West Chicago Park Com'rs v. McMullen

• Decision Date: 31 October 1890
• Citation: 25 N.E. 676,134 Ill. 170
• Parties: WEST CHICAGO PARK COM'RS v. McMULLEN et al.
• Court: Illinois Supreme Court

134 Ill. 170

25 N.E. 676

WEST CHICAGO PARK COM'RS

v.McMULLEN et al.¹

Supreme Court of Illinois.

Oct. 31, 1890.

Appeal from circuit court, Cook county; M. F. TULEY, Judge.

Bill by James C. McMullen, William O. Carpenter, Willis G. Jackson, George Birkhoff, Jr., and John H. Wood against the West Chicago Park Commissioners, to enjoin the defendants from maintaining West Jackson street in the city of Chicago as a boulevard. Decree for complainants. Defendants appeal.Francis Adams and Francis A. Riddle, (John N. Jewett, W. C. Goudy, and A. W. Green, of counsel,) for appellants.

Smith & Pence, for appellees.

SHOPE, J.

By the legislation of A. D. 1869, known as the ‘Park Acts,’ the park system of the city of Chicago was inaugurated, and three park districts, respectively called Lincoln, South and West Chicago Park Districts, were established, under the controlof boards of park commissioners, whose powers and duties were defined. The act relating to the West Chicago Park district authorized the West Chicago Park Commissioners to select and take lands for three parks, within such district, and for boulevards or pleasureways, running from the river on the north to the canal on the south, and connecting such parks. 1 P. L. 1869, 342. By this act and a supplemental act, passed at the same session, (Id. 354) the northerly and southerly range of the parks and their maximum area was fixed. Three parks were located in pursuance of the act, called ‘Humboldt,’ ‘Central,’ (now Garfield,) and ‘Douglas' parks, and a boulevard connecting them was established as contemplated by said act. The West Park act was submitted to and adopted by a vote of the people residing within the territory of which the park district was composed, and the district became thereby a quasi municipal corporation for park purposes; and the board of park commissioners, created by such act, became to corporate officers thereof, and one of the agencies of the state for carrying on government, in respect of the parks, within said West Chicago Park district. People v. Salomon, 51 Ill. 37;Wilcox v. People, 90 Ill. 192. In Kreigh v. City of Chicago, 86 Ill. 411, decided in 1877, it was determined that, under the then existing legislation the city being vested with the control of the streets for the benefit of the people at large, could not transfer them to the park commissioners, or absolve itself from the duty of maintaining the same; nor was there, power under the laws then inforce, for such commissioners to take or control such streets. At the next session of the legislature, and act was passed, entitled ‘An act to enable park commissioners or corporate authorities to take, regulate, control, and improve public streets leading to public parks; to pay for the improvement thereof, and in that behalf to make and collect a special assessment or special tax on contiguous property.’ The first section provided as follows: ‘SECTION 1. BE IT ENACTED BY THE PEOPLE Of tHe state of illinois, represented in the general assembly, that every board of park commissioners shall have power to connect any public park, boulevard, or drive-way under its control, with any part of any incorporated city, town, or village, by selecting and taking any connecting street or streets or parts thereof, leading to such park: provided, that the streets so selected and taken, so far as taken, shall lie within the district or territory, the property of which shall be taxable for the maintenance of such park: and provided further, that the consent of the corporate authorities having control of any such street or streets so far as selected and taken, and also the consent in writing of the owners of a majority of the frontage of the lots and lands abutting on such a street or streets, so far as taken, shall be first obtained: and provided, further, that such connection or improvement shall embrace only such street or streets as are necessary to form one continuous improvement.’ Section 2, authorizes the levy of taxes and assessments to improve and maintain such streets. By section 3, such park boards are given the same power and control over the streets and parts of streets taken under the act as they are vested with in respect of the parks and boulevards under their control. Section 5 confers powers upon towns, villages, and cities to invest such park boards ‘with the right to control, improve, and maintain any of the streets of such city, town, or village’ for the purpose of carrying out the provisions of the act. Act April 9, 1879. By the act of June 27, 1885, the first section of the act of 1879 was amended by giving power to the commissioners ‘to accept and add to any such park any street or part thereof which adjoins and runs parallel with any boundary line of the same’ and by striking out the last proviso of said section. Rev. St. 1889, c. 105, §§ 49-54. In the year 1880, in conformity with the original act, the West Chicago Park Commissioners acquired control of West Washington street, and converted it into a boulevard connectingGarfield park with the city. Subsequently to the conversion of Washington street into such boulevard, by and with the consent of the city, and of the owners of a majority of the frontage thereon, in writing, the park commissioners accepted and assumed control of West Jackson street in Chicago from Halstead street to said park for the purpose of converting it into a boulevard also connecting Garfield park with the city. The present bill was brought by appellees on behalf of themselves and other tax payers in the town of West Chicago, etc., against the West Chicago Park Commissioners, and prays for a decree ‘perpetually enjoining said West Chicago Park Commissioners from paying any moneys for the support of police officers or other employes employed upon the line of West Jackson street from Halstead street to Garfield park, and from incurring any debt with respect to the control, management, or maintenance of ‘Jackson Boulevard,’ so called, and from preventing general traffic to be carried on along the line of said ‘Jackson Boulevard,’ so called.' It is averred and shown that the park commissioners had placed their police in charge of the street. caused its employes to sprinkle and clean the same, and have been and are proposing to pay therefor out of moneys raised by taxation, and have extended the ordinances of said district concerning boulevards,includingan ordinance excluding traffic wagons and teams therefrom, over said portion of said street.

No substantial objection is made to the proceedings by which the park commissioners sought to take such portion of Jackson street if the act referred to is valid, and the power of the park commissioners was not exhausted in the taking and acceptance of Washington street as a boulevard. It is urged, however, that the act is invalid- First, because in violation of article 4, section 22 of the constitution of the state; and, secondly, because the act was not submitted to and adopted by a vote of the people. The provision of the constitution which it is said this act violates provides ‘that the general assembly shall not pass local or special laws * * * incorporating cities, towns, and villages, or changing or amending the charter of any town, city, or village.’ It is said that the act authorizes a certain class of cities to divest themselves of the control of their streets; that it relates only to those cities having parks under control of park commissioners, and not to all of such cities for the reason that it is optional with the city to avail itself of the provisions of the act or not, and the act is therefore unconstitutional. We do not concur in this view. The act applies to all cities in the state having parks under the control of park commissioners. The law confers the power upon the city authorities to consent, and the park commissioners, upon securing the requisite consent, to assume control of streets in every place within the state where the conditions exist which it was intended to affect. In People v. Walsh, 96 Ill. 232, it was held that this act of 1879 supplied the necessary legislation to enable the city to invest the park commissioners with control of its streets for park and boulevard purposes. The court in that case, after stating that it was held in the Kreigh Case, supra, that the act of 1874 had no reference to the acquisition of control of established streets of the city, by the park commissioners, for boulevard purposes, says: ‘What was there held to be wanting, we have here; and the question is not, have the city and the commissioners power under the statute, but was it competent for the legislature to enact the statute conferring the power upon the city and park commissioners?’ The validity of the act was thus presented and sustained, and the right of the park commissioners to assume control of the street, upon having obtained the consent of the city authorities, and the consent of the majority of the owners of the frontage thereon, was upheld under the act in question. It would seem that there could no longer be any question of the constitutionality of the act. But it is insisted that the point was not made in argument, nor considered by the court in that case. We will not pause to determine whether such was the fact or not. If it be true, as suggested, that the act is applicable to the conditions existing in a single city in the state, that fact does not necessarily render it local or special legislation. It is general in its terms, and applies to all cities of the state which, at the time of its passage, had parks under the control of park commissioners, or that might at any time thereafter so have parks. If, because only a single city had such parks, and act, general in its application to all cities, would be local or special legislation, no valid act could be passed affecting such existing parks. And it would necessarily result from such holding that substantially all of...