City of Elmhurst v. Buettgen

• Decision Date: 12 September 1946
• Docket Number: No. 29444.,29444.
• Citation: 394 Ill. 248,68 N.E.2d 278
• Parties: CITY OF ELMHURST v. BUETTGEN.
• Court: Illinois Supreme Court

394 Ill. 248

68 N.E.2d 278

CITY OF ELMHURST

v.BUETTGEN.

No. 29444.

Supreme Court of Illinois.

May 21, 1946.

Rehearing Denied Sept. 12, 1946.

Appeal from Circuit Court, Du Page County; Charles A. O'connor, judge.

William J. Buettgen was convicted of violating a city ordinance prohibiting all persons from driving a motor vehicle over any sidewalk, and he appealed to the circuit court, claiming that the ordinance was invalid. From a judgment of the circuit court finding him guilty, the defendant appeals.

Judgment affirmed.

Edgar F. Thoma, of Elmhurst, for appellant.

Lawrence C. Traeger, of Chicago, for appellee.

THOMPSON, Chief Justice.

The appellant, William J. Buettgen, was tried, convicted, and by way of punishment, subjected to a fine of $5, in the police court of the city of Elmhurst, upon a complaint filed therein charging the violation by him of an ordinance of that city, prohibiting all persons from propelling or driving any motor vehicle over any sidewalk. He appealed to the circuit court of Du Page county. In the latter court, relying on the alleged invalidity of the ordinance, he stipulated that he did drive a motor vehicle, known as a motor truck, over a sidewalk in the city of Elmhurst, as charged in the complaint. The circuit court found him guilty. Judgment was entered against him for $5 and costs. The trial judge certified that the validity of a municipal ordinance was involved and that the public interest required that a direct appeal be taken to this court.

The ordinance in question was adopted by the city council of Elmhurst in 1924, and, so far as pertinent herein, reads as follows: ‘That no person or persons shall push, propel or back any wagon, horse, cart or bicycle or motor vehicle or other vehicles, over any sidewalk, curb or grading, or use, lead, ride or drive any horse or other animal, wagon, sled or sleigh or other vehicle over or thereon.’

Appellant claims that the ordinance impairs the right of access which owners of property bordering upon a street have as an incident of their ownership, thereby violating the constitutional provision that no person shall be deprived of liberty or property without due process of law, and that the ordinance is so broad and inclusive in its prohibition of the use of the sidewalks that it is unreasonable and void. He argues that the ordinance, when strictly construed as he contends it must be, prevents an abutting property owner from driving his car to and from his garage and the street, and is so unequivocally sweeping in its provisions that it clears the sidewalks of everything from toy wagons to heavy trucks, and from horses to pet dogs, and would prevent a mother from wheeling her baby carriage, her husband from walking his dog, or her child from riding his velocipede upon the sidewalks without incurring criminal liability.

The claim that the ordinance deprives an abutting property owner of access to his property by automobile is based on the assumption that an abutting property owner has an absolute right of access, by automobile or otherwises, to his property by way of the sidewalk, which right cannot be limited or impaired, and the further assumption that the word ‘sidewalk,’ as used in the ordinance, must be constructed to include driveways intersecting the same.

The streets and sidewalks of a city are held in trust by the municipality for the use of the public, for purposes of travel and as a means of access to and egress from property abutting thereon. The primary right to the use of the streets and sidewalks of a city of the purposes of travel belongs to the public everywhere, and not to the abutting property owners alone. The general public has the paramount right to the use of the streets in all their parts, including the sidewalks thereon. That right is the right of all persons, whether abutting property owners or residents or nonresidents of the municipality, to pass over it freely and without impediment whenever they have occasion or desire to do so. It is not an absolute right in every or any person at all times or under all circumstances, but is subject to such incidental or partial restriction or obstruction as manifest necessity may require. An abutting property owner has the right, for the convenience of his property, to make all proper and reasonable use of the sidewalk and street not inconsistent with the paramount right of the public.

Article 23 of the Cities and Villages Act grants certain powers to the corporated authorities of municipalities, amoung which are the power to vacate, lay out, establish, open, alter, widen, extend, grade, pave or otherwise improve streets and sidewalks, Ill.Rev.Stat. 1945, chap. 24, par. 23-8, the power to regulate the use of streets, Ill. Rev.Stat. 1945, chap. 24, par. 23-10, the power to regulate the use of sidewalks, Ill.Rev.Stat. 1945, chap. 24, par. 23-20, and the power to regulate traffic upon the streets and sidewalks, Ill.Rev.Stat. 1945, chap. 24, par. 23-27. There can be no question but that the title to all streets and sidewalks is vested in the city in trust for the public, and under the above provisions of the Cities and Villages Act they are under the control, supervision and dominion of the corporate authorities of the city for the purpose of preserving them and promoting their...