Kreigh v. City of Chicago

86 Ill. 407

• Court: Illinois Supreme Court
• Decided: September 15, 1877
• Status: Published

Opinion

Mr. Chief Justice Scholfield

delivered the opinion of the Court:

Waiving the question whether appellant’s motion to dismiss the proceedings was made in apt time, we are of opinion that the case is against him upon its merits.

West Washington street was one of the streets of the city of Chicago, duly laid out and established by it as such, long prior to the institution of the proceedings claimed to divest the city of control over it; and the city has always been, under the laws constituting its charter, possessed of exclusive power to establish, alter, and improve streets. Tuley’s Laws & Ord. 1873, p. 45, clauses 22, 23, 28, 30-33; id. 407, clauses 54, 55. See, also, Rev. Stat. 1874, ch. 14, art. 5, sec. 62, clauses 7-25 inclusive.

It was held in City of Alton v. Transportation Company, 12 Ill. 60, that the city holds grounds dedicated to public use, for the purposes for which they were dedicated only, and can not alienate them or divert them to other uses. And we held, in City of Quincy v. Jones, 76 Ill. 231, that a city holds its streets in trust for the public, and has no authority to alienate them to others, or divest itself of control over them by conferring rights or easements therein inconsistent with their duty to the public to keep them open and improve them for use as streets.

The authority to establish and open streets, and improve and keep them in repair as the public necessities require, is vital to the well being of municipal corporations ; and it is never to be presumed that the Legislature, having invested them with this power, has, at the same time, authorized them to surrender it to others over whose acts they can exercise no control. It devolves on those who assert the existence of such an extraordinary authority to prove it by the clear letter of the law.

The claim here is that such authority is conferred by the 38th section of chapter 105 of the Revised Statutes of 1874, entitled “ Parks,” page 747, which is as follows:

“ Be it further enacted, That in cases where, by virtue of an act or acts heretofore passed, public parks or boulevards have been designated or established in two or more towns, contiguous to each other, and where the commissioners, authorized by such act or acts to locate such parks or boulevards, shall desire to connect the same by a boulevard or pleasure-way, so as to form a contiguous improvement, or shall desire to connect such park with other portions of the park district in which such park is located by a boulevard or pleasure-way, it shall and may be lawful for such commissioners to select and designate the line of such boulevard or pleasure-way, and to acquire title to the lands which may be necessary to make such connection, by purchase or otherwise; and in case such commissioners can not agree with the owner or owners, lessee or occupant, of any of the real estate so selected, they may proceed to procure the condemnation of the same in such manner as is now or may be prescribed by any general law for the condemnation of lands for public use; and the cost and expense of acquiring title to such land shall be levied upon and collected by special assessment upon the property deemed specially benefited by the location of such boulevard or pleasure-way, in the same manner as the costs of other lands for parks and boulevards is assessed under the several acts creating such boards, and such boulevard or pleasure-way shall be under the control and management of such Park Commissioners, the same as other public grounds by them established.”

This, very clearly, has no reference to established streets ; and does not profess either to authorize the Park Commissioners to purchase or acquire established streets, or the city of Chicago to surrender its control over its streets to them. It has reference solely to the laying out and opening of streets, for the purpose indicated, by the Park Commissioners over lands to be acquired for that purpose; and confers, therefore, the right of condemnation, which they could not otherwise exercise.

The ordinance of June 1, 1874, may be regarded as a license sufficiently protecting the Park Commissioners and those acting under them from liability to prosecution for interfering with the streets; but it can not be regarded as divesting the city of its power, and relieving it of its duty, to widen and improve the streets as public necessities require, because there was no authority in law for the council to adopt an ordinance having that effect. There is no pretense that private rights have vested which it would be inequitable to disturb, on the faith of the ordinance; and this court has never recognized the doctrine that a municipal corporation can, by its acts alone, invest itself with a power not conferred by its charter, or divest itself of a power which its charter confers.

We think the motion to dismiss was properly overruled.

Perceiving no error in the record, the judgment is affirmed.

Judgment affirmed.