Bowes v. City of Chicago

• Decision Date: 24 May 1954
• Docket Number: No. 33122,33122
• Citation: 120 N.E.2d 15,3 Ill.2d 175
• Parties: BOWES et al. v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

Page 15

120 N.E.2d 15

3 Ill.2d 175

BOWES et al. v. CITY OF CHICAGO et al.

No. 33122.

Supreme Court of Illinois.

May 24, 1954.

John J. Mortimer, Corp. Counsel, Philip A. Lozowick, and Ross & O'Keefe, Chicago (James A. Velde, Robert J. Nolan, Chicago, Ray Gerrett, Jr., Evanston, James G. O'Donohue, Harry R. Posner, and George J. O'Grady, Chicago, of counsel), for appellants.

Walter B. Wolf, Edward R. Johnston, and Thomas I. Underwood, Chicago (Philip W. Tone, Chicago, of counsel), for appellees.

HERSHEY, Justice.

This is an appeal from an order of the circuit court of Cook County granting the plaintiffs-appellees a permanent injunction enjoining and restraining the defendants-appellants from constructing a water filtration plant in Chicago harbor. Hereafter in this opinion the parties will be referred to as they were designated in the circuit court of Cook County. The case comes to this court on appeal on the grounds that the validity of a statute, the construction of the constitution and the validity of a municipal ordinance are involved.

In the action below the plaintiffs sought to enjoin the city of Chicago from constructing a water filtration plant in Chicago harbor. The plaintiffs also sought to enjoin the Chicago Park District from consenting to such construction and to enjoin the defendant Great Lakes Dredge & Dock Co., a corporation, which had a contract with the city for some preliminary construction, from performing under said contract with the city. The water filtration plant under the proposed plans for construction was to be located in an area lying north of Navy Pier in the northerly half of the outer basin of Chicago harbor and of Harbor District No. 1 of the city of Chicago, the south line of this site being a line parallel with the 400 feet north of the north line of Navy Pier. The proposed plant has an area, at the surface of Lake Michigan, of approximately 61 acres. The highest structure of the plant is to be 62 feet above the water level of the lake. The southwest corner of the proposed site is 500 feet from Lake Shore Drive and the northwest corner is 1550 feet from the drive. The indicated cost of construction is $85,000,000.

The many plaintiffs in this proceeding are grouped into four different categories: (1) a group of persons suing as citizens of the State of Illinois; (2) a group of persons suing as the owners of real estate and as taxpayers thereon, and also some fourteen of said group suing as water rate payers; (3) a group of persons, four in number, claiming to have contract and property rights the would be damaged by the construction of the filtration plant; and (4) two associations suing in furtherance of the interests of their members.

The trial court dismissed for want of equity the complaint with respect to groups (1) and (4). No appeal has been taken to this court from such dismissal. As a result of such ruling the only plaintiffs appearing in this court are those denominated as groups (2) and (3).

The group of plaintiff suing as taxpayers are 43 separate owners of real estate in the city of Chicago, each of whom joins in this action by reason of ownership of and payment of general taxes extended against real estate located in the city of Chicago. It is contended by this group of plaintiffs that while the city proposed to build the filtration plant solely from water funds and the proceeds of waterwords certificates of indebtedness and not from general funds, the city did, however, obligate the general funds to a certain degree. The permit issued by the Secretary of the Army to the city of Chicago provided in paragraph 6 thereof, 'that if future operations by the United States require an alteration in the position of the structure or work herein authorized, or if, in the opinion of the Secretary of the Army, it shall cause unreasonable obstruction to the free navigation of said water, the owner will be required, upon due notice from the Secretary of the Army, to remove or alter the structural work or obstructions caused thereby without expense to the United States, so as to render navigation reasonably free, easy, and unobstructed; and if, upon the expiration or revocation of this permit, the structure, fill, excavation, or other modification of the watercourse hereby authorized shall not be completed, the owner shall, without expense to the United States, and to such extent and in such time and manner as the Secretary of the Army may require, remove all or any portion of the uncompleted structure or fill and restore to its former condition the navigable capacity of the water course.' It is thus contended by this group of plaintiffs that at some future date the city may be required at its own expense to remove the entire filtration plant and restore the harbor to its original state. Moreover, the permit is to expire on December 21, 1955, and if at that time the city has not completed the filtration plant it will be required to remove all or any portion of the uncompleted structure and restore the harbor to its former condition. It is further required in the permit, by paragraph 12 thereof, that whenever commercial navigation requires and at the request of the district engineer the city of Chicago must dredge the approach channel and slip indicated on the permit. Furthermore, paragraph 13 of the permit requires the city of Chicago, when requested by the district engineer, to reimburse the corps of engineers in the amount of 25 percent of any expense involved in dredging shoals caused by accretion to the entrance channel between the gap in the outer breackwater and the lock in the mouth of the Chicago River. These plaintiffs further point out that if the water fund were large enough to cover these expenditures, the city would be powerless to use the fund for that purpose. The Revised cities and Villages Act expressly limits expenditures from the water fund to paying (1) the cost of maintenance and operation of the waterworks system, (2) obligations of the municipality theretofore issued that are payable by their terms from this revenue, and (3) certificates issued under certain other sections of the Revised Cities and Villages Act. (Ill.Rev.Stat.1953, chap. 24, pars. 22-28.) Clearly, therefore, expenditures made by the city, in pursuance of the above mentioned paragraph of the Federal permit, would necessarily have to be made from the general fund of the city of Chicago. This court stated in the case of Price v. City of Mattoon, 364 Ill. 512, 4 N.E.2d 850, that taxpayers were not proper parties to question the legality of a bond issue of the city of Mattoon, issued for the purpose of buying the water system of the local utility company and to start construction of a softening and filtration plant, for the reason that the bond issue was to be financed solely out of revenue derived from the sale of water to consumers and not out of any tax or taxes levied. The court stated that the purchase under such circumstances created no liability against the general funds of the city and no special liability on the city. Therefore, inasmuch as the purchase of the supply plant in the above matter would not result in the use of the taxpayers' money, the complainants had no right to enjoin the carrying out of the ordinances as taxpayers nor did they have such right as citizens to intervene to prevent an injury to purely public rights or property when none of them suffered a special or irreparable injury different in degree and kind from that suffered by the public at large. The court further stated that even though by some unforeseen contingency arising in the future the city might be required to make up a deficiency in public funds such speculative possibility could give no comfort to those plaintiffs, for in the matter at issue neither a debt nor a public fund of the city was directly or contingently involved.

In the situation at hand it is the general fund of the city of Chicago that is involved. Moreover, this is not a case of an unforeseen contingency arising in the future. Upon entering into the construction of any part of this filtration plant the city became liable upon all of its obligations under the Federal permit issued previous thereto, and there is a distinct foreseeable possibility that the city may be required to expend general funds in compliance with those provisions. The city has assumed an immediate and irrevocable liability by its action under the Federal permit. It is no less immediate and irrevocable because the city may conceivably never be compelled to make payments in fulfillment of some of these obligations. It is the right to a taxpayer to prevent misappropriation of public funds and the right is based upon the ground that taxpayers are considered owners of the property of the municipality, and whenever public officials threaten to pay out public funds for an unlawful purpose or to misappropriate public funds and thereby cause taxes to be levied to make good the misappropriation equity will prevent such unauthorized act. Dudick v. Baumann, 349 Ill. 46, 181 N.E. 690. These taxpayers therefore have a perfect right to seek a determination of whether the construction would be illegal and would entail a possible misapplication of general tax funds.

Fourteen of the plaintiffs embraced here in group (2) are water rate payers. They claim that as users of water for which they pay they, too, have a right to maintain the action here. The basis of their claim is that they have a special interest in the water fund of the city of Chicago because they contributed by their payment for water to that fund and have a special interest therein. They claim that if the filtration plant is constructed it will result in a substantial increase in water rates. In Price v. City of Mattoon the plaintiffs sued not only as taxpayers but also as water rate payers seeking to enjoin the purchase of the water supply system. This court there held that as water rate payers the...