APPEAL from the Circuit Court of Cook County; the Hon. FRANK
B. MACHALA, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 21, 1968.
This is an appeal from a mandatory injunction issued by the circuit court of Cook County in an action brought by the City of Chicago against the defendant Pennsylvania Railroad Company. The injunction ordered the removal of certain advertisements that were painted, without the consent of the City, on the sides of the defendant's privately owned railroad bridges where they traverse the public streets of Chicago at underpasses and permanently prohibited such advertising in the future. We are informed that this is a test case to determine the power of the City to compel by way of injunction the cessation of this type of commercial advertising on the sides of privately owned railroad bridges which traverse Chicago streets. Seven other equity actions have been prepared by the City against major railroads which likewise engage in underpass advertising in Chicago, and these cases are being held in abeyance pending the outcome of this proceeding.
In count I of its complaint the City charged that the placement of advertisements upon defendant's railroad bridges over public streets at underpasses violated section 9-112 of the Illinois Highway Code (Ill. Rev. Stat. 1965, chap. 121, par. 9-112,) the relevant part of which reads as follows:
"No person shall place or cause to be placed any sign or billboard or any advertising of any kind or description upon any State highway other than such as may be directed by the Department, or upon any other highway other than such as may be directed by the authority having jurisdiction over such highway. This provision also shall apply to signs, billboards, or any other advertising except signs designating the name of the railroad and the clearance provided upon any bridge, other structure, wire, cable, or other device, over or above such highway, whether constructed by the Department or others.
"Any person who violates any of the provisions of this section shall be fined not less than $10.00 nor more than $100.00 for each offense."
In count II of its amended complaint the City alleged that the advertising on defendant's bridges at underpasses also violated section 36-30 of the Municipal Code of Chicago which provides:
"No person shall post, stick, stamp, tack, paint or otherwise fix, or cause the same to be done by any person, any notice, placard, bill, card, poster, advertisement or other device calculated to attract the attention of the public, to or upon any sidewalk, cross-walk, curb or curbstone, flagstone, or any other portion or part of any public way, lamp post, electric light, telegraph, telephone, telephone or trolley line pole, hydrant, shade tree or treebox, or upon the piers, columns, trusses, girders, railings, gates or other parts of any public bridge or viaduct, or upon any pole box or fixture of the fire alarm or police telegraph system, except such as may be required by the laws of the state and the ordinances of the city.
"Any person violating any of the provisions of this section shall be fined not less than ten dollars nor more than two hundred dollars for each offense."
The City further alleged that the defendant railroad never received the City's permission to place the advertisements complained of, and that the City's relief at law was inadequate because it would involve a multiplicity of suits without final relief.
The defendant railroad and intervenor TDI Outdoor Advertising, Inc., the railroad's licensee to sell the advertising space in question, denied that the placement of the advertisements violated either the State statute or city ordinance, and their answers raised the following further defenses to the action: (1) that the City had no standing to bring this type of action to enforce the criminal laws of the State; (2) that section 9-112 of the Illinois Highway Code is constitutionally void because it delegates an arbitrary and unlimited discretion to the authority having jurisdiction over the highway (the City in this instance) to make exceptions without specifying any rules or standards to guide the authority's discretion, and because it unconstitutionally delegates legislative power and confers upon public officials the power to grant special or exclusive privileges; (3) that the City is arbitrarily discriminating against railroad underpass advertising while at the same time permitting other forms of streetside advertising; (4) that the City is discriminating against railroad underpass advertising while permitting the Chicago Transit Authority to advertise on structures owned by it which traverse the City streets; (5) that railroad underpass advertising is a lawful business which in no way endangers the safety, health, comfort or general welfare of the public and cannot be constitutionally prohibited. Along with their answer the defendants served 29 interrogatories upon the City inquiring as to (a) who authorized instigation of the present suit; (b) whether the City had any proof or knew of any study which indicated that advertising above or beside public streets caused accidents; (c) whether railroad underpass advertising is any different in kind or degree from other types of advertising licensed by the City beside or over the public streets; (d) whether the City had ever refused permission to the Chicago Transit Authority to affix advertising on its buses or on structures owned by it which extend over public streets; (e) whether the City had in the past five years ever placed any sign or banner over any public street or granted a license to any person, firm or corporation to do so. The City filed objections to these interrogatories as being "irrelevant and immaterial", and certain photographs were submitted by defendants in response to the City's objections which showed the type of railroad underpass advertising sought to be enjoined as well as various other advertising signs, billboards and posters erected in the vicinity of such railroad bridges. Defendants also served notice on the City that they intended to take a discovery deposition from Lester Kolom, a traffic engineer for the City of Chicago Bureau of Street Traffic. In response the City moved for a protective order denying the defendants' request to produce Kolom, and his affidavit was filed that he had no knowledge that would be helpful in this suit. An answering affidavit was filed by defendants' counsel stating that he was a participant in another case before the Illinois Commerce Commission wherein Kolom testified that he had investigated all fatal accidents occurring in the City of Chicago during the previous four years involving railroad bridges, piers and center columns, and had drafted specific recommendations for changes at each of the underpasses as part of his report.
The trial court denied the defendants' motion to strike count II of the City's amended complaint which charged the railroad with violating the City ordinance, sustained the City's objection that each of defendants' 29 interrogatories was either "improper, immaterial, irrelevant, or unnecessary", granted the City's motion for a protective order to prevent the production of Lester Kolom for the taking of his deposition, granted the City's motion for judgment on the pleadings, required removal from the bridges of all advertising and permanently enjoined the placing of all advertisements upon the Pennsylvania's bridges within the territorial limits of Chicago except for the designation of the name of the railroad and the height clearance. For the reasons hereinafter stated it is our opinion that the decree was erroneous as a matter of law.
Two of the points argued by the City may be summarily disposed of: the first relates to the question of the extent of the interest of the railroad in its bridge whether it holds a fee or only an easement; the railroad, in turn, questions the nature of the City's interest in the street whether fee or easement. It suffices to say of these arguments that there appears in the record before us nothing from which a conclusive determination of the nature of the respective interests could be made. Nor, in view of our disposition of this matter, do we consider the question material. The second point susceptible of summary dismissal is the City's argument that the railroad's action in renting the bridge space through TDI may well have been ultra vires and thus the railroad may "have still less of a property right susceptible of constitutional protection." The short answer to this is that the City may not challenge this corporate action on the ground that it was ultra vires. Golconda Northern Railway v. Gulf Lines Connecting Railroad, 265 Ill. 194, 204-5; see, also, Rockford Trust Co. v. Moon, 370 Ill. 250, 255.
The City devotes much of its brief to its argument that the prohibition of commercial advertising upon or near the public ways is a legitimate exercise of the police power and cites numerous authorities thought to be relevant thereto. However, that is not the question with which we are here concerned, and nothing said in this opinion ...