149 N.E. 281 | Ill. | 1925
This is an appeal by appellants from a judgment of the circuit court of Cook county ordering the issuance of a peremptory writ of mandamus directing the appellants to issue a permit to appellee for the erection of a garage building upon certain premises described in the judgment. The petition, among other things, set up that on June 2, 1924, an ordinance was adopted by the council of the village of Forest Park by which it was provided that no person should locate, build, construct or maintain any public garage within 500 feet of any building used for a hospital, church, public or parochial school or the grounds thereof, or locate, build, construct or maintain such garage on any lot in any block in which two-thirds of the buildings on both sides of the street are used exclusively for residence purposes, or within 100 feet of any such street in any such block, without the written consent of a majority of the property owners according to the frontage on both sides of *342 the street; that in October, 1924, appellee made application for a permit to erect a building for a public garage; that the real estate upon which he desired to erect the garage was not within 500 feet of any building used for a hospital, church, public or parochial school or the grounds thereof, and that the block in which the property was located was not one in which two-thirds of the buildings on both sides of the street were used exclusively for residence purposes, nor was it within 100 feet of any such street in any such block, but, on the contrary, there was but one residence in the block on either side of the street, and the other buildings in the block were mainly garages, barns, a gas filling station, and other structures not used for residence purposes; that on October 27, 1924, the village council passed an emergency ordinance changing the limit of 500 feet to 750 feet; that the mayor and council of the village declared that they would not issue a permit upon the excuse that appellee's proposed site was less than 750 feet from the nearest church. The petition alleged that the mayor and city council had not the power, right or authority, under the law, to make such regulation, and that the ordinance was at variance with the rights of appellee and the constitution of the State of Illinois. Appellants filed an answer, in which they admitted that the premises described in the petition were not within 500 feet of any building used for a hospital, church, public or parochial school or the grounds thereof, and stated that the premises were located within 525 feet of buildings used as and for a hospital, a church, a public and a parochial school and the grounds thereof. The answer also admitted that the block in which the premises were located was not a residential district. It denied that the ordinance was an unreasonable usurpation of power and denied that it was an arbitrary and unreasonable regulation. Appellee filed a demurrer to the answer of appellants, which, upon hearing, was sustained, and appellants having elected to stand by their answer, it was *343 ordered by the court that a peremptory writ ofmandamus issue.
By virtue of clause 82 if section 1 of article 5 of the Cities and Villages act as it existed prior to 1919, a village was given power to direct the location and regulate the use and construction of garages within the limits of the village. (Rippinger v. Niederst,
In People v. Ericsson,
In the Ericsson case it was held that an ordinance prohibiting the erection of a garage within 200 feet of a church was not unreasonable, for the reason that the conduct of the business of a public garage would be as offensive to the members of a church as it would be to the occupants of a private residence and would affect their comfort and welfare to the same extent. We are of the opinion that an ordinance forbidding the location of a garage within 750 feet of the grounds of a church, irrespective of the character of the particular location of the garage, the size of the church grounds or the distance of the church from the garage, and without any provision for the consent of the authorities of the church sought to be protected, is clearly unreasonable and arbitrary, and therefore void.
The court properly sustained appellee's demurrer to appellants' answer, and the judgment of the circuit court is therefore affirmed.
Judgment affirmed. *345