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Bowes v. City of Chicago

OPINION FILED MAY 24, 1954.

FRANKLIN B. BOWES ET AL., APPELLEES,

v.

THE CITY OF CHICAGO ET AL., APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL A. ROBERTS, Judge, presiding.

MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the circuit court of Cook County granting the plaintiffs-appellees a permanent injunction enjoining and restraining the defendants-appellants from constructing a water filtration plant in Chicago harbor. Hereafter in this opinion the parties will be referred to as they were designated in the circuit court of Cook County. The case comes to this court on appeal on the grounds that the validity of a statute, the construction of the constitution and the validity of a municipal ordinance are involved.

In the action below the plaintiffs sought to enjoin the city of Chicago from constructing a water filtration plant in Chicago harbor. The plaintiffs also sought to enjoin the Chicago Park District from consenting to such construction and to enjoin the defendant Great Lakes Dredge & Dock Co., a corporation, which had a contract with the city for some preliminary construction, from performing under said contract with the city. The water filtration plant under the proposed plans for construction was to be located in an area lying north of Navy Pier in the northerly half of the outer basin of Chicago harbor and of Harbor District No. 1 of the city of Chicago, the south line of this site being a line parallel with and 400 feet north of the north line of Navy Pier. The proposed plant has an area, at the surface of Lake Michigan, of approximately 61 acres. The highest structure of the plant is to be 62 feet above the water level of the lake. The southwest corner of the proposed site is 500 feet from Lake Shore Drive and the northwest corner is 1550 feet from the drive. The indicated cost of construction is $85,000,000.

The many plaintiffs in this proceeding are grouped into four different categories: (1) a group of persons suing as citizens of the State of Illinois; (2) a group of persons suing as the owners of real estate and as taxpayers thereon, and also some fourteen of said group suing as water rate payers; (3) a group of persons, four in number, claiming to have contract and property rights that would be damaged by the construction of the filtration plant; and (4) two associations suing in furtherance of the interests of their members.

The trial court dismissed for want of equity the complaint with respect to groups (1) and (4). No appeal has been taken to this court from such dismissal. As a result of such ruling the only plaintiffs appearing in this court are those denominated as groups (2) and (3).

The group of plaintiffs suing as taxpayers are 43 separate owners of real estate in the city of Chicago, each of whom joins in this action by reason of ownership of and payment of general taxes extended against real estate located in the city of Chicago. It is contended by this group of plaintiffs that while the city proposed to build the filtration plant solely from water funds and the proceeds of waterworks certificates of indebtedness and not from general funds, the city did, however, obligate the general funds to a certain degree. The permit issued by the Secretary of the Army to the city of Chicago provided in paragraph 6 thereof, "that if future operations by the United States require an alteration in the position of the structure or work herein authorized, or if, in the opinion of the Secretary of the Army, it shall cause unreasonable obstruction to the free navigation of said water, the owner will be required, upon due notice from the Secretary of the Army, to remove or alter the structural work or obstructions caused thereby without expense to the United States, so as to render navigation reasonably free, easy, and unobstructed; and if, upon the expiration or revocation of this permit, the structure, fill, excavation, or other modification of the watercourse hereby authorized shall not be completed, the owner shall, without expense to the United States, and to such extent and in such time and manner as the Secretary of the Army may require, remove all or any portion of the uncompleted structure or fill and restore to its former condition the navigable capacity of the water course." It is thus contended by this group of plaintiffs that at some future date the city may be required at its own expense to remove the entire filtration plant and restore the harbor to its original state. Moreover, the permit is to expire on December 21, 1955, and if at that time the city has not completed the filtration plant it will be required to remove all or any portion of the uncompleted structure and restore the harbor to its former condition. It is further required in the permit, by paragraph 12 thereof, that whenever commercial navigation requires and at the request of the district engineer the city of Chicago must dredge the approach channel and slip indicated on the permit. Furthermore, paragraph 13 of the permit requires the city of Chicago, when requested by the district engineer, to reimburse the corps of engineers in the amount of 25 percent of any expense involved in dredging shoals caused by accretion to the entrance channel between the gap in the outer breakwater and the lock in the mouth of the Chicago River. These plaintiffs further point out that if the water fund were large enough to cover these expenditures, the city would be powerless to use the fund for that purpose. The Revised Cities and Villages Act expressly limits expenditures from the water fund to paying (1) the cost of maintenance and operation of the waterworks system, (2) obligations of the municipality theretofore issued that are payable by their terms from this revenue, and (3) certificates issued under certain other sections of the Revised Cities and Villages Act. (Ill. Rev. Stat. 1953, chap. 24, par. 22-28.) Clearly, therefore, expenditures made by the city, in pursuance of the above-mentioned paragraph of the Federal permit, would necessarily have to be made from the general fund of the city of Chicago. This court stated in the case of Price v. City of Mattoon, 364 Ill. 512, that taxpayers were not proper parties to question the legality of a bond issue of the city of Mattoon, issued for the purpose of buying the water system of the local utility company and to start construction of a softening and filtration plant, for the reason that the bond issue was to be financed solely out of revenue derived from the sale of water to consumers and not out of any tax or taxes levied. The court stated that the purchase under such circumstances created no liability against the general funds of the city and no special liability on the city. Therefore, inasmuch as the purchase of the supply plant in the above matter would not result in the use of the taxpayers' money, the complainants had no right to enjoin the carrying out of the ordinances as taxpayers nor did they have such right as citizens to intervene to prevent an injury to purely public rights or property when none of them suffered a special or irreparable injury different in degree and kind from that suffered by the public at large. The court further stated that even though by some unforeseen contingency arising in the future the city might be required to make up a deficiency in public funds such speculative possibility could give no comfort to those plaintiffs, for in the matter at issue neither a debt nor a public fund of the city was directly or contingently involved.

In the situation at hand it is the general fund of the city of Chicago that is involved. Moreover, this is not a case of an unforeseen contingency arising in the future. Upon entering into the construction of any part of this filtration plant the city became liable upon all of its obligations under the Federal permit issued previous thereto, and there is a distinct foreseeable possibility that the city may be required to expend general funds in compliance with those provisions. The city has assumed an immediate and irrevocable liability by its action under the Federal permit. It is no less immediate and irrevocable because the city may conceivably never be compelled to make payments in fulfillment of some of these obligations. It is the right of a taxpayer to prevent misappropriation of public funds and the right is based upon the ground that taxpayers are considered owners of the property of the municipality, and whenever public officials threaten to pay out public funds for an unlawful purpose or to misappropriate public funds and thereby cause taxes to be levied to make good the misappropriation equity will prevent such unauthorized act. (Dudick v. Baumann, 349 Ill. 46.) These taxpayers therefore have a perfect right to seek a determination of whether the construction would be illegal and would entail a possible misapplication of general tax funds.

Fourteen of the plaintiffs embraced here in group (2) are water rate payers. They claim that as users of water for which they pay they, too, have a right to maintain the action here. The basis of their claim is that they have a special interest in the water fund of the city of Chicago because they contributed by their payment for water to that fund and have a special interest therein. They claim that if the filtration plant is constructed it will result in a substantial increase in water rates. In Price v. City of Mattoon the plaintiffs sued not only as taxpayers but also as water rate payers seeking to enjoin the purchase of the water supply system. This court there held that as water rate payers the plaintiffs had no right to maintain the action. In that proceeding this court said, should plaintiffs as water users, aside from their status as taxpayers, fail, in the future, to pay the established water rates fixed by the city from time to time and be deprived of water, no special injury or interest was established at the time due to any apprehension or anticipation that such event will occur. An examination of the record does not disclose any allegation of water rates determined by the city. There is no failure on the part of the plaintiffs to pay any existing rate nor any threat by the city to shut off the water from their property. When and if that time comes these plaintiffs will then have their remedy at law and an injunction will not now be granted in favor of said plaintiffs which is not based upon facts showing a reasonable probable cause for apprehension. (Joseph v. Wieland Dairy Co. 297 Ill. 574.) The record here shows that the building of the filtration plant designated will not in fact cause a substantial increase in water rates more than it would were the same constructed at some other lawful place which is not disputed by the plaintiffs. In fact we are of the opinion that by the use of the funds now in the water fund and with future financing it is highly probable that the plant in question can be built without any increase in water rates. Therefore the fourteen water rate payers cannot maintain the present action as water rate payers.

Also seeking to maintain this action is that group of plaintiffs embraced in group (3), four in number, who claim to have certain contracts and property rights that would be damaged by the construction of the filtration plant. In 1889 certain enabling acts were passed by the legislature relating to the extension of Lake Shore Drive. One act authorized the extension of the driveway over State waters and the reclamation and sale of submerged land between the driveway and the former shore. (Ill. Rev. Stat. 1953, chap. 105, pars. 125-129.) The other act granted title in the submerged land adjoining the driveway for a distance of 50 feet to the Commissioners of Lincoln Park, the predecessor of the defendant Chicago Park District.

Acting under this statutory authorization the Commissioners of Lincoln Park and the then owners of property along the shore line entered into a contract whereby the owners agreed to construct a driveway, to fill in the submerged land between the then shore line and the west line of the driveway, and to make certain payments to the park commissioners. The commissioners agreed to convey to the owners the submerged land between the driveway and the former shore line. Among other provisions the commissioners covenanted and agreed that: "no mooring of vessels to the sea wall for business purposes shall ever be allowed or shall any docks or piers be built east of said boulevard or driveway, and that if any lands are formed by accretions or otherwise east of said boulevard or driveway they shall never be used for the erection of buildings thereon, or for any purposes but those of a public park."

The nature of the legislative action, and of the agreement between the Commissioners of Lincoln Park and the property owners has been the subject of litigation previously before this court and is fully discussed in the case of People ex rel. Moloney v. Kirk, 162 Ill. 138.

Plaintiff-owners contend that since in their views section 49-11 of the Revised Cities and Villages Act (Ill. Rev. Stat. 1953, chap. 24, par. 49-11,) requires the approval by the Chicago Park District of the plan for the filtration plant, as a condition precedent to its construction, such approval cannot be given by the defendant Chicago Park District without violation of the terms of the aforementioned agreement or covenant. The covenant, its effect and operation, is discussed elsewhere in this opinion. It is sufficient at this time to say that the existence of the covenant and the allegation of its violation is sufficient to give the plaintiffs embraced in group (3) standing to sue. City of Chicago v. Ward, 169 Ill. 392.

Thus the only proper parties before this court and properly before the circuit court of Cook County were the group of plaintiffs designated as taxpayers and that group of plaintiffs designated as property owners. The group of plaintiffs designated as taxpayers sought to have a determination of the many questions concerning the legality of the construction of the proposed filtration plan. For instance they sought to determine the validity of a certain Federal permit, the question of the necessity of obtaining a State permit, the question of the validity of an ordinance and a provision in the Revised Cities and Villages Act which is authority for reclamation of submerged lands under the waters of this State and the use of such reclaimed land for a water filtration plant. It is the contention of these plaintiffs that such use would constitute a violation of the trust under which the State of Illinois holds title to said lands.

It is first contended by the plaintiff-taxpayers in this action that the decisions of the courts establish that the State of Illinois holds the lands under navigable waters within the State boundaries in trust for the purposes of navigation, commerce and fishing, and that the State may not grant these lands for a use which will materially interfere with these purposes. They further contend that in consideration of the public trust the legislature was without power to grant authority to the city of Chicago, or any municipality by virtue of the statute, to construct a filtration plant upon submerged land in navigable waters. Defendants counter this contention by asserting that the trust under which the State of Illinois holds submerged lands is not limited to the purposes of navigation, commerce and fishing, but extends to the promotion of the interest of the public and to protect the public purpose and public benefit. Upon an examination of the common law and cases in this and other jurisdictions, we are inclined to the belief that the State holds title to submerged lands subject to a trust the purpose of which is to protect all of the interests and benefits of the public in the navigable waters within the State of Illinois. It is unnecessary, however, for us to fully discuss the limits and extent of the public trust imposed upon the State of Illinois with respect to submerged lands, for the reason that whether the trust is limited as contended by plaintiffs or as broad and extensive as claimed by defendants, it is nevertheless conceded by plaintiffs in their brief filed in this court that the only question which they raise and which must be decided is whether ...


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