Appeal from the Circuit Court of Cook county; the Hon.
CORNELIUS J. HARRINGTON, Judge, presiding. Judgment affirmed.
MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.
Plaintiff seeks a determination as to his right to a building permit for the erection of a gasoline filling station with installation of underground tanks for the storage of flammable liquids and oils. The plaintiff's property is located within 200 feet from a hospital for the care and treatment of mental patients. Ordinances regulating the storage and handling of flammable liquids prohibit the location of such storage tanks within 200 feet of a hospital. (Sections 40-8 and section 127-5, Municipal Code of Chicago). The ordinances were held invalid in an earlier proceedings involving the plaintiff's predecessor in title, however, that judgment was subsequently reversed by the Supreme Court on January 22, 1960. (Bulk Petroleum Corporation v. City of Chicago, 18 Ill.2d 383, 164 N.E.2d 42.) The trial judge granted the City's motion to dismiss the complaint on March 31, 1960, and this appeal followed.
The plaintiff's argument is that he has acquired a vested right of non-compliance with the safety ordinances at the time he acquired the property in question. This novel proposition is based on a construction of Section 76(1) of the Civil Practice Act. (Ch. 110, section 76(1), Ill. Rev. Stat.). That section provides that "If an appeal is perfected or allowed more than 20 days after the entry of any . . . judgment . . . the reversal or modification of the . . . judgment . . . shall not affect the right, title or interest in or to any real or personal property of any person, not a party to the action, acquired after the entry of the . . . judgment . . . but before the appeal operates as a supersedeas under the provisions of this Act . . .".
The plaintiff's predecessor in title, Bulk Petroleum Corp., obtained a declaratory judgment on February 20, 1959, in the Circuit Court, which held the ordinances in question invalid. On March 30, 1959, thirty-eight days later, it sold the property to the plaintiff in the instant case, who was not a party to that prior litigation. The City did not file a Notice of Appeal from that adverse judgment obtained by the Bulk Petroleum Corporation until April 20, 1959, fifty-nine days after the judgment, and it wasn't until July 14, 1959, that this Notice of Appeal was made a supersedeas. Consequently, it is argued, the plaintiff's "right" is not affected by the reversal of the judgment in the case of Bulk Petroleum Corporation v. City of Chicago, 18 Ill.2d 383, 164 N.E.2d 42.
The City contends that the "right" in "right, title or interest" is merely an ingredient of the broader term "title" and should not be construed to include a right of non-compliance with a regulatory ordinance pending final determination of its validity. The argument is based on the discussion in the Historical and Practice Notes (Smith-Hurd Ill. Ann. Stat. Ch. 110, section 74, Historical and Practice Notes, by Albert Jenner and Philip W. Tone, pp. 300-302) (McCaskill, Jenner and Schaeffer, Illinois Civil Practice Act Annotated (1933), pp. 283-5), wherein the authors discuss the phrase "right, title or interest" in terms of a title. Insofar as there are no cases construing this particular provision and also because the Notes are particularly illuminating, we will quote at length from the Notes.
"Under the practice prior to January 1, 1934, the effective date of the Civil Practice Act, a transfer of title to third persons, prior to the filing of a writ of error and after the time for appeal, was not affected by a subsequent reversal or modification. This was so even though the purchaser had notice that writ of error had been sued out and even though he had been made a party to the review proceedings, provided, of course, that supersedeas had not been secured. Suing out a writ of error was regarded as the institution of a new proceedings, not a continuation of the proceedings below . . . Where supersedeas was secured prior to the transfer, then the transferee was bound by the subsequent action of the reviewing court.
The rule did not apply to appeal, however, and title could not be transferred pending appeal. The reason was two-fold: (1) an appeal was a continuation of the proceedings below; and (2) an appeal always operated as a supersedeas, since bond was required in all cases and the appeal became perfected when the bond was approved and filed. . . . The same reason did not apply to writ of error because it was a new suit in the court of review, and the proceedings below remained unaffected unless supersedeas was secured. That is, a purchaser was required only to look at the record below. If it appeared that the judgment or decree had become final and the time for appeal had expired, he was permitted to act upon that record alone without being required to take notice of the possibility of the writ of error, since the latter was a new action in another court. . . .
Where the supersedeas was secured under the writ of error, the supersedeas appeared of record in the lower court and not only stayed further proceedings but placed purchasers on notice.
By section 74(1) of the present act the new form of review was expressly made (and remains under the 1955 revision) a continuation of the proceedings in the trial court. Furthermore, by subsection (1) an appeal as of right need not be perfected sooner than 60 days after judgment, with a possibility of appeal by petition within 1 year. Because of this fact title to property would otherwise be tied up for at least 60 days, and in a good many cases there would be doubt for at least a year, with a possibility of an even more extended period in the cases of infants, persons under duress, and those non compos mentis.
In order to avoid tying up property for extended periods, at least as far as third party transfers are concerned, the provisions of this subsection respecting the necessity of promptly securing supersedeas were inserted in the Act of 1933."
The authors also state that "The provision with respect to interests in real or personal property acquired by a person not a party to the action pending appeal and absent a supersedeas, is based upon section 32(a) of the Judgments Act and should be construed with reference to that section. Chapter 77, section 35(a) contains the heading: `Title acquired at sale under judgment or decree Not affected by reversal, modification or setting aside of judgment or decree.'" The expression used in this provision is "right, title and interest." It is clear that this term refers only to "title." The use of "or" and "and" is so frequently inaccurate in statutory enactments that the courts readily change "or" to "and" and vice versa, whenever such conversion is required by the context. 50 Amer. Juris., Statutory Construction, section 282, pp. 267-8. Boyles v. McMurphy, 55 Ill. 236, 239. Since these provisions are to be construed together there is an additional reason for supposing that the legislature intended that the somewhat analogous expression "right, title or interest" should be interpreted to mean "title."
Counsel for plaintiff has cited no cases where the term was construed disjunctively and we know of none. In the absence of clear evidence of the legislative intent to the contrary, we must assume that the provision of section 76(1) was designed to protect the transfer of "title" to third persons, not a party to the action.
The plaintiff acknowledges that his "right" of non-compliance with the safety ordinance is based on the judgment order of February 20, 1959, in favor of Bulk Petroleum Corporation. At the time of the conveyance of the vacant lot, the City still had over 20 days to appeal the judgment invalidating the ordinances, as a matter of right, and the Notice of Appeal had already been filed when the plaintiff applied for the building permit. Under these circumstances, it can hardly be contended that the plaintiff thereby acquired a "vested right" in the continuation of the ruling invalidating the ordinances. It is well settled that a right cannot be regarded as "vested" unless it amounts to something more than a mere expectation of the continuance of the existing law. 11 Amer. Juris., section 370, p. 1199. Neither owner of the subject property could have reasonably expected that the judgment rendered by the lower tribunal would not be appealed. In effect, the plaintiff speculated on a favorable ruling in the reviewing court in the case involving his predecessor in title. The plaintiff's reliance on the earlier ruling and the expenditure made in the purchase of the property does not give him a vested right of non-compliance with the safety ordinances. Persons who contract concerning matters which may be regulated by virtue of the police power of government necessarily enter into their engagement subject to the possible exercise of that power, although it may be latent at the time the agreement was made. 11 Amer. Juris. section 264, p. 1000. It makes no difference whether the issue involves the passage of an ordinance by a municipality or the determination of its validity by the Supreme Court.
The instant case is significantly dissimilar from the case of People v. Morton Grove, Village of, 16 Ill.2d 183, 157 N.E.2d 33, and other cases cited by the plaintiff involving zoning ordinances. The rule there followed was that in the absence of fraud, there is a vested right in a permit, when substantial expenditures and good faith acts have been entered upon by permittee, toward accomplishing the purpose for which the permit was issued. This is the majority rule in the country. Metzenbaum, "Law of Zoning," 2nd ed., Vol. 2, p. 1167. In the case at bar, the plaintiff's application for a permit was denied because the judgment invalidating the ordinances as applied to the property was pending appeal. Although the zoning ordinance permitted the use in question, the plaintiff failed to meet the additional requirements of the safety ordinances relating to the location of the underground storage tanks. The money expended in the purchase of the property from Bulk Petroleum Corporation was therefore not in reliance on a permit, or even on the probability of the issuance of one. Even under the law of zoning, the purchase of land with the intent to use it for a use then permissible under a zoning ordinance, does not prevent the city from changing its zoning ...