156 N.E. 828 | Ill. | 1927
On May 8, 1924, an application was made to the commissioner of buildings of the city of Chicago, on behalf of the Catholic Bishop of Chicago, for a permit to build a church and school on a parcel of land located at the northwest corner of Longwood drive and West 101st place, in that city. A protest, signed by substantially all of the residents and owners of property in the block which included the parcel of land in question, that the zoning ordinance of the city excluded buildings of the character proposed from that location was filed with the commissioner. Notwithstanding this protest the desired permit was issued on May 10, 1924, without notice to any of the objectors. An appeal was taken to the board of appeals created by the zoning ordinance. A hearing followed, and the board sustained the action of the commissioner. Within thirty days after that decision Robert G. Phelps, one of the objectors, filed in the circuit court of Cook county his petition for a writ of certiorari to review the proceedings of the board of appeals. The writ was issued and the board in its return certified a complete transcript of the evidence and the proceedings in the cause. The hearing in the circuit court was had upon the petition and the return, and the court quashed the writ of certiorari and dismissed the petition. This writ of error is prosecuted by the petitioner for a review of the record.
The defendant in error, the city of Chicago, has filed a motion to dismiss the writ of error for want of jurisdiction. *627
In opposition to that motion the plaintiff in error suggests that certain portions of the zoning ordinance of the city of Chicago are unconstitutional and invalid. Neither in the petition for the writ of certiorari filed in the circuit court, nor in the assignment of errors upon the action of the board of appeals, was there any contention that any part of the zoning ordinance was invalid. On the hearing in the circuit court the validity of the zoning ordinance was not assailed nor was there a ruling upon the question. In his assignment of errors in this court the plaintiff in error for the first time asserts the invalidity of certain provisions of the zoning ordinance. It has been held uniformly that a constitutional question cannot be urged in this court unless the question was in some way presented to the trial court for its decision and preserved for review. Albrecht v. Omphghent Township,
The question presented to the board of appeals for determination was the construction, and not the validity, of certain provisions of the zoning ordinance. In the circuit court it was insisted that the action of the board of appeals was illegal because its interpretation of the zoning ordinance was erroneous. While this court has jurisdiction, by direct appeal from or writ of error to the trial court, of a case in which the validity of a municipal ordinance is involved and in which the trial judge certifies that in his opinion the public interest requires such direct review, yet this court does not have jurisdiction, by such direct appeal or writ of error, of a case in which the question to be determined is merely the construction, and not the validity, of a municipal ordinance. Practice act, sec. 118; Village of LaGrange Park v. Jarecki,
The instant writ of error was sued out prior to the enactment of section 3a of the Zoning law, (Laws of 1925, p. 244,) which provides: "Appeals shall lie to and writs of error from the Appellate or Supreme Court to review the final orders, judgments or decrees of the court. Appeals or writs of error in this section allowed shall be subject to the limitations of 'An act in relation to practice and procedure in courts of record,' approved June 3, 1907, as amended." Plaintiff in error, however, contends that a property right is here asserted, and that when personal liberty or a property right is involved in a cause and no specific review of the particular proceeding, or right thereto, is provided by statute, a writ of error is available as a constitutional or common law right. A writ of error is a writ of right by the common law and may be prosecuted in all cases involving liberty or property rights unless prohibited by statute. (State of Illinois v. Ajster,
Both the right here asserted and the provisions for its enforcement were unknown to the common law. The right and the remedy were created solely by statute since the adoption of the present constitution. The jurisdiction of the circuit court in the instant case was exercised in conformity with the statute and not according to the course of the common law. The proceeding was a special statutory one. It was neither a suit at law nor in equity within the meaning of section 91 of the Practice act. It follows that the judgment of the circuit court is not reviewable either by appeal or writ of error. In rePetition of Forbes, supra; People v. Emmerson, supra;Christensen v. Bartelmann Co. supra; Myers v. Newcomb SpecialDrainage District,
The plaintiff in error, however, argues that if the judgment of the circuit court had been adverse to the property owner he would have suffered the deprivation of a property right enabling him to prosecute a writ of error, and that if *630
the writ was available to him it Would necessarily be available to both parties, and Sweeney v. Chicago Telephone Co.
The writ of error must be dismissed for want of jurisdiction.
Writ dismissed.
Mr. JUSTICE DUNCAN, dissenting.
*11