La Salle National Bank v. County of Cook

Mr. Justice Daily, dissenting:

I cannot agree that there is present in this case a “construction of the constitution” which, in the absence of the certificate required by section 75 (1) (c) of the Civil Practice Act, serves to invest us with jurisdiction on direct appeal. Indeed, such an issue is neither discussed nor decided in the court’s opinion which is, rather, confined to a factual determination of whether the ordinance bears a real and substantial relation to the public health, safety, morals or welfare. Nor do the assignments of error made in this court provoke a construction of the constitution for they are limited to the following: (1) The finding and judgment of the trial court are unsupported by the evidence ; and (2) In view of the conflicting character of the evidence, the zoning ordinance should have been sustained.

Looking beyond the assignments of error to the pleadings and the judgment of the trial court, it is apparent that the only question involved is the validity of the zoning ordinance as it applies to the appellee’s property. It has been established in American Smelting & Refining Co. v. City of Chicago, 409 Ill. 99 ; Village of Riverside v. Kuhne, 397 Ill. 108 , and Pollack v. County of DuPage, 371 Ill. 199 , that such a question involves only the application and construction of the ordinance and does not present a constitutional question so as to authorize a direct appeal. That this is so is demonstrated by the instant case for the only office of the opinion adopted has been to make a factual determination of whether the zoning ordinance, as applied to appellee’s property, bears a real and substantial relation to the public health, safety, morals or welfare. To make such a determination requires neither a construction of the constitution, nor a consideration of constitutional rights.

It is true that a zoning ordinance imposing unreasonable restraints upon the use of private property will offend the constitutional guarantees of due process of law, and it is likewise true that a zoning ordinance may be valid in its general aspects yet invalid as applied to a particular piece of property and a particular set of facts. However, the constitutional concepts and interpretations upon which the validity of the zoning ordinance must stand or fall, in either case, are so thoroughly established by the decisions of this court as to be no longer debatable. There is, therefore, in the absence of some new ground for constitutional attack, no need for this court to consider all zoning cases merely to determine if the facts show either a reasonable or an unreasonable restraint. Such factual determinations do not involve the fairly debatable constitutional questions upon which our jurisdiction must be founded.

For these reasons, therefor, and because the trial judge has not certified that the public interest requires a direct appeal to this court, I would grant the motion of appellant to transfer the cause to the Appellate Court.