APPEAL from the Circuit Court of Cook County; the Hon. LEE W.
CARRIER, Judge, presiding.
MR. CHIEF JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 22, 1955.
In a condemnation proceeding instituted by the city of Chicago under the act relating to municipal parking facilities, herein referred to as the Parking Act, to acquire land owned by Florence M. Simmons, herein referred to as defendant, the circuit court of Cook County sustained the constitutionality of the Parking Act and entered judgment awarding defendant $51,500 as compensation, from which defendant has appealed directly to this court.
The cause presents for our determination essentially three issues: whether the proviso in section 52.1-1 of the Revised Cities and Villages Act constitutes an unconstitutional delegation of legislative power to an administrative agency; whether the condemnation petition contains proper and sufficient allegations in compliance with the terms of the Parking Act; and whether certain evaluation evidence was properly excluded.
The operative facts adduced from the record are uncontroverted. The city of Chicago filed a condemnation proceeding under the authority of section 52.1-1 of the Revised Cities and Villages Act (Ill. Rev. Stat. 1953, chap. 24, par. 52.1-1,) alleging in substance that the statute authorizes the city to establish sites and maintain parking facilities for motor vehicles, and for that purpose to acquire property by condemnation under the power of eminent domain. Pursuant to that authority the city council passed an ordinance on September 18, 1952, and supplemental ordinances on October 31, 1952, and January 26, 1953, copies of which are attached to the petition as exhibits A, B, and C. The subsequent ordinances refer to the original ordinance and involve additional parking projects. The ordinances recite the necessity for acquiring the parking sites, the description of the proposed areas and projects, the approval of the plan commission, and provide for the issuance of bonds incidental to the projects. The ordinances will be considered in greater detail hereinafter.
The defendant Florence M. Simmons moved to dismiss the petition upon the ground that the proviso in section 52.1-1 of the Parking Act that a city which has established a plan commission "shall submit to and receive the approval of the plan commission before establishing or operating any parking facilities," constitutes a delegation of legislative functions without establishing any standards to guide the exercise of said function, and is therefore unconstitutional. The motion also sets forth that there is no allegation in the petition that the acquisition of defendant's property was necessary or incidental to the regulation and control of motor vehicles, and that the petition did not indicate the submission to and receipt of approval from the plan commission as to the establishment of parking facilities on defendant's property.
The motion to dismiss was overruled and the cause proceeded to a hearing. Inasmuch as the only controversy with reference to that hearing pertains to the exclusion of the valuation opinion of Ronald J. Chinnock, one of defendant's witnesses, and the testimony of Florence M. Simmons with reference to gross receipts, we shall review only that portion of the evidence.
Ronald J. Chinnock, testifying on behalf of defendant, stated that he was a realtor for 25 years, a member of various real estate and appraisal associations, and that in arriving at his opinion of the value of the property he took into consideration the "number of persons seen in the place, the number passing by, and the amount of business on this property." He explained that he believed the present use to be the highest and best use, and he therefore asked for, and received, a statement of the operations from the income tax returns for the past seven years, which information he considered in his valuation; that he regarded defendant's operation as unusual, since other restaurant operators might not do quite so well; that in arriving at his opinion as to the value of the property he took into consideration the amount of business on the property, the economic and physical factors, his knowledge of the area and comparable sales, and that he attempted to put the elements together.
The court sustained the petitioner's objection to the valuation opinion of that witness on the ground that it was based upon improper and illegal elements, and refused to admit the offer of proof that his opinion of the fair cash market value of the property as of the date of filing the petition to condemn was $66,500.
The court overruled defendant's renewed motions to dismiss, the motions for judgment notwithstanding the verdict and for a new trial, and entered judgment on the verdict, awarding defendant compensation for the taking of the property in the amount of $51,500.
In determining the propriety of that judgment we shall consider first the constitutionality of the statute upon which petitioner's authority to condemn is predicated.
The statute provides: "Any municipality is hereby authorized to: (a) Acquire by purchase or otherwise, own, construct * * * 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 (hereinafter referred to as parking facilities), as the corporate authorities may from time to time find the necessity therefor exists, and for that purpose may acquire property of any and every kind or description, whether real, personal or mixed, by gift, purchase or otherwise; provided that any municipality which now or hereafter provides for the creation of a plan commission under Article 53 of this Act shall submit to and receive the approval of the plan commission before establishing or operating any parking facilities as provided in this Article; * * *." (Italics supplied.)
The constitutionality of the Parking Act was sustained in Poole v. City of Kankakee, 406 Ill. 521, where the court held that the act embraces the taking of land for a public use and therefore constitutes proper exercise of the right of eminent domain. However, it is conceded by the parties herein that a decision sustaining the constitutionality of an act on one ground does not preclude inquiry into its constitutionality on other grounds, (Grasse v. Dealer's Transport Co. 412 Ill. 179; People v. Bruner, 343 Ill. 146;) and that the City of Kankakee case did not pass upon the proviso referring to the approval of the plan commission.
Defendant argues that the word "approval" in the proviso is not limited by any other provision of the act, thereby giving the commission complete discretion to approve or disapprove a plan submitted by the city council, without any standards or guides prescribed by the statute. Plaintiffs reply that the challenged provision is not a delegation of legislative authority. The proviso to section 52.1-1 does not stand in isolation but must be read and construed with sections 53-1 and 53-2. For all practical purposes, section 52.1-1 adopts sections 53-1 and 53-2 by reference, a common and permissible legislative technique. (See: People ex rel. Gutknecht v. ...