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Village of Evergreen Park v. Russell

OPINION FILED DECEMBER 21, 1981.

THE VILLAGE OF EVERGREEN PARK, PLAINTIFF-APPELLEE,

v.

WILLIAM RUSSELL, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROGER SEAMAN, Judge, presiding.

JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Defendant William Russell was found guilty in a bench trial of two parking violations in the Village of Evergreen Park. He appeals, contending that (1) the ordinance under which he was convicted was unconstitutional and (2) the village failed to prove a prima facie case. We affirm.

On March 2, 1980, Village police officer Peter DeLegge issued a parking ticket complaint to William Russell, of 2618 West 96th Place, Evergreen Park, for illegally parking after 10 p.m. on the street at that address a recreational vehicle, license number 84129RV, in violation of section 20-137 of the local ordinance. On April 30, 1980, he issued another complaint to defendant of that address for parking in the 2600 block of 96th Place a prohibited vehicle after 10 p.m., in violation of the same section of the ordinance.

In court, defendant moved in writing that the court declare unconstitutional Village Ordinance 24-1979, of which section 20-137 was a part, and that the court stay enforcement of the ordinance until the determination of its constitutionality. Both motions were denied.

The Village Ordinance provides:

"Section 20-137. Parking Prohibitions and Length of Time. It shall be unlawful to park any pickup camper with caps that exceed 6" above the cab roof, vans that exceed manufacturers' height, motor homes, mobile homes, trailer, boat trailers, tractors, buses, trucks whose gross carrying weight exceed 3/4 ton and all vehicles of the 1st or 2nd division as defined by Illinois Revised Statutes, Chapter 95 1/2 commonly identified as the `Vehicle Code' when such vehicles are equipped with an attached snowplow, on any street, alley or parkway between the hours of 10:00 p.m. and 7:00 a.m. These regulations shall be in addition to any further enumerated restrictions on parking as identified in this article of this chapter.

It shall be understood, however, that permission may be granted for a maximum 48 hour stay of one unoccupied mobile home or motor home per family which may be parked on a residential street provided said permit shall be obtained for the said stay by the owner thereof from the Police Department in advance of the parking of said mobile home or motor home and that said permit shall be displayed in the front windshield of said mobile home or motor home. In addition thereto, permission may be granted for the parking of said motor home or mobile home no more than twice in any 12 month period."

At the trial, Officer DeLegge testified that he issued the two parking tickets. He did not state what subsection, if any, the vehicle had violated. Over objection by defendant, he testified that he called Central Records to find out who was the owner of the recreational vehicle with the license number stated on the tickets and was informed it was the Russells. The officer did not testify that he saw either Mr. or Mrs. Russell park the vehicle nor did he present a certified copy from the Secretary of State's office as to the ownership of the vehicle with that license number.

Defendant rested after his motion for a directed finding was denied. Defendant was fined $25 and $10 court costs on the first ticket and $10 and no court costs on the second. The court denied defendant's motion for a new trial which reiterated the points raised in his motion for a directed finding: (1) the parking tickets failed to apprise defendant of what, if any, aspect of the ordinance was violated, (2) the ordinance was unconstitutional and was vague, and (3) the village failed to prove its cause of action.

Defendant's claim of unconstitutionality makes even more pertinent today, with its proliferation of litigation, the observation made by the Supreme Court of Illinois 71 years ago in People v. Sayer (1910), 246 Ill. 382, 387, 92 N.E. 900:

"Finally, it is contended that the section is in conflict with the fourteenth amendment to the Federal constitution, which always appears at some stage of every case in which a party feels that he is hampered by the law in doing what he pleases, regardless of the rights of others, and, however it may tax patience, the argument must be considered."

An ordinance banning overnight parking between 2:30 a.m. and 6 a.m. is a reasonable exercise of a municipality's police power and is constitutional; it serves a public purpose. Village of Oak Park v. Flanagan (1975), 35 Ill. App.3d 6, 341 N.E.2d 16.

• 1 Defendant's argument that, because the ordinance is not divided into various subsections and classes, a parking ticket referring to merely section 20-137 is so vague that a defendant cannot prepare a defense is without merit. Defendant points to the fact that the State licenses recreational vehicles without differentiation between types. The Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95 1/2, pars. 1-100 et seq.) defines a recreational vehicle (par. 1-169):

"ยง 1-169. Recreational vehicle. Every camping trailer, motor home, mini motor home, travel trailer, truck camper or van camper used primarily for ...


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