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City of Chicago v. Nielsen

OPINION FILED MAY 17, 1976.

THE CITY OF CHICAGO, PLAINTIFF-APPELLEE,

v.

JENS P. NIELSEN ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. FELIX M. BUOSCIO, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

S.A.S. Co., a corporation (defendant) appeals to this court from a decree directing it to demolish a piece of improved residential real estate owned by it on the south side of the City of Chicago. In this court, defendant urges that the decree for demolition was beyond the authority of the City to obtain and of the court to enter; the City is estopped from proceeding against defendant and the City is not entitled to equitable relief. The City responds that the decree was within the scope of general chancery powers and consistent with the applicable statute; defendant has not shown estoppel by clear and unequivocal evidence and estoppel cannot apply where the acts relied upon were performed by a municipal officer acting outside the scope of his statutory authority. The applicable facts will be stated in connection with the discussion of each contention.

The property is an apartment building containing about 26 units in three stories with a basement, commonly known as 1304-1306 East 70th Street and 6957-6967 South Kimbark Avenue. Defendant acquired title to the real estate on January 31, 1973, or February 1, 1973, and operated the property for about one month.

On February 22, 1973, the City filed a complaint for demolition of the property and other relief. The only defendant to the cause was Jens P. Nielsen. Defendant had acquired its interest in the property by deed from Nielsen issued after a sale of the property for failure to pay general taxes. The complaint alleged a great many defects in the building which were described as serious and as having a potential effect upon the health, welfare and safety of the occupants. These defects, stated in detail, included presence of lead or lead compounds on interior walls; defective or missing members of a porch system; lack of means for garbage and refuse removal; broken or missing window panes; need to replaster walls and ceilings and need to remove defective and dangerous carpeting in the halls.

Count I of the complaint prayed for imposition of a fine against defendant. It alleged that the proceeding was brought pursuant to designated sections of the revised statutes. Count II of the complaint alleged the need for injunctive relief and that the Commissioner of Buildings of Chicago had determined that the property was dangerous and unsafe. The complaint prayed for injunctive relief, for an order authorizing demolition of the improvements by the City with a personal judgment against defendant and a lien upon the real estate for the cost thereof, and for general relief. On March 30, 1973, defendant was duly made party to the proceedings. On June 26, 1973, the circuit court entered an order for the building to be vacated and for the clerk of the court to issue a writ of assistance for this purpose.

On August 21, 1973, defendant filed an answer to the complaint in which it admitted "that the building is dangerous and hazardous." Affirmative defenses were alleged in the answer to the effect that defendant had made a verbal agreement with an assistant corporation counsel to give a deed to the City. This official stated that the City would accept the property only if there were a pending suit for building violations and the building was vacant. Defendant agreed to these terms and "caused the instant suit to be brought immediately * * *." In reliance thereon defendant caused the building to become vacant. A fire then occurred from unknown origins making the building dangerous and hazardous.

Turning to defendant's initial contention, the pertinent statute provides that (Ill. Rev. Stat. 1971, ch. 24, par. 11-31-1) *fn1:

"The corporate authorities of each municipality may demolish, repair or cause the demolition or repair of dangerous and unsafe buildings or uncompleted and abandoned buildings * * *."

The statute also provides that the cost of such demolition shall be recoverable from the owners of the real estate and shall be a lien thereon with other provisions for enforcement of the lien. Defendant urges that this cause should be controlled by the statute and that the intention of the legislature was to limit the authority of the City "to either demolish unsafe buildings itself or to hire an outside agency to do such work * * *."

The single case cited and relied upon by defendant is Village of Louisville v. Webster (1884), 108 Ill. 414. There, a village ordinance enacted under the authority of the Cities and Villages Act, as it then existed, provided for removal of dangerous property. The statute in question empowered the City to direct that all and any buildings which became damaged to the extent of 50 percent "shall be torn down and removed." The Supreme Court held that the City was limited by this grant of power only to direct that buildings were to be torn down and removed. However, the court expressly pointed out that the statute did not by its terms empower the City "to cause the building to be torn down * * *." 108 Ill. 414, 418.) This appears to us strongly to imply that the court in that case considered the power to cause removal of the building as broader and more inclusive than the power to direct its removal.

• 1 Defendant contends that because the statute was amended after Village of Louisville by omitting the power "to direct" and substituting the power to "cause" demolition, the City is now limited to the power to cause demolition. This argument is based upon the familiar principle that when a statute is amended the legislature thereby intended a result different from what existed prior to such amendment. (Lindley v. Murphy (1944), 387 Ill. 506, 56 N.E.2d 832.) This argument necessarily fails because the statute construed in Village of Louisville was repealed in 1961 (Ill. Rev. Stat. 1961, ch. 24, at 964), and last appeared in the Revised Statutes of Illinois in 1959. (See Ill. Rev. Stat. 1959, ch. 24, par. 23-71.) The completely new statute involved in this appeal was first enacted in 1953. (Ill. Rev. Stat. 1953, ch. 24, par. 23-70.2.) Therefore, the Act with which we are concerned is not an amended version of the statute construed in Village of Louisville, but is a completely new enactment. The earlier statute thus has no bearing upon the intent of the General Assembly in adopting the language at issue here.

• 2 Further, in arriving at the result which we do, that Village of Louisville is not pertinent here, we note also that the grants of legal power to municipal authorities in the former Cities and Villages Act were to be strictly construed with any reasonable doubt to be resolved against the municipality. (City of Chicago v. Santor (1975), 30 Ill. App.3d 792, 795, 334 N.E.2d 176, citing Crerar Clinch Coal Co. v. City of Chicago (1930), 341 Ill. 471, 475, 173 N.E. 484, and other cases there cited.) The statute before us does not empower adoption of implementing ordinances by the City but is, in itself, a grant of power. It is intended to give the City an effective tool for protecting its citizens from the unfortunate and degrading results of substandard and dangerous housing. For this reason a more reasonable rather than a strict construction of the statute would seem to be required.

• 3 It is a familiar rule that where statutory "language is certain and unambiguous, the proper function of the courts is to enforce the statute as enacted. [Citation.] * * * [C]courts will assume that words have their ordinary and popularly understood meaning." (General Motors Corp. v. Industrial Com. (1975), 62 Ill.2d 106, 112, 338 N.E.2d 561; Bovinette v. City of Mascoutah (1973), 55 Ill.2d 129, 133, 302 N.E.2d 313.) The verb "cause" appears to us, as it did to the Supreme Court of Illinois in Village of Louisville, to be somewhat broader than the word "direct." The dictionary defines "cause" in a number of ways including "[t]o lead, induce, make, or compel * * *." (Funk & Wagnalls New Standard Dictionary.) This statutory grant of power should carry with it by clear implication everything necessary to carry out the power and to make it complete and effective. People ex rel. County of Du Page v. Smith (1961), 21 Ill.2d 572, 580, 173 N.E.2d 485.

• 4 This is particularly true when we consider the intent and purpose of this type of legislation. "The purpose of the act is clear. It is to give the city a quick and effective means of removing those unused and dilapidated structures that present danger and blight." (City of Chicago v. James E. Mulligan Enterprises, Inc. (1960), 27 Ill. App.2d 481, 487, 170 N.E.2d 13.) In the case before us it was necessary for the City to use this enactment to protect people who were compelled by financial circumstances to live in blighted areas. Their occupancy of dangerous structures, such as involved in the case before us, creates a clear and present danger to health and to life itself which it is the prime duty of every municipality to attempt to rectify. We ...


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