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Contemporary Music v. Chicago Park Dist.

OPINION FILED JANUARY 20, 1978.

CONTEMPORARY MUSIC GROUP, INC., PLAINTIFF-APPELLANT,

v.

THE CHICAGO PARK DISTRICT, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND K. BERG, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

This action was brought by plaintiff, Contemporary Music Group, Inc. (Contemporary), against defendant, Chicago Park District (District), for breach of contract. The complaint alleged that the District had breached its obligation under an executed permit agreement to allow Contemporary use of District facilities for purposes of staging a rock music concert. In its answer the District alleged as an affirmative defense that the permit in question had been properly revoked in the exercise of the District's police power, to secure the health, safety, good order and general welfare of the community. The trial court found for the District, holding that the revocation of Contemporary's permit constituted "a valid exercise of the police power and therefore was not a violation of the law." We affirm. The pertinent facts follow.

Contemporary is an Illinois not-for-profit corporation, organized to provide music and cultural programs to the public. The District is a municipal corporation which controls and supervises the operation of Chicago's parks and recreation areas. Ill. Rev. Stat. 1975, ch. 105, pars. 333.1 to 333.23v.

On March 24, 1970, Contemporary applied for a permit to present a rock music concert in the Soldier Field Stadium on September 13, 1970. On April 14, 1970, the District issued the requested permit. The permit agreement recited that as consideration for use of the premises Contemporary would pay the District a rental fee equal to 10 percent of the gross receipts. Contemporary then began planning and making certain expenditures in anticipation of the concert.

Subsequently, on July 28, 1970, the District's Board of Commissioners (Board) passed a resolution canceling all permit agreements for rock music concerts for the remainder of the year 1970. Said resolution stated that the reason for this action was the occurrence of a premeditated riot at a rock music concert featuring Sly and the Family Stone, held in the Grant Park Band Shell on July 27, 1970.

According to the resolution, more than 1000 persons took part in the riot causing injury to over 50 private persons and 120 police officers with thousands of dollars in damage to the property of private citizens. Furthermore, numerous public statements and threats had been made by rioters and others at the scene, asserting that the rioting was part of a continuing plan to seek a violent confrontation with police officers and officials of the City of Chicago, and that said conduct would be repeated in the future.

On the basis of these alleged facts the Board concluded that

"* * * any future concerts similar in nature to the concert staged on July 27, 1970 present a clear and present danger to the health, safety and welfare of the general public, and a serious imminent threat to the lives of police officers of the City of Chicago, and present a grave and unjustifiable risk of the destruction of property of residents of the City of Chicago and of users of the facilities of the Chicago Park District."

Therefore, the Board ordered that all District "pop" or "rock" concerts for the remainder of 1970 be cancelled, and that all "permits heretofore granted or issued" by the District for such "contemporary music concerts are hereby withdrawn." The resolution concluded by stating no future concert permits would be issued until the Board felt conditions had improved.

At trial, Contemporary produced certain witnesses who testified that the proposed concert of September 13 was to be substantially different in nature than the concert at which the riot had occurred. More than one major musical group would be scheduled for Contemporary's concert, an admission fee of $10 would be charged, and security arrangements would be more extensive. The witnesses also testified that Contemporary was given no notice by the Board that this resolution was being considered, nor were they afforded a hearing on this matter. However, a representative of Contemporary, Douglas Kissel, was present at the Board's meeting wherein the resolution was passed. He requested clarification from the District as to whether the resolution applied to Contemporary and, after a week had elapsed, he was informed that the resolution did act to cancel the September 13 concert.

OPINION

The central issue in this case is whether the resolution passed by the District constituted a valid exercise of its police power. The police power is not without limitation and may not be exercised arbitrarily. (Memorial Gardens Association, Inc. v. Smith (1959), 16 Ill.2d 116, 156 N.E.2d 587, appeal dismissed (1959), 361 U.S. 31, 4 L.Ed.2d 98, 80 S.Ct. 121.) An act which deprives a citizen of his liberty or property rights cannot be sustained under the police power unless a due regard for the public health, comfort, safety, or welfare requires it. (United States Brewing Co. v. Village of Alsip (1967), 81 Ill. App.2d 235, 225 N.E.2d 430.) However, while exercise of the police power must not conflict with constitutional provisions, neither the United States Constitution nor the Illinois Constitution was designed to interfere with the enactment of reasonable regulations for the protection of the people. See 11 Ill. L. & Prac. Constitutional Law § 149 (1955).

• 1 In determining the legitimacy of the instant resolution the presumption lies in favor of its validity. So long as the resolution is within the District's grant of legislative power, the burden is on the party attacking to show its invalidity. (See Keig Stevens Baking Co. v. City of Savanna (1942), 380 Ill. 303, 44 N.E.2d 23; cf. Memorial Gardens Association, Inc. v. Smith.) There is no question that the subject matter of the instant resolution was within the grant of power conferred upon the District by the General Assembly. Ill. Rev. Stat. 1975, ch. 105, pars. 333.7 and 333.7-02; see also Coughlin v. Chicago Park District (1936), 364 Ill. 90, 4 N.E.2d 1; Chicago Park District v. Altman (1970), 127 Ill. App.2d 467, 262 N.E.2d 373.

• 2 Contemporary relies upon a number of constitutional grounds as proof of the invalidity of the District's actions in this case. Initially, Contemporary claims that the District's actions violated due process of law in that (1) the District unnecessarily delayed for a week before telling Contemporary that the ban applied to its proposed concert, and (2) the District gave Contemporary no notice or opportunity to be heard concerning the resolution. We reject these contentions. Neither the due process clause of the Federal Constitution nor the due process clause of the Illinois Constitution overrides the power of the State, or one of its subdivisions, to establish all regulations that are reasonably necessary to secure the health, comfort, safety, and ...


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