*1 483 Ill. Chicago, “In the 132: absence of a of shown, intention contrary we have held being acceptance a of the by municipality all principal of portion nearly the streets of a subdivision raises presumption it of all of the streets subdivision. acceptance by v. Lee v. (Kimball Chicago, Village Harris, Also, id. evidence of acceptance streets a is found in affirmative act of by city taking thereof for therein water possession purpose placing Normal, mains or Town sewers.” v. Kennedy 359 Ill. 306, 311-12, court said: “A a municipality may accept of the streets and a shown part alleys upon plat reject a them, toas a street or part particular alley may it, the remainder of reject v. accept part (Clokey Co., Wabash 353 Ill. but Railway where the 349,) city the most streets an addition or the accepts important them, of' and has major evinced intention to portion them, refuse it will be deemed to have accept any all streets and of that addition.” accepted alleys whether the defendant question had village 155th Place was one of fact accepted Its jury. verdict finds in this record and the ample support should be affirmed. judgment
(No. 47134. THE CITY OF CARBONDALE, Appellant, JOE al., VAN NATTA et Appellees. Opinion Sept. denied Rehearing Nov. filed 1975.—
GOLDENHERSH, J., dissenting. Carbondale, Womick, Paul appellant.
John Kimmel, Carbondale, for E. Dan appellees. MR. WARD delivered opinion JUSTICE court; our Carbondale, which 1974 the City July art. unit Const. home-rule (1970), constitution a (Ill. in the VII, injunction obtained a sec. temporary 6(a)), defendants, restraining circuit court County Jackson Inc., and Natta, Cherry Van Master Enterprises, Key Joe of a violation Construction, Inc., in zoning from acting No. contains of the Ordinance ordinance City. terms their which apply by zoning regulations, City’s miles and to the area extending within IV2 of the The boundaries to the City. and contiguous beyond were defendants, who alleged City’s complaint area within DA-mile contiguous a building constructing the setback with were complying City, moved to defendants The ordinance. had City on ground dismiss complaint its outside lines to enforce setback authority dismiss, The court limits. motion and the granted court affirmed. 3d We appellate (22 granted App. for leave to City’s petition appeal. contends that it is section City empowered by the Illinois Code Rev. Stat. Municipal (Ill. its zoning 13—1) apply regula tions, setback a within area regulations, lA-mile including boundaries. In the contiguous its alterna beyond tive, the that without recourse City statute argues can setback lines in area such a lA-mile under its home-rule section article VII granted powers by 6(a) the Constitution of 1970. As the is a home-rule unit we shall consider first whether the under its home- rule ordinance setback lines prescribe in areas its own boundaries. to home-rule units in grant is set out of article VII of our constitution of It 6(a) “*** Section, states: as limited this part Except
home rule unit exercise and may any power perform any function to its and affairs pertaining government including, but not to, limited the the power health, welfare; protection morals and public safety, license; tax; and to incur At the debt.” constitutional convention the Committee on Local Government recom- mended that the of in section grant contain powers -6(a) the “within its specifically limiting wording corporate limits.” Record Sixth Illinois (7 Constitu- Proceedings, tional Convention 1577 cited as (hereinafter Proceedings).) used the was not when Though was language an examination of the adopted (4 3125), Proceedings of the convention shows chat intention proceedings was not to confer extraterritorial or sovereign govern- mental on home-rule units. The intend- powers directly ment shown is that whatever extraterritorial governmental home-rule units were to be exercise may granted 3040-41, 3072-75; See 4 by legislature. see Proceedings Baum, A Tentative Illinois Home Rule generally Survey Problems, Control, and Transition (Part II): Legislative Conflict, 559, U. Ill. L.F. see Intergovernmental Power Under Sandalow, The Limits Municipal also Courts, Rev. 48 Minn. L. Home Rule: A Role for 113 Ohio Sanders v. Snyder (1960), App. 692-700 (1964); 17 Ohio 2d 392. N.E.2d Op. McMackin, 53 ex Salem v. Ill.2d rel. People unit land we that a home-rule stated may acquire under home-rule its limits powers. outside acts extraterritorial However, we distinguished specifically acts are in character from which which are proprietary land After that observing “acquisition governmental. of a not an exercise governmental is gift purchase nature,” we said: act of is an a proprietary power; “However, right there a distinction between limits and outside of its corporate acquire property over such to exercise sovereignty property. rights Salem the Act in Under city question, [Citations.] over the property exercises sovereignty rights consideration.” Ill.2d relied on statute its setback establish requirements of the Illinois Municipal
boundaries is section 13—1(2) Code. The statute provides part: air, safety and from adequate light, pure “To end that secured, may that the taxable be dangers fire other throughout buildings value of land conserved, public streets congestion in may be avoided, persons the hazards may lessened the accumulation from damage property resulting may lessened storm or flood waters of runoff of comfort, health, safety, avoided, public and to promoted, morals, otherwise be and welfare sites, areas, and preservation insure and facilitate *4 historical, impor- aesthetic architectural structures have municipality tance; authorities in each corporate the following powers: *** limit, subject to establish, regulate and (2) 11, building of this Article Division 14 street, traffic-way, drive, or set-back along any lines on or basin; parkway or storm or channel or floodwater runoff [***] powers enumerated may be exercised within the corporate territory limits or not contiguous within more than one corporate and one-half miles limits ***” any municipality. included within Ill. Rev. 1973, 24, par. Stat. ch. 11-13-1. Code, Section 11—14—1 of Illinois Municipal which is referred to in section as “Division 14 13—1(2) 11— Article,” of this provides:
“In existing addition end adequate pure air, light, safety may secured and that congestion public avoided, may streets be lessened or in municipality power authorities each by establish, regulate, ordinance and limit the building street, along any way, drive, set-back lines on or traffic parkway or storm or runoff floodwater channel within the municipality, as carry deemed best suited to out these purposes. The powers given this Division 14 shall not be exercised deprive so as to the owner of existing property use or its maintenance purpose to which lawfully it is then devoted.” Rev. 1973, 24, par. Stat. ch. 11-14-1. The defendants contend that general power zone in the area to the PA-mile contiguous in section limited granted 11—13—1 is section 11—14—1 in that the latter section limits the specifically to establish and setback power lines area regulate “within This has municipality.” argument only super- ficial and fails when we consider appeal legislative of the statutes to ascertain intend- history ments. 13—1,
Provisions section which present 11— zone, confer enacted were general power originally 1921, 1; 180, Rev. sec. Smith’s Stat. (Laws p. ch. version par. 66). original 14—1, establish granting municipalities setbacks, enacted in 1933 was (Laws sec. Smith-Hurd Rev. Stat. p.
488 have co-existed with and its
73a), provisions provisions since that time. of section 11—13—1 and its predecessors to In added the establish 1943 the power legislature version of lines to the section setback building original Act, 1; sec. Cities and Villages 11—13—1 (Revised 73— 1; 1943, 1, 320, 1943, sec. Ill. Rev. Stat. vol. Laws p. not ch. but did grant repeal separate par. 1), 73— and to Cities establish setbacks Villages power (Revised Act, In 111.Rev. Stat. sec. 1). 30— 30— enacted 1961, the Code was Illinois Municipal (Laws of the Code became and section 11—13—1 p. 576), of the Revised Cities and to section 73—1 successor Act, section became successor 11—14—1 Villages of the Code to section Section 11—13—1 30—1. provided in each had that the authorities corporate establish, limit, to building regulate power 14 of of Division setback lines “subject provisions et 11—14—1 this Article 11” section seq.). (i.e., to declare: “The amended section 11—13—1 legislature enumerated be exercised within corporate powers not more than one or within limits contiguous territory limits and not miles and one-half Laws included within pp. any municipality.” 863-64. intent to that there was
It seems clear lines to within setback limit establish under- the intent Rather of the boundaries municipality. to establish and the exercise right making lying Division lines “subject setback ***” whose users was to existing property protect If the setback use not conform regulation. might to confine a had intended municipality’s power legislature boundaries, a more likely to its own establish setbacks been have have done so would efficient means to rescind the authority regarding strike simply added in municipal which had been setbacks under have been then would only for setbacks section 11—14—1 and would been limited to the boundaries. When the referred to legislature municipality’s i.e., 14—1, Division section it was intending 11— limit the territorial reach of but to 13—1(2) under users the same 11—13—1 as give existing protection in effect they enjoyed incorporating from section 11—14—1 the that: statement
“*** given this Division shall not be deprive so exercised as to the owner existing property its for the purpose use maintenance *6 lawfully is then which it devoted.” Too, this view reasonable interpretation permits should aware of and legislature recognize a author practical necessity giving municipality zoning its own territorial limits. See Ill. ity beyond Rev. Stat. 11-12-5; ch. A. The Law of Rathkopf, 1 ed. Bartelt, sec. Zoning Planning, (3d 1974); Extraterritorial Reflections on Its Zoning: 32 Validity, Notre Dame Bouwsma, 367 Lawyer (1957); Validity of Extraterritorial 8 Vand. L. Rev. Zoning, 806 Municipal (1955). it insures a that the
Relatedly, recognition should be exercised as “normally part all zoning power, ordinances contain essentially zoning be set a back certain provisions buildings requiring distance Anderson, from R. American public way.” (2 8.43, Law of sec. at 34 see also Zoning 2 (1968); Yokley, Law and Practice sec. 17—3 Zoning ed. see (3d 1965); Pakel, Palos City v. Ill. generally 121 Heights 2d App. 63; Park, Karasik v. Highland 2d App. be frustrated in Municipalities may attempting enforce other of their if ordinances zoning they are not allowed to establish setback lines. See Stemwedel Kenilworth, v. Village Ill.2d we consider a introduced Finally, question in rebuttal oral Section 11—13—1 was during argument. 1373; amended in 1971 Act Laws additionally (Pub. a inter alia of addition 2439) by pp. statute, amenda- which reads: “This final sentence Act of 1971 does not any tory apply municipality a rule which is home unit.” not does
We have seen that a municipality
its home-rule
extraterritorial
zoning authority
Thus,
classification
if the legislative
confining
powers.
of section
to non-home-rule units
applicability
valid,
be the
were to be
there would
incongruous
judged
units
zone
situation of non-home-rule
able
being
not. We
units could
can
while home-rule
extraterritorially,
non-
between
see no reasonable basis
differentiating
zone
extraterritori
home-rule units so far as
constitutional
is concerned. For
classification
ally
there must be a reasonable basis
differentiating
and the
the class to which the law is
between
applicable
not in
to the statute under
to which
relation
class
Industrial
which the classification is
v.
Begich
proposed.
Com.,
rel.
Du
ex
County
Page
People
Ill.2d
Smith,
unconstitutional classification *7 the from severed this invalid Clearly provision In whether an of balance section 11—13—1. considering could be severed of statute unconstitutional portion stand, the remainder as to from the remainder so permit 9, court in v. Ill.2d Ogilvie, this described Livingston “If after what remains 23, a test to be employed: in itself and is stricken is complete capable invalid portion is of that which of executed wholly being independently the entire not render the invalid does rejected, portion can be unless it said section unconstitutional with the statute not have General would Assembly passed Barrett, Winter v. See also eliminated.” the invalid portion 531, 540. 441, Ill.2d Fiorito Jones, act of 1971 consisted amendatory only we hold be invalid and language language simply adding or statement of section another objective purpose insure and facilitate (“and preservation sites, areas, historical, and structures of architectural and after aesthetic What remains the statute importance”). the excision of the is classification offending obviously Too, it in itself. had been independent complete enacted additions objectionable prior cannot be said that would not obviously legislature of the statute in the absence material passed which we delete.
For the reasons of the circuit given, judgments reversed, courts are and the cause is remanded to appellate the circuit court for further in proceedings conformity with this opinion. reversed.
Judgments MR. GOLDENHERSH, dissenting: JUSTICE I dissent. This decision demonstrates the validity “*** Mr. Frankfurter’s comment use of Justice must not legislative swallow so as to history legislation give when point only quip legislative history doubtful do to the statute.” Some you go (Frankfurter, Statutes, Reflections on the 47 Colum. L. Rev. Reading 543.) my section opinion explicit provisions 11—13—1 of the Code Rev. Stat. ch. Municipal (III. par. affirmance 13—1) require judgment 11— and circuit courts. appellate concludes “that there majority was intent limit to establish setback lines to within the boundaries and that the municipality” stated limitation in clearly contained section 11—14—1 Rev. Stat. (111. 14—1),incorporated 11— reference 13—1, intended was “to give existing users the same under 11—13—1 protection as they enjoyed under 11—14—1 in effect from incorporating 11—14—1 the statement that:
“ **** Division 14 shall powers given this any existing owner of deprive to be exercised so as purpose to maintenance for property of its use or ” page lawfully (Slip opinion, is then devoted.’ which it view of the fact This is difficult to understand provides: of this passed under “In all ordinances existing be made due allowance shall Division conditions, by this Division powers conferred ***. The any of deprive the owner so as to shall not be exercised or maintenance its use existing property devoted, lawfully ***.” it is then purpose to which it was shows that An of the statutes examination to establish intent the legislative clearly the boundaries within setback lines exercised only Section 11—13—1 corpo- provides municipality. have the rate authorities following powers: height and bulk of limit regulate To and “(1) erected; establish, regulate to (2) to buildings hereafter limit, this subject of Division to and along on or or set-back lines building Article drive, or street, or floodwater traffic-way, parkway storm basin; and limit regulate to (3) runoff channel or areas, regulate to lot intensity of the use of surround- open spaces, within and the area determine restrict classify, regulate and buildings; to ing (4) such location of and the and industries location trades business, industrial, resi- specified designed for buildings uses; the entire munici- dential, to divide (5) and other area, number, and of shape, of such into districts pality land and to use (according such different classes intensity of the buildings, height and bulk buildings, area, or other classifica- open spaces, of lot area use carry out best suited may be deemed tion) as to which fix standards (6) of this Division purposes conform; (7) shall therein buildings structures incompatible with uses, buildings, or structures prohibit districts; prevent additions (8) character of such existing buildings remodeling and alteration the restrictions way avoid as to in such a structures 13; and this Division lawfully imposed limitations classify, property the use of (9) restrict *9 family family relationship, on which relation- basis may persons defined or ship as one more each related blood, by adoption to the other or marriage maintaining a common household. may be exercised enumerated within
corporate territory not contiguous limits or within more corporate one one-half than miles limits any municipality.” and not included within Section 11—14—1 provides:
“In existing powers addition the end that air, light, adequate pure safety may or be secured and that avoided, congestion public may streets lessened authorities in each by establish, ordinance regulate, and limit the building street, drive, along any way, set-back lines on or traffic parkway or storm or floodwater runoff channel within municipality, as be deemed best suited to carry purposes. out these The powers given this Division 14 shall not deprive be exercised so as to of any owner existing property its use of maintenance purpose lawfully to which it is then devoted.” with Only setback lines did the respect General that Assembly provide was power granted subject I 11—14—1. submit that no amount of legislative history will serve to create an in these stated ambiguity explicitly statutory provisions. (cid:127) Further, as “a introduced majority, question in rebuttal oral holds argument”, that the during of section 11—13—1 that “This provision Act amendatory of 1971 does not which is a apply any municipality home-rule unit” creates “an unconstitutional classification void.” Slip opinion page
We have held that under the doctrine of previously over a mu supremacy municipal corporations not assert nicipal corporation may protection due clause the action of the against State process govern ment Boone v. (Supervisors County Village Gardens, Rainbow Ill.2d and that 504), municipal has no enact- corporation standing challenge legislative on the ments result in ground an unreasonable they Salem, classification. I (Meador Ill.2d have searched in vain supports conclusion of the reached majority, without apparently consideration our decisions and with prior attempt made to them or distinguish are suggest they overruled.
(No. 47152. *10 et EDISON CO. DAVIS v. COMMONWEALTH GARY Buccola, A. &Maas Appellant, (Bonesz, J. al. — Co.,& Boulton Appellee.) Sept. Opinion Nov. 26,1975. Rehearing denied filed. —