Appeal from the Municipal Court of Chicago; the Hon. CASIMIR
V. CWIKLINSKI, Judge, presiding. Reversed.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
This appeal is taken by Donald Ballinger, a defendant, from an order and judgment entered in the case on July 3, 1962 in the Municipal Court of Chicago. The defendant was found guilty. A judgment against the defendant for $100 and costs was entered.
The statement of claim of the City of Chicago is in six counts and charges that the defendant as the instalment land contract purchaser of a three-story frame building located at 7201 South Princeton Avenue, Chicago, and one Edwin Sobol, as contract seller of said property, violated certain ordinances of the City of Chicago. Count one charges a violation of sections 78-3, 78-10.2 and 51-1.2 of the Municipal Code of Chicago, in that the defendants "failed to deconvert building from its present occupancy to its original layout and construction as a single family residence or comply with the following: (A) Discontinue the use of the attic as an apartment and remove all nonload bearing partitions to restore attic to its original use as a storage area." Counts two, three, four, five and six charge violations of sections 78-3, 78-10.2, and 52-2, in that the defendants failed to provide adequate fire resistive enclosures in various areas of the building. *fn1 The complaint prayed the court to enter a fine of $1,200.
The case was tried by the court without a jury. The court found both defendants guilty as charged. Defendant Sobol was fined $200 and $10 costs. Defendant Ballinger was fined $100 and $10 costs. From the judgment Ballinger takes this appeal.
An action to recover a penalty for a violation of a municipal ordinance is not a criminal action but a civil suit, and the rules of civil procedure apply. City of Chicago v. Schlensky, 339 Ill. App. 648, 91 N.E.2d 640; City of Chicago v. Knobel, 232 Ill. 112, 83 N.E. 459. In accordance with the usual practice of cases of this type the defendant filed no formal answer. However, the uncontradicted testimony shows that the defendant, after receiving notice from the city directing that the alleged offenses in the interior use and construction of the building be corrected, obtained a contractor's estimate of $3,600 for the alterations which would be necessary in order to comply with the notice. Application was then made to the building department for a permit to undertake such alterations. The permit was denied on the ground that the third floor apartment must be "deconverted" and returned to what the city contended was its "original layout" as attic space. This narrows the issues. First it is necessary to determine whether or not under the applicable ordinances it was necessary for the plaintiff to abandon the use of the third story of the building as a dwelling unit. If the court finds that it was not necessary, then it was the duty of the trial court to discharge the defendant under count one, and since the city had refused a permit to correct the other violations, he should also be discharged on all the other counts of the statement of claim.
The city in this court takes the view that it has power to order the deconversion of defendant's building in one of two ways: (1) by terminating use of the structure as it presently exists, cut up into separate apartment units, and reverting to the alleged original condition of the structure as a single family dwelling, or (2) by ordering that the defendant discontinue use of the third floor and restoring it to its alleged original use as attic space.
With respect to the contention of the city that it may compel the use of defendant's building as a single family residence, this court has not been referred to any zoning ordinance which prohibits multiple family dwelling units in the area of the city in which defendant's structure is located. No zoning question arises in the case.
While the trial court stated at the close of the hearing that it found the defendants guilty on all counts of the complaint, the judgment order entered in the case against defendant Ballinger stated that the court found the defendant guilty of a violation of "the ordinance described in the complaint herein," and it contained this further statement: ". . . the plaintiff have and recover of and from said defendant a fine in the sum of One Hundred Dollars ($100) in form as aforesaid assessed. . . . And it appearing to the Court that said fine accrued to the plaintiff in consequence of the violation by defendant of the ordinance of the plaintiff described in the complaint section herein (known as 78-3). . . ." Section 78-3 provided that all existing buildings must be kept and maintained in conformity with the applicable provisions of the code so as to eliminate conditions hazardous to the public health and safety.
In the trial of the case a building inspector for the City of Chicago testified. He stated that he had visited the premises, and he characterized the building as a two-story wooden frame building with an attic, the entire building containing six separate apartment dwelling units. He stated that he concluded from his observation that the building was about sixty years old and had been originally constructed as a single family residence. On cross-examination he stated that his testimony that the building was originally a single family dwelling was a conclusion on his part, and that he did not know of his own knowledge that the building was put to a single family dwelling use in 1890 or 1920, and that it is a fact that the zoning board map does not show the building to be a single dwelling unit in 1920. He further testified that the interior of the structure had been altered by the addition of stairwells and partitions in order to create separate apartment units. He further testified that the partitions enclosing stairwells and corridors, by which means a conversion had been effected, were of masonite and at least twenty-five years old. He stated that he "guessed" that the fire resistance quality of masonite is about ten minutes and that the current building code requirements provide that partitions of the type incorporated in the defendant's building should provide fire resistance of at least one hour.
The question of the number of stories in the defendant's building is a matter of controversy. The building inspector on cross-examination described a "third floor" and a "third floor apartment" with its own separate entrance and exit and with separate bathroom facilities. Furthermore he conceded that there was an attic area above the third floor apartment. This testimony is not in accord with the city's contention that the defendant's building is only two stories in height plus an attic area. Photographs of the building appear in the record and they indicate that the building is a three-story building with an attic.
Defendant Ballinger testified that the building is a three-story structure with an attic extending above the third story to a height of twelve feet. He further stated that the third floor apartment had been rented out by him as a separate unit since he purchased the building in 1957, and that the apartment has three rooms; a front or living room, a bedroom, a kitchen, and bathroom with private bath and full plumbing facilities. He testified that except for the refusal of the city to grant a permit concerning the alleged deficiencies relating to interior partitions and stairwell enclosures and the like, he would have corrected them, and that he was now prepared to correct these alleged deficiencies.
The city primarily relies on section 51-1.2 as governing the disposition of this appeal. That section states that no building shall be hereafter erected or altered to exceed the maximum allowable heights established in Table 51-1.2. Table 51-1.2 is a listing of maximum allowable heights in relation to certain types of buildings, and there is no question that the defendant's building falls into the classification set out in section 49-5 of the Municipal Code which describes ". . . that construction in which the structural elements, including enclosing walls, are entirely or in part of wood or other materials not more combustible than wood." According to Table 51-1.2 the maximum height for a structure of this classification is thirty feet, or alternatively, two stories plus an attic to be used for storage purposes only. The city here takes the position that section 51-1.2 is a fire protection regulation and for this reason may be applied retroactively to defendant's building. A presumption exists that the legislature intends that statutes enacted by it shall operate only prospectively. Pratt v. Hayes, 20 Ill. App.2d 457, 156 N.E.2d 290; Barnett v. Barnett, 336 Ill. App. 601, 84 N.E.2d 648; People v. Capo, 393 Ill. 342, 65 N.E.2d 777. In the absence of express language declaring otherwise, statutes will not be construed so as to give them a retroactive operation unless the language of the statute is so clear as to admit of no other construction. People ex rel. Schmidt v. Yerger, 21 Ill.2d 338, 172 N.E.2d 753; McQueeney v. Catholic Bishop of Chicago, 21 Ill. App.2d 553, 159 N.E.2d 43. This same rule applies to ordinances.
It is apparent from the evidence that the building is one which would be classified as a pre-ordinance building under the provisions of chapter 78. Section 78-2(b) provides: "Pre-Ordinance Building. Every existing building, structure or part thereof which was completed, or for the construction of which a permit was issued prior to the effective date of this ordinance." The effective date of the ordinance was December 30, 1949.
Meyer Cohn testified that he knew that the third floor apartment had been rented out as a separate rental unit during the entire time Mr. Sobol owned the property from 1949 to 1957. An exhibit was offered which was the closing statement concerning the sale of the property on August 19, 1949 by Schwartz to Sobol, and it showed that one Gertrude Rollo was the tenant of the third floor apartment at that time. Defendant also offered in evidence a registration statement filed with the Office of Rent Control in Chicago on July 28, 1947, which would show Gertrude Rollo as the tenant of the apartment on the third story of the building. Neither of these exhibits was admitted, ...