Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Peo. Ex Rel. Kucharski v. Mcgovern

OPINION FILED JANUARY 29, 1969.

THE PEOPLE EX REL. EDMUND J. KUCHARSKI, COUNTY COLLECTOR, APPELLEE,

v.

LAWRENCE MCGOVERN, APPELLANT.



APPEAL from the circuit court of Cook County; the Hon. HARRY G. COMERFORD, Judge, presiding.

MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 25, 1969.

The circuit court of Cook County overruled the objections filed by the taxpayer, Lawrence McGovern, to the application of the county collector for judgment and order of sale for nonpayment of 1966 taxes, and to determine the correct amount of those taxes paid under protest. The objections relate to taxes levied by the Forest Preserve District of Cook County. The revenue is involved, and the taxpayer has appealed directly to this court.

Six objections in all are involved. The first is directed to levies to meet appropriations for: "Maintenance Department — Golf Courses and Winter Sports Section" ($373,184); "Reconstruction and Additions to Existing Golf Courses" ($56,000); "Maintenance Department — Swimming Pool Section" ($149,960), "Swimming Pool Repairs" ($30,000). The second objection is to a levy to meet an appropriation of $25,475 for "Restoration at Construction Sites, Landscaping Golf Courses, Reforestation." These two objections will be discussed together.

The underlying basis of these objections is that the Forest Preserve Act (Ill. Rev. Stat. 1965, ch. 57 1/2, pars. 5, 6) did not, at the time these taxes were levied, authorize the districts created under it to maintain and operate golf courses, swimming pools and winter sports facilities, and that the taxes levied to meet appropriations for expenditures for these purposes were unauthorized and illegal.

The relevant statutory authority of forest preserve districts as it existed when these taxes were levied is as follows: "* * * to acquire in fee simple in the manner hereinafter provided, and hold lands containing one or more natural forests or parts thereof or land or lands connecting such forests or parts thereof, or lands capable of being reforested, for the purpose of protecting and preserving the flora, fauna, and scenic beauties within such district, and to restore, restock, protect, and preserve the natural forests and said lands together with their flora and fauna, as nearly as may be, in their natural state and condition, for the purpose of the education, pleasure, and recreation of the public." (Ill. Rev. Stat. 1965, ch. 57 1/2, par. 5.) "* * * to construct, lay out, improve and maintain wells, power plants, comfort stations, shelter houses, paths, driveways, roadways and other improvements and facilities in and through said forest preserves as they shall deem necessary or desirable for the use of such forest preserves by the public." Ill. Rev. Stat. 1965, ch. 57 1/2, par. 6.

The District has engaged in all three of the challenged activities for many years — it has maintained golf courses for 48 years, and swimming pools and winter sports facilities since the early 1930's. Different justifications are advanced by the District, however, to support each activity, and they will be discussed separately. With respect to the golf courses, the District argues that "within the total planning objectives" of the District, "the golf courses constitute as essential use of the * * * land for forestry and conservation purposes. These lands are at present maintained as open space areas or buffer zones to protect other lands more advanced in their growth and development cycle. If these lands were not used as golf courses, they would have to be kept in a pure meadow state. The cost of this would be considerable compared to the cost of using the land as golf courses." The District's 1966 appropriation ordinance shows anticipated annual revenue of $450,000 from golf course fees. From 1965 to 1967, an annual average of 270,896 persons used the golf courses, and in 1967 a new golf course, opened that year, attracted 48,492 players.

The District also points out that only 884 acres, or .015 of the 56,896 acres it owns, are used for golf courses, and that more than 50 percent of the area of several of its golf courses consists of forests in their natural state. Apart from these considerations, the District urges that the maintenance of these facilities is responsive to the authority of the statute, which states that forest preserves are to perform their functions "for the purpose of the education, pleasure and recreation of the public."

The taxpayer relies upon the language of the statute, which does not refer to generalized purposes of education, pleasure and recreation of the public, but to the limited purpose of accomplishing those objectives through the preservation and restoration of natural forests, and their flora and fauna, in their natural condition. To demonstrate that limited purpose he refers to the language of the original statute, free of irrelevant, but distracting, subsequent amendments: "`Any forest preserve district organized under this Act shall have the power to create forest preserves, and for that purpose shall have power to acquire, in the manner hereinafter provided, and hold lands containing one or more natural forests or parts thereof, for the purpose of protecting and preserving the flora and fauna and scenic beauties within such district, and to protect and preserve such lands as nearly as may be in their natural condition for the purpose of the education, pleasure, and recreation of the public.' Laws 1913, p. 387."

The taxpayer also relies upon the observations of this court in Perkins v. Commissioners of Cook County (1916), 271 Ill. 449. There the original statute was attacked on the ground that "the real purpose of the act was to create parks and pleasure grounds for the public." The court said: "While it is undoubtedly true that if the act is allowed to stand and is carried into effect the natural forests thereby preserved will have many of the characteristics of public parks that have been established under various laws, still we think that a fair reading of the whole of its sections shows that the primary purpose of such districts is to preserve and protect the natural forests, with their flora and fauna, in their natural state or condition, and that the matters of education, pleasure and recreation are subordinate to and merely incident to the preservation of such forests and their scenic beauties in their natural state." 271 Ill. at 469.

We are of the opinion that the objector is correct in his contention that the language of the statute did not, when these taxes were levied, authorize the district to maintain golf courses. The carefully prepared fairways, artificial sand traps, and bent grass greens which characterize golf courses are not, we think, compatible with the authority to preserve wooded areas in their natural condition.

Despite this conclusion, we are of the opinion that the objection was properly overruled. It is clear from the record that the golf courses produce substantial revenue for the District — indeed the unchallenged estimates of income from the operation of the golf courses are substantially equal to, or exceed, the total amount to be expended in their upkeep and maintenance. From the record before us, therefor, it does not appear that the taxpayer has been in any manner injured. If the golf course operations were eliminated from the activities of the District, as the objector contends they should be, the saving thereby achieved would be offset by an equivalent loss of revenue. As pointed out in People ex rel. Brenza v. Gilbert, 409 Ill. 29, 38, "The objection to a levy should disclose that the taxpayer has been injured by what the authorities have done." In the present case, as in the Gilbert case, the maxim of damnum absque injuria applies.

While the operation of golf courses requires a significant alteration in the natural state of the forested lands, and so was not compatible with the statutory authority of the District when the taxes here involved were levied, different considerations, in our opinion, apply to the activities of the District with respect to winter sports and swimming pools. Expenditures for winter sports are included with the appropriation for maintenance of golf courses and are not further segregated in the District's appropriation ordinance, which does, however, show anticipated revenue in the sum of $4,000 from the rental of toboggans. The use of forested areas for winter sports — ice skating, sledding, tobogganing and skiing — is a normal use of such areas, which does not require significant alteration of their natural condition. Those uses, in our opinion, are entirely consistent with the purposes for which the District was created. The use of the waters within forested areas for swimming is similarly a natural use of those areas. The artificial modification that has taken place by the construction of swimming pools is explained by the District in terms of the importance of preventing children from swimming in polluted rivers and creeks, and in eliminating the hazards that had accompanied swimming in natural quarries located on lands of the District. These uncontradicted explanations are adequate to justify the modification of natural conditions by the use of swimming pools. We are of the opinion, therefore, that the winter sports activities, as shown by this record, and the maintenance of swimming pools, fall within the powers granted to the District by statute.

Because we hold that the activities of the District with respect to swimming pools and winter sports are authorized by statute, and that the taxpayer has shown no financial injury resulting from the operation of the golf courses, it is unnecessary to analyze in detail the effect of two statutes relied upon by the District. The first of these, entitled "An Act to affirm certain acts of Forest Preserve Districts", was enacted in 1967, after the taxes involved in this case had been levied. It provides: "In all cases where any Forest Preserve District has heretofore constructed, maintained or operated one or more swimming pools, golf courses, playfields or other recreational facilities, such construction, maintenance or operation is hereby affirmed and declared to have been a proper and valid exercise of the corporate powers of any such Forest Preserve District incidental to those powers specifically granted to any such Forest Preserve District pursuant to `An Act to provide for the creation and management of Forest Preserve Districts,' ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.