City of Carbondale v. Van Natta

MR. JUSTICE GOLDENHERSH,

dissenting:

I dissent. This decision demonstrates the validity of Mr. Justice Frankfurter’s comment that “*** use of legislative history must not swallow the legislation so as to give point to the quip that only when legislative history is doubtful do you go to the statute.” (Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 543.) In my opinion the explicit provisions of section 11 — 13—1 of the Municipal Code (III. Rev. Stat. 1973, ch. 24, par. 11 — 13—1) require affirmance of the judgment of the appellate and circuit courts.

The majority concludes “that there was no legislative intent to limit the power to establish setback lines to within the boundaries of the municipality” and that the clearly stated limitation contained in section 11 — 14—1 (111. Rev. Stat. 1973, ch. 24, par. 11 — 14—1), incorporated by reference in 11 — 13—1, was intended “to give existing users the same protection under 11 — 13—1 as they enjoyed under 11 — 14—1 by in effect incorporating from section 11 — 14—1 the statement that:

“ **** The powers given by this Division 14 shall not be exercised so as to deprive the owner of any existing property of its use or maintenance for the purpose to which it is then lawfully devoted.’ ” (Slip opinion, page 4.)

This is difficult to understand in view of the fact that section 11 — 13—1 provides:

“In all ordinances passed under the authority of this Division 13, due allowance shall be made for existing conditions, ***. The powers conferred by this Division 13 shall not be exercised so as to deprive the owner of any existing property of its use or maintenance for the purpose to which it is then lawfully devoted, ***.”

An examination of the statutes shows that it was clearly the legislative intent that the power to establish setback lines be exercised only within the boundaries of the municipality. Section 11 — 13—1 provides that corporate authorities have the following powers:

“(1) To regulate and limit the height and bulk of buildings hereafter to be erected; (2) to establish, regulate and limit, subject to the provisions of Division 14 of this Article 11, the building or set-back lines on or along any street, traffic-way, drive, parkway or storm or floodwater runoff channel or basin; (3) to regulate and limit the intensity of the use of lot areas, and to regulate and determine the area of open spaces, within and surrounding such buildings; (4) to classify, regulate and restrict the location of trades and industries and the location of buildings designed for specified industrial, business, residential, and other uses; (5) to divide the entire municipality into districts of such number, shape, area, and of such different classes (according to use of land and buildings, height and bulk of buildings, intensity of the use of lot area, area of open spaces, or other classification) as may be deemed best suited to carry out the purposes of this Division 13; (6) to fix standards to which buildings or structures therein shall conform; (7) to prohibit uses, buildings, or structures incompatible with the character of such districts; (8) to prevent additions to and alteration or remodeling of existing buildings or structures in such a way as to avoid the restrictions and limitations lawfully imposed under this Division 13; and (9) to classify, to regulate and restrict the use of property on the basis of family relationship, which family relationship may be defined as one or more persons each related to the other by blood, marriage or adoption and maintaining a common household.
The powers enumerated may be exercised within the corporate limits or within contiguous territory not more than one and one-half miles beyond the corporate limits and not included within any municipality.”

Section 11 — 14—1 provides:

“In addition to existing powers and to the end that adequate light, pure air, or safety may be secured and that congestion of public streets may be lessened or avoided, the corporate authorities in each municipality have power by ordinance to establish, regulate, and limit the building or set-back lines on or along any street, traffic way, drive, or parkway or storm or floodwater runoff channel within the municipality, as may be deemed best suited to carry out these purposes. The powers given by this Division 14 shall not be exercised so as to deprive the owner of any existing property of its use of maintenance for the purpose to which it is then lawfully devoted.”

Only with respect to setback lines did the General Assembly provide that the power granted was subject to 11 — 14—1. I submit that no amount of legislative history will serve to create an ambiguity in these explicitly stated statutory provisions.

• Further, the majority, as “a question introduced by the City in rebuttal during oral argument”, holds that the provision of section 11 — 13—1 that “This amendatory Act of 1971 does not apply to any municipality which is a home-rule unit” creates “an unconstitutional classification and is void.” Slip opinion page 5.

We have previously held that under the doctrine of legislative supremacy over municipal corporations a municipal corporation may not assert the protection of the due process clause against the action of the State government (Supervisors of the County of Boone v. Village of Rainbow Gardens, 14 Ill.2d 504), and that a municipal corporation has no standing to challenge legislative enactments on the ground that they result in an unreasonable classification. (Meador v. City of Salem, 51 Ill.2d 572.) I have searched in vain for any authority that supports the conclusion of the majority, reached apparently without consideration of our prior decisions and with no attempt made to distinguish them or suggest that they are overruled.