R.G. Lydy, Inc. v. City of Chicago

• Decision Date: 21 April 1934
• Docket Number: No. 22241.,22241.
• Citation: 356 Ill. 230,190 N.E. 273
• Parties: R. G. LYDY, Inc., v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

356 Ill. 230

190 N.E. 273

R. G. LYDY, Inc.,

v.CITY OF CHICAGO et al.

No. 22241.

Supreme Court of Illinois.

April 21, 1934.

Suit by R. G. Lydy, Incorporated, against the City of Chicago and others. From a decree dismissing the bill, complainant appeals.

Reversed and remanded.

Appeal from Superior Court, Cook County; Robert E. Gentzel, judge.

Edward G. Woods, of Chicago (Kurt J. Salomon and Donald L. Vetter, both of Chicago, of counsel), for appellant.

William H. Sexton, Corp. Counsel, of Chicago (Martin H. Foss, of Chicago, of counsel), for appellees.

ORR, Chief Justice.

R. G. Lydy, Inc., appellant, sought by its bill in equity in the superior court of Cook county to enjoin the city of Chicago and certain of its officials, appellees, from interfering with appellant in the conduct of its business.A general demurrer of appellees to the amended bill of complaint was sustained and the amended bill was dismissed for want of equity. This appeal followed, the trial judge having certified that the validity of a municipal ordinance is involved and that the public interest requires a direct appeal to this court.

No evidence was heard in the lower court, and the rights of the parties must therefore be determined entirely from the pleadings and the law.

The allegations of the amended bill are substantially as follows: Appellant has for a long time been engaged in the city of Chicago in operating public garages, gasoline filling stations, and public parking places. Its principal assets are leaseholds, secured for the purpose of its business, and the good will which it has acquired in operating such places. It acquired real estate at two different locations in Chicago for use as public garages, gasoline filling stations, and public parking spaces. Subsequently, it obtained written consents from the property owners owning a majority of property, according to frontage, on both sides of the streets on which the properties were located, and the frontage consents were filed with the city. Thereafter the fees were paid and a license to operate a public garage at one location was issued to appellant by the city and licenses to operate filling stations at both locations were also issued. Both before and after the issuance of the licenses appellant expended great sums of money in the erection of buildings and installation of equipment in preparing the premises for operation. It has a leasehold interest in the premises and is required by its leases to pay large sums of money as rental. It commenced operations in April, 1933, and continued until interfered with by city officials as hereinafter stated. It applied to the commissioner of public works for driveway permits for both premises and offered to tender its bonds. The applications are alleged to have complied in all respects with the city ordinances. The commissioner of public works refused to endorse the application with his approval, without which no permit could be issued by the city council. In order to use the properties as public garages and filling stations it is necessary that appellant build and maintain driveways to provide ingress and egress.

The validity of an ordinance of the city of Chicago (Rev. Chicago Code 1931, § 856) relating to driveway permits is challenged in this proceeding. It is as follows:

‘856. Permit-Council to authorize when. No person, firm or corporation shall hereafter construct, build, establish or maintain a driveway over, across or upon a public sidewalk without first obtaining an order so to do from the city council. Such order shall be granted in case of approval of the application for same in the manner herein provided for. The application for such permit shall be made to the commissioner of public works and shall be in the form prescribed in section 857 and be accompanied with plans and specifications and bond as provided for in said section 857, and it shall be the duty of the commissioner of public works to require such other information and details from the applicant as he may deem necessary in order to show the condition of surrounding part of the sidewalk and street in the neighborhood of the proposed driveway. If the commissioner of public works shall be satisfied, after investigation, that the construction and maintenance of the proposed driveway will not unduly obstruct public travel or be dangerous to the public, he shall endorse the application with his approval and forward the same to the city council. In case of such approval the city council may thereupon pass an order authorizing the construction and maintenance of such driveway upon compliance by the applicant with all the terms and conditions contained in this article: Provided, however, that the city council may withhold its permission and refuse to pass such order if, after a hearing before a committee, it shall appear that the proposed driveway will depress or elevate the established grade of public sidewalks or obstruct a greater portion of the sidewalk than is safe or proper. Any application for a driveway more than sixteen feet wide shall be referred to the committee of the city council having charge of matters concerning streets and alleys before such order is passed by the council. In the case of application for driveways not over sixteen feet in width the permit for the construction of same may be issued by the commissioner of public works and shall be operative pending the passage of the order of the city council.’

The amended bill alleges that this ordinance is invalid because unreasonable and discriminatory in so far as it prohibits construction or maintenance of driveways across public sidewalks without first satisfying the commissioner of public works that they will not unduly obstruct public travel or be dangerous to the public; that the ordinance is also invalid because it does not prescribe the conditions under which the driveways may be maintained or constructed, but leaves the matter entirely to the whim or caprice of the commissioner, and deprives appellant of its rights under the state and federal Constitutions. The amended bill also alleges that an alderman of the city notified appellant, prior to its acquisition of the premises, that he did not desire to have appellant obtain the leases but wanted the property for a patron of his; that unless appellant secured all leasehold interests in that ward through the real estate firm of which the alderman was a member he would exercise his influence to prevent appellant from securing the necessary sanction for maintenance and operationof its business at these premises, and that the alderman did not desire appellant to transact any business in his ward and would put it out of business there; that in consequence of appellant's refusal to accept the dictates of the alderman, appellees have erected barriers on and adjacent to the premises and have stationed police officers there who are preventing appellant and its customers from entering or leaving the premises and are destroying the value of the property for the purpose for which it was obtained by appellant; that police officers have arrested one of appellant's employees for moving the barriers so as to permit ingress and egress and are threatening to arrest any person who removes the barriers; that the barriers are erected on the property of appellant and not upon property belonging to the city; and that appellees have threatened to, and will, prevent appellant by force from building and maintaining the proposed driveways. The prayer of the amended bill is that appellees be enjoined from interfering with or molesting appellant or its agents or customers in entering or leaving the premises and from preventing appellant and its employees from building or maintaining the proposed driveways.

Appellant chiefly contends that the driveway ordinance hereinabove set forth is unconstitutional and void because it contains an improper delegation of legislative authority to the commissioner of public works without definite tests to guide him in determining what in each case would ‘unduly obstruct public travel or be dangerous to the public.’ It is true that while a legislative body cannot divest itself of its proper function of determining what the law shall be, it may nevertheless authorize others to do those things which it might properly but cannot understandingly or advantageously do itself. People v. Reynolds, 5 Gilman, 1;City of Chicago v. Matthies, 320 Ill. 352, 151 N. E. 248, 249;City of Pekin v. Industrial Comm., 341 Ill. 312, 173 N. E. 339. This doctrine is sound and has been adhered to for many years, for the obvious reason that government could not be carried on if nothing were left to the judgment and discretion of administrative officers. Block v. City of Chicago, 239 Ill. 251, 87 N. E. 1011,130 Am. St. Rep. 219;City of Chicago v. Marriotto, 332 Ill. 44, 163 N. E. 369, 60 A. L. R. 501. A clear distinction exists, however, between the power to legislate-to grant the permit under certain specified conditions-and the power to administer or regulate its exercise, once granted. The rule is laid down in Sutherland on Statutory Construction (vol. 1,...