to raise the fund to its required minimum. In Homey v. Springfield, 12 Ill. Sec. 427, it appeared that the police pension board filed suit for accounting against the city, claiming that certain permit fees should also be contributed to the pension fund, and claiming also that amounts deposited by persons charged with minor traffic violations, particularly over-parking, without a trial before a police magistrate or justice of the peace, should be counted as fines and a percentage thereof be paid to the police pension fund.

The court held that because the City of Springfield had for years levied the full police pension fund general tax permissible, and the police pension fund was well over the minimum required by statute, the pension board had no right to demand an accounting for these funds. The court refused to determine whether or not payments were made under the so-called "cafeteria court" for minor violations were to be considered as fines, and whether building permits were to be considered as licenses so that a percentage of such fees should go to the police pension fund.

EMINENT DOMAIN

In several decisions the Supreme Court re-affirmed and applied the general rule for damages to be awarded for land taken in condemnation proceedings; no new rules were announced, but the old familiar rules were restated and applied to the facts involved in each decision. These cases were:

Chicago v. Pridmore, 12 Ill. Sec. 447;
Forest Preserve v. Krol, 12 Ill. Sec. 139;
Chicago Land Clearance Commission v. Darrow, 12 Ill. Sec. 365;
Chicago v. Giedraitis, 14 Ill. Sec. 45;
and
North Shore Sanitary District v. Schulik, 12 111. Sec. 309.

This latter decision involved the damages to be paid for land taken for an easement to install a storm sewer.

STREETS AND SIDEWALKS

The statute authorizing the vacation of streets and alleys was involved in People ex rel. Sharp v. Chicago, 13 Ill. Sec. 156. The court held that the benefits to the municipality in being treed from the obligation to maintain an alley vacated, plus some cash payment by the owners of the adjoining property, was sufficient to validate the vacation even though the resultant benefit to one abutting owner might be greater than the public benefit.

In Chicago National Bank v. Chicago Heights, 14 Ill. Sec. 135, the court held valid an ordinance closing a portion of a street to all vehicle traffic, except police, fire department, and similar emergency vehicles. This was on the ground that the courts would not interfere with the discretion of the governing body in the enactment of a traffic regulation.

The decisions having to do with the liability of a municipality because of an injury due to a defect in a sidewalk are reviewed in Arvidson v. Elmhurst, 11 Ill. Sec. 601. The court reaffirmed the doctrine that a municipality is not the insurer of all persons using the sidewalk. The precise question involved here was whether a cement block set at a slight angle with a slight ridge at each end of the block was such a defect as to make the municipality liable for an injury resulting therefrom. The court held that

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this question was a proper one to submit to the jury.

SEWER SYSTEM

In Nokomis v. Sullivan, 14 Ill. Sec. 417, the Supreme Court held valid an ordinance which in effect required all buildings adjacent to a street equipped with a public sewer to be connected with the sewer. The ordinance declared any premises not so connected to be a nuisance.

ZONING

In a number of decisions involving the validity of zoning ordinances, the Supreme Court reaffirmed or restated the general rules applicable to the validity of zoning ordinances, and of course in the application of those rules to the specific facts involved in each case, in some instance's the ordinance was held void as unreasonable or confiscatory, and in others valid, as applied to the facts in question. Residential zoning for a tract was held valid and justified by the facts appearing in Eckhardt v. Des Plaines, 13 Ill. Sec. 558; Skrysak v. Mt. Prospect, 13 Ill. Sec. 329; and Honeck v. Cook County, 12 Ill. Sec. 257.

In four cases the Supreme Court held that on the facts appearing of record a restriction of the property concerned to residential use only was invalid as unreasonable or confiscatory. These include LaSalle National Bank v. Cook County, 12 Ill. Sec. 40; Bauske v. Des Plaines, 13 Ill. Sec. 169; Myers v. Elmhurst, 12 Ill. Sec. 537; and Gordon v. Wheaton, 12 Ill. Sec. 284.

In LaSalle National Bank v. Cook County, 12 Ill. Sec. 40, the court reannounced the rule that in a zoning case where constitutional questions were involved a direct appeal to the Supreme Court is justified, even in the absence of the certificate by the trial court that the validity of an ordinance was involved and that its importance requires a direct appeal to the Supreme Court. Since in most zoning cases the contention is that the ordinance is unreasonable and confiscatory as applied to the property concerned, so as to amount to taking property without due process, it would seem that a constitutional question is involved in practically every zoning case.

In Eckhardt v. Des Plaines, 13 Ill. Sec. 558, the court recited that the fact that the buildings in a residential area were all quite old, did not invalidate the zoning ordinance restricting that area to residence purposes only.

Skrysak v. Mt. Prospect, 13 Ill. Sec. 329, involved a petition for a variance, signed not only by the property owner but by many of his residents, asking for permission to conduct a dentist's office in a residential area; the court held that barring dentists' offices from a residental area was not unreasonable.

In Bank of Lyons v. Cook County, 13 Ill. Sec. 493, the court reaffirmed the rule that a property owner who contends that a zoning ordinance is invalid as to his particular tract because it is unreasonable or confiscatory, must first apply to the Board of Appeals for a variation if the Board of Appeals in the municipality has the power to grant variations. The rule is different where the Board of Appeals can merely recommend the granting of a variation, and the granting of the variation itself is reserved to action by the Board of Trustees or City Council.

The case of 222 East Chestnut Street v. Board of Appeals, 14 Ill. Sec. 190, involved the right of abutting and neighboring property owners to object to the granting of a variance which would permit the operation of a parking lot on premises zoned for residence purposes. The statute permits any person interested to object to the grant of such a variance and to appeal under the administrative review act from the action of the Board of Appeals—for that Board has the powers to grant the variance. It was held that the objectors in this case did not show a special interest or special injury which would warrant their appeal.

There is an interesting question in

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connection with this, and that is whether the owner of a tract of land can contest the validity of the zoning of a neighbor's tract—even an abutting tract—as being not restrictive enough and consequently depriving the objector of property without due process. The statutes specifically authorize the owners of neighboring property to bring action to prevent the violation of a zoning ordinance on anyone's land; and specifically authorize persons affected to have a review under the Administrative Review Act of a decision by a Board of Appeals which grants a variation to a neighbor to do something which would be otherwise excluded by the zoning act. But there is no statute specifically authorizing anyone to object to the zoning of his neighbor's property. A case involving the right of an adjoining owner to object to a change in a zoning statute changing his neighbor's property from strictly residential to a business use, on the ground that that person, the neighbor, was harmed by the change, is now pending before the Appellate Court, First District. The trial court held that in the absence of a statute specifically permitting it, one has no right to attack the validity of the zoning of his neighbor's property.

REGULATING BUSINESSES

The decision in Schreiber v. Illinois Liquor Control Commission, 12 Ill. Sec. 118, involved the right of a municipality to reduce the number of licenses for alcoholic liquor dealers that could be in force at any one time. The Supreme Court held that a license to sell alcoholic liquor is not a property right, and the municipality could by ordinance reduce the number of tavern licenses—and as a result force an existing tavern to go out of business. The newly enacted statute authorizing municipalities to license and regulate rooming houses was involved in Oak Park v. Hepler, 13 Ill. Sec. 355. Apparently the only objection to the application of the ordinance in this case was that the rooming house had been conducted long before the ordinance had been enacted. The court held that nevertheless the ordinance was applicable and a license must be obtained and the regulations contained in the ordinance complied with.

A decision of tremendous import, on the question of the power of municipalities to license businesses, was rendered in Concrete Contractors Association v. La Grange Park, 14 Ill. Sec. 65. The ordinance involved there regulated and required a license for engaging in the business of mason contractor or cement contractor. There is no statutory authority specifically authorizing municipalities to license contractors engaged in the building business, excepting for mason contractors in municipalities of over 50,000; and excepting for the provision that electrical contractors may be charged a registration fee of $25.00, but when registered in one municipality the contractor may do business in any other municipality.

In this La Grange Park case the Supreme Court held that a municipality may regulate and license the business of cement contractors because the municipality has the power to regulate the construction of buildings, and because the municipality has the power to control the construction of sidewalks and street pavements. The full effect of this opinion would be to authorize municipalities to license all types of building contractors, or sub-contractors, other than plumbers (because the statute on plumbers negatives the power of the municipality to require a license for that business). The court held also that the tact that there was specific authority for municipalities of over 50,000 to license mason contractors, did not negative the right of the municipality

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RECENT DECISIONS

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to license such contractors where the population did not exceed 50,000, as an attribute or concomitant of its power to regulate the construction of buildings.

The opinion also reaffirmed the rule that the statutory power to support any ordinance or other act of a municipality may be drawn from one or more different statutes.

Some time ago the Supreme Court held that the taxi cab ordinance of the City of Chicago, enacted in 1937, created a contract between the then major taxi cab companies in the city and the City itself. This conclusion that the taxi cab ordinance created a contract, and the full history of that ordinance, is discussed and reviewed in People ex rel. Hafer v. Flynn, 13 Ill. Sec. 368. Apparently, from the language of the opinion, the ordinance created a perpetual contract. By its terms no new or additional licenses to operate taxi cabs in the city may be issued without first giving the two main companies the right to receive those licenses. In the Flynn case the court refused to mandamus the city to issue new taxi cab licenses which would be in violation of the contract it says was created by the 1937 ordinance.

FRONTAGE CONSENTS

The opinion in Valkenet v. Chicago, 13 Ill. Sec. 268, reviews all the decisions of our Supreme Court on the validity of frontage consent requirements and holds that there is no authority to require frontage consents for the establishment of a nursing home, although cities and villages have the power to license and regulate nursing homes.

The statutes authorizing the licensing and regulation of businesses in some cases include specific power to regulate the location of the business and the courts have held that where that power is specifically given, a frontage consent ordinance would be held valid. However, there has been a fairly recent decision—which we reported last year—to the effect that where there is a zoning ordinance permitting a business in a particular district it would be unreasonable to require in addition frontage consents from the neighboring owners before the business can be operated. In effect, this decision means that the zoning ordinance supersedes or repeals by implication a frontage consent ordinance.

SPECIAL AGENCIES

The 1957 Chicago Railroad Terminal Authority Act was held valid, as against the objections raised, in People v. Chicago Railroad Authority, 14 Ill. Sec. 230.

The decision in People v. Land Clearance Commission, 14 Ill. Sec. 74, was concerned with the 1955 Amendment to the Blighted Areas Redevelopment Act which, in effect, permitted redevelopment authorities, after acquiring land by condemnation or otherwise, to use or permit the use of that land for non-residence purposes. The court held the 1955 Amendment valid.

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