Poole v. City of Kankakee

• Decision Date: 21 September 1950
• Docket Number: No. 31540,31540
• Citation: 94 N.E.2d 416,406 Ill. 521
• Parties: POOLE et al. v. CITY OF KANKAKEE et al.
• Court: Illinois Supreme Court

Page 416

94 N.E.2d 416

406 Ill. 521

POOLE et al. v. CITY OF KANKAKEE et al.

No. 31540.

Supreme Court of Illinois.

Sept. 21, 1950.

Victor N. Cardosi, City Attorney, of Kankakee, for appellants.

Gower, Gray & Gower, of Kankakee, for appellees.

DAILY, Justice.

April 25, 1949, the city of Kankakee passed an ordinance providing for the issue of $430,000 in 'Motor Vehicle Parking System Revenue Bonds,' for the stated purpose of acquiring eight certain tracts of real estate to be used for the operation of offstreet vehicle parking lots in the business section of the city. Some of the tracts sought were vacant, while the use of others would entail the purchase and removal of structures. The action of the city was purportedly based on the power granted it by article 52.1 of the Revised Cities and Villages Act (Ill.Rev.Stat.1949, chap. 24, art. 52.1), titled, 'Special Powers-Parking Space for Motor Vehicles'. We shall hereafter refer to this statute as the 'Parking Act.' On August 5, 1949, Warren G. Poole, the owner and operator of a private parking lot in the business district, Carl L. Wolf, a downtown business man, Fred W. Swannell, Sr., a property owner and taxpayer, and Harry H. Pippin, a motor vehicle operator in the city, filed a complaint in the circuit court of Kankakee County seeking to enjoin the city, its mayor and clerk, from proceeding under the ordinance. It was alleged that both the statuate and ordinance are invalid for reasons later discussed in detail. Defendants filed an answer, the case was called for trial, and evidence was heard. The trial court then entered a decree which found the Parking Act to be constitutional, with the exception of section 8 (Ill.Rev.Stat.1949, chap. 24, par. 52.1-8), which section authorizes municipalities acquiring parking facilities under the act to lease them on a year-to-year basis, collect rentals and to make contracts for their operation and management. It was the opinion of the trial court that the foregoing provision allows a municipality to lend financial aid to private enterprise, and permits the surrender of the municipalities' police power. The decree further found the city ordinance to be invalid on the ground that it was not a reasonable exercise of the power granted by the Parking Act, first, because no necessity for the parking lots was shown to exist in Kankakee, and, second, because it allowed the income from existing parking meters to be pledged as security for the bonds issued to finance the acquisition of the new facilities. In conclusion the decree enjoined the city and its officers from proceeding under the ordinance. They have appealed directly to this court, the validity of both the statute and the ordinance being involved and the trial judge having certified that, in his opinion, the public interest requires a direct appeal. It is appellants' position that the Parking Act is constitutional in its entirety and that the ordinance is valid. Plaintiffs-appellees have filed a cross appeal urging that the Parking Act is completely unconstitutional.

Any decision as to the validity of the ordinance is, of course, encompassed in a determination of the constitutionality of the Parking Act. Some examination of the statute is therefore necessary. The act, which contains ten sections (Ill.Rev.Stat.1949, chap. 24, pars. 52.1-1 to 52.1-10, incl.), was first adopted by the legislature in 1947 and amended in 1949. It is before us for the first time. Section 1 provides in part that a municipality may: 'Acquire by purchase or otherwise, own, construct, equip, manage, control, erect, improve, extend, maintain and operate motor vehicle parking lot or lots, garage or garages, parking meters, and any other revenue producing facilities necessary or incidental to the regulation, control and parking of motor vehicles * * * as the corporate authorities may from time to time find the necessity therefor exists, * * *' etc. The section continues that land may be acquired by various means, including eminent domain, and that its purchase may be accomplished by the issue and sale of bonds. Section 2 describes the bonds, the interest they may bear, the manner of sale, and provides that such bonds may be payable only from the proceeds of the operation of 'any or all' of the city's parking facilities. Section 3 relates to the content and form of the ordinance to be adopted by the municipalities. Section 4 provides that whenever bonds are issued, it shall be the duty of the corporate authorities to establish fees for the use of the parking facilities, sufficient to defray the cost of operation and maintenance, and the payment of principal and interest on the bonds, such revenues to be set aside as a separate fund and to be used only as provided in section 5. In section 6 the remedies of the bondholders are set forth, while section 7 authorizes the municipalities to make reasonable rules regarding the use management and control of the parking facilities. As previously indicated, section 8, which was held unconstitutional by the trial court, authorizes the lease of the facilities, on a yearly basis, to the highest bidder. Section 9, which has some bearing on the matter here presented, contains the limitation that proprietary activities other than the operation of parking facilities, are unauthorized. Section 10 is a provision relating solely to financing by municipalities with a population in excess of 500,000.

The basic concept of appellees' attack on the Parking Act is that it authorizes a taking of property for a private use, as distinguished from a public use, in violation of section 13 of article II of our constitution, Smith-Hurd Stats. Specifically it is urged that the use authorized is private, (1) because it benefits individuals rather than the community; (2) because it allows a community to go into business in direct competition with private citizens; (3) in that the power to lease the parking facilities manifests a private purpose; and, (4) because cities so acquiring property might attempt to devote it to a private use. Further, on the assumption that the use is a private one, it is contended that the act violates the due-process clause of both the Federal and State constitutions because it allows the taking of a taxpayer's money for a private purpose. In the same vein it is urged that the Parking Act allows a municipal corporation to lend financial aid to a private undertaking in violation of section 20 of article IV of the Illinois constitution.

It is conceded that before the right of eminent domain may be exercised the law requires that the use for which land is taken shall be a public as distinguished from a private use. People ex rel. Tuohy v. City of Chicago, 394 Ill. 477, 68 N.E.2d 761; Litchfield and Madison Railway Co. v. Alton and Southern Railroad, 305 Ill. 388, 137 N.E. 248. Under the constitution, property cannot be condemned for a private purpose. The determination of what is for the public good and what are public purposes are questions decided in the first instance by the legislature, which is vested with broad discretion in its determination. Cremer v. Peoria Housing Authority, 399 Ill. 579, 78 N.E.2d 276; People v. Chicago Transit Authority, 392 Ill. 77, 64 N.E.2d 4. However, since the constitution of this State is not a grant of power to the General Assembly but a limitation on its power, all legislative power is vested in the General Assembly, subject to the restrictions contained in the constitution. The final determination of whether a use or purpose is within the limits of the legislative discretion is a judicial function, thus it is for the courts to decide whether a given use is a public use. Zurn v. City of Chicago, 389 Ill. 114, 59 N.E.2d 18. The case of People ex rel. Tuohy v. City of Chicago, 394 Ill. 477, at pages 481 to 484, 68 N.E.2d 761, contains an exhaustive discussion of the criteria which have been utilized by this court in determining and defining a public use. We find that the majority of the questions raised in this case were answered there. The requirements for a law embracing the taking of land for a public purpose were there condensed as follows: (1) that it affect a community as distinguished from an individual; (2) that the law control the use to be made of the property; (3) that the title so taken be not invested in a person or corporation as a private property to be used and controlled as private property; and (4) that the public reap the benefit of public possession and use, and that no one exercise control except the municipality. Almost to the same effect is the definition found in Cleveland, Cincinnati, Chicago and St. Louis Railway Co. v. Polecat Drainage Dist., 213 Ill. 83, 72 N.E. 684: 'A public use means public usefulness, utility, advantage, or benefit. It is not essential that the entire community or people of the state, or any political subdivision thereof, should be benefited or share in the sue or enjoyment thereof. The use may be local or limited. It may be confined to a particular district, and still be public. (Citation.) If local or limited, the use must be directly beneficial to a considerable number of the inhabitants of a section of the state, and the property to be taken must be controlled by law, for the advantage of that particular portion of the community to be benefited.' Measured by the above decisions, it is difficult to see that the Parking Act manifestly authorizes the taking of land for a private purpose.

In examining the given use before us, viz., the taking of land for the operation of offstreet parking facilities, we find no express declaration in the Parking Act of the policy or purpose which fostered the legislation. While not binding on the court, such declarations are usually presumed to be right. We are fully cognizant that the regulation and control which a municipality may exercise over its streets and the vehicles which use them has been the subject of much legislati...