60 N.E.2d 99 | Ill. | 1945
Plaintiffs filed a complaint in equity in the superior court of Cook county against the village of Oak Lawn, and the president and trustees of said village, to enjoin the operation of the zoning ordinance of said village as affecting the property of the plaintiffs.
Without going into the complaint in detail the plaintiffs allege that the ordinance is unreasonable, arbitrary *583 and capricious as applied to their property, and set out certain facts which purport to show this contention. There is no allegation in the complaint that the zoning ordinance generally is void. It is only claimed the zoning classification is invalid so far as it affects the plaintiffs' property.
A motion to dismiss was made by the defendants setting out six grounds, the last two of which, only, were sustained by the court. The fifth ground sets out that the complaint fails to allege facts establishing discrimination or unreasonableness of the zoning of the plaintiffs' property, and as a part of this objection nine instances of insufficient allegation are pointed out to support this contention. The sixth ground for dismissal is that the complaint as a whole does not make out a case for relief. Upon hearing, the court overruled the motion to dismiss as to the first four grounds, but sustained the motion to dismiss on the fifth and sixth grounds set out in the motion.
The language of the order is: "The court further finds and determines as a matter of law that admitting all of the allegations properly pleaded in the complaint, the complaint fails to allege any facts establishing discrimination or unreasonableness of the zoning of plaintiffs' property, and that the allegations of the complaint as a whole do not make out a case for the relief sought. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the defendants' motion to dismiss the complaint on the grounds set forth in paragraphs (5) and (6) thereof, be sustained, and the complaint is dismissed accordingly." It is clear from this order and decree that the validity of a municipal ordinance is not involved.
In City of Springfield v. Kable,
In order for the validity of a municipal ordinance to be involved so as to authorize a direct appeal to this court, the record must affirmatively disclose that the question of its validity was not only presented to the trial court for decision but was actually passed upon by it. This is the effect of our holding in City of Springfield v. Kable,
The certificate issued by the trial judge does not show that the validity of the ordinance was involved because his certificate is coupled with the sentence "and that he holds that said ordinance is not unreasonable, arbitrary, discriminatory or unconstitutional and therefore is not void as to the property of plaintiffs involved herein," as *585 that is not in accord with the order entered, viz., that the facts pleaded failed to establish discriminatory or arbitrary provisions in the ordinance.
A certificate that the validity of a municipal ordinance is involved so as to justify a direct appeal to this court is not effective if it is contrary to what is shown by the record. The record in this case merely finds and adjudges that a complaint is insufficient because of the failure to allege the proper facts. It does not indicate how the court would rule upon the ordinance if, in his judgment, the proper facts had been alleged. It is clear we have no jurisdiction.
The cause is transferred to the Appellate Court for the First District.
Cause transferred.