People ex rel. Greening v. Bartholf

• Decision Date: 22 November 1944
• Docket Number: No. 27863.,27863.
• Citation: 388 Ill. 445,58 N.E.2d 172
• Parties: PEOPLE ex rel. GREENING, State's Attorney, v. BARTHOLF et al.
• Court: Illinois Supreme Court

388 Ill. 445

58 N.E.2d 172

PEOPLE ex rel. GREENING, State's Attorney,

v.BARTHOLF et al.

No. 27863.

Supreme Court of Illinois.

Nov. 22, 1944.

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

Suit by the People, on the relation of A. H. Greening, State's Attorney, against H. B. Bartholf and others to require the defendants to show by what authority they had the right to act as Commissioners of Springfield Airport Authority, a municipal corporation, and to act collectively to exercise powers as its governing body. Judgment for defendants, and plaintiff appeals.

Reversed and remanded with directions.

THOMPSON, J., dissenting.

A. H. Greening, State's Atty., Thomas W. Hoopes, S. Phil Hutchison, A. M. Fitzgerald, and Walter T. Day, all of Springfield, for appellant.

Hugh J. Dobbs, Gillespie, Burke & Gillespie, and Lawrence Hoff, all of Springfield, for appellees.

MURPHY, Justice.

The State's Attorney of Sangamon county, at the request of taxpayers, instituted this suit in the circuit court of said county to require each defendant to show by what authority he has the right to act as commissioner of the Springfield Airport Authority, a municipal corporation, and to act collectively with the others to exercise powers as its governing body. Defendants pleaded in justification, setting up that the authority was organized pursuant to an act entitled ‘An Act in relation to municipal airport authorities' approved May 21, 1943 (Ill.Rev.Stat.1943, chap. 15 1/2, par. 49 et seq.), and pleaded facts showing the steps that had been taken to comply with the requirements of the act leading to the organization of the authority and the selection of defendants as its commissioners. Plaintiff moved to strike the answer and in support thereof set forth numerous objections challenging the constitutionality of the act and various sections thereof.

The cause was submitted on the complaint, answer and motion to strike. The trial court held section 20 (par. 68) unconstitutional but concluded that it was separable from the remainder of the act and its invalidity did not affect the other sections. A judgment was entered sustaining defendants' right to the office of commissioners of said authority. This appeal followed. It is not claimed that the statute was not followed in effecting the organization or the appointment of defendants as its commissioners. The contentions made all relate to the validity of the act or some of its sections.

Parts of defendants' answer and numerous exhibits were evidently attached for the purpose of presenting a picture of the development of aviation, its present status and future possibilities. It will not be necessary to refer to such facts in this opinion for we will assume that the permanency of aviation as a means of transportation and as an arm of our national defense is well established, and that its future development may surpass all that is contained in the prophetic vision set forth in the answer.

The act provides a means for creating a municipal corporation which has for its purpose (section 7) ‘the establishment and continued maintenance and operation of safe, adequate and necessary airports and airport facilities within the State.’ The powers conferred by the act upon such a municipality are such as might be considered reasonably necessary to give effect to the purpose for which the municipality was created. In general the power is given it to acquire land in fee or by lease for purposes of a site for an airport and fix tolls, rentals or fees for the same. It may lay out, establish and maintain approaches to the airport and is given the power of emiment domain which it may employ in acquiring a site for an airport and in removing obstructions on land adjoining the airport which would interfere with the flying of airplanes to and from the airport. To finance such purposes it may levy an annual tax, and under certain conditions may borrow money and issue bonds or certificates of indebtedness, the same to be subject however to constitutional and statutory limitations. It may adopt such ordinances, rules and regulations as may be necessary to the management of the airport and the protection of its property, and in so doing has express authorization to exercise certain police powers. Sec. 8, par. 56.

The first contention made is that the act in its entirety violates the dueprocess clauses of the Federal and State constitutions, in that the act gives an airport authority power to levy taxes for private purposes. If it should be determined that the establishment of an airport for the purposes stated in the act, and under circumstances expressed therein, was for a private rather than a public purpose, then the objection would have to be sustained. It is well settled that the taking of the taxpayers' money for a private purpose is a violation of the due-process clauses of the State and Federal constitutions. Chicago Motor Club v. Kinney, 329 Ill. 120, 160 N.E. 163;Robbins v. Kadyk, 312 Ill. 290, 143 N.E. 863;Citizens Savings & Loan Ass'n v. City of Topeka, 20 Wall. 655, 22 L.Ed. 455.

Legislative enactments relating to aviation have increased in number in proportion to the development of traffic by air. In this State the first statute was adopted in 1928. Laws 1928, 2d Sp.Sess., p. 85. It was entitled: ‘An Act to regulate aviation’ and consisted of five sections. Since then the original act has been rewritten and extended and several acts have been added. All such legislation has the common primary purpose of regulating traffic by air. It is regulated to the extent that aerial traffic moves on regular schedules and along airways which are marked with the precision and accuracy of a railroad right-of-way. The coming and going of planes along such airways is a subject of control and only those who can pass a test as to knowledge and experience of aviation are licensed to fly planes.

Such statutes and regulatory measures adopt the existence of air traffic as an established fact. They are not adopted for the purpose of promoting aviation or in the advancement of private interest engaged in its maintenance and development. Such legislation assumes that travel by air is an established means of transportation and that the public welfare and safety of the people requires its regulation.

The legislature in adopting the act in question undertook to provide for the establishment of a municipality acting as an agency of State government and to confer on it 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 the reasonable rules and regulations that might be necessary for its proper management and operation. Power exercised in such regulation may be likened to the power which a State in its sovereign capacity exercises in the control of transportation generally within the State.

There is no doubt but that the legislature, in the exercise of its police power, may consider the problems and risks that arise in connection with aviation and provide legislation for the securing of a greater degree of safety to those engaged in such method of transportation and to those on the land.

It has been said that laws which tend to promote the public comfort, health, safety or general welfare of society are a proper exercise of the police power of the State. Fenske Bros., Inc., v. Upholsterers' International Union, 358 Ill. 239, 193 N.E. 112, 97 A.L.R. 1318;Massie v. Cessna, 239 Ill. 352, 88 N.E. 152, 28 L.R.A.N.S., 1108,130 Am.St.Rep. 234. Such power is elastic and capable of expansion to meet changing conditions. People v. John Doe of Rosehill Cemetery, 334 Ill. 555, 166 N.E. 112;State Public Utilities Com. v. City of Quincy, 290 Ill. 360, 125 N.E. 374.

In Fenske Bros., Inc., v. Upholsterers' International Union, 358 Ill. 239, 193 N.E. 112, 117, 97 A.L.R. 1318, it was said: ‘In the exercise of this power, the Legislature may enact laws regulating, restraining or prohibiting anything harmful to the welfare of the people, even though such regulation, restraint, or prohibition interferes with the liberty or property of an individual. Neither the Fourteenth Amendment to the Federal Constitution nor any provision of the Constitution of this State was designed to interfere with the police power to enact and enforce laws for the protection of the health, peace, morals, or general welfare of the people. Powell v. Pennsylvania, 127 U.S. 678, 8 S.Ct. 992, 32 L.Ed. 253;People v. Anderson, 355 Ill. 289, 189 N.E. 338;Town of Cheney's Grove v. Van Scoyoc, 357 Ill. 52, 191 N.E. 289.’

Under our form of government the police power is an attribute of sovereignty of the State. In the first instance it is for the legislature to determine when conditions exist which call for the exercise of the power, and when it has acted, the presumption arises that the act is a valid exercise of such power. People v. Stokes 281 Ill. 159, 118 N.E. 87;People v. McBride, 234 Ill. 146, 84 N.E. 865,123 Am.St.Rep. 82,14 Ann.Cas. 994. The legislature not only determines when there shall be an exercise of the power but it has the right in matters of local concern to delegate the execution of the power to a municipality, such as a city or village, or to authorize the organization of a new municipality and vest it with the authority necessary to the execution of the power. 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.

In considering the question whether an airport authority is created for private or public use, the distinction must be kept in mind between the powers that may be exercised and which are within the purview of the act, and the powers that the authority may undertake to exercise but which are beyond the scope of the act. The...