Petition for Writ of Certiorari — Dube v. City of Chicago

a eee

FEB 23 19

HAROLD B. WILLE

Supreme Court of the United States

Ocroper Trem, 1955.

No. 0 &

LUELLA DUBE, et al.,

Petitioners,

vs.

CITY OF CHICAGO,

Respondent.

PETITION FOR A WRIT OF CE2TIORARI TO THE

SUPREME COURT OF ILLINOIS AND BRIEF IN

SUPPORT THEREOF.

Txomas J. Downs,

Wir W. Curran,

Counsel for Petitioners.

The Scheffer Press, Inc.—ANdover 3-6850

SORE RER Yee TEP ANe ee . Saas Pree

INDEX

PAGE

Opinion of Supreme Court of Illinois 1, la

Opinion Below lda

Jurisdiction é a 1

Questions Presented ....2...-..cccccocccoccscccsescsseccosteccnscocscvssoreeeeees 2

Statement of the Case . 3

Reasons for Granting the Writ 6

Conclusion ...., 15

Appendix la

CrraTIons.

Cases.

Borough of Cheswick v. Beckman, 42 A. 2d 60 .........-e0000 12

Building Comm’s. of Midford v. McGrath, 45 N.E. 2d

265 13

DeFelice v. Zoning Board of Appeals of Town of East

Haven, 32 A. 2d 635 11

Degge v. Hitchcock, 57 L. Ed. 1135 7

Euclid v. Ambler Realty Co., 71 L. Ed. 303 ..........ccsse0e0 8

Hoadley v. San Francisco, 31 L. Ed. 553 6

Home Telephone & Telegraph Co. v. City of Los An-

geles, 57 L. Ed. 510 7

Humphreys v. Stuart Realty Corp., 73 A. 2d 407 .......... 13

Nectow v. Cambridge, 72 L. Ed. 842 8

Prentiss v. American University, 214 F. 2d 282 .............. 9

Republic River Bridge Co. v. Kansas P. R. Co., 25 L.

Ed. 515 7

ii

Schmidinger v. City of Chicago, 57 L. Ed. 366 ................ 6

Seacord v. People, 121 Ill. 623 15

Sinclair Refining Co. v. City of Chicago, 178 F’. 2d 214 .. 10

Straus et al. v. Barnett et al., 24 A. 253 7

Village of University Heights et al. v. Cleveland Jewish

Orphans Home, 20 F. 2d 743 10

Ordinances.

Chapter 99-60 of the Municipal Code of the City of

Chicago 2, 3, 6, 14

Section 12 of the Zoning Ordinances of the City of

Chicago 2,4

Constitutional Provisions.

14th Amendment to the Constitution of the United

States 2, 3, 4, 5, 6, 7

“

Statute.

28 U.S.C. Section 1257(2) ....nscccssereseseseessssesssrsrssssenssesenens 1

Textbooks.

Yokley, Zoning Law and Practice, Vol. 1, Sec. 148 ........ 13

IN THE

SUPREME COURT OF THE UNITED STATES

Ocroper Term, 1955.

No.

LUELLA DUBE, et al.,

Petitioners,

vs.

CITY OF CHICAGO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS AND BRIEF IN

SUPPORT THEREOF.

To the Honorable Chief Justice and Associate Justices of

the Supreme Court of the United States:

Luella Dube, and each of the remaining plaintiffs, peti-

tioners, pray that a writ of certiorari issue to review a

decision of the Supreme Court of Illinois entered on the

23rd day of November, 1955, (rehearing denied January

16, 1956) affrming the judgment entered by the Superior

Court of Cook County, Illinois.

OPINION OF THE SUPREME COURT OF ILLINOIS.

The opinion of the Court appears in the appendix to

this petition and is reported in 7 Ill. 2d 313.

JURISDICTION.

On January 16, 1956 judgment was entered by the

Supreme Court of Illinois. The jurisdiction of this Court

is invoked under 28 U.S.C. Section 1257 (2).

mis

QUESTIONS PRESENTED.

1. The enforcement of Chapter 99-60 of the Municipal

Code of the City of Chicago, Illinois as to these petitioners

is repugnant to and in violation of the rights guaranteed

them by the 14th Amendment to the Constitution of the

United States.

2. The enforcement of Section 12 of the Zoning Ordi-

nance of the City of Chicago, Illinois as to these petitioners

is repugnant to and in violation of the rights guaranteed

them by the 14th Amendment to the Constitution of the

United States.

3. That an increase in the volume of business done by

the holder of a nonconforming use will not work a change

in the use and thereby bring these petitioners within the

provisions of Chapter 99-60 of the Municipal Code of the

City of Chicago, Illinois, and Section 12 of the Zoning

Ordinance of the City of Chicago, Illinois.

4. That improved and more efficient instrumentalities

are utilized in pursuance of the nonconforming use will

not work a change in the use and thereby bring these pe-

titioners within the provisions of Chapter 99-60 of the

Municipal Code of the City of Chicago, Illinois, and Sec-

tion 12 of the Zoning Ordinance of the City of Chicago,

Illinois.

edi

STATEMENT OF THE CASE.

In Superior Court case No. 48 S 9105, the petitioners

prayed that an order be entered restraining the City of

Chicago from prosecuting the petitioners for alleged vio-

lation of Chapter 99-60 of the City Code which prohibits

the use of pneumatic hammers which cause loud and un-

usual noises; that said chapter as applied to them was a

violation of the 14th Amendment to the Constitution of

the United States and Section 2 of Article 2 of the Con-

stitution of Illinois. The complaint alleged Chapter 99-60

deprived the petitioners of a right to continue a legitimate

business which had existed before Chapter 99-60 was en-

acted, and petitioners asked that until such time as the

Court decided the issues and had passed upon the validity

of said Chapter 99-60 of the Code as it applies to the sub-

jee: property that the City be enjoined. The complaint

further set forth that petitioners were denied the right

and privilege of using their property as a legitimate busi-

ness, and that the City be restrained from enforcing pro-

visions of said Chapter 99-60 of the City Code insofar as

it makes it unlawful to maintain within 200 feet of any

residence a factory wherein are used pneumatic hammers

or other apparatus which cause loud or unusual noises,

and further that a Writ of Injunction be issued restrain-

ing the City from in any way interfering with the pe-

titioners’ operation of their business with reference to any

violation of said Chapter 99-60 of the City Code.

In Superior Court case No. 46 S 18486 the petitioners

prayed that the City be enjoined from prosecuting any

action against the petitioners involving a violation of Sec-

tion 12 of the Chicago Zoning Ordinance until the Court

decided the issues and had passed upon the validity of

Bee ee

Section 12 of the said Chicago Zoning Ordinance as it

applies to petitioners’ property. Section 12 defines the

uses permitted in a manufacturing district and in the al-

legations of the complaint the petitioners contend the re-

strictions in Section 12 of the Ordinance prohibiting the

use for the purpose of processing or use in bending or

shaping metals which produces noise disturbing the peace

and comfort of occupants of adjacent premises are vio-

lations of the 14th Amendment to the Constitution of the

United States and Section 2 of Article 2 of the Constitution

of Illinois in that it deprives the petitioners of the right

to continue a legitimate business in existence for many

years before the Ordinance was enacted. It was further

contended that the said Zoning Ordinance insofar as it pro-

hibits processing and use in bending and shaping metals

which produce noises disturbing the peace and comfort of

occupants of adjacent premises and at the same time per-

mits on other property adjacent to property of petitioners

such uses as main line railroads, motor truck terminals,

manufacturing, processing of metal and metal products,

all of which industries produce noises, is discriminative,

unreasonable and void, and that the said Zoning Ordinance

insofar as it tends to regulate a business which is not a

nuisance per sé, is void and unconstitutional. The com-

plaint prayed for orders restraining the City of Chicago

from either enforcing or threatening to enforce the pro-

visions of the Zoning Ordinance insofar as it prohibits the

use of the premises by the petitioners for the purpose of

bending and shaping of metal which causes noises dis-

turbing the peace and comfort of adjoining occupants.

The City filed its answer denying the material allegations

and also filed a counterclaim.

Petitioners filed an answer to the counterclaim denying

that they maintained within 200 feet of any residence a

© a

ical.

factory wherein are used pneumatic hammers or other ap-

paratus which cause loud or unusual noises; denied any

operation on the premises creating loud or unusual noises;

that Use District Map No. 39 of Amendatory Ordinance

up to and including December 31, 1944 designates the

area upon which the petitioners’ premises are located as

manufacturing and set forth that Section 12 of said

Amendatory Ordinance designates the use permitted in

a manufacturing district; it was further set forth they

are lawfully using a storage lot within the meaning of

Section 12 of the Chicago Zoning Ordinance and to con-

strue their use of the storage lot otherwise would con-

stitute an unreasonable restraint on the free use of the

premises without any bearing on the public health, safety,

comfort, morals and public welfare, and to construe Sec-

tion 12 so as to prevent the petitioners from the lawful

use of the premises as now used would violate Section 2

of Article 2 of the Constitution of the State of Illinois,

would violate the 14th Amendment to the Constitution of

the United States, would contravene and violate the 5th

Amendment to the Constitution of the United States and

would be contrary to Section 13 of Article 2 of the Con-

stitution of the State of Illinois.

The Supreme Court of Illinois found that the present use

is not only a greatly expanded use but a different use;

that the manufacture of small items has given way to the

fabrication of large items; that heavier machinery than

that formerly used is now used; that the plant now em-

ploys about 45 men—more than twice the number ever

employed by the originator of the business; that in the

light of these things the present use is not only more

extensive than the former use but more intensive and of a

different character.

di Bitte

REASONS FOR GRANTING THE WRIT.

L

The holding of the Supreme Court of the State of Illinois

is an invasion of the rights guaranteed by the 14th Amend-

ment to the Constitution of the United States since the pro-

vision of Chapter 99-60 of the Municipal Code and See-

tion 12 of the Zoning Ordinance as applied to the prop-

erty of the petitioners is clearly arbitrary and unreason-

able.

The Supreme Court of Illinois ignored completely the

fact that the property of the petitioners is located in a

neighborhood given over to a great extent to industries

of like character and to some extent to the residences of

the employees of such industries.

The doctrine of the cases holding that it is for the state

courts alone to construe their own laws does not require

the Supreme Court of the United States to accept the

state court’s construction of a state statute or municipal

ordinance, when the question is whether the statute or

municipal ordinance provides for all the safeguards re-

quired to constitute due process. Hoadley v. San Fran-

cisco, 31 L. Ed. 553.

An ordinance within the powers conferred by the state

legislature upon a city is a statute of the state and the

validity of the ordinance may be passed on by the Supreme

Court of the United States. Schmidinger v. City of Chi-

cago, 57 L. Ed. 364.

a

Acts done under an ordinance passed under a power

conferred by a state are within the 14th Amendment to

the Federal Constitution. Home Telephone & Telegraph

Co. v. City of Los Angeles, 57 L. Ed. 510.

Certiorari lies to inferior courts to bring thir pro-

ceedings into the Supreme Court of the United States if it

can be shown that the inferior court has deprived a party

of a right or imposed a burden on his property without

due process of law. Degge v. Hitchcock, 57 L. Ed. 1135.

The factual record in this case may be reviewed by this

court. Republic River Bridge Co. v. Kansas P. R. Co., 25

L. Ed. 515.

In Straus et al. v. Barnett et al., (Pa. 1891), 24 A. 253,

at page 253, the Court stated: ‘‘We have no doubt the

appellants have been and are annoyed by the noise and

vibrations of defendants’ machinery. But the business of

the latter is a lawful one, and the noises referred to ap-

pear to be an inseparable and necessary incident thereto.

It is not alleged that they are negligent or malicious in

their manner of conducting their business. It is an im-

portant feature in the case that their works are located in

a neighborhod exclusively devoted to manufacturing pur-

poses. In such a location there must necessarily be much

noise and jarring, caused by the operation of the machin-

ery, with perhaps smoke and unsavory smells, the result

of various industries ... so far as the annoyances are

concerned, they are to be expected in such a neighbor-

hood, and must be endured with the best grace possible, un-

less valuable industries are to be sacrificed for the sake

of quiet.”

Chapter 99-60 declares a nuisance exists when any per-

son constructs or maintains, within 200 feet of any resi-

dence, a factory wherein are used pneumatic hammers or

sassnliicai

other apparatus which cause loud or unusual noises. The

said chapter comes under the Public Health and Sanitation

provisions of the City Code. Provisions of a health and

sanitary ordinance must be reasonable and necessary to

justify its enactment insofar as it impairs individual prop-

erty rights.

This Court in Euclid v. Ambler Realty Co., 71 L. Ed.

303, stated, pages 310-311: “Thus the question whether the

power exists to forbid the erection of a building of a

particular kind or for a particular use, like the question

whether a particular thing is a nuisance, is to be de-

termined, not by an abstract consideration of the building

or thing considered apart, but by considering it im con-

nection with the circwmstances and the locality.” (Em-

phasis Supplied)

One of the basic principles governing the law pertaining

to nuisances is that the location and surroundings are of

importance in determining whether a thing, business, or

occupation constitutes a nuisance. The record in this case

shows that the sounds complained of are no different from

all other sounds and noises incident to the manufacturing

activities in the area.

An ordinance which purports to serve the public good,

public health, and safety, but which in effect does not so

serve, constitutes the taking of private property without

compensation and is unconstitutional.

In Nectow v. Cambridge, 72 L. Ed. 842, the facts showed

that when the zoning ordinance was enacted the plaintiff

was the owner of a tract of land containing 140,000 square

feet, of which the locus in question was a part. The locus

contained about 29,000 square feet, with a frontage on

Brookline Street, lying west, of 304.75 feet, on Henry

Street, lying east, of 100 feet, on the other land of the

MEIER TAS Re hI A. NE SRN SP CRMs aR FSS

a yon

plaintiff, lying east, of 264 feet, and on the land of the

Ford Motor Company, lying southerly of 75 feet. The

territory lying east and west is unrestricted. The lands

beyond Henry Street to the north, and beyond Brookline

Street to the west are within a restricted residential dis-

trict. The effect of the zoning is to separate from the

west end of plaintiff’s tract a strip 100 feet in width. Ford

Motor Company has a large assembly factory south of the

locus; and a soap factory and the tracks of the Boston &

Albany Ry. lie near. Opposite the locus, on Brookline

Street, and included in the same district, there are some

residences; and opposite the locus on Henry Street, are

residences. The locus is now vacant although it once was

occupied by a mansion house. Under the ordinance the

locus is restricted. At page 844 the Court stated: “It is

made pretty clear that because of the industrial and rail-

road purposes to which the immediate adjoining lands to

the south and east have been devoted and for which they

are zoned, the locus is of comparatively little value for the

limited uses permitted.” And at page 845: “That the in-

vasion of the property of the plaintiff in error was serious

and highly injurious is clearly established; and since a

necessary basis for support of that invasion is wanting,

the action of the zoning authorities comes within the ban

of the 14th Amendment and cannot be sustained.”

The governmental power to interfere by zoning regu-

lations with the general rights of land owners bv restrict-

ing the character of his use, is not unlimited, and other

questions aside, such restrictions cannot be imposed if it

does not bear a substantial relation to the public health,

safety, morals or generai welfare. And if the restriction

which is imposed on the right to use the land does not meet

this requirement such restriction is unconstitutional and

must be set aside, as taking property without due process

of law. Prentiss v. American University, 214 F. 2d 282.

i

PILLAR PLIES BEN TNE LE LN IL ROTTED LOI LE ERE RL ELENA ETERS ELIE PENNE SA PERT NCE

—10—

In Sinclair Refining Co. v. City of Chicago, 178 F. 2d.

214, (7th CCA) the court at page 217 said: ‘‘In determin-

ing whether the invasion of property rights under a pur-

ported police power is reasonable, the character of the

neighborhood, the use to which nearby property is put,

and the extent to which property values are diminished by

the provisions of a zoning ordinance must be given con-

sideration.” (Emphasis added).

The record shows that petitioners’ plant is adjacent

on the west to the Illinois Central Railroad, South Shore

Electric, the Big Four Division of the New York Central,

and the Michigan Central; that the Illinois Central, in

addition to its steam and diesel locomotive operation to

haul freight and passenger trains, also operates electric

commuter trains at frequent intervals to transport pas-

sengers in the surrounding area and surrounding suburban

area to and from the Chicago ‘‘Loop’’; that the Illinois

Central, New York Central, and Michigan Central operate

a freight and through passenger service; that to the

south is a steel fabricating plant, a Standard Oil Bulk

Plant, and a manufacturing company; to the north is a

beer warehouse, an iron works, a door, window and frame

finishing plant, and a coal yard. The scientific evidence

presented showed conclusively that the operation of the

trains made more noise than the operation of petitioners’

plant; that the noise produced by other plant operations in

the area produced more noise than that of the petitioners’

operation.

A zoning ordinance may be valid in its general aspects,

and yet as to a particular state of facts involving a

particular owner affected thereby may be as to such

owners unenforceable. Village of University Heights, et

al. v. Cleveland Jewish Home, 20 F. 2d 743.

FET ie

CDRS IE Li PLL HERNDON 5B LN BND LES REBECA AOI WALD

LOE eee ae

yon, . So

II.

An increase in the volume of business and the utilization

of more efficient instrumentalities will not operate to

deprive the holders of a nonconforming use to continue to

enjoy the privilege of a nonconforming use, since neither

event will not work a change in the use.

In DeFelice v. Zoning Board of Appeals of Town of

East Haven, (Conn. 1943) 32 A. 2d 635, the Town’s

zoning and building inspector rejected the plaintiff’s ap-

plication for a permit to install a sand classifier. The

vital question before the court was whether as a matter

of law the erection and use of the wet sand classifier

proposed an extension of a nonconforming use. The

classifier is mostly of steel, 106 feet long, 85 feet wide,

and 40 feet high, with a floor area of 2000 feet, and

exclusive of the float, the pump house which it supports,

pipe, accessories and concrete footings, weighs 44,000

pounds. To operate the classifier a body of water suf-

ficient to sustain a float 15 feet long by ten feet wide,

with the Diesel suction dredge machinery and structure

enclosing the same thereon, is essential. By this ap-

paratus 2000 gallons of water and sand per minute are

pumped into the classifier. No wet sand classifier had

ever been used on the property, all that was used was

hand shovels and other tools, steam and power shovels,

one dry classifier, one asphalt plant, power cranes, trucks.

and equipment for sifting, grading and extracting sand.

The Court held, page 638: ‘‘. . . the fact that improved

and more efficient instrumentalities are utilized in pur-

suit of the use des not exclude it from the category of an

existing use, provided these are ordinarily and reasonably

adapted to make the use available to the owner, and the

original nature and purpose of the undertaking remair

unchanged.’’ (Emphasis Supplied)

ee a alr i vl RPE LE BS CL

aA

ee, Tem

In Borough of Cheswick v. Beckman, (Pa. 1945) 42 A.

2d 60, prior to 1938 B. M. Beckman had been and now is

the owner of approximately 14 acres; in 1938 he leased

the land to Sidwell for purpose of a sand and sand loam

business. In 1940 the Borough enacted a zoning ordi-

nance which placed the tract in a residential zone. The

Ordinance provided for nonconforming uses. In 1942

the business was transferred to the Bognars. The ex-

tent of the use prior to the Zoning ordinance did not

exceed 4 to 6 inches in depth although Sidwell could

remove so much of the sand as he could market. Sid-

well’s operation was limited to 3 acres, but the Bognars

have greatly extended the operations in depth and area.

Sidwell excavated the sand and sand loam and processed

it elsewhere. The Bognars used a rotary screen.

The Court at page 62 stated:

‘‘The prohibition of the Ordinance is directed to

new uses; it imposes no restraint upon broadening

the scope of the existing use. ‘Neither the extent,

quantity, nor quality of the use is mentioned, but

only that it must exist.’ Haller Baking Company’s

Appeal, supra, 295 P. at page 261, 145 A. at page

79. The business carried on was the excavation of

loam and sand loam. It is not essential that the use,

as exercised at the time the Ordinance was enacted,

should have utilized the entire tract. To so hold

would deprive appellees of the use of their property

as effectively as if the Ordinance had been com-

pletely prohibitive of all use. This result could not

have been intended. Cf. Appeal of Valicenti, 298 Pa.

276, 148 A. 308; Huebner v. Philadelphia Sav. Fund

Soc., 127 Pa. Super. 28, 192 A. 139. That modern and

more effective instrumentalities are used in the busi-

ness will not bring it within the prohibition of the

Ordinance if in fact there was an existing use, pro-

vided these are ordinarily and reasonably adapted

to the carrying on of the existing business. Haller

— 13 —

Baking Company’s Appeal, supra. Nor is it material

that at some future time the use for which the prop-

erty was intended was that of building homes. It is

not the present intention to put property to a future

use but the present use of the property which must

be the criterion. The record contains ample evi-

dence to support the conclusion of the court below

that the present use is a continuation of the use

existing at the time of the enacting of the Ordinance.”’

In Building Comm’s of Midford v. McGrath (Mass.

1942) 45 N.E. 2d 265, the Court stated, at page 265: ‘‘It

has been decided that a nonconforming use of the same

premises may be not only continued but also increased in

volume. Cochran v. Roemer, 287 Mass. 500, 508, 192 N.E.

58.’’

The fact that improved or more efficient instrumen-

talities are utilized in pursuit of the use does not ex-

clude it from the category of a nonconforming use if

the original nature and purpose of the undertaking re-

main unchanged. Zoniag Law and Practice, Yokley, Vol.

1, See. 148.

In Humphreys v. Stuart Realty Corp. (Pa.) 73 A. 2d 407,

the court set forth, at page 409: ‘‘.. . a nonconforming use

cannot be limited by a zoning ordinance to the precise

magnitude thereof which existed at the date of the ordi-

nance; it may be increased in great extent by natural ex-

pansion and growth of trade, neither is it essential that its

exercise at the time of the ordinance was enacted should

have utilized the entire tract wpon which the business was

being conducted.’’ (Emphasis added)

It must be remembered that zoning regulations are in

derogation of the rights attaching to property and full

considertion to the surrounding territory, character of

the surrounding territory, and the use of, the surround-

in

ing territory must be considered and if the surrounding

territory, character of the surrounding territory and use

of the surrounding territory is that of the property af-

fected by the zoning ordinance such zoning ordinance as

to the property affected will not apply.

Ii.

The power of a City to declare that the emission of

noise is a nuisance cannot be enforced against these pe-

titioners since their property is located in a neighbor-

hood given over to a great extent to industries of like

character.

Whether a particular use of property is a nuisance de-

pends upon whether the use is reasonable under all the

circumstances: location, character of the neighborhood,

nature of the use of the premises.

All that can be required of men who engage in a law-

ful business is that due regard shall be had to the fitness

of locality. To enforce the provisions of Chapter 99-60

and Section 12 of the Zoning Ordinance against the pe-

titioners relatively slight benefit will accrue to the resi-

dents of the area, since such enforcement will not change

the character of the neighborhood or abate the noise.

The evidence presented by the City is to the effect that

the petitioners’ business is objectionable to certain per-

sons who were witnesses for the City, that the operation

by the petitioners is of such a nature as to deprive a

normal person living in the neighborhood of the com-

forts of home so that it may be said a public welfare is

invaded, but the preponderance of the evidence shows

that a general positive discomfort does not exist as a

result of the petitioners’ operation of their plant.

ee

pa ee

In Seacord v. People, 121 Ill. 623, wherein one operating

a rendering plant was charged with the violation of a

statute declaring as a public nuisance the collecting, de-

positing, or allowing to remain in place, of any animal,

offal or filth, or noisome subject to the prejudice of

others, the court said that in determining whether

establishments of this kind, which belong to the class

denominated prima facie nuisances, are nuisances in fact,

the location, whether cotivenient or otherwise, as well as

the management and the effect produced on the neighbor-

hood, must be considered.

CONCLUSION.

SE onnneemmentent

For the reasons stated, it is respectfully submitted that

the petition for a writ of certiorari should be granted.

Respectfully submitted,

Tuomas J. Downs

Wim W. Curran

Counsel for Petitioners

APPENDIX.

Opinion of Supreme Court of Illinois.

Docket No. 33631—Agenda 30—September, 1955.

Luella Dube et al., Appellants and Cross Appellees, v. The

City of Chicago, Appellee and Cross Appellant.

Mr. Justice Davis DeLivereD THE Opinion oF THE Court:

By separate actions filed in the superior court of Cook

County plaintiffs, Luella Dube, as owner, and others as

lessees of a factory property located in the city of Chicago

sought injunctions restraining the defendant, the city of

Chicago, from prosecuting any action against them involv-

ing a violation of section 12 of the Chicago zoning ordi-

nance and from prosecuting them under section 99-60 of

the Chicago Municipal Code. The complaints alleged that

both ordinances are unconstitutional as applied to plain-

tiffs or their property and are in violation of the due

process provisions of the fourteenth amendment to the

constitution of the United States and section 2 of article

IL of the constitution of Illinois; that they are discrimina-

tory, permit the taking of private property for public use

without just compensation and bear no substantial rela-

tion to the public health, safety, morals or general wel-

fare. The defendant answered, admitting certain formal

allegations but substantially denying the various allega-

tions of fact. It also filed a counterclaim in which it al-

leged that certain prior proceedings which culminated in a

decision in the Appellate Court, First District, were res

judicata of the controversy between the parties and

prayed that plaintiffs be restrained from further viola-

tions of the ordinances in question as well as section 34-6

of the Municipal Code. After the answer and counter-

claim were permitted to stand as to both complaints, the

causes were consolidated and referred to a master to take

proofs and report his findings. The master recommended

that plaintiffs’ prayers for permanent injunctions be de-

nied; that the plaintiffs be restrained from using the

a

premises in violation of section 12(2) of the Chicago zon-

ing ordinance and section 99-60 of the Municipal Code

and that defendant’s prayer for injunction against plain-

tiffs violating section 34-6 of the Municipal Code be de-

nied. Exceptions to the master’s report filed by both

parties were overruled and a decree was entered in ac-

cordance therewith. Plaintiffs appeal directly to this court

because the judgment involves the construction of a con-

stitutional provision and the constitutionality of a munici-

pal ordinance, which questions were raised in the trial

court and passed upon there. Defendant has filed a cross

appeal from so much of the decree as denied an injunc-

tion under section 34-6 of the Municipal Code.

The subject property is located at the northwest corner

of the intersection of East Seventy-third Street and Kim-

bark Avenue in the city of Chicago, hi. ving a frontage of

about 160 feet on East Seventy-third Street and a depth

of 125 feet on Kimbark. The premises are bounded on the

east by Kimbark Avenue, on the south by East Seventy-

third Street, on the north by a public alley and on the

west by the right of way of the Illinois Central Railroad

on which are located tracks carrying the trains of that

railroad, the South Shore electric and those of the Big

Four Division and Michigan Central of the New York

Central System. The premises are improved by a one-

story brick factory building which occupies about the west

half of the frontage on East Seventy-third Street. Plain-

tiffs also own the property north of the alley which has a

frontage of about 155 feet on Seventy-second Place, the

street next north of East Seventy-third Street, a depth

of 125 feet on Kimbark. This lot and the easterly half of

the lot on which the building is located are not improved

by buildings. To the east of the subject premises across

Kimbark Avenue and east of Kimbark along Seventy-

second Place and East Seventr third Street is a largely

residential neighborhood containing residences and apart-

ment buildings, some of which are less than 200 feet from

the subject premises. To the north, south and west of the

property the uses are principally business and manufac-

4

— 3a —

turing, including steel fabricators, a beer warehouse, a

gas bulk plant, a building material warehouse, a coal

yard, a dairy, a boiler works and a seed company. Both

the original Dube property and the property to the north

fronting on Seventy-second Place are located in an area

designated by the Chicago zoning ordinance as a manufac-

turing district.

Section 12(2) of the Chicago zoning ordinance pro-

vides for certain uses in manufacturing districts in lan-

guage in part as follows: “Manufacturing, processing,

packing, bottling and distributing of cement. products; ice;

ink; metal and metal products (except smelting by em-

ployment of cupola, snap riveting and processes used in

bending and shaping which produce noises disturbing the

peace and comfort of occupants of adjacent premises) ;

polishes from finished oil, fat and wax; products from

plastics, rubber, shoddy and shoddy felt; soap from re-

fined oils or fats, provided effective condensers or other

appliances are used where necessary to prevent the es-

cape of noxious odors, gases or fumes; woodwork (except

sawmilling).” Section 19 of the same ordinance provides

that any lawful use of property on the effective date of

the ordinance, which by virtue of its provisions is a non-

conforming use, is permitted after the ordinance becomes

effective, subject to the limitations therein set forth. Sec-

tion 99-60 of the Municipal Code of Chicago provides:

“Tt shall be unlawful for any person to construct or main-

tain, within two hundred feet of any residence, a factory

wherein are used pneumatic hammers or other apparatus

which cause loud or unusual noises. Any person violating

any of the provisions of this section shall be fined not

less than twenty-five dollars nor more than one hundred

dollars for each offense, and each day’s violation shall be

considered a separate and distinct offense.” Section 34-6

of the same code provides as follows: “No person shall

use any public way for the storage of personal property,

goods, wares or merchandise of any kind. Nor shall any

person place or cause to be placed ii vr upon any public

way any barrel, box, hogshead, crate, package or other

obstruction of any kind, or permit the same to remain

stoi

thereon longer than necessary to convey such article to or

from the premises abutting on such sidewalk.” The fore-

going are the pertinent provisions of the ordinances in

question in this case.

While not determinative of the issues herein presented,

a history of the prior litigation relative to the same prem-

ises is of interest. In 1945 several persons residing in the

immediate vicinity of the property made complaint to the

commissioner of buildings of the city of Chicago, the of-

ficial designated as the zoning enforcement officer, of an

alleged violation of section 12(2) of the zoning ordinance.

After a hearing before the officer the complaining parties

appealed to the zoning board of appeals. That body found

“that the processes used in the bending, grinding, shaping

and hammering of metals produces noises disturbing the

peace and comfort of occupants of adjacent premises and

that a violation of the zoning ordinance exists and is con-

templated.” The board ordered the commissioner of build-

ings to take action to abate the violation. The owner of

the property and her lessees then petitioned the circuit

court of Cook County for a writ of ce:tiorari which was

allowed. The court, after hearing further evidence, en-

tered an order sustaining the decision of the board and

quashing the writ. Those interested in the property then

brought a direct appeal to this court on the ground tha:

the constitutionality of an ordinance was involved. This

court decided that it was without jurisdiction and trans-

ferred the case to the Appellate Court, First District. The

opinion points out that the primary question presented

was whether the uses then obtaining were the saine uses

to which the property was devoted at the time of the pas-

sage of the ordinance and, if so, the question of law as to

whether the lessees are entitled to continue operations

as a nonconforming use. The opinion also points the dis-

tinction between an attack on a judgment which involves

the construction of a constitutional provision and an at-

tack on a judgment where it is claimed that its enforce-

ment will work a deprivation of some constitutional right,

and holds thai in the latter case no constitutional question

a “ea

is involved authorizing a direct appeal. (Dube v. Allman,

396 Ill. 470.) The Appellate Court decided that the then

use by the plaintiff lessees was not the same as the prior

use by Dube which obtained at the time of the passage of

the ordinance and that it was not a legal nonconforming

use. The Appellate Court said: “From an examination

of the record we think the evidence adduced before the

board of appeals and the trial court clearly shows that im-

mediately after the plaintiff lessees wen#into possession

of the premises the operation and conduct of their busi-

ness constituted a different nonconforming use; that the

noises emanating from plaintiff lessees’ plant disturb the

peace and comfort of the residents in the vicinity, many

of whom appeared as complaining witnesses, and that

during the period Dube conducted his business there no

such disturbances as here complained of were made.”

The Appellate Court affirmed the order sustaining the de-

cision of the board of appeals and quashing the writ.

(Dube v. Allman, 333 Tll. App. 538.) Petition for leave to

appeal was denied by this court. (400 Ill. 627.) It appears

that since the decision of the Appellate Court property

owners in the vicinity have continued to complain and

that the city has instituted several suits in the municipal

court against the owners for alleged violations of the or-

dinances, several of which are now pending.

Plaintiffs contend that the use to which the premises

are now devoted is a legal nonconforming use in the pur-

suit of which they are protected under section 19 of the

zoning ordinance; that as applied to them and their prop-

erty the ordinances are unconstitutional for reasons al-

ready stated and that the trial court erred in dismissing

their complaints for want of equity. They do not assign

as error the trial court’s action in ordering injunctions

pursuant to the prayer of defendant’s counterclaim if the

ordinances are free from the constitutional objections

urged.

Upon the first question presented—that of legal non-

conforming use—there is nothing in the present record

which leads*to a conclusion different from that arrived at

ciple

by the Appellate Court in 1948, Theophilus Dube founded

the business in question prior to 1900. He was engaged

in the manufacture of garbage burners, hot-water-tank

heaters and did general repair work. Most of the items

manufactured were for use in homes and were small in

size. The operations were confined almost entirely to the

interior of the building, the lot to the east being used for

storage purposes. Dube never employed more than about

20 men. It appears that this number worked for him

about the year 1920. During most of the time he operated

the plant, however, far fewer employees were engaged—

sometimes as few as three or four. This was particularly

true during the 1930’s. The lot to the north of the plant

fronting on Seventy-second Place was never used by Dube

for manufacturing purposes. Some riveting was done in

connection with the work but this was performed inside

the building. Such noise as was created was of practically

no annoyance to the occupants of nearby property, though

one of plaintiffs’ witnesses testified that there had been

some complaints. About the year 1944 Dube leased the

plant to plaintiff lessees. Plaintiff Luella Dube became

the owner of the property upon the death of her husband

which occurred about five years prior to the commence-

ment of the present actions.

After the plant was leased to plaintiff lessees in 1944

they engaged in war work on a rather extensive scale in-

cluding repair work on turrets for army tanks. A con-

siderable amount of this work was done outside the plant

on the lot to the east. In connection therewith air ham-

mers were used to punch the rivets which held the tank

baskets. After the war the plaintiffs engaged in the man-

ufacture of tanks for diesel engines. According to the

testimony of their own witnesses they are now engaged

in the manufacture of road building equipment, frames,

ditcher frames, pavers and mixing frames. Though plain-

tiffs’ witnesses sought to minimize its extent, it fairly

appears from all the evidence that a large amount of activ-

ity is now carried on outside the building, both on the

lot to east and the lot to the north which was never uti-

OPO AP RID ARI

ow Tg —

lized by Dube. On this lot some heavy machinery has been

installed, including a shear or punch press which is used

to cut steel into strips and punch it off. One witness tes-

tified that when the machine is in operation his house vi-

brates. In connection with these operations machines

called jitterbugs are used. These are a kind of hammer

or vibrator used to clean scale and welding slag off the

tanks and other products manufactured. That these outside

activities produce noise is not denied. That the noises are

extremely offensive and annoying is attested by the resi-

dents of nearby property who testified for the city.

The facts in the record clearly establish that the pres-

ent use is not only a greatly expanded use but a differ-

ent use. The manufacture of small items has given way

to the fabrication of machinery and larger items. Opera-

tions formerly confined mostly to the building are now

carried on outside and land not owned or used by the

original proprietor is now utilized for this purpose.

Heavier machinery than that formerly used is employed.

The plant now employs about 45 men—more than twice

the number ever employed by Dube. Therefore the present

use is not only more extensive than the former but in

- | fact more intensive and of a different character. Courts

have recognized that the employment of new instrumen-

talities and methods may constitute an objectionable ex-

tension of an existing nonconforming use where they op-

erate to change the original nature and purpose of the

undertaking. (De Felice v. Zoning Board of Appeals,

130 Conn. 156, 32 A. 2d 635; 58 Am. Jur. 1030.) So also

an expansion of a use to land not formerly used may be

an illegal extension or enlargement of the previous non-

conforming use. (Burmore Co. v. Champion, 124 N.J.L.

548, 12 A. 2d 713; Annotation: 147 A.L.R. 167.) Though

the new use and the old may fall within the general cate-

gory of “manufacturing” it is the particular use and not

the general classification which governs. (Wechter v.

Board of Appeals, 3 Ill. 2d 13.) The fact therefore that

the present use is a manufacturing use is not alone enough

to afford it the protection of section 19 or establish its

a PDR RP SO mw ODO et SL ee et I OD me RD AT htt be

RS SIAC LIE OLS PLIES PPA GOOLE EAI LEE IRE ORE EEE ESI IE BLS PIE -

ite one

status as a legal nonconforming use. It may be, as plain-

tiffs contend, that a mere increase in the volume of busi-

ness is not an expansion of a nonconforming use, but much

more than an increase is here involved and that factor is

not determinative. The contention that plaintiffs are

maintaining a legal nonconforming use must be rejected.

But plaintiffs also say that if section 12(2) of the

Chicago zoning ordinance is enforced as to them and their

property it would deprive the plaintiffs of the use to

which the property was put before the enactment of the

ordinance; that as applied to them the ordinance is un-

constitutional as a denial of due process and a violation

of the prohibition against taking private property for

public use without just compensation. This contention

stems from the particular provisions of section 12(2) which

permit the manufacture of metal and metal products in

the limited manufacturing districts involved but except

therefrom “smelting by employment of cupola, snap rivet-

ing and processes used in bending and shaping which

produce noises disturbing the peace and comfort of oc-

cupants of adjacent premises.” These provisions are simi-

lar to those of the Chicago zoning ordinance of 1923 pre-

scribing conditions of operation and use in limited manu-

facturing areas. The law at that time provided that an

M-1 use should include such uses of property coming

within the definition of an M-use ‘‘as do not injuriously

affect the occupants of adjacent uses and are so operated

that they do not emit dust, gas, smoke, noise, fumes,

odors or vibrations of a disagreeable or annoying na-

ture.” It further provided for “Fabricating, other than

snap riveting or processes used in bending and shaping

of metal which emit noises of a disagreeable or annoying

nature, for assembling metal products, forging of metals,

melting, casting of metals or manufacturing of steel or

alloys of steel from iron, provided no cupola is em-

ployed; and further provided no operation is contrary

to the general definition of an M-1 use.” In construing

the provisions of the 1923 ordinance this court held that

the words used set up a common-law nuisance; that the

FO EST Tere F SE ESIC SS

—

ordinance was constitutional and not subject to the ob-

jection that its provisions were vague and indefinite since

the words used had a definite meaning at common law.

(City of Chicago v. Reuter Bros. Iron Works, Inc. 398

Ill. 202.) There is no substantial difference between the

restrictive provisions of the two ordinances. The former

prohibited operations in connection with metal work which

produced noises of a “disagreeable or annoying nature”

as might injuriously affect the occupants of adjacent

premises. The present law prohibits noises in connection

with the manufacture of metal products which are such

that they can be said to be “disturbing the peace and com-

fort of occupants of adjacent premises.” It appears that

both have the same object—that of preventing the crea-

tion of a nuisance as it was known at common law. The

holding of this court in the Reuter Bros. case is deter-

minative here so far as the construction of the ordinance

is concerned.

Provisions of the zoning laws prescribing conditions of

business or manufacturing designed to avoid nuisance or

annoyance have been held valid by the courts. (City of

Chicago v. Reuter Bros. Iron Works, Inc. 398 Til. 202;

Franklin Contracting Co. v. Deter, 99 N.J.L. 22, 122 Atl.

600; Malm v. Dubrey, 325 Mass. 63, 88 N.E. 2d 900;

Beverley Oil Co. v. Los Angeles, 40 Cal. ed 552, 254 P. 2d

865; Annotation: 173 A.L.R. 271.) The eases hold that

so long as such ordinances have as their object the pro-

tection of the public health, safety, comfort, morals and

general welfare, are reasonably caleulated to effect that

purpose and are not arbitrary or unreasonable, they are

to be upheld as a proper exercise of the police power. The

tests applied are the same as those applied to zoning ordi-

nances generally which must be justified, if at all, by the

paramount interest of the public welfare and the realiza-

tion that private interests must sometimes be subordi-

nated to the public good. The constitutional declarations

that private property shall not be taken for publie use

without just compensation or without due process of law

are always subordinated to the interest of the public wel-

fare as expressed through the exercise of the police power

salsa Mil joes

of the State. (Trust Co. of Chicago v. City of Chicago,

408 Ill. 91; Ehrlich v. Village of Wilmette, 361 Ill. 213;

Forbes v. Hubbard, 348 Ill. 166.) Indeed, it is the nature

of all zoning regulations that they invade or limit indi-

vidual property rights to some extent, but notwithstand-

ing that fact they are valid as a constitutional exercise

of the police power so long as they are not arbitrary and

bear a reasonable and substantial relation to the public

health, safety, comfort, morals and general welfare.

While a city under its general power to define and

abate nuisances has no power to declare that a nuisance

which is not a nuisance in fact, (Rosehill Cemetery Co. v.

City of Chicago, 352 Ill. 11; Town of Cortland v. Larson,

273 Ill. 602; People ex rel. Friend v. City of Chicago, 261

Ill. 16), its power to enact regulations to prevent the en-

dangering or impairment of public health is not limited to

the regulation of such things as have already become nui-

sances or have been declared to be such by the judgment

of a court, but where an act or thing is of such nature

that it may become a nuisance, or may be injurious to the

public health if not suppressed or regulated, it may be

regulated though never injurious in the past and the legis-

lation will be held valid though it may operate to deprive

or limit property rights once it is shown that its exercise

is proper and the method of its exercise within the mean-

ing of due process. (Sullivan v. Los Angeles Dept. of

Bldg. & Safety, 166 Cal. A. 807, 254 P. 2d 590; Laurel Hill

Cemetery v. San Francisco, 216 U.S. 358; Hadacheck v.

Sebastian, 239 U.S. 394.) Though noise is not a nuisance

per se, it may be of such a character as to constitute a

nuisance in fact even though it arises from the operation

of a factory, industrial plant or other lawful business

or occupation. (Phelps v. Winch, 309 Tll. 158; 39 Am.

Jur. 330.) The test in such cases is “whether rights of

property, of health or of conduct are so injuriously af-

fected by the noise in question that the sufferer is sub-

jected to a loss which goes beyond the reasonable limit im-

posed upon him by the condition of living, or of holding

property, in a particular locality in fact devoted to uses

nat oe r er ae % EPR EES MLS Re, :, set Sy alata

—lla —

which involve the emission of noise although ordinary

care is taken to confine it within reasonable bounds; or

in the vicinity of property of another owner who though

creating a noise is acting with reasonable regard for the

rights of those affected by it.” (City of Chicago v. Reuter

Bros. Iron Works, Inc. 398 Ill. 202, 208, quoting from the

opinion in Tortorella v. H. Traiser & Co. 284 Mass. 497.)

A zoning ordinance which delimits designated areas for

the location of manufacturing industries or general busi-

ness does not license the emission of every noise profit-

ably attending the conduct of such businesses. (Torto-

rella v. H. Traiser & Co., 284 Mass. 497.) In other words,

no one, even in pursuing an otherwise lawful business,

ever acquires a vested right to create or maintain a noisy

nuisance in connection therewith.

We believe that the proof in the record before us is

sufficient to show that plaintiffs have been guilty of main-

taining a common-law nuisance in the manner in which

they have operated their business. Six residents testified

that the noise from the plant was such that it caused them

serious discomfort. There was some testimony that the

noise was attended by vibrations. One witness testified

that when a certain heavy machine was used his house

vibrated. Another testified that the dishes in his home

rattled. Sometimes the operations carried on outside the

plant are at night, though this does not happen all the

time. All of these witnesses testified that the other noises

in the neighborhood do not bother them; that the noises

from Dube have been burdensome only since 1944 when

operations were begun outside and that formerly the

noises from Dube were not disturbing. Only one resident

of the neighborhood testified that the noise from Dube did

not disturb him. He was an employee of the plant. Plain-

tiffs introduced the testimony of two sound-testing en-

gineers who had made certain tests with a sound-level

meter, an instrument designed to measure the intensity of

sound in decibels. Their testimony purports to show that

the sounds and noises emanating from Dube are of no

greater intensity than the other sounds in the neighbor-

— 12a —

hood, including noises from trains, trucks and other ve-

hicles. However reliable and accurate such devices may

be in measuring intensity, they do not purport to measure

the effect of particular sounds on human sensibilities.

Nor do they account for differences of pitch or tone. The

Staccato beat of an air hammer on metal, though pro-

ducing a sound of no greater intensity than the rumble

of a truck, may produce a far more serious effect on the

human being within hearing distance. Applying the test

as laid down in the Tortorella case and adopted by this

court in Reuter Bros. case, we conclude that the health

and comfort of the residents of the neighborhood in this

case are injuriously affected by the noises aud vibrations

in question and that they are subjected to discomforts

which go beyond the reasonable {imits imposed upon them

because of living or of holding property in the vicinity

of an industrial zone. It also appears that the operators

of the factory have not used ordinary care to confine the

noise within reasonable bounds. Under the circumstances

we cannot say that the ordinance as applied to plaintiffs

and their property is unconstitutional. In challenging the

constitutionality of the ordinance and seeking equitable

relief against its enforcement plaintiffs assumed the bur-

den of proving that, as applied to their property, the law

was clearly arbitrary and unreasonable and bore no sub-

stantial relation to the public health, safety, comfort or

general welfare. The trial court properly found that

plaintiffs had not sustained their burden of proof.

Much of what has already been said as to section 12 of

the zoning ordinance applies as well to section 99-60 of

the Municipal Code. The plaintiffs say that as applied

to their property its effect is to exclude and prohibit an

existing and established use and business. As we view it,

this ordinance merely says that no factory shall be oper-

ated or maintained within 200 feet of a residence in such

a way that loud and unusual noises are emitted, thus cre-

ating a nuisance. The law does not prohibit the use of

pneumatic hammers or any other apparatus in connection

with the operation of a factory within 200 feet of a dwel-

ling but it does say that if such devices are used they

ae, ae

shall not be used in such a manner as to cause loud or un-

usual noises. Plaintiffs say that the ordinance attempts

to declare that a nuisance exists which is not a nuisance

in fact, relying upon People ex rel Younger v. City of

Chicago, 280 Ill. 576, and City of Chicago v. Netcher, 183

Til. 104. In the Younger case an ordinance prohibiting a

stable for more than ten horses within 200 feet of any

church, school and other specified institutions was held

unconstitutional. In the Netcher case this court declared

invalid an ordinance which prohibited one engaged in the

sale of dry goods and clothing from selling groceries,

meats and provisions, pointing out that the ordinance

did not regulate but prohibited and that the prohibition

was a purely arbitrary one. Neither cf these cases holds,

however, that a city may not pass an ordinance regulat-

ing a business which is not a nuisance per se where the

ordinance is directed only to prevent a business from be-

ing conducted in such a manner that it may become a

nuisance. A municipality is not required in a case where

danger is to be apprehended to wait until a nuisance

actually exists before taking action to safeguard the

public health. Thus an ordinance prohibiting the emission

of dense smoke within the corporate limits of the city of

Chicago was held constitutional. (Harmon v. City of Chi-

cago, 110 Ill. 400.) And an ordinance regulating the oper-

ation of lumber yards which prohibited the piling of lum-

ber within 100 feet of any residence within the city’s fire

limits was held to be a valid exercise of the police power.

(City of Chicago v. Ripley, 249 Ill. 466.) So also an

ordinance to prevent noxious odors from slaughter houses

within the city limits (Harmison v. City, of Lewistown,

153 Til. 313) and an ordinance prohibiting the fabrica-

tion of metals in such a manner as to emit noises of a

“disagreeable and annoying nature,” (City of Chicago v.

Reuter Bros. Iron Works, Inc. 398 Til. 202,) were held

valid. It is our conclusion that the challenged section of

the municipal Code is regulatory in nature, valid as ap-

plied to plaintiffs and their property, and free from the

claims of unconstitutionality advanced by them.

(icles

There remains only the error assigned upon cross ap-

peal by the city based on the trial court’s refusal to en-

join plaintiffs from violating section 34-6 of the Municipal

Code which prohibits the storage of personal property

upon a public way. The master to whom the cause was

referred found that although there was some evidence of

improper use of the premises and the alley and street

of the nature charged, on the whole record the evidence

was insufficient to establish the city’s right to injunctive

relief. From a careful reading of the record we find no

reason to disturb the findings. The evidence does not

show such a violation of the ordinance as would warrant

the interposition of a court of equity. Under the circum-

stances enforcement should rest with an application of the

penal provisions of the code. (28 Am. Jur. 343.) There-

fore the trial court was justified in entering its decree

in accordance with the findings of the master.

The decree of the superior court of Cook County is

affirmed.

Decree affirmed.

-—- 158 —

State of Illinois | ..

County of Cook § ~~

In THE Superior Court or Coox County

Iw CHANCERY

Luella Dube and Joseph Mile-)

tic, Josephine Miletic, Thomas

J. Downs, Frances M. Downs,

Marion O. Reineman and Judith

Ann Reineman Trust d/b/a Dube

Manufacturing Company, § No. 46-S-18486

vs.

City of Chicago, a Municipal Cor-

poration, J

Consolidated Causes

Luella Dube and Joseph Mile-*

tic, Josephine Miletic, Thomas

J. Downs, Frances M. Downs,

Marion O. Reineman and Judith

Ann Reineman Trust d/b/a Dube 91

Manufacturing Company, ‘Pisa tare

v8,

City of Chicago, a Municipal Cor-

poration,

4

JUDGMENT ORDER

This cause coming on to be heard upon the complaint

for injunction filed herein by the plaintiffs in cause No.

46-S-18456 and the answer thereto of the defendant, City

of Chicago, and the complaint for injunction filed herein

by the plaintiffs in cause No. 48-S-9105 and the answer

thereto of the defendant, City of Chicago, and the counter-

claim of the defendant, City of Chicago, and the answer

eittiibinns

thereto of the plaintiffs; and the complaints, answers and

counterclaim having been consolidated; and the parties

and their respective attorneys having appeared before

Master-in-Chancery, Robert McCormick Adams, to whom

this matter was referred by the Chancellor, and the

Master having examined the pleadings and heard the evi-

dence, and having submitted his Report recommending;

and the cause now coming on to be heard upon the ex-

ceptions to the Master’s Report filed by the plaintiffs and

counter-defendants; and counsel for the respective parties

having appeared in open court, and the Court having

examined the pleadings, and the testimony and the ex-

hibits, and the Master’s Report, and being fully advised

in the premises; and after argument of counsel, does

hereby overrule the exceptions to the Master’s Report,

and does sustain the recommendations of the Master.

It Is, Therefore, Ordered, Adjudged and Decreed that

the exceptions to the Master’s Report be and they are

hereby overruled, and the recommendations and findings

of the Master are hereby sustained.

It Is Further Ordered, Adjudged and Decreed that the

temporary injunction entered herein in cause No. 46-S-

18486, restraining the defendant, City of Chicago, be and

is hereby vacated and dissolved.

It Is Further Ordered, Adjudged and Decreed that the

prayers of the plaintiffs in their complaints in causes

No. 46-S-18486 and No. 48-S-9105 for injunctions be and

they are hereby dismissed for want of equity.

It Is Further Ordered, Adjudged and Decreed that the

Clerk of the Court be directed, and is hereby directed, to

issue forthwith a Writ of Permanent Injunction, directed

against the plaintiffs and counter-defendants, and each

and every one of them and their agents and employees, to

desist and refrain from using the property occupied by

them or any of them at 1244 E. 73rd Street, the alley

lying adjacent to the said property on the north, and

the adjacent lot to the north, fronting on 72nd Street,

Chicago, Illinois in violation of Section 12(2) of the Chi-

—-

—17a—

cago Zoning Ordinance (as amended) and in violation of

Chapter 99-60 of the Municipal Code of Chicago.

It Is Further Ordered, Adjudged and Decreed that the

application of the defendant and counter-plaintiff, City of

Chicago, for an injunction against the plaintiffs and

counter defendants in violation of Chapter 34-6, Chapter

36-46, and Chapter 99-4 of the Municipal Code of Chicago

be and is hereby denied.

It Is Hereby Certified that there is involved in this

cause and judgment the validity of a Municipal Ordi-

nance, and that in the opinion of the Court, the public

interest requires that in the event an appeal herein shall

be taken, it shall be taken directly to the Supreme Court

of Illinois.

tt we Vw SS ee

ce i ee ed

This Court reserves jurisdiction of this cause for such

other proceedings as may be necessary to enforce the

provisions of this decree.

Enter:

/8/ Faankx M. Pappen,

Judge.

Dated 1/7/55

— a a ae a. a. |