The opinion
Supplemental Opinion Rehearing Denied
MR. JUSTICE DEMPSEY delivered the opinion of the court.
This opinion was filed on September 27,1961. On the same day there was published in the Supreme Court Advance Sheets (Yol 22, Ill2d, No 4, p 331) the opinion of the court in Howard v. Lawton, a zoning case. The Supreme Court, in accepting jurisdiction of the case on constitutional grounds, held that, although no direct evidence concerning the validity of an ordinance is submitted to a zoning board of appeals, a court of original jurisdiction may pass upon the validity of an ordinance if the constitutional issue is raised in a. subsequent complaint for administrative review; provided, the whole record before the zoning board discloses “. . . that there is a fairly debatable question whether the zoning ordinance upon which the administrative decision is based is arbitrary and unreasonable and without substantial relation to the public health, safety, morals or general welfare. . . .”
In its petition for rehearing the plaintiff in the present case states that our court and the Supreme Court “appear to be in precise conflict” over the treatment to be accorded a zoning case in which a constitutional question was not directly involved. We do not believe there is a conflict. We stated in our opinion that the underlying question in all zoning cases is a constitutional one. We do not believe because there is such a latent constitutional question, appeals must necessarily be taken to the Supreme Court. If this were so, the Supreme Court would be burdened with the appeals in all zoning cases. Under Howard v. Lawton, the Supreme Court will entertain the appeal only if it is fairly debatable whether the entire record reveals that a constitutional question is involved.
We said in our opinion that “. . . the validity of the ordinance in its application to the plaintiff’s property was not at issue before the Board. . . .” In view of the Howard v. Lawton rule, we again examined the record. The re-examination confirmed our first impression. Even if the record could be construed otherwise, and if a conclusion could be drawn that a constitutional question was involved, it would make no difference now. The constitutional issue has been settled by the recent Supreme Court decision in the declaratory judgment case heard on appeal from the Superior Court (which we referred to in our opinion) wherein the validity of the ordinance in question was upheld. River Forest State Bank and Trust Company, et al. v. The Village of Maywood, et al., 23 Ill2d 556, 179 NE2d 671 .
The petition for rehearing is denied.
McCORMICK, P. J. and SCHWARTZ, J., concur.