Greyhound Lines, Inc. v. City of Chicago

• Court: Appellate Court of Illinois
• Writing for the Court: STAMOS; HAYES, P.J., and LEIGHTON
• Citation: Greyhound Lines, Inc. v. City of Chicago, 24 Ill.App.3d 718, 321 N.E.2d 293 (Ill. App. 1974)
• Decision Date: 26 November 1974
• Docket Number: No. 59298,59298
• Parties: GREYHOUND LINES, INC., et al., Plaintiffs-Appellants, Cross-Appellees, v. CITY OF CHICAGO, Defendant-Appellee, Cross-Appellant.

Page 293

321 N.E.2d 293

24 Ill.App.3d 718

GREYHOUND LINES, INC., et al., Plaintiffs-Appellants, Cross-Appellees, v. CITY OF CHICAGO, Defendant-Appellee, Cross-Appellant.

No. 59298.

Appellate Court of Illinois, First District, Second Division.

Nov. 26, 1974.

Edward G. Finnegan, Chicago, for Greyhound Lines, Inc.

George P. Doyle, Indianapolis, Ind., and Wilson & McIlvaine, Chicago, for Nik-O-Loc Co. and Universal Sanitation, Inc.

Richard L. Curry, Corp. Counsel, Chicago, for City of Chicago; Daniel Pascale and Edmund Hatfield, Chicago, of counsel.

STAMOS, Justice:

Plaintiffs Greyhound Lines, Inc., the Nik-O-Loc Company, and Universal Sanitation, Inc. filed a complaint in the circuit court of Cook County seeking a declaratory judgment that a municipal ordinance of the city of Chicago be declared unconstitutional and requesting a preliminary injunction enjoining the enforcement of the ordinance. The preliminary injunction was denied and a full hearing on the merits was conducted. In a written opinion, the trial court declared the ordinance constitutional in all respects but found that compensation was due plaintiffs Nik-O-Loc and Universal and reserved jurisdiction to determine the amount. Plaintiffs appeal, challenging that part of the order finding the ordinance constitutional. Defendant, in its cross-appeal, challenges the finding that compensation is due.

On March 14, 1973, the Chicago City Council adopted an ordinance banning pay toilets in all municipal buildings and buildings open to serve the public. That ordinance is now Section 5.11 of Chapter 66 of the Chicago Municipal Code. The relevant parts of that ordinance provide as follows:

It is prohibited to charge any sum of money for the use of any toilet facility in any municipally owned building or any building that is open to accommodate or serve the public.

As used herein 'building that is open to accommodate or serve the public' shall include the following:

Hotel, motel, inn, department store, restaurant, cafeteria, lunchroom, lunch counter, soda fountain, tavern, motion picture house, theatre, concert hall, sports arena, stadium or other place of exhibition or entertainment, airport, railroad station or terminal, bus station or terminal, clothing store, food store, gas station, garage, bank or office building.

Plaintiff Greyhound owned a bus terminal which contained a number of toilets most of which had coin locks on the stall doors prior to passage of the instant ordinance. Plaintiff Nik-O-Loc was a corporation manufacturing and leasing coin locks for use by its customers. Plaintiff Universal was a corporation which provided both coin locks and a sanitation service to its customers. On the day before the ordinance was to become effective, all plaintiffs brought the instant suit.

At trial, plaintiffs presented testimony to establish that toilets with coin locks were cleaner and more sanitary, better equipped, less prone to vandalism, a deterrent to crime, and safer. The city's evidence established that other Chicago ordinances required a certain minimum number of toilets in all buildings depending on the type and size of the building. Other city officials testified that they were required to inspect restrooms in certain public and private buildings.

The lower court declared the ordinance constitutional but found that Nik-O-Loc and Universal would suffer the loss of their investment in their locks and impairment of their contractual rights and thus were entitled to compensation.

Although both plaintiffs and defendant have briefed and argued numerous separate issues, it can fairly be said that the plaintiffs' appeal presents two related questions for review. Can the city properly legislate in this area, and, if so, is the instant ordinance a reasonable exercise of that power? The city's cross-appeal presents a single issue for review. Does the ordinance result in a taking of property without due process of law so as to require an award of compensation?

It must first be determined whether the challenged ordinance is a permissible exercise of authority by the city. By virtue of the 1970 Illinois Constitution, Chicago is a home rule unit. As such, Chicago has been granted the power 'to regulate for the protection of the public health, safety, morals and welfare.' (Ill.Const. art. VII, Sec. 6(a).) Since a system for waste disposal and the regulation of lavatories are obviously related to the public health (See Chicago Allis Mfg. Corp. v. Metropolitan Sanitary District, 52 Ill.2d 320, 288 N.E.2d 436), the power to enact the instant ordinance is constitutionally authorized. However, even assuming Arguendo, the absence of the constitutional grant of power, the legislature has specifically delegated such authority in the Illinois Municipal Code. (Ill.Rev.Stat.1973, ch. 24, par. 1-1-1 et seq.) Section 11-20-5 of the Code permits every municipality to do all acts and make all regulations which may be necessary or expedient for the promotion of health or the suppression of diseases, including the regulation of plumbing and plumbing systems. Clearly, such a broad grant of authority would encompass the instant ordinance.

Moreover, the Illinois Plumbing Code (Ill.Rev.Stat.1973, ch. 111 1/2, pars. 116.68 et seq.), empowers the State Department of Public Health to promulgate a minimum code of standards for plumbing systems. Par. 116.72 authorizes municipalities to adopt the minimum code thus promulgated. As all parties concede, Regulation 7.21 of the State Department of Public Health states:

(A)t least one-half (1/2) of the required fixtures installed in a building intended for public use shall be free from any device or arrangement requiring a fee to gain access.

Although the city admits that the regulation is advisory, not mandatory, and that the city has not adopted that specific regulation, the mere existence of such a regulation further indicates that the instant ordinance was within the city's permissible power.

Finally, it must be noted that the city could successfully rely on the authority granted by the police power to legislate for the public health, safety, comfort and welfare. (City of Chicago v. Wonder Heating & Ventilating Systems, Inc., 345 Ill. 496, 178 N.E. 192.) For although a municipality has no inherent police power, the State may and has, delegated to its municipalities the police power to protect the public health. (Ill.Rev.Stat.197o, ch. 24, par. 11-1-1-.) The police power may properly be used to effectively promote the interests protected in the Illinois Municipal Code and the Illinois Plumbing Code discussed above. (Father Basil's Lodge v. City of Chicago, 393 Ill. 246, 65 N.E.2d 805.) In this regard, the courts of this state have long recognized that plumbing and related waste disposal systems and regulation have been a proper subject for the exercise of the police power. (See People ex rel. McKeown v. Hurley, 343 Ill.App. 413, 99 N.E.2d 355; People v. Solomon, 265 Ill. 28, 106 N.E. 458.) Accordingly, we now hold that the instant ordinance is intimately connected with the public health and therefore, was a proper exercise of both the express authority discussed above and the city's police power.

However, merely deciding that the instant ordinance was a permissible exercise of the city's authority does not resolve the question of its validity. For a municipal ordinance passed pursuant to valid legislative authority must also bear a reasonable and substantial relation to the public health, safety or general welfare. (Petterson v. City of Naperville, 9 Ill.2d 233, 137 N.E.2d 371.) Similarly, where an ordinance is based on the inherent police power of the state, the means chosen must be reasonably necessary for the accomplishment of the intended purpose and not unduly oppressive upon individuals. (Chicago Allis Mfg. Corp. v. Metropolitan Sanitary District, Supra.) In either event, in determining whether the ordinance is reasonable or not, the court must take into consideration the object to be accomplished, the means for its accomplishment, and all existing conditions and circumstances. Troy v. Village of Forest Park, 318 Ill. 340, 149 N.E. 281.

The reasonableness of an ordinance is a question of law to be decided by the court. (City of Chicago v. Clark, 359 Ill. 374, 194 N.E. 537.) However enactments of a municipal corporation are clothed with presumptive validity and one who challenges the validity of an ordinance must prove by clear and affirmative evidence that the ordinance constitutes arbitrary, capricious and unreasonable municipal action; that there is no permissible interpretation which justifies its adoption; or that it will not promote the safety and general welfare of the people. (First National Bank of Lake Forest v. County of Lake, 7 Ill.2d 213, 130 N.E.2d 267.) With these legal principles in mind and a proper regard for the heavy burden plaintiffs must meet, we now turn to plaintiffs' arguments.

Plaintiffs attack the reasonableness of the ordinance in a variety of ways. They argue that pay toilets are cleaner and more sanitary; that the city has not shown that pay toilets are harmful or that the instant ordinance will remedy any evil; that the classification of buildings in the ordinance is unreasonable; that to prohibit coin locks but not key locks ¹ is unreasonable; and that the total prohibition rather than regulation of coin locks is unreasonable. Since this is a case of first impression in Illinois and evidently has not been considered in any jurisdiction, each of plaintiffs' arguments will be considered separately.

At trial, plaintiffs presented voluminous testimony to establish that coin lock toilets were cleaner and more sanitary, better equipped, less prone to vandalism, a deterrent to crime, and safer. Apparently, plaintiffs assumed that more sanitary toilets was the object of the ordinance and therefore by a showing that coin locks were cleaner and more sanitary, the unreasonableness of the...