People ex rel. Curren v. Wood

• Decision Date: 19 September 1945
• Docket Number: No. 28913.,28913.
• Citation: 62 N.E.2d 809,391 Ill. 237
• Parties: PEOPLE ex rel. CURREN, State's Attorney, v. WOOD, County Judge, et al.
• Court: Illinois Supreme Court

391 Ill. 237

62 N.E.2d 809

PEOPLE ex rel. CURREN, State's Attorney,

v.WOOD, County Judge, et al.

No. 28913.

Supreme Court of Illinois.

Sept. 19, 1945.

Appeal from Circuit Court, Sangamon County; Lawrence E. Stone, judge.

Certiorari by the People, on the relation of John W. Curren, Jr., State's Attorney, against Harlington Wood, County Judge, and others, to review the action of the county judge taken in accordance with the provisions of an act relating to airport authorities. From a judgment of the circuit court quashing the writ, the relator appeals.

Judgment affirmed.

John W. Curren, Jr., State's Atty., and Thomas W. Hoopes, both of Springfield, for appellant.

Gillespie, Burke & Gillespie, of Springfield (Hugh J. Dobbs and Lawrence Hoff, both of Springfield, of counsel), for appellees.

STONE, Justice.

This cause is here on appeal to review the judgment of the circuit court of Sangamon county quashing a writ of certiorari through which it was sought to review the action of the county judge of that county taken in accordance with the provisions of an act entitled: ‘An act in relation to airport authorities.’ The attack upon the order of the county judge is based upon the alleged invalidity of the act. This act was passed by the Sixty-fourth General Assembly. Smith-Hurd Stats. c. 15 1/2, s 68.1 et seq. It contained an emergency clause and was approved by the Governor on April 4, 1945. In many of its basic particulars it is similar to an act entitled: ‘An act in relation to municipal airport authorities,’ adopted by the Sixty-third General Assembly, Ill.Rev.Stat.1943, c. 15 1/2 s 49 et seq., and held invalid in People ex rel. Greening v. Bartholf, 388 Ill. 445, 58 N.E.2d 172, 174.

The act before us provides for the careation of an airport authority by a vote of the majority of electors voting on such proposition in the territory proposed to be incorporated. It provides that it shall be governed by a board of commissioners, delineates its purposes and defines the powers of an airport authority. Section 13 authorizes the making of appropriations and the levy of taxes. The act also provides for the issuance of bonds, to be paid only from operating revenues. The act provides for elimination of overlapping airport functions by such authority and a pre-existing public agency; provides for dissolution of the authority and for disconnection of territory, and lays down certain rules of construction to be applied in interpreting the act. In many respects it is similar to the provisions of the 1943 act. That act was found invalid in the Bartholf case for reasons set forth in the opinion in that case as applied to certain provisions of that act.

The present act, by section 7, declares a public interest in ‘safe, adequate and necessary public airports and public airport facilities,’ and declares the powers, corporate purposes and functions of the airport authority to be ‘public and governmental in nature and essential to the public interest.’ Section 8 of the act declares the authority shall constitute a municipal corporation and body politic and shall have and exercise certain enumerated express governmental powers, including the establishment, maintenance and operation of a public airport, the acquisition of land for the location of such public airport and airport facilities. Certain sections of the act implement and limit the general powers referred to in sections 7 and 8.

Many of the questions raised here were decided in the Bartholf case, where it was held that the act then under consideration was intended to confer upon an airport authority, as a municipality acting as an agency of the State government, ‘the power to provide safe and adequate airports to better regulate the aerial traffic in the locality where the airport is to be located. Such an airport, when established, would belong to the public and the public would have access to it, subject to reasonable rules and regulations that might be necessary for its proper management and operation. Power exercised in such a regulation may be likened to the power which a State in its sovereign capacity exercises in the control of transportation generally within the State.’ It is also in that case said: ‘We conclude that the basic purpose of the act was to make for safety in aviation and that legislation enacted for such purpose is in the interest of the public welfare and a proper exercise of the police power, and is therefore a matter of public concern.’ In the opinion in the Bartholf case there is a review of legislation on this subject which it is not necessary to repeat here. What is there said also concerning the police power of the State and the authority of the General Assembly to delegate such power to municipalities created by it is adhered to and it is not necessary to reiterate. It was held in that opinion that a public airport authority is created for a public and not a private purpose.

The bases of the contentions of appellant are as follows: The act is a violation of the due-process clause in that it authorizes the levy of a tax for a purpose which is only a private or proprietary, rather than a governmental, purpose; that even though it be said that the operation of an airport is within the police power, yet neither the State nor any municipality created by it can engage in a business or enterprise and levy taxes for its operation under the guise of regulating it; that the operation of an airport is not the exercise of police power, though its regulation may be, and police power authorizes regulation but not operation, and the General Assembly cannot, by providing for operation under the police power as a governmental function, make such operation a governmental function. It is further argued that the act violates separate section 2 of the Illinois constitution in that it extends the credit of an Illinois municipal corporation to and for the use of a private corporation. It is also objected that the classifications made in the act are not reasonable; that while basis by population has a reasonable relation to local self-government it does not bear such relation to the operation of an airport.

We do not deem it necessary to repeat the decision of the Bartholf case regarding the authority or power vested in corporate authorities of municipalities to assess and collect taxes. That question was raised and considered in the Bartholf case and the court's disposition of it is here adhered to. The former act was found invalid because, among other reasons, a municipal sponsor was provided for, with power to fix conditions of its sponsorship prior to the organization of the authority. The present act has no provisions for sponsorship. Other differences will be hereinafter pointed out.

It is not contended by appellees that if the operation of an airport under the act authorizing the existence of an airport authority is a private business or for a proprietary purpose only, the act can be sustained, but it is contended that the present airport authority act providing for acquisition, operation and control of a public airport partakes of the State's sovereignty which is delegated to the authority as a municipal corporation and that such powers are public and governmental. This is the pivotal question in the case.

We start, in the consideration of this case, with the well-settled doctrine that the General Assembly may create municipalities of various kinds, and delegate to them the sovereign power of the State to govern and to tax. Reif v. Barrett, 355 Ill. 104, 188 N.E. 889;People ex rel. Pearsall v. Chicago, M. & St. P. R. Co. 319 Ill. 415, 150 N.E. 247. The question before us is whether the airport authority created by this act comes within this legislative power. The power of the General Assembly to create municipal corporations is practically unlimited. It may create any conceivable kind of a corporation it sees fit for the more efficient administration of public affairs and endow such corporation and its officers with such powers and functions as it deems necessary and proper for the administration of such corporate powers and affairs. Perkins v. Board of Com'rs of Cook County, 271 Ill. 449, 111 N.E. 580, Ann.Cas. 1917A, 27;People ex rel. Wies v. Bowman, 247 Ill. 276, 93 N.E. 244. For this purpose it may provide for the organization of corporations which embrace territory situated wholly within or partly within and partly without the boundaries of another municipal corporation. As said in People ex rel. Scheuber v. Nibbe, 150 Ill. 269, 37 N.E. 217: ‘It cannot be doubted that the legislature has the power to authorize the organization of municipal corporations for one purpose, embracing territory situated wholly or partly within the boundaries of another municipal corporation, already organized for another purpose.’ In People v. Bowman, 247 Ill. 276, 93 N.E. 244, 248, it is said: ‘While two municipal corporations cannot have jurisdiction and control, at one time, of the same territory for the same purpose, no constitutional objection exists to the power of the Legislature to authorize the formation of two municipal corporations in the same territory at the same time for different purposes, and to authorize them to co-operate, so far as co-operation may be consistent with, or desirable for, the accomplishment of their respective purposes.’ In creating municipal corporations the legislature must necessarily provide the officers by and through whom their corporate powers and functions are to be performed. In the matter of creating such offices and providing for filling them the legislative power is supreme.

The power to operate an airport is vested in the airport authority on the theory that such operation is necessary for public safety in aviation. There is in principle no essential difference, so far as the public interest and the public safety are concerned, between the operation of a public airport and that of a highway, subway, wharf, public...