APPEAL from the Circuit Court of Lake County; the Hon. LLOYD
A. VAN DEUSEN, Judge, presiding.
MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 4, 1975.
This action was filed in the Circuit Court of Lake County on November 6, 1974, by the City of Highland Park, seeking to enjoin the County of Cook and its Highway Superintendent from constructing a four-lane divided highway (replacing a two-lane single slab) in that portion of the right of way of Lake Cook Road (dividing Lake and Cook Counties) which lies within the corporate limits of the City.
The defendants filed a special appearance and moved to dismiss for want of jurisdiction or to transfer the case to Cook County, which motion was denied. They then moved to strike and dismiss the complaint on various grounds (want of jurisdiction, res judicata and failure to allege either irreparable injury or unlawful actions) and, when this was denied, answered the complaint.
On November 19, 1974, after a full evidentiary hearing, plus arguments, the trial court (1) enjoined the defendants, pending the final disposition of the case, from commencing any construction in Red Oak Lane and Ridge Road (which are north of the right of way of Lake Cook Road); but (2) denied the City's motion for a preliminary injunction with respect to construction within the right of way of Lake Cook Road.
The City has appealed from the denial of its motion for a preliminary injunction as to improvements in Lake Cook Road, contending (1) that section 5-408 of the Highway Code (Ill. Rev. Stat. 1973, ch. 121, par. 5-408) requires a county to obtain the approval of a municipality of over 500 persons before constructing, altering or maintaining a highway within its corporate limits, which approval has not been obtained; and (2) that, under its "Home Rule" powers under the 1970 Constitution, it has the power to and did enact ordinances requiring such prior approval, which approval has not been obtained.
The defendants have cross-appealed from the denial of their various motions and the entry of the preliminary injunction against construction of outlets in Red Oak Lane and Ridge Road, contending (1) that the Circuit Court of Lake County has no jurisdiction over them; (2) that the matter is res judicata because of an earlier Federal Court judgment; and (3) that the complaint fails to state a cause of action in that it fails to allege either (a) irreparable injury or (b) that the acts done or threatened are illegal.
We reverse the injunction relating to the outlets in Red Oak Lane and Ridge Road, affirm the denial of the City's motion for an injunction as to improvements in Lake Cook Road and, concluding that further continuation of the litigation is unwarranted, dismiss the action without remandment.
The leading facts are not really in dispute. The plaintiff City of Highland Park has a population well in excess of 25,000 and is therefore a "Home Rule" municipality under the 1970 Constitution. It is situated in the south east corner of Lake County, immediately west of Lake Michigan. Lake Cook Road, established in the 1850's, runs east and west, dividing Lake and Cook Counties. For at least the past 30 years it has been a two-lane single pavement road, both sides constructed and maintained solely by Cook County, using State motor fuel tax funds, not county highway funds. There is no contention that the City ever maintained or improved it nor is it contended that it is not a county road. Cook County sets the speed limits but the City polices that part which lies within its limits, issuing citations and investigating accidents. The Lake County Highway Department has long taken the position that Cook County alone controls the entire right of way, both north and south of the county line. The City has a water main in the northern part and a sanitary sewer in the southern portion and in 1971 built a sidewalk on the north part of the right of way, east of the portion here involved.
In 1936 the County Board of Cook County adopted a resolution designating Lake Cook Road, from Waukegan Road to Greenbay Road, as a State Aid Road and this was received and approved by the State Department of Highways, this being designated as CH 101. When State motor fuel tax funds are used, the County Board adopts a resolution which has to be approved by the State Department before such funds can be used.
Prior to 1967 many municipalities and organizations had requested that Cook County widen Lake Cook Road and in that year the County Board adopted a resolution which was received and approved by the State Department. The proposed improvement was designed to alleviate traffic congestion, compounded by a railroad crossing to the east, and to reduce safety hazards. The plan called for a four-lane divided highway, to replace the present two-lane single pavement, which widening would cut the backup of vehicles by about half.
The project begins in Lake Cook Road, 124 feet east of the center line of Waukegan Road and continues east 8,777 feet to a point 220 feet west of the center line of Skokie Boulevard. All but 3,900 feet borders on the City limits. The project also contemplated improving the Red Oak Lane and Ridge Road outlets to the north of the present right of way in order to realign the street levels to accommodate a difference of some 2 feet (in some 30) between the new pavement and these older City streets to the north. Even as expanded, the improved highway will still lie some 20 feet south of the north edge of the right of way.
The Lake County Highway Department approved the project. In 1967 the Cook County Superintendent of Highways sent a set of the plans, as already approved by the Illinois Department of Highways, to Samuel Lawton, mayor of Highland Park, but no objections to this project were raised until the fall of 1972. *fn1 In the meanwhile, the County spent some $300,000 (of State fuel tax funds), on plans and specifications for the project, which estimated to cost some $2,000,000, one-half of which, or $1,000,000 will be expended in the area bordering the City. The entire project is being financed solely by State motor fuel tax funds, no county highway funds being employed.
In 1971 a regional shopping center development began in Northbrook immediately to the south of the project here involved, which will add thousands of vehicles daily to the congestion without adding to the City's revenues. The City has consistently opposed this and its position is reflected in its brief as appellee where it says:
"The conversion of the existing two-lane highway in Highland Park into a four and six lane highway immediately abutting the single family zoned and developed area on the north side of the highway in the City of Highland Park, without providing a frontage road for the segregation and safety of the residents of the residential area from the huge volume of traffic which will be generated by the 145 acre shopping center now under construction immediately across the highway from such single family residential area, results in irreparable damage, not only in its depreciating effect upon the taxable values of the houses in the area, but also to the safety of the children and residents in the area. * * *" (Emphasis ours.)
In March and December of 1973, the City adopted two ordinances (supposedly under the "Home Rule" power given it in the 1970 Constitution) which, in effect, require not only persons and corporations but "any unit of local government" other than itself to obtain the approval of the City Council before commencing any "installation, construction, reconstruction, repair or replacement of any road, way, thoroughfare, easement or place open to the use of the public for the primary purposes of vehicular traffic." The County did not seek or obtain any such approval.
In 1973 the City filed a suit in the Federal District Court, seeking to enjoin the County from proceeding with the project here involved on the ground that it violated the Federal Clean Air Act and the National Environmental Protection Act. Part of the suit was dismissed on motion and the rest by way of summary judgment in March of 1974.
In November of 1974, the City filed the instant suit in the Circuit Court of Lake County, seeking to enjoin the County and its highway commissioner from constructing the project above described and the trial court enjoined them, pending the disposition of this action, from constructing some outlets (Red Oak Lane and Ridge Road) to the north of Lake Cook Road but refused other relief. The City has appealed and the County has cross-appealed.
• 1 Logically, we must first deal with the County's threshold contention that the Circuit Court of Lake County has no jurisdiction over it or its Highway Commissioner, despite the fact that the real estate involved is in Lake County and that, after its initial motion to dismiss or transfer was denied, it moved to strike and dismiss on other grounds, and, when that was denied, answered the complaint.
The County relies heavily on two early (1847, 1869) Illinois cases (Schuyler County v. Mercer County, 9 Ill. 20; McBane v. People, 50 Ill. 503) handed down long before modern practice acts were enacted. And in those cases the defendant did not itself continue to participate in the proceedings. We conclude that, under the facts of this case and under our present statutes and practice, the Circuit Court of Lake County had jurisdiction over the defendants and doubt that the contention merits further discussion.
We next pass to the defendants' second contention that the City's action is barred by res judicata by virtue of its having previously filed and lost an action in the Federal District Court under the Federal Clean Air Act and the National Environmental Protection Act, where the court held that said Acts did not apply to the project here involved.
• 2 We perceive no merit in this contention. Not only are the alleged causes of action completely different but the Federal Court had no jurisdiction to enter any judgment or decree against the defendants and so held. The trial judge properly disposed of this contention and we shall not discuss it further.
• 3 This brings us to the County's third contention that the complaint is insufficient in that it fails to allege irreparable injury as a necessary basis for a temporary injunction. While this is a sound theory where a private party is the plaintiff, it is not when a city or another public body brings the action, alleging violation of its ordinances and State statutes, with resulting damages to its residents. (See City of North Chicago v. Pixley (1975), 28 Ill. App.3d 354, 328 N.E.2d 147, 148-52.) Hence, we conclude that this contention is without merit but we shall, for now, defer our treatment of the defendants' related contention that the complaint is insufficient in that it does not allege facts demonstrating that the defendants are doing or threatening to do anything illegal.
This brings us to the City's first contention that section 5-408 of the Highway Code (Ill. Rev. Stat. 1973, ch. 121, par. 5-408) requires the County to obtain the City's approval before altering, constructing or maintaining a county highway within its corporate limits.
The Illinois Highway Code (Ill. Rev. Stat. 1969, ch. 121, pars. 1-101 through 11-107), provides a statewide system of highways, under the supervision and control of the Department of Public Works. In pertinent parts, it provides as follows:
"§ 1-102. Legislative Intent
It is the intent of the legislature to provide by this Code for the construction, maintenance and operation of public highways the end that the safety and convenience of highway traffic will be promoted and that the interests of the public relative to construction, maintenance and operation of public highways will be subserved thereby. It is the intent of the legislature to make the Department of Public Works and Buildings custodian of the State highway system and to provide sufficiently broad authority to enable the Department to function adequately and efficiently in all areas of appropriate jurisdiction, subject to the limitations of the constitution and the legislative mandate hereinafter imposed. The legislature intends to declare, in general terms, the powers and duties of the Department, leaving specific details to be determined by reasonable rules and regulations which may be promulgated by it. It is the further intent of the legislature to bestow upon the counties, ...