People ex rel. Hill v. Eakin

• Decision Date: 15 September 1943
• Docket Number: No. 27017.,27017.
• Citation: People ex rel. Hill v. Eakin, 383 Ill. 383, 50 N.E.2d 474 (Ill. 1943)
• Parties: PEOPLE ex rel. HILL et al. v. EAKIN et al.
• Court: Illinois Supreme Court

383 Ill. 383

50 N.E.2d 474

PEOPLE ex rel. HILL et al.

v.EAKIN et al.

No. 27017.

Supreme Court of Illinois.

May 20, 1943.

Rehearing Denied Sept. 15, 1943.

Proceeding by the People, on the relation of Jesse J. Hill and others, against Franzy Eakin and others for a writ of mandamus compelling restoration of a street, vacated by city ordinance, to public use. Judgment for relators, and respondents appeal.

Reversed.

GUNN and THOMPSON, JJ., dissenting.Appeal from Circuit Court, Macon County; Charles Y. Miller, judge.

Walker H. Mills, Corp. Counsel, and Monroe & Allen, all of Decatur, for appellants.

James T. Whitley, Arthur F. Delahunty, and Ivan J. Hutchens, State's Atty., all of Decatur, for appellees.

WILSON, Justice.

On May 29, 1940, the People of the State on the relation of Jesse J. Hill, John L. Howie and William F. Canavan, filed a complaint in the circuit court of Macon county, alleging the invalidity of an ordinance enacted August 31, 1939, by the city council of Decatur, vacating West William street between Summit and Woodlawn avenues and seeking a writ of mandamus compelling the restoration of the street to public use. Franzy Eakin, Forrest Eakin, Jeannette A. Buck, Alan N. Buck, the city of Decatur, Charles E. Lee, mayor, and each of the commissioners of the city were made parties defendant. By their complaint, plaintiffs alleged that the attempted vacation of the street by ordinance was for the sole purpose of conveying, without consideration, the exclusive title, possession and use of the vacated portion of West William street to Franzy Eakin, Forrest Eakin, Jeannette A. Buck and Alan N. Buck, defendants, contrary to the public interest and benefit; that the city council was without power or authority to pass the pretended ordinance, and that it was wholly void and of no force and effect. Defendants filed an amended answer denying (a) the stated purpose of the passage of the ordinance, (b) it was contrary to the public interest and benefit or that no public interest was subserved by its passage, and (c) a lack of authority in the city council to pass the ordinance. The cause was heard by the court without a jury and a judgment was entered declaring the ordinance void and directing the issuance of a writ of mandamus ordering the restoration of the street to public use. The trial judge has certified that the validity of a municipal ordinance is involved and that the public interest requires a direct appeal to this court.

The petition to vacate was first considered by the city council of Decatur at its regular meeting on August 24, 1939, when a motion was carried directing the corporation counsel to prepare a proper ordinance. A week later, on August 31, at another regular meeting, the vacating ordinance was unanimously approved by the council and ordered to be recorded. It was placed of record in due course. Publicity was given to the proposed vacation ordinance by articles appearing in local newspapers under date of June 21, August 24, 25 and 31, and September 1, 1939. No formal objections to its passage were filed.

The city of Decatur has a population of approximately sixty thousand people, engaged in business occupations and street travel common to cities of like population. West William street, running east and west, was dedicated in 1909 as part of Oakdale addition. As platted, and at present, it is forty feet wide. Originally designated as ‘Interurban Way,’ it thereafter became and is now known by its present name. West Main street, the first street south of West William street, is designated as Federal Route No. 36, and extends westerly through Decatur from a point in the business district about two miles east of Summit avenue. The traffic on this street is heavy and fast. It has a posted permissible speed limit of thirty miles per hour. Summit avenue, a north and south street, extends north from West Main street and terminates in Fairview Park. Woodlawn avenue, located one block east of Summit avenue, likewise extends north from West Main street, but its northern terminus extends to, but not through, West William street. A right of way, seventyfive feet wide, running east and west, abuts West William street on the north to Summit avenue and on the south from Summit avenue west. On this right of way the Illinois Traction System had maintained tracks for the operation of streetcars and an interurban railroad. These tracks were removed and the right of way abandoned for public utility purposes in 1936. To the north of this right of way there was located a large public park, known as Fairview Park. A portion of Sunset Crest addition lies north of the right of way from a point midway between Westlawn and Summit avenues. West William street, as it existed prior to the enactment of the challenged ordinance, according to the evidence, extended west from Cobb avenue to Summit avenue on the south side of the right of way, where it joined with Summit avenue, proceeding north to the north side of the right of way, whence it proceeded west to Westlawn avenue. Little used extensions from West William street also exist north and south of the right of way short distances east and west from Summit avenue. From Summit avenue west, and north of the right of way, West William street was paved, and from Summit avenue east, and south of the right of way, it was a dirt street, improved with infrequent oil treatments and some grading, gravel and cinders. From Woodlawn avenue east, a curb and gutter had been installed on the south side of West William street. A concrete sidewalk was located on the south side, extending from Cobb avenue on the east to Summit avenue on the west. City busses served the area, traveling west from the business district of West Main street to Westlawn avenue, thence north to West William street, thence east to Summit avenue, and south on Summit avenue through the right of way on West William street to West Main street, thence east on West Main street back to the business district.

The evidence is in but little conflict as to material points. On behalf of plaintiffs, the testimony of businessmen, physicians and housewives is to the effect that the vacated street was in constant general use; that children used it on their way to school and to the park, and that it was used in the manner ordinarily used by pedestrians and vehicular traffic, by nearby residents and others. The principal complaints of residents living east of Summit avenue were because of the claimed denial to them of access by way of West William street to a grocery store located west of Summit avenue and the convenience of a short route to Fairview Park. The residents living west of Summit avenue and north and south of West William street complained because of the claim they and their children were denied the use of a route east across West William street to Taylor avenue, thence south on Taylor avenue to West Main street, where the Dennis school was located and where was installed a portable stop sign; that after the vacation the only means afforded for reaching their different destinations was by way of a street connecting with West Main street, thus increasing the distance required to be traversed. The residents east of Summit avenue also complained because of their inability to board or alight from busses at West William street and Summit avenue, as formerly, necessitating a trip for this purpose to the south side of West Main street, a heavily travelled street, presenting dangers in crossing. Complaint is also made because the use of the twelve-foot alley extending north from West Main street between Summit and Woodlawn avenues is restricted, the alley becoming ‘deadended’ and its use limited for garbage collection and other facilities.

The testimony on behalf of defendants conceded the use of West William street, to some extent, by the public. The mayor of Decatur testified he had lived in Decatur more than forty-six years, was familiar with the territory around Summit and Woodlawn avenues, West William street and the park, and that, generally, the vacated block of West William street was an earth surface way of single track, not in very good shape.

Franzy Eakin, a defendant and interested property owner, testified he lived at the corner of Summit avenue and West William street, immediately south of part of the vacated portion; that he was appointed to the City Planning Board in 1939 for a two-year term expiring 1941, and attended most of the meetings during the period, but that he is no longer a member of the commission. He testified with respect to West William street, east from Summit avenue, prior to the vacation, stating that the contour of the street was slightly downgrade for a distance of about 300 feet, when it rather abruptly declined a distance of forty or fifty feet, and that there was a further...