Cicero Lumber Co. v. Town of Cicero

• Decision Date: 24 October 1898
• Citation: 51 N.E. 758,176 Ill. 9
• Parties: CICERO LUMBER CO. v. TOWN OF CICERO et al.
• Court: Illinois Supreme Court

176 Ill. 9

51 N.E. 758

CICERO LUMBER CO.

v.TOWN OF CICERO et al.

Supreme Court of Illinois.

Oct. 24, 1898.

Appeal from circuit court, Cook county; O. H. Horton, Judge.

Suit by the Cicero Lumber Company against the town of Cicero and another. From a decree dismissing the original, amended, and supplemental bills at complainant's costs, it appeals. Reversed.Whitehead & Stoker and Cutting, Castle & Williams, for appellant.

Geo. B. Finch and F. W. Pringle, for appellees.

The original bill in this case was filed by the appellant on June 9, 1896, against the town of Cicero and Lewis E. Hansburry, captain of police of the town of Cicero, to enjoin the prosecution of appellant's teamsters by the officers of said town for violations of the town ordinance prohibiting traffic teams upon Austin boulevard. The bill alleges that appellant is a corporation having its place of business in the town of Cicero, and is a citizen and taxpayer of that town, and engaged in dealing in lumber and other building material; that its lumber yard is located on Central avenue, in said town, just south of, and adjacent to, the Wisconsin Central Railroad; that Central avenue is a street running north and south from the north line of the town to Twenty-Second street, which latter street runs east and west through the town, and about a mile and a half south of complainant's place of business; that Central avenue, at the time of the location of appellant's yards at the place above mentioned, was a well-improved street, which fact influenced appellant in locating its yards at that place; that appellant is obliged to deliver lumber and other building material, sold by it, by teams and wagons, and to load its wagons heavily; that it cannot conduct its business except by using paved or improved streets; that the soil in Cicero is of such a character that roads suitable for heavily loaded wagons cannot be made from it; that appellant, with other citizens of the town engaged in business similar to appellant's business, and doing business in that neighborhood, have expended large sums of money in improving Central avenue; that the town of Cicero is engaged in building a sewer 6 feet in diameter on Central avenue, and in building the same is digging a trench from 18 to 20 feet deep, and is depositing the materials taken from such trench on the roadway of Central avenue, and thereby destroying said roadway; that said sewer has progressed to a point on said avenue about half a mile south of appellant's place of business, and, as it proceeds north, will pass the same, and obstruct all means of access thereto from Central avenue; that a short distance north of appellant's place of business is the embankment of an old, abandoned railroad, which is graveled, so as to make an excellent roadway from a point near appellant's yards to Austin avenue or boulevard for heavy teaming; that appellant has made arrangements with the proprietors of said embankment to use the same from its yards to Austin avenue; that Austin avenue is an improvedhighway, extending north and south, and located about half a mile west of appellant's place of business; that there is no street between Central avenue and Austin avenue running north and south, so as to give appellant an outlet from its place of business, and that there is no street running east and west from Central avenue between Madison street and Twelfth street; that Austin avenue has been a public highway, and was such for more than 20 years prior to January 16, 1892, and as such highway was open and used for ordinary travel, passage, and traffic without distinction; that along the line of certain railroads south and north of appellant's business are certain villages where public and private improvements have been carried on, and that the principal part of appellant's business consists of selling and delivering lumber and other material to be used in these improvements, whereby appellant makes large profits; that, prior to the digging of the said sewer, appellant used Central avenue as a means of access to its lumber yards, and thereby reached said villages in connection with certain streets running east and west; that since Central avenue has become impassable appellant has been obliged to use Austin avenue.

The bill then alleges that, on January 16, 1892, the board of trustees of said town, acting under an act of the legislature entitled ‘An act to provide for pleasure driveways in incorporated cities, villages and towns,’ approved March 27, 1889, passed an ordinance ordaining that Austin avenue, from the north line of Twenty-Second street to the south line of Morgan boulevard, in the town of Cicero, be ‘designated as a public driveway to be used for pleasure driving only, pursuant to the statute in such case made and provided,’ which ordinance did not prohibit traffic teams thereon, nor impose any penalty for the violation thereof; that on May 23, 1896, said board of trustees passed an ordinance, entitled ‘An ordinance in reference to Washington boulevard and Austin boulevardin the town of Cicero,’ in and by which last-named ordinance it is provided, among other things, as follows: ‘All persons are also forbidden to solicit patronage for any vehicle for hire upon either of the said boulevards; to drive or to take any omnibus or heavy public vehicle, or any traffic vehicle, whether propelled by man, animal or other power, upon either of the said boulevards, except private wagons conveying families, or upon special permission of this board;’ which ordinance also imposed a penalty of from $5 to $100 for each violation of its provisions. The bill further alleges that by said act of 1889 the powers therein conferred upon cities, villages, and towns shall only be exercised when the corporate authorities thereof are petitioned thereto by the owners of more than two-thirds of the frontage of land fronting upon said proposed pleasure driveway; and that no petition was ever presented to said board of trustees, asking that said Austin avenue be designated as a pleasure driveway between the termini mentioned in the ordinances above named, as required by said act; and that said board were without authority and power to pass said ordinances, and that the same are void. The bill further charges that the act of 1889 above named is unconstitutional and void upon the alleged ground that Austin avenue was, for 20 years prior to its passage, a public highway, open for travel of all kinds for which highways are used, and that thereby the right so to use the same was vested in all the citizens of Illinois, and particularly the citizens of said town; that the legislature was without power to devest any of said citizens of such vested right; and that such act is in conflict with sections 2, 13, art. 2, of the state constitution, and therefore void. The bill further alleges that appellant for many years has conducted a profitable business, and spent a large amount of money in building houses on its yard, and occupyingthe same for business, and in purchasing teams and wagons, and that the only way now open to it for the delivery of material which it sells is by way of Austin avenue and the said abandoned railroad embankment; that, if it is not permitted to use Austin avenue, its business will be completely ruined, and the money invested by it lost, and it will suffer irreparable injury; that, by said ordinances, traffic teams, like those used by appellant, are prohibited from traveling upon said Austin avenue, and a penalty is imposed on all persons violating the provisions of said ordinances; that the police authorities of said town have arrested appellant's employés driving its traffic teams on Austin avenue, and put appellant to great loss, inconvenience, and damage; that about May 23, 1896, the police officers of said town arrested six of the employés of the appellant for driving traffic teams on said avenue, and afterwards abandoned their prosecution; that, after the passage of the ordinance of May 23, 1896, said police officers have arrested three of appellant's employés for driving traffic teams on Austin avenue; and the prosecution of said arrests has been continued at tht request of the town to June 10th. The bill further alleges that there are many persons in the same situation as that of the appellant; that the enforcement of said penalties will affect a great many of such persons; that the prosecutions for the violation of said ordinances will result in a multiplicity of suits, not only against appellant, but also against many other persons; that the officers and police authorities of said town threaten to further enforce said penalties, and arrest appellant's employés, when found violating the provisions of said ordinances; that, if said threats are carried into effect, irreparable loss and injury will be sustained by appellant, and there will thereby result a multiplicity of suits against appellant and its employés, which will greatly injure it, and against which it has no adequate remedy at law. The bill furthermore alleges that the liability,if any, for such prosecutions, rests on the individuals claiming the right to enforce said ordinances and penalties, and who, in fact, enforce the same.

On June 10, 1896, the appellees entered their appearance, and filed a general and special demurrer to the bill, and a number of affidavits in opposition to the motion for an injunction. The motion for an injunction was referred to a master in chancery. On June 13, 1896, an amendment was filed to the bill, setting up that by the terms of the ordinance of May 23, 1896, it was ordained by the town that Austin boulevard should be used for pleasure drives only, and that all persons were forbidden to take any omnibuses or heavy public vehicle or any traffic vehicle, whether propelled by man, animal, or other power, upon said boulevard, except upon the special permission of said board of trustees, and that any person violating...