APPEAL from the Circuit Court of Kankakee County; the Hon.
C.D. HENRY, Judge, presiding.
MR. JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:
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 off-street 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 statute 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 from 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. 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; Litchfield and Madison Railway Co. v. Alton and Southern Railroad, 305 Ill. 388.) 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; People v. Chicago Transit Authority, 392 Ill. 77.) 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.) The case of People ex rel. Tuohy v. City of Chicago, 394 Ill. 477, (pp. 481 to 484,) 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: "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 use 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 Park 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 off-street 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 legislation and of many decisions of this court. It can no longer be doubted that the regulation of streets and traffic is in the interest of public health, safety, welfare, convenience and necessity, and thus for a public purpose. Undoubtedly the stopping or parking of vehicles along the street is a legitimate use of the street, but it is a use which is subject to legislative control. In City of Bloomington v. Wirrick, 381 Ill. 347, it was held that the appropriation of a part of the street on which parking meters were placed was a public use because it was incidental to the regulation of traffic on the streets. Likewise, it seems unquestioned that cities have authority to condemn property adjacent to an existing street for the purpose of widening it so as to accommodate the parking of vehicles and to facilitate the flow of traffic as well. Certainly, the acquisition of property for off-street parking would likewise be a public purpose and a less costly means of attaining the results sought.
We are aware of the fact that the modern economy and way of life are closely geared to the automobile, which fact has to be kept in mind in many aspects of community planning. A large proportion of urban dwellers today get from one place to another by automobile or other conveyances which use the city streets. Each passing year reveals a continued increase both in the number of urban dwellers and in the number of automobiles on our streets and roads. The result has been to create a problem of national significance, for in many instances the outmoded business streets of cities suffer from a traffic congestion which has strangulated movement and business, directly affected the safety of those who use and cross them, and affected the value and protection of adjacent properties. Ambulance, fire and police vehicles have difficulty reaching the scene of an emergency, while the toll of pedestrians killed on busy city streets seems to increase with each day's news. The economic value of time lost to business because of congested streets can only be surmised. Further, the economic effect of traffic strangulation has been reflected in slumping values of business real estate and a proportionate decline in local tax income. As we view it, there is involved the safety and well-being of all the residents of a community so affected. To provide for off-street parking facilities is certainly a step to meet the public need. We are of the opinion that the Parking Act embraces the taking of land for a public use.
Appellees' objections which go to the operation of the act do little to alter that conclusion. The argument that the use is private because it enables a municipal corporation to enter into business in direct competition with individuals who are now operating parking lots cannot be sustained. A similar contention was made and rejected in People ex rel. Curren v. Wood, 391 Ill. 237, with regard to municipally owned airports. We said there: "The power to operate an airport is vested in the airport authority on the theory that such operation is necessary for public safety in aviation. * * * The fact that private airports may and do exist does not prevent operation and supervision of a public airport, any more than the ownership and operation of a private road, prevents operation, supervision and control of the public highways of the State." The foregoing language is adequate to meet the contention made here. Appellees agree that it is probably proper for municipal corporations to indulge in businesses which involve airports, utility monopolies, and the like, but asks that this court limit such corporations to activities "absolutely necessary for public good" as compared with those which are "desirable, but not so necessary." A plea for such a delineation would more aptly be directed to the legislature than to the judiciary, for, as previously stated, we are concerned only with the power of the legislature to enact the law, not the policy of the exercise of the power.
The contention that the authority given the municipality to lease the parking facilities imputes a private purpose to the act is also without merit. It has frequently been held that a city may lease property it owns when it is empowered to do so by the statutes. (People ex rel. Tuohy v. City of Chicago, 394 Ill. 477; People v. City of Chicago, 349 Ill. 304; Barsaloux v. City of Chicago, 245 Ill. 598.) Powers to contract for the use, and to fix fees and rentals, are not inconsistent with the public character of municipally owned lands. (People ex rel. Curren v. Wood. 391 Ill. 237.) Nor would the fact that the lessee might gain some private benefit from his operation of a parking facility alter the public nature of the act. All such benefits are merely incidental to the public purpose of the statute and do not constitute exclusive benefits for a privileged few. Cremer v. Peoria Housing Authority, 399 Ill. 579; People ex rel. Greening v. Green, 382 Ill. 577.
As regards the nature of the act, appellees' last assertion is that the public purpose is destroyed by the provisions which permit a municipality, once owning land, to use it for any type of private business it may choose. Appellees do not point out the language which is susceptible of such interpretation nor do we find that it exists. Section 9 specifically states that the act "shall not be construed as authorizing any municipality to engage in any proprietary activity at or with any such parking facilities other than the parking of motor vehicles." We find no merit to the contention made. Speculation that a city might attempt to devote the land acquired to a private purpose could not render the act invalid but would be ground for future judicial relief should the need arise.
Appellees next urge that the act violates the due-process clause of both the State and Federal constitutions in that it allows the use of taxpayers' money for a private purpose. In view of our finding that the purposes and functions of the Parking Act are public rather than private, this contention is untenable. It should be noted too that the act provides for no tax or license, but rather only for a reasonable fee for the use of the facility.
It is also argued, and the trial court held, that section 8 of the act violates section 20 of article IV of the constitution, because leasing would permit the grant of aid to private enterprise, it being the appropriation of public funds for benefit of a private person, and would constitute a surrender of the city's police power. We have previously pointed out that leases permitted by an act do not detract from the public use or purpose of lands acquired by a municipal corporation, and that under the Parking Act the lease permitted is for a public use, making any profit to the lessee an incident to that use. It has been frequently held that section 20 of article IV does not prohibit appropriation of public funds to private corporations or individuals where the money is to be spent for a public purpose. (Cremer v. Peoria Housing Authority, 399 Ill. 579; People ex rel. McDavid v. Barrett, 370 Ill. 478.) On the basis of these decisions we do not find that section 8 authorizes a grant of aid to a private enterprise. Neither can it be said that leasing constitutes a bargaining away or surrender of police powers to a lessee, for such a lease would bind and limit a lessee only to the performance of the public purpose as authorized and limited by the Parking Act. (Krause v. Peoria Housing Authority, 370 Ill. 356.) Should the contract of the city or the actions of lessee exceed those bounds, appellees are not without means of adequate and speedy relief.
The second phase of this appeal involves the validity of the ordinance passed by the city of Kankakee, and a determination of whether the city has exceeded the powers granted by the Parking Act. It would serve no useful purpose to set forth the ordinance in detail and we shall discuss only those provisions over which controversy has arisen. It will be recalled that the trial court held the ordinance invalid (1) because, in his opinion, no necessity for the parking facilities was shown to exist, and, (2) because the Parking Act granted no authority to pledge the income of parking meters already installed as security for the bonds to be issued for the payment of the off-street parking sites. In this court appellees advance additional grounds, which were raised by the ...