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Peo. Ex Rel. Gutknecht v. Port Dist.

OPINION FILED NOVEMBER 18, 1954.

THE PEOPLE EX REL. JOHN GUTKNECHT, STATE'S ATTORNEY, APPELLANT,

v.

CHICAGO REGIONAL PORT DISTRICT ET AL., APPELLEES.



APPEAL from the Superior Court of Cook County; the Hon. DONALD S. McKINLAY, Judge, presiding.

MR. JUSTICE FULTON PREPARED THE FOLLOWING OPINION PRIOR TO HIS RESIGNATION AND IT HAS BEEN ADOPTED AND FILED AS THE OPINION OF THE COURT:

This is an appeal from an order of the superior court of Cook County and involves the validity of the Chicago Regional Port District Act as passed by the 1951 General Assembly and added to by the 1953 Assembly.

The State's Attorney of Cook County filed an information in the nature of quo warrantor on behalf of the People challenging the constitutionality of the act entitled, "An Act to create a Chicago Regional Port District, and to define its powers and duties," (Ill. Rev. Stat. 1953, chap. 19, pars. 152 to 178 incl.) and the Lake Calumet Harbor Act. Ill. Rev. Stat. 1953, chap. 19, pars. 113 to 118 incl.

At the same time the State's Attorney in his official capacity, and as a citizen and taxpayer, filed a complaint in equity for an injunction to restrain the expenditures of appropriations, the issuance of bonds, the acceptance or attempting to obtain a lease of lands in the bed of Lake Calumet, and for general relief. The Chicago Regional Port District and the individual members of the Chicago Regional Port District Board were made defendants in both of said actions.

The appellees filed motions to strike the information and complaint. The two causes were consolidated for the purpose of hearing, and were submitted to the court on the above-mentioned pleadings. The court sustained the motions to strike, and, the appellant having elected to stand by the information and complaint, an order was entered dismissing both the information and complaint. This appeal was taken from that order.

The Chicago Regional Port District Act consists of 27 sections. Section 3 of said act is as follows: "There is created a political subdivision, body politic and municipal corporation by the name of the Chicago Regional Port District embracing all townships numbered 36 and 37 of the United States Government Survey, situated in Cook County, Illinois, and section 14 in township 37, range II, of said government survey, situated in Du Page County, Illinois. The District may sue and be sued in its corporate name but execution shall not in any case issue against any property of the District. It may adopt a common seal and change the same at pleasure. The principal office of the District shall be in the city of Chicago."

Section 4 defines the duties of the Port District. These duties are, generally stated, to study existing harbor plans and recommend changes and improvements therein to meet changing business and commercial needs; to investigate and prepare plans for the development of the port facilities for said Port District; to study and make recommendations for the improvement of terminal and other facilities for the promotion of commerce; and to perform other acts to improve the port facilities in the handling of commerce in and through the Port District.

Section 5 defines the rights and powers of the District. The District has no power to incur any obligations for salaries and expenses until authorized by the General Assembly and appropriations are made therefor (section 6). It has power to acquire and accept by lease, gift or otherwise, any property and rights useful for its purpose and to aid in the development of adequate channels, ports, harbors or terminals or port facilities (section 7); to apply for and accept Federal grants, loans or appropriations (section 8); to procure and enter into insurance and indemnity contracts (section 9); to borrow money for port facilities, property and equipment, and to issue revenue bonds and certificates in payment of same (section 9.01).

The district has no power to levy taxes for any purpose (section 10). The act provides that it shall be unlawful to make any fill or deposit of rock, earth, sand or other materials, or build any wharf, pier, etc., over, or within forty feet of any navigable waters within said Port District, without a permit therefor, and provides penalties for the violation of said provision (section II). Provision is made for the appointment of a Port District Board, consisting of seven members, to serve without compensation (section 12.) Four of said Board members shall be appointed by the Governor by and with the advice and consent of the Senate, and the mayor of the city of Chicago shall appoint three of said Board members, by and with the consent of the city council. Each appointment by the Governor shall be subject to approval by the mayor, and each appointment by the mayor shall be approved by the Governor (section 13).

All actions of the Board shall be by ordinance or resolution passed by the affirmative vote of at least four members. All such ordinances and resolutions, before taking effect shall be approved by the chairman of the Board, and if he shall approve thereof, he shall sign the same; and such as he shall refuse to approve, he shall return to the Board with his objections thereto in writing (section 16). The Board is given power to pass all ordinances and make all rules and regulations proper and necessary to carry into effect the powers granted with such fines or penalties as may be deemed proper (section 21).

The act providing for the construction of Lake Calumet Harbor was passed by the General Assembly and approved June 12, 1929. Said act provides that a harbor, having a basin and slips, a depth of not less than minus 21.34 feet, Chicago datum, and a total area of not less than 500 acres, may be constructed by the city of Chicago in and near Lake Calumet in the city of Chicago. By this act the city of Chicago is granted all the right, title and interest of the State of Illinois in the lands constituting the bed of Lake Calumet with certain exceptions therein stated.

Section 5 of the act authorizes the city of Chicago to sell and convey or lease for any term of years any of the lands granted by the State for industrial, manufacturing or harbor purposes, under certain conditions to be set forth in such deed or lease with reference to the use of such property, any such deed or lease to be approved by the Department of Public Works and Buildings.

The information and complaint filed herein raise numerous constitutional questions, which will be discussed and disposed of in the order in which they are presented in the briefs of the respective parties.

It is first contended by appellant that both of the acts of the General Assembly above mentioned violate separate section 3 of the Illinois constitution of 1870. The pertinent portion of said section 3 is as follows: "The Illinois and Michigan Canal, or other canal or waterway owned by the State shall never be sold or leased until the specific proposition for the sale or lease thereof shall first have been submitted to a vote of the people of the State at a general election, and have been approved by a majority of all the votes polled at such election." Appellant concedes that this court has never passed directly on the question of the application of the provisions of separate section 3 of the constitution, in any case similar to the case at bar. In support of its position, appellant contends that the acts in unmistakable terms relinquish to the Port District and the city of Chicago any and all of the State's rights and interests over the bed of Lake Calumet and give the Port Board the power to acquire the other navigable waters of the State lying within the Port District area.

It is obvious that the purpose of the adoption of separate section 3 of the constitution was to prevent the passage of the control of this portion of the public waters of the State out of the control of the public authorities, or of one of its public agencies, to the end that the use of the public waters would be transferred to private interests in competition with the State or the public, and thus deprive the people of the use of the public waters as a means of transportation. If, therefore, the acts in question were passed with the intent and purpose on the part of the General Assembly of securing the development of harbor and terminal facilities of the public waters, for the use and benefit of the public, then it would seem apparent that these acts, ...


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