APPEAL from the Circuit Court of Cook County; the Hon. HARRY
M. FISHER, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 23, 1957.
The city of Northlake appeals from a judgment of the circuit court of Cook County, which in a declaratory judgment proceeding, declared that the plaintiff, Pure Oil Company, has a right to construct driveways of reasonable width for the purpose of affording access to certain property upon which it intends to build a service station. The court certified that the validity of a municipal ordinance is involved, and the public interest requires that if an appeal be taken it come directly to this court.
The property is located at the southwest corner of North Avenue and Wolf Road in a business section of Northlake. It is zoned "commercial," which permits its use as a service station site.
On September 14, 1954, the plaintiff asked for and received a building permit. However, on October 8, 1954, the city council passed a frontage-consent ordinance, and the plaintiff was advised that it could not proceed with the work until it complied with this ordinance. In accordance with the terms thereof, it was necessary that there be filed with the city a frontage-consent petition containing the signatures of "the owners of a majority of the frontage abutting both sides of the street within the block where the proposed business or occupation requiring frontage consents is located."
The plaintiff secured the requisite signatures, and on November 8, 1954, presented its petition to the city council, together with a $100 fee which the ordinance states is "to reimburse the city for the expense of certifying the accuracy and correctness of the petition." The city council never verified the signatures, but the city concedes on this appeal that the plaintiff properly complied with the ordinance.
Ten days later, on November 18, 1954, the city passed a driveway ordinance, section 12-24 of which provides as follows: "Driveways. It shall be unlawful to construct or maintain any driveway in or across any public walk, curb or parkway without first having obtained a permit therefor from the City Council of the City of Northlake. Application for such permits shall state the size, location and material to be used in such driveway and shall include plans and specifications therefor, and it shall be unlawful to depart from such plans and specifications or vary from them without permission of the City Council of the City of Northlake."
The plaintiff never asked for or obtained a "driveway permit" from the city council. Rather, it filed the instant suit, alleging that it had been advised the mayor and members of the city council did not want a service station on the property, and since the issuance of driveway permits rests within the uncontrolled discretion of the city council, it would be a waste of time to make application for such a permit. The city denied that it ever advised the plaintiff to that effect, but does state it would be dangerous and highly undesirable to issue such a permit in view of the traffic congestion on that corner.
The plaintiff made three separate and alternate contentions regarding this ordinance: (1) The ordinance is not applicable to the proposed driveways. (2) The city does not have statutory authority to enact the ordinance. (3) The ordinance is unconstitutional.
The trial court held for the plaintiff, and on this appeal the city's sole argument is that the ordinance is both applicable and valid, with the result that the plaintiff is precluded from constructing any driveways to the property until such time as there has been compliance with the ordinance. If it is wrong in this contention, the city agrees we should affirm the trial court.
Even assuming the ordinance encompasses the instant situation, it is not a valid measure. There are two aspects to this question: whether the city had statutory authority to enact the ordinance and whether it is constitutionally valid.
The ordinance purports to vest with the city council the power to deny, in its absolute discretion, permission to construct or maintain any driveway in or across any public walk, curb or parkway. No restrictions are placed upon this power, nor are there any standards established to govern its exercise.
Since cities possess only those powers which are granted them by the General Assembly, (People ex rel. Gutknecht v. City of Chicago, 414 Ill. 600,) we must first ascertain if the ordinance is authorized by statute.
In addition to the general power to pass "all necessary police ordinances," (Ill. Rev. Stat. 1955, chap. 24, par. 23-105,) the Illinois legislature has delegated to cities the authority to "vacate, layout, establish, open, alter, widen, extend, grade, pave, or otherwise improve streets, alleys, avenues, sidewalks, wharves, parks, and public grounds," (par. 23-8,) to "regulate the use of streets and other municipal property" (par. 23-10,) to "provide for and regulate cross-walks, curbs, and gutters" (par. 23-18,) to "regulate the use of sidewalks, the construction, repair, and use of openings in sidewalks." (par. 23-20,) to "regulate traffic and sales upon the ...