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Droste v. Kerner

OPINION FILED MARCH 24, 1966.

ALBERT C. DROSTE, APPELLANT,

v.

OTTO KERNER, GOVERNOR, ET AL., APPELLEES. — (UNITED STATES STEEL CORPORATION, INTERVENOR-APPELLEE.)



No. 38249 — APPEAL from the Superior Court of Cook County; the Hon. ARTHUR A. SULLIVAN, Judge, presiding. No. 38905 — APPEAL from the Circuit Court of Cook County; the Hon. JOHN J. LUPE, Judge, presiding.

MR. CHIEF JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT: Rehearing denied May 18, 1966.

We have consolidated two appeals seeking to attack an enactment of the Seventy-fourth General Assembly.

The source of the litigation is Senate Bill 782, approved June 26, 1963, whereby the legislature "granted, quit-claimed and conveyed in fee" to the United States Steel Corporation 194.6 acres of land submerged beneath the waters of Lake Michigan, with the proviso that the grant was to become effective when the corporation had paid $19,460 to the State Treasurer, and the Chicago Park District had conveyed all of its right, title and interest in the submerged lands to the State of Illinois. (Laws of 1963, pp. 1229-1231.) Several months later, plaintiff, Albert C. Droste, instituted two separate taxpayer actions to enjoin the sale and transfer, naming as defendants in each action the Commissioners of the Chicago Park District and the Governor and Secretary of State of Illinois. The Governor and Secretary of State have appeared by the Attorney General and support the validity of the act.

One action (No. 38249) was brought purportedly under authority derived from the Public Moneys Act, (Ill. Rev. Stat. 1963, chap. 102, pars. 11-16,) which permits a taxpayer to initiate an action to enjoin the "disbursement" of "public funds" and "public moneys" by State officials. In accordance with such act the action was commenced by filing a petition for leave to file a complaint, the proffered complaint in this instance alleging the constitutional invalidity of S.B. 782. Leave to file was denied, the trial court being of the opinion that a suit to enjoin the conveyance of land was not encompassed by the Public Moneys Act. Plaintiff has appealed directly to this court.

In plaintiff's second action (No. 38905), admittedly initiated because of his doubts as to the statutory footing of his first action, he alleged the constitutional invalidity of S.B. 782, alleged that the conveyance was in violation of the theory of public trust advanced in Illinois Central Railroad Co. v. City of Chicago, 173 Ill. 471, and prayed for a declaration of invalidity, an injunction to restrain the conveyance, and a writ of mandamus to compel defendants to seek a judicial determination of the validity of the proposed conveyance before the conveyance should be made. Defendants filed motions to dismiss on grounds that plaintiff had not alleged facts showing special damage or injury to himself different in degree or kind from that suffered by the general public, and that he failed to allege facts showing that his taxes would be increased if the conveyance was carried out in compliance with S.B. 782. These motions were denied, whereupon defendants filed answers asserting the validity of the bill. At this point United States Steel Corporation sought and obtained leave to intervene in this action. Its answer described its situation as the owner of all the shore and upland immediately adjacent to the submerged land in question, pleaded the validity of S.B. 782, and, by way of affirmative defense, challenged the standing of plaintiff to maintain the action. In this case the parties elected to offer no proof, and the trial court therefore considered the action as pending on a motion for judgment on the pleadings. After hearing argument, the court found that S.B. 782 was valid, and dismissed the complaint for want of equity. Plaintiff also prosecuted his appeal from that judgment directly to this court.

At the outset, we must consider our jurisdiction to entertain these direct appeals. The parties cannot confer that jurisdiction by consent or acquiesence. Kelly v. Guild, 25 Ill.2d 511.

The principal ground relied upon by plaintiff to support our jurisdiction is his contention that the act in question violates section 22 of article IV of the Illinois constitution, which imposes certain limitations upon the legislative powers of the General Assembly. It is fundamental that the constitution is not regarded as a grant of powers to the legislative department but every subject within the scope of civil government rests in the General Assembly unless inhibited by some constitutional provision. People v. Dale, 406 Ill. 238.

It was well settled, prior to the constitution of 1870, that subject to the paramount power of the Federal government over commerce, including navigation, title to the lands submerged by the waters of Lake Michigan lying within the boundaries of Illinois rested in the State of Illinois in trust to protect the rights of the public in the use of those navigable waters for fishing, boating, recreation and other public purposes. This did not mean, however, that the shoreline was required forever to remain unchanged except by natural causes. An equally important part of the doctrine was that the State might from time to time relinquish its trust as to specific parcels of submerged lands by action of the General Assembly in granting to a shore owner title to those lands adjacent to his property where the grant was in aid of commerce and where the public interest in the lands and waters remaining was not substantially impaired. Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, 36 L.Ed. 1018, and authorities cited.

The proper execution of this public trust with respect to submerged lands requires that the conveyance of any particular parcel to a shore owner be consistent with the public interest and not impair the interest of the public in the lands and waters remaining. It would not be possible for the State to make that determination in the administration of the trust unless it has the power to specify the individual or corporation to whom the submerged lands are to be conveyed. We are not prepared to hold that section 22 of article IV of our constitution was intended to abrogate the public trust doctrine with respect to submerged lands or to render that doctrine unworkable.

The plaintiff refers to the clause of section 22 of article IV, which prohibits local or special laws vacating roads, town plats, streets, alleys and "public grounds". We do not believe that it can be fairly said that this general language evidences an intent on the part of the framers of our constitution to withdraw or impair the legislative power to continue with the administration of its public trust relative to submerged lands. Plaintiff also refers to the further clause of section 22 of article IV which prohibits local or special laws granting to any corporation, association or individual "any special or exclusive privilege, immunity or franchise whatever." Again we think that it would be a very narrow and unrealistic construction of this language to say that it was intended to withdraw, for all practical purposes, the legislature's power to administer its public trust with respect to submerged lands as that power existed in 1870. Had the framers of the constitution intended to impair this well-established power they would have said so in direct and positive language. It is significant that the legislature and those concerned in the carrying out of the law continued after 1870 to administer the public trust doctrine as they had before by making conveyances to shore owners where it was determined by legislative authority that such conveyances would be in aid of commerce and would not substantially impair the public interest in the lands and waters remaining. Furthermore many conveyances and releases by the State of its interest in nonsubmerged lands have, after 1870, been made to individual and corporate grantees upon authority of the General Assembly. This contemporaneous and practical construction over the years by the legislature and those concerned in the administration of the law is entitled to great weight. Cook County v. Healy, 222 Ill. 310; People ex rel. Sadler v. Olson, 245 Ill. 288.

Plaintiff places reliance on Illinois Central Railroad Co. v. City of Chicago, 173 Ill. 471. There the question was whether legislative authority existed to fill in the waters of Lake Michigan. It was held that such legislative authority had not been given and that the fill was therefore improper. That decision does not aid plaintiff.

In People ex rel. Moloney v. Kirk, 162 Ill. 138, an action was instituted by the State of Illinois, acting by its Attorney General, questioning the power of the General Assembly to authorize the conveyance to specific shore owners of certain lands, submerged by the waters of Lake Michigan, lying adjacent to their respective properties. While the conveyances were not made directly by the State to the respective grantees, the Board of Park Commissioners was authorized by the statute to execute and make such conveyances to various shore owners. In considering the validity of that statute, we said at p. 148: "The question before us is not one of policy or expediency, but of power. Was the legislature clothed with power to convey reclaimed lands which were originally covered by the waters of Lake Michigan?" We answered that question in the affirmative pointing out that the People had "spoken through their representatives, who were clothed by them with full power to act." If the legislature, as held in the Kirk case, had power to authorize such a conveyance to a specific shore owner by the Board of Park Commissioners, an agency of the State, it necessarily follows that the legislature had power to authorize the conveyance provided for by the act in question. In this connection we point out that the legislature, in section I of the present statute, expressly declared that "the grant of submerged land contained in this Act is made in aid of commerce and will create no impairment of the public interest in the lands and water remaining, but will instead result in the conversion of otherwise useless and unproductive submerged land into an important commercial development to the benefit of the People of the State of Illinois." The act was duly approved by the Governor and, prior to its passage and approval, the Chicago City Council had unanimously adopted a resolution urging the statute's enactment. We cannot assume that the legislative finding contained in section I of the act was factually incorrect or that it was not made in the utmost good faith.

The Kirk case, sustaining grants to specified grantees, has never been overruled but has been relied upon by the public and property owners in Illinois over a period of almost 70 years. It has become a rule of property and should not now be overturned.

The plaintiff suggests other constitutional grounds of attack on the statute in question, such as insufficiency of its title and violation of due process. We have carefully examined them and find them to be without merit. The trial court determined that under the constitution and laws of Illinois, including section 22 of article IV of the Illinois constitution, the legislature had the power to pass the legislation in question, ...


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