People ex rel. Tuohy v. City of Chicago

• Citation: 394 Ill. 477,68 N.E.2d 761
• Decision Date: 18 September 1946
• Docket Number: No. 29503.,29503.
• Parties: PEOPLE ex rel. TUOHY, State's Atty., v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

394 Ill. 477

68 N.E.2d 761

PEOPLE ex rel. TUOHY, State's Atty.,

v.CITY OF CHICAGO et al.

No. 29503.

Supreme Court of Illinois.

Sept. 18, 1946.

Appeal from Superior Court, Cook County; Ulysses S. Schwartz, judge.

Quo warranto proceeding by the People, on the relation of William J. Tuohy, State's Attorney, against the City of Chicago and others, to have defendants ousted from the exercise of assumed powers alleged to be unlawful. From a judgment striking the complaint and dismissing the cause of action, plaintiff appeals.

Judgment affirmed.

William J. Tuohy, State's Atty., of Chicago (Jacob Shamberg, Gordon B. Nash, and Meyer H. Goldstein, all of Chicago, of counsel), for appellant.

Barnet Hodes, Corporation Counsel, of Chicago (Joseph F. Grossman and J. Herzl Segal, both of Chicago, of counsel), for appellees.

GUNN, Chief Justice.

The complaint in this cause was filed in the superior court of Cook county by the People on the relation of the State's Attorney of Cook county, under the Quo Warranto Act of 1937. (Ill.Rev.Stat.1945, chap. 112, par. 9.) The city of Chicago, the mayor, the city clerk and the comptroller of the city of Chicago were named as defendants. After alleging the passage of an act entitled, ‘An Act to add section 23-103.1 to the Revised Cities and Villages Act,’ and its approval on April 11, 1945, it was alleged that the city council of the city of Chicago, acting under the authority of said added section, on April 16, 1945, passed an ordinance entitled, ‘Ordinance authorizing the issuance of $5,000,000.00 slum clearance bonds of the City of Chicago and providing for the levy of taxes for payment thereof.’ It was further alleged that said ordinance was approved by the mayor on April 16, 1945; that on April 18, 1945, the ordinance was published in a newspaper published in the city of Chicago. A copy of the ordinance was attached to the complaint as exhibit A. It was further alleged that the ordinance was submitted to a vote at a special election held in the city of Chicago on June 4, 1945; that at said election the ordinance was approved by a majority of the voters voting on the question. The complaint further alleged that the defendants, acting under the purported authority conferred upon them by said ordinance, were preparing to issue and sell the bonds as therein provided. It was then alleged that the city of Chicago and the other defendants were without power or authority to pass said ordinance or to issue the bonds authorized by said ordinance, for the reason that the act under which it was passed is invalid for the following reasons: (1) That said act is incomplete and incapable of execution and is, therefore, void. (2) That it violates section 13 of article II of the constitution, Smith-Hurd Stats., in that it attempts to empower municipalities to acquire private property and use and dispose of the same for other than public purposes. (3) That it violates section 9 of article IX of the constitution, in that it attempts to vest municipalities with authority to assess and collect taxes for other than municipal corporate purposes. (4) That it fails to express facts sufficient to constitute an emergency as required by section 13 of article IV of the constitution and, consequently, did not become effective until July 1, 1945, which was subsequent to the date the ordinance was passed and the election held for its approval.

The complaint concluded with appropriate averments that the acts of the defendants under said ordinance and under said act were without authority, and constituted an unlawful usurpation of power and authority not conferred upon them by law. The prayer was that the defendants be ousted from the exercise of the assumed powers which were alleged to be unlawful.

The plaintiff having expressly set forth in the complaint the grounds for the attack on the defendants' claimed right, as provided in section 3 of the Quo Warranto Act of 1937 (Ill.Rev.Stat.1945, chap. 112, par. II), the defendants filed a motion to strike the complaint and dismiss the cause of action. The grounds alleged in the motion were: (1) That the complaint shows on its face by what warrant the defendants exercise the powers and authority therein referred to; (2) That the complaint shows on its face the defendants lawfully have, use and enjoy the powers and authority referred to in the complaint; (3) That the statute and ordinance referred to in the complaint, under which the powers were exercised, are lawful and valid; (4) That the complaint fails to state a cause of action against the defendants, or any of them. Upon a hearing the motion to strike the complaint and dismiss the action was sustained. The complaint was stricken and the cause of action dismissed. The plaintiff has perfected a direct appeal to this court, the construction of certain provisions of the constitution and the validity of the statute and ordinance being involved.

The act is an amendment to the Cities and Villages Act by adding a section designated 23-103.1 (Laws of 1945, p. 484, Ill.Rev.Stat.1945, c. 24, s 23-103.1), which reads, in part: ‘To acquire by purchase, condemnation or otherwise any improved or unimproved real property the acquisition of which is necessary or appropriate for the rehabilitation or redevelopment of any blighted or slum area; to remove or demolish sub-standard or other buildings and structures from the property so acquired; to hold or use any of such property for public uses; and to sell, lease or exchange such property as is not required for the public purposes of the municipality.’

Provision is also made in the same section that the manner of sale, lease or exchange shall be the same as is provided in sections 59-1 to 59-3 of the Cities and Villages Act, except when the sale or lease is made to a public corporation or a public agency.

Inasmuch as the second objection, that the statute violates section 13 of article II of the constitution in that it attempts to empower a municipality to acquire private property and use and dispose of the same for other than public purposes, goes to the validity as well as the practical operation of the act, it will be considered first.

Before the right of eminent domain may be exercised, the law, beyond a doubt, requires that the use for which the land is taken shall be public as distinguished from a private use. Litchfield & Madison R. Co. v. Alton & Southern R., 305 Ill. 388, 137 N.E. 248. Under the constitution property cannot be condemned for a private use. While, from time to time, the courts have attempted to define public use, there is much disagreement as to its meaning. Courts all agree that the determination of whether a given use is a public use is a judicial function. Limits Industrial R. Co. v. American Spiral Pipe Works, 321 Ill. 101, 151 N.E. 567;Zurn v. City of Chicago, 389 Ill. 114, 59 N.E.2d 18. Any attempt to grant the right to take private property for private use is void. Town of Kingston v. Anderson, 300 Ill. 577, 133 N.E. 347;Litchfield & Madison R. Co. v. Alton & Southern R., 305 Ill. 388, 137 N.E. 248.

However, when the question arises judicially, the use may be one where it is difficult to apply any given test. The purpose may be highly beneficial to the public as well as to private interests; and, on the other hand, the use put to land acquired by private interests by eminent domain may be highly beneficial to the public, without giving the latter any control over the property taken.

The problem is rendered more complex by development arising since the adoption of the constitution, such as needs for acquiring property for social, medical or health purposes, as well as for the application of new inventions which may be adapted to public use. Uses for purposes not contemplated at the time may be, and frequently are, declared by the legislature to be public uses for which the power of eminent domain may be property used.

The question of what constitutes a public use has been before this court on several occasions, when general principles were applied to special conditions. The language used in those decisions must be read in connection with the facts involved, and is authority only for what is decided on such facts. City of Geneseo v. Illinois Northern Utilities Co., 378 Ill. 506, 39 N.E.2d 26.

It has been held a number of times that the right of eminent domain cannot be exercised for the purpose of acquiring land for a private switch from an industry to the main line of a railroad. Chicago & Eastern Illinois R. Co. v. Wiltse, 116 Ill. 449, 6 N.E. 49;Sholl v. German Coal Co. 118 Ill. 427, 10 N.E. 199,59 Am.Rep. 379;Limits Industrial R. Co. v. American Spiral Pipe Works, 321 Ill. 101, 151 N.E. 567. In Millett v. People, 117 Ill. 294, 7 N.E. 631,57 Am.St.Rep. 869, a law requiring a mining company to provide a railway scales to weigh coal dug by its employees was held to violate this section of the constitution, because it was taking private property, viz., the cost of the scales, without compensation. In Chicago & Northwestern R. Co. v. Galt, 133 Ill. 657, 23 N.E. 425,24 N.E. 674, we held that a railway company could not take land by eminent domain to make a street for its own convenience; nor can land be taken for opening a private road. Town of Kingston v. Anderson, 300 Ill. 577, 133 N.E. 347.

Gaylord v. Sanitary District, 204 Ill. 576, 68 N.E. 522,63 L.R.A. 582, 98 Am.St.Rep. 235, determined a law authorizing the condemnation of water rights to facilitate a milling enterprise operated by private persons violated the constitution. Innumerable instances occur, both in the statutes and in decisions, of the proper exercise of eminent domain for public purposes. In many of these cases the use for which the land was taken was held public by the courts, and in others so declared by the legislature, such as canals, cemeteries, drainage, pleasure highways, hard roads, schools, libraries, tool bridges, housing corporations, and many others.

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