To SEARCH for a particular word or phrase on this page use Ctrl F  or  Edit Find

(such as "private", "park", "public")

Page Visits

You are invited to share your brief comments and opinions about this 1970 Illinois Supreme Court Decision

  WEBSITE REVIEWER'S             COMMENTS

(below on this side of webpage)

1970 ILLINOIS SUPREME COURT DECISION

46 Ill.2d 330, 263 N.E.2d 11

Supreme Court of Illinois.

Elizabeth Nitze PAEPCKE et al., Appellants,

v.

The PUBLIC BUILDING COMMISSION OF

CHICAGO et al., Appellees.

No. 43240.

Sept. 29, 1970.

Citizens, residents, taxpayers and property owners

of Chicago brought action to prevent Public Building

Commission, the City of Chicago, Board of

Education, and Chicago Park District from implementing

plans to construct school and recreational

facilities in two parks. The Circuit Court, Cook

County, Walter P. Dahl, J., dismissed complaint

and plaintiff appealed. The Supreme Court, Burt, J.,

held that owners of property adjacent to or in vicinity

of city parks dedicated by statute did not have

private property right to continuation of park use,

and that statutes, including Public Building Commission

Act, authorized diversion of portion of land

dedicated to park purposes for use for school construction.

Affirmed.

Calvin Sawyier and Richard L. Wexler,

Chicago, for appellants.

Richard L. Curry, Corporation Counsel, Chicago,

for appellee City of Chicago.

William R. Dillon, Chicago, for appellee Public

Building Commission of Chicago.

James W. Coffey and John T. Mehigan, Chicago,

for appellee Board of Education of City of Chicago.

Neil F. Hartigan and Harry R. Posner, Chicago, for

appellee Chicago Park Dist.

George E. Bullwinkel and Richard Stillerman,

Chicago (George W. Overton and Marshall Patner,

Chicago, of counsel), amici curiae.

BURT, Justice.

Plaintiffs, who are citizens, residents, taxpayers and

property owners of the city of Chicago appeal from

an order of the circuit court of Cook County dismissing

their complaint by which they sought to

prevent defendants, Public Building Commission of

Chicago, the City of Chicago, the Board of Education

of Chicago and the Chicago *332 Park District

from implementing plans to construct school and

recreational facilities in Washington and Douglas

parks. This court has jurisdiction on direct appeal

because of the constitutional questions involved.

The facts are to be gathered from statements in the

complaint which are admitted by defendants' motion

to dismiss and from joint exhibits admitted into

evidence at the request of all of the parties. In 1869

the General Assembly passed 'An Act to Provide

for the Location and Maintenance of a Park for the

Towns of South Chicago, Hyde Park and Lake'

which was approved and in force February 24,

1869. (Private Laws, 1869, vol. 1, p. 358.) The statute

provided that five persons, to be appointed by

the Governor, be constituted a board of public park

commissioners for the towns in question to be

known as the 'South Park Commissioners'. The act

authorized the commissioners to select certain lands

which are specifically described by metes and

bounds and provided in section 4 thereof that the

lands 'when acquired by said Commissioners, as

provided by this act, shall be held, managed and

controlled by them and their successors, as a public

park, for the recreation, health and benefit of the

public, and free to all persons forever.' Pursuant to

the granted authority the commissioners proceeded

to acquire, among other lands, those which

presently constitute Washington Park which is now

held by the Chicago Park District as successor to

the South Park Commissioners. The deeds by which

the property was originally acquired by the commissioners

purport to convey an unrestricted title in

fee simple without mention of park usage.

Washington Park as presently constituted contains

371 acres. It is located on the south side of the city

of Chicago and is bounded by 51st Street on the

north, Cottage Grove Avenue on the east, 60th

Street on the south and Martin Luther King Drive

on the west.

In 1869, the same year in which the South Park

Commission was created, the General Assembly

passed an act entitled 'An Act to amend the

charter of the city of Chicago, to create a board of

Park Commissioners, and authorize a tax in the

town of West Chicago, and for other purposes', approved

and in force February 27, 1869. (Private

Laws of 1869, vol. 1, p. 342.) By this legislation a

board of public park commissioners to be known as

'The West Chicago Park Commissioners' was created

with power and authority to acquire certain

designated lands with the stipulation in section 5

thereof 'that said board shall have power, and it is

made their duty and they are hereby authorized to

select and take possession of, and to acquire by

condemnation, contract, donation or otherwise, title

forever in trust for the inhabitants, and for the public,

as public promenade and pleasure grounds and

ways.' After their appointment by the Governor the

commissioners acquired, among other lands, those

which now constitute Douglas Park, presently held

by the Chicago Park District as successor to the

West Chicago Park Commissioners. This park, consisting

of 181.99 acres is situated on the west side

of the city of Chicago bounded on the north by

Roosevelt Road, on the east by California Avenue,

on the south by 19th Street and on the west by Albany

Avenue. The land comprising this park was

acquired by 10 deeds, six originals and two reconstructions

of which were received in evidence. The

remaining deeds were not found in the records of

the recorder due to the Chicago fire. Each of the six

originals admitted was on the same printed deed

form and contained the same restrictive language as

that found in section 5 of the act as above quoted.

In two of these the restrictive language had been

crossed out. In the remaining four it had been unaltered.

No restrictions appear in the reconstructed

deeds.

The Public Building Commission of Chicago, at the

request of the Board of Education of the City of

Chicago has undertaken a program involving the

construction, alteration, repair, renovation and rehabilitation

of public schools in the city, together

with park, recreational playground and other

related public facilities which will be leased by the

Building Commission to the Board of Education,

the Chicago Park District and other governmental

agencies. The commission has selected, located and

designated sites within the territorial limits of the

city of Chicago as sites to be acquired for the erection

and construction of elementary, middle and

high schools to serve about 30,000 pupils, together

with park, recreational and playground facilities.

Each of the sites has been recommended by the Department

of Development and Planning of the City

of Chicago in accord with the comprehensive plan

for the city of Chicago and in cooperation with the

Board of Education of the City of Chicago and also

the Chicago Park District in connection with the

sites in which the Chicago Park District is involved.

Some of these sites have already been approved by

the city council of the city of Chicago.

A site has been designated in Washington Park for

the erection of a school-park facility. The Chicago

Park District proposes to convey to the Public

Building Commission of Chicago for such purposes

a total of 3.839 acres located in the northwest portion

of the park about 250 feet from the northern

boundary. On 2.586 acres of this site the building

commission proposes to construct a middle school

for approximately 1500 students to be leased to the

Board of Education of the City of Chicago. The remaining

1.253 acres would be utilized in the construction

of a gymnasium and recreational facilities

which will be leased to the Chicago Park District.

Construction had started on this site at the

time suit was filed but had not proceeded to a point

where original use of the land would no longer be

possible. Of the sites thus far selected by the Public

Building Commission of Chicago and approved by

the city council of the city of Chicago only the 2.6

acres in Washington Park involves property in a

park which is to be used for school construction.

No site has been designated in Douglas Park

but one is under consideration at the present time.

Plaintiffs' complaint alleges a class action brought

on behalf of three classes of citizens: (1) those

named who are citizens, residents and taxpayers of

the city of Chicago; (2) those named who are citizens,

taxpayers and residents of areas of the city

served by a large regional city park such as Washington

Park and (3) those named who are citizens,

taxpayers and residents of an area served by a large

regional city park, such as Washington Park, and

who own real property bordering on or in the immediate

vicinity of said park in respect to which

there is a plan to construct a schoolhouse within the

boundaries of such park. It is plaintiffs' theory that

the parks in question are so dedicated that they are

held in public trust for use only as park or recreational

grounds and that those of them who are

property owners adjacent to or in the vicinity of a

park dedicated by the acts of 1869 have a private

property right to the continuation of the park use of

which even the legislature cannot deprive them.

They further contend that all plaintiffs who are citizens

and residents of any area of the city have a

public property right to enforce the public trust existing

by reason of the dedication of the parks as

aforesaid and to require that no change of park use

be permitted because the legislature has not explicitly

and openly so provided by statute. Additionally,

plaintiffs contend that the Public Building

Commission Act does not authorize construction by

the commission of local school houses in Chicago's

regional parks under the plan proposed by defendants

and that controlling statutes make this scheme

invalid for both the Board of Education and the

Chicago Park District. Finally, it is alleged that the

Public Building Commission Act is unconstitutional

as being too vague and indefinite.

In sustaining defendants' motion to dismiss the

complaint the trial court, in its judgment order, rejected

all of plaintiffs' contentions and specifically

found that plaintiffs in each of the three classifications

asserted had no such interest in Washington

Park or Douglas Park sufficient to enable or

entitle them, or any of them, to maintain the action

'except as taxpayers.'

We think it is clear from the undisputed facts

in this case that there has been a dedication by the

General Assembly of the lands in question for use

as public parks. This is so notwithstanding the fact

that the deeds by which the South Park Commissioners

and the West Chicago Park Commissioners

obtained title did or did not contain any of the restrictive

language found in the legislative enactments.

The authority of the Commissioners in

either case to receive title existed solely by virtue

of the provisions of the statutes which created the

respective municipal bodies for the sole purpose of

acquiring the lands for the purposes specified. Both

acts in substance specified that the lands when acquired

should be devoted to park purposes though

the language was not the same in each case. Such a

dedication having been made by the sovereign, the

agencies created by it hold the properties in trust

for the uses and purposes specified and for the benefit

of the public. See: Illinois Central Railroad

Co. v. Illinois, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed.

1018; Bliss v. Ward, 198 Ill. 104, 115, 64 N.E. 705;

Sax, 'The Public Trust Doctrine in Natural Resource

Law: Effective Judicial Intervention,' 68

Mich.Law Rev. 471--566.

In his extensive discussion of the 'public trust

doctrine' in the article just cited, the author, Professor

Joseph L. Sax, had occasion, at pps.

489--491, to analyze the decision in Illinois Central

Railroad Co. v. Illinois, 146 U.S. 387, 13 S.Ct. 110,

36 L.Ed. 1018, which he refers to as 'The Lodestar

of American Public Trust Law'. According to this

authority the central substantive thought in public

trust litigation as derived from this case is: 'When a

state holds a resource which is available for the free

use of the general public, a court will look with

considerable skepticism upon any governmental

conduct which is calculated either to reallocate that

resource to more restricted uses or to subject public

uses to the self interest of private parties'.

However, in discussing the question whether the

government can or should be viewed as having

made any irrevocable commitments about the use

of particular governmental resources, i.e. whether

any formal governmental acts can accomplish the

result of changing or abolishing the use (and observing

that the question had apparently never been

adjudicated with respect to national parks) the author

says, at p. 482: 'To accept such claims of property

rights would be to prohibit the government

from ever accommodating new public needs by

reallocating resources. Certainly any such notion

strikes at the very essence of governmental power,

and acceptance of such a theory by a court would

be as unwise as it is unlikely. It is important to recognize

that the assertion of a taking is not a mere

claim to compensation, for the objectors do not

want cash; rather it is a claim that when a resource

is dedicated to public use, that dedication is irrevocable.

However strongly one might feel about the

present imbalance in resource allocation it hardly

seems sensible to ask for a freezing of any future

configuration of policy judgments, for that result

would seriously hamper the government's attempts

to cope with the problems caused by changes in the

needs and desires of the citizenry'. Finally, in

discussing the state of the authorities on the question,

the author says at pp. 485--486: 'One who searches

through the reported cases will find many general

statements which seem to imply that a government

may never alienate trust property by conveying it to

a private owner and that it may not effect changes

in the use to which that property has been devoted'.

Then, after examining quotes from two cases, the

author continues, 'But a careful examination of the

cases will show that the excerpts just quoted and almost

all other such statements are dicta and do not

determine the limits of the state's legitimate authority

in dealing with trust lands. Unfortunately, the

case law has not developed in any way that permits

confident assertions about the outer limits of state 

power. Nonetheless, by examining the diverse

and often loosely written opinions dealing with

public lands, one may obtain a reasonably good picture

of judicial attitudes'.

With this much of background we approach

the first question presented in this appeal: Have

plaintiffs who are property owners adjacent to or in

the vicinity of the parks dedicated by the acts of

1869 a private property right to continuation of the

park use of which even the legislature cannot deprive

them? This question must be answered in the

negative. The mere dedication by the sovereign of

lands to public park uses does not give property

owners adjoining or in the vicinity of the park the

right to have the use continue unchanged even

though, when the park was established, abutting or

adjoining owners were assessed for special benefits

conferred. (Reichelderfer v. Quinn, 287 U.S. 315,

53 S.Ct. 177, 77 L.Ed. 331.) In the cited case Rock

Creek Park in the District of Columbia had been

created by act of Congress providing that the lands

'were perpetually dedicated and set apart as a public

park or pleasure ground for the benefit and enjoyment

of the people of the United States'. A later act

of Congress authorized the Commissioners of the

District of Columbia to construct a fire engine

house in the park. The Supreme Court held

that the plaintiffs derived no rights against the government

and had no interests protected by the constitution

against diminution by the government,

however unreasonable its action might be. Also, as

far as the private rights of adjoining owners are

concerned, see: Thayer v. City of Boston, D.C., 206

F. 969 (schoolhouse in park); Fielding v. Board of

Education of Paterson, 76 N.J.Super. 50, 183 A.2d

767 (schoolhouse in park); Carlson v. City of Fremont,

180 Neb. 262, 142 N.W.2d 157 (fire station

in park); Stevens v. Mayor and Council of City of

Vinita (Okl.1957), 315 P.2d 776 (fire station in

park). As to rights of adjoining owners in lands devoted

to public uses generally see: Horn v. City of

Chicago, 403 Ill. 549, 87 N.E.2d 642; *339Doane

v. Lake Street Elevated Railroad Co., 165 Ill. 510,

46 N.E. 520; Stetson v. Chicago and Evanston Railroad

Co., 75 Ill. 74.

In asserting a private property right plaintiffs cite

South Park Commissioners v. Montgomery

Ward & Co., 248 Ill. 299, 93 N.E. 910; City of

Jacksonville v. Jacksonville Railway Co., 67 Ill.

540 and Nichols v. City of Rock Island, 3 Ill.2d

531, 121 N.E.2d 799. None of these cases fairly

supports plaintiffs' contention.

South Park Commissioners v. Montgomery

Ward & Co. is the last of a long line of cases

wherein the owners of property on the west side of

Michigan Avenue in the city of Chicago were able

to prevent the construction of buildings in Lake

Front Park (later Grant Park). A reference to some

of the earlier cases, especially City of Chicago v.

Ward, 169 Ill. 392, 397--398, 48 N.E. 927, shows

that the legislature, by act creating the city of

Chicago, provided that no encroachments should be

made on any land or water west of a line 400 feet

east from the west line of Michigan Avenue and

parallel thereto, and that any person being an owner

of any lot fronting on Michigan Avenue should

have the right to enjoin the company (the railroad)

and all other persons and corporations from violations

of the section of the statute in question and in

his or their own name or otherwise enforce the provisions

of said ordinance (which defined railroad's

rights) and this section and recover damages Etc.

There were to be no encroachments without consent

of all owners. It thus appears that the adjoining

owners in these cases had a 'built in' cause of action

and special property rights given by statute. In

South Park Commissioners v. Montgomery

Ward & Co., the holding is that the interests held

by these adjoining owners could not be condemned

because it would amount to a taking of private

property for an illegal use. In this case there is no

showing that plaintiffs have any special property

rights or interests by contract or otherwise. On the

contrary the allegation is only that they own property

adjacent to or in the vicinity of the parks. The

South Park Commissioners case is therefore

clearly distinguishable. In the Jacksonville

case no question was raised or passed upon relative

to the private rights of property owners abutting on

the square or park. The action was brought by the

city to restrain the railroad from extending its trackage

through the square, and the holding is that the

legislature had no right to give the railroad rights

which were contrary to the terms of dedication by

the original grantors. This court held that the injunction

requested by the city should have been issued.

Any statement or inference that the abutting

owners had special property rights in pure Dictum.

As to the Nichols case, no legislative action is involved

and therefore no issue is presented as to

abutting owners being deprived of their property

rights by legislative action. It further appears that

plaintiffs claimed a perpetual easement by way of a

special property right. As already indicated, no

such claim is made here. This court decided in the

Nichols case that the construction of a swimming

pool, bath house and parking lot in the park in

question was consistent with the public uses intended.

The second question is whether all of plaintiffs, including

citizens who are residents of any area

of the city, have a public property right to enforce

the public trust here and to require that no change

of park use be permitted because the legislature has

not explicitly and openly so provided by statute. If

we understand plaintiffs' position correctly they do

not contend, as far as the rights of the public in

public trust lands are concerned, that the legislature

could never, by appropriate action, change or reallocate

the use in any way. (This would be contrary

to well established precedent. See: Droste v. Kerner,

34 Ill.2d 495, 217 N.E.2d 73; People ex rel. Moloney

v. Kirk, 162 Ill. 138, 45 N.E. 830; People exrel.

Bransom v. Walsh, 96 Ill. 232, 250.) Plaintiffs

argue, rather, that before such change can be said to

have taken place there must be explicit and open

action by the legislature authorizing such a diversion.

As to the first part of the question, i.e., the interests

of plaintiffs and their standing to bring

the action, the trial judge found that they had no

rights sufficient to enable them to maintain the action

'except as taxpayers'. In Droste v. Kerner, 34

Ill.2d 495, 504, 217 N.E.2d 73, this court held that

an individual taxpayer or property owner, in the absence

of statutory authority conferring that right,

had no standing in equity to enjoin an alleged misuse

of property held in trust for the public unless he

alleges and proves that he will suffer special damage,

different in degree and kind from that suffered

by the public at large. There was a dissent in the

Droste case in which it was pointed out that the alleged

cause of action in such cases is based upon

the individual's status as a taxpayer and that it is his

equitable interest, as a taxpayer, in the public property

which he claims is being illegally disposed of

that determines has standing to maintain the action;

that his right to sue does not depend on any injury

to his property and that he should not be forced to

rely solely upon the efforts of public law officers

for the protection of public rights. Authorities were

cited to support this position and distinctions were

observed as to the authorities relied upon by the

majority. Upon serious reconsideration of this question

we now believe that portion of the opinion in

Droste dealing with the right and standing of the

plaintiff to sue should be overruled, as should any

other former decisions of this court holding that a

citizen and taxpayer has no right, in the absence of

statute, to bring an action to enforce the trust upon

which public property is held unless he is able to allege

and prove special damage to his property. If

the 'public trust' doctrine is to have any meaning or

vitality at all, the members of the public, at least

taxpayers who are the beneficiaries of that trust,

must have the right and standing to enforce it. To

tell them that they must wait upon governmental

action is often an effectual denial of the right for all

time. The conclusion we have reached is in accord

with decisions in other jurisdictions, see: E.g.

Robbins v. Department of Public Works, 355

Mass. 328, 244 N.E.2d 577, and Gould v. Greylock

Reservation Com., 350 Mass. 410, 215 N.E.2d 114,

wherein plaintiffs' rights as residents in a trust of

public lands were enforced without question.

As to the second part of the question, I.e., whether

there has been a sufficient manifestation of legislative

intent to permit the diversion and reallocation

contemplated by the plan proposed by defendants,

it should be remembered that in People ex rel.

Stamos v. Public Building Com., 40 Ill.2d 164, 238

N.E.2d 390, this court had before it the very plan

and program here involved which was examined in

detail in the light of the many constitutional objections

raised. Our conclusion was that the plan was

valid and not subject to any of the objections urged.

The only question of major importance not before

us in Stamos which is present here is that of alleged

illegal diversion of use which plaintiffs claim is

without statutory authority. In our opinion in

Stamos we examined with some care the provisions

of the original Public Building Commission Act of

1955 (Ill.Rev.Stat.1955, ch. 34, pars. 256--

279); THE PUBLIC BUILDING COMMISSION

ACT as amended in 1965 (Ill.rev.stat.1967, ch. 85,

pars. 1031--1054) particularly sections 3 and 14(c)

(pars. 1033 and 1044); the 1955 amendment to the

School Code (Ill.Rev.Stat.1955, ch. 122, par.

34--20a, now par. 34--21.1); the 1957 amendment

to the School Code (Ill.Rev.Stat.1957, ch. 122, par.

15--22) and the 1955 amendment to the Park District

Act (Ill.Rev.Stat.1955, ch. 105, par. 333.15a)

and concluded that these statutes evidenced an intention

on the part of the General Assembly to authorize

the improvement of the site there in question

with a complex of school, park and recreational

facilities for the full utilization of such property for

the benefit of the school children during the school

terms and hours, and for the general public at other

periods. In other words, we found that the applicable

statutes authorized the program of schools and

recreational facilities in parks which is now sought

to be implemented in Washington and possibly

in Douglas Park by the defendant here.

Plaintiffs argue nevertheless that before defendants

can be allowed to carry out their plan the legislature

must clearly and specifically state with reference

to the park or parks in question explicit authority

to divert to new public uses and that there

must appear in that legislation not only a statement

of the new use but a statement or recital showing in

some way an awareness on the part of the legislature

of the existing public use. Their position is

based mainly upon a line of Massachusetts cases including

Robbins v. Department of Public Works,

355 Mass. 328, 244 N.E.2d 577; Gould v. Greylock

Reservation Commission, 350 Mass. 410, 215

N.E.2d 114; and Commonwealth v. Massachusetts

Turnpike Authority, 346 Mass. 250, 191 N.E.2d

481. It is our conclusion, as we found in the Stamos

case, that present statutes, including the Public

Building Commission Act, authorize a plan such as

that evolved for Washington Park presently, and we

further find that the intention expressed in that legislation

is sufficiently broad, comprehensive and

definite to allow the diversion in use involved here.

In passing we think it appropriate to refer to the approach

developed by the courts of our sister State,

Wisconsin, in dealing with diversion problems. In

at least two cases, City of Madison v. State, 1

Wis.2d 252, 83 N.W.2d 674; and State v. Public

Service Com., 275 Wis. 112, 81 N.W.2d 71, the Supreme

Court of Wisconsin approved proposed diversions

in the use of public trust lands under conditions

which demonstrated (1) that public bodies

would control use of the area in question, (2) that

the area would be devoted to public purposes and

open to the public, (3) the diminution of the area of

original use would be small compared with the entire

area, (4) that none of the public uses of the original

area would be destroyed or greatly impaired

and (5) that the disappointment of those wanting to

use the area of new use for former purposes was

negligible when compared to the greater convenience

to be afforded those members of the public

using the new facility. We believe that the

present plans for Washington Park meet all of these

tests. While not controlling under the issues as

presented in this case we believe that standards

such as these might serve as a useful guide for future

administrative action.

We believe that most of the remaining

questions raised by plaintiffs have been dealt with

and decided, either directly or by necessary inference,

in our opinion in the Stamos case but we shall

endeavor to cover all of them as briefly as possible.

First, it is contended here as it was in Stamos that

the Board of Education of the City of Chicago is

not authorized to lease schoolhouse space from the

Building Commission. We refer to p. 182 of our

former opinion, 238 N.E.2d 390 in answer to this

argument. We adhere to our former position for the

reasons there given. We have considered the authorities

cited by plaintiffs and find that they are

not productive of a contrary result. Second, it is

said that the Chicago Park District cannot

lease land from the Building Commission for any

purposes except those related to its administrative

functions. This argument was likewise made in

Stamos and there answered at pps. 185--186, 238

N.E.2d 390. We adhere to our position as stated

therein. Third, it is claimed that the Chicago Park

District cannot donate cash or land and the Chicago

Board of Education cannot donate cash to the Public

Building Commission for the construction of a

building and auxiliary facilities which neither is authorized

to lease. It will be noted that this contention

is based on the assumption that neither the

board nor district can lease. Since, as decided

above, both are authorized to lease, there is no basis

for this contention. Further, it was specifically decided

in Stamos, 40 Ill.2d p. 186, 238 N.E.2d 390,

that the Chicago Park District was authorized to

contribute property for the purposes specified. We

adhere to that decision. The power to donate under

section 13 of the Public Building Commission Act,

(Ill.Rev.Stat.1967, ch. 85, par. 1043), is broad. That

section confers power to donate property or

cash on municipal corporations 'which may be desirous

of renting space in any building or buildings

to be acquired or constructed by such Public Buildings

Commission * * * in such amount or amounts

as they may deem proper and appropriate in aiding

the Public Building Commission to effectuate the

purpose for its creation'. Fourth, plaintiffs say that

the twenty-year obligations for rental payments and

for payments for maintenance and operation which

defendants' scheme contemplates will be undertaken

by the Chicago Board of Education and the

Chicago Park District in violation of their annual

appropriation requirements and their respective tax

limits. This entire argument is met and answered at

pps. 183--185, 238 N.E.2d 390 in our opinion in

Stomas. We re-adopt that language and reasoning.

Finally, plaintiffs challenge the Public Building

Commission Act on the ground that it is vague

and indefinite and therefore unconstitutional. The

first part of their argument concerns the phrase 'essential

governmental, health, safety and welfare

services' in section 14(c). It is said that it is impossible

to determine the scope of such services.

This argument was considered specifically in

Stamos at pps. 174--177, 238 N.E.2d 390, 396 and

the conclusion was that the legislative standards

contained in the Public Building Commission Act

are more than sufficient to satisfy the requirements

of the due-process clauses of the State and Federal

constitutions and article III of the Illinois constitution,

S.H.A. We also had occasion in Stamos to observe

(p. 176, 238 N.E.2d 390) that this court had

used the precise word 'essential' in sustaining the

constitutionality of the original Public Building

Commission Act in People ex rel. Adamowski v.

Public Building Com., 11 Ill.2d 125 at 131, 142

N.E.2d 67.

Plaintiffs' second contention as to vagueness

comes in connection with section 14(i). That section

authorizes a public building commission to

'rent such space in such building or buildings as

from time to time may not be needed by any

governmental agency for such other purposes as the

Board of Commissioners may determine will best

serve the comfort and convenience of the occupants

of such building or buildings, and upon such terms

and in such manner as the Board of Commissioners

may determine'. Plaintiffs fear that this section does

not serve as a sufficient guide to determine what

shall be done in case the Board of Education abandons

the building when for one reason or another it

becomes no longer useful for their purposes. It

seems to us that the section in question is designed

specifically to cover such a situation. It is true that

administrative problems may arise in the event of

damage by fire or other casualty but those are problems

incident to the management of any building

and it would not be expected that the legislature

would attempt to anticipate and solve in advance

every problem that might be encountered by the

commission. As we observed in Stamos in referring

to Hill v. Relyea, 34 Ill.2d 552, 555, 216

N.E.2d 795, 797: 'There is a distinction between the

delegation of true legislative power and the delegation

to a subordinate of authority to execute the

law. (Citation.) The former involves a discretion as

to what the law shall be; the latter is merely an authority

or discretion as to its execution, to be exercised

under and in pursuance of the law.

(Citations.) It is an established rule that the General

Assembly cannot delegate its general legislative

power to determine what the law shall be. However,

it may delegate to others the authority to do those

things which the legislature might properly do, but

cannot do as understandingly or advantageously.

(Citations.) Absolute criteria whereby every detail

necessary in the enforcement of a law is anticipated

need not be established by the General Assembly.

The constitution merely requires that intelligible

standards be set to guide the agency charged with

enforcement, (citations,) and the precision of the

permissible standard must necessarily vary according

to the nature of the ultimate objective and the

problems involved. (Citations.)' We believe 

that the section in question, when considered in

connection with the other provisions of the act, cannot

be said to involve an unconstitutional delegation

of legislative power. No extended discussion is

required to distinguish this case from Rosemont

Bldg. Supply, Inc. v. Illinois Highway Trust Authority,

45 Ill.2d 243, 258 N.E.2d 569, relied upon

by plaintiffs. The only similarity in the two cases is

that problems of alleged vagueness and indefiniteness

are involved. As remarked above, the 'precision

of the permissible standard must necessarily

vary according to the nature of the ultimate objective

and the problems involved.' In Rosemont the

authority was given its choice between rental to

others or the collection of tolls in the event of non

payment of rentals without specification of any toll

authority or method. This was clearly an unconstitutional

delegation.

In conclusion, let it be said that this court is fully

aware of the fact that the issues presented in this

case illustrate the classic struggle between those

members of the public who would preserve our

parks and open lands in their pristine purity and

those charged with administrative responsibilities

who, under the pressures of the changing needs of

an increasingly complex society, find it necessary,

in good faith and for the public good, to encroach

to some extent upon lands heretofore considered inviolate

to change. The resolution of this conflict in

any given case is for the legislature and not the

courts. The courts can serve only as an instrument

of determining legislative intent as evidenced by

existing legislation measured against constitutional

limitations. In this process the courts must deal

with legislation as enacted and not with speculative

considerations of legislative wisdom. As previously

indicated in this opinion, existing legislation does

not warrant the restrictive interpretation plaintiffs

would place upon it.

The judgment of the circuit court of Cook County

dismissing plaintiffs' complaint is affirmed.

Judgment affirmed.

In the case of the Children's Museum:

1. CCM would control the use of the area in question.

2. The area would not be devoted to public purposes nor open to the public...without paying a $9 fee.

3. A proposed building with a volume 14 times the existing facility is not small.

4. The public uses of the original area would be eliminated.

5. Their is no convenience to be "afforded those members of the public using the new facility"...again without paying $9.00 at the door.

It should be noted that this 1970 Illinois Supreme Court Decision referred to the Charter Protections of 1861 and 1863 and not the Covenant Protections of 1836 and 1839.

The City of Chicago and the Chicago Park District are now considering "reallocating" a significant portion of Grant Park's Daley Bicentennial Plaza that "is now available for free to the general public...to more restrictive uses or to subject public uses to the self interest of private parties."

The "illegal use" that is referred to in this 1970 decision relates to not allowing the Field Museum to be built where Buckingham Fountain now stands today because of the 1836 and 1839 Dedication Restrictions, not because of the 1861 and 1863 Charter Protections afforded to the owners on Michigan Avenue.

Most Chicago Parks have been dedicated by statute, and the Legislature and governments created by the Legislature can change any "dedication restrictions" according to this 1970 decision.

Grant Park is unique, and the "dedication restrictions" of 1836 and 1839 CANNOT BE CHANGED by the Legislature according to the Illinois Supreme Court decisions of 1897, 1902, 1909, and 1911.

The resolution of the case of the Children's Museum relocating to a site on the protected land of Grant Park is unique because ONLY Grant Park is protected by the "dedication restrictions" of 1836 and 1839 that cannot be changed by the Illinois Legislature or any governmental body created by the Legislature according to the four Ward Decisions of the Illinois Supreme Court in 1897, 1902, 1909, and 1911.

Disclaimer - The 5 Illinois Supreme Court Decisions that are presented on this neweastside.org website were scanned from very poor quality PDF files, then scanned using OCR (Optical Character Recognition) software, and converted to a DOC file for inputing into HTML by the Homestead Software. Because of the historical poor quality of repeated copying, after the OCR conversion, several hundred errors were proofread and corrected. Therefore, there could be minor errors in this presentation. I certify that there are no major errors that would change the interpertation of this decision.

              Richard F. Ward, December, 2007 - Website Administrator

Added 12-20-2007:

This directly applies to the issue of the City of Chicago and/or  the Chicago Park District (both created by the Illinois Legislature) have no right to give the Children's Museum rights which are "contrary to the terms of dedication by the original grantors."

This is the basis of the 3rd Phase of  Covenant Protections. The CCM application cannot be "approved" by the city or park district because citizens can be expected to enforce the 1836 and 1839 dedication restrictions.

Added 12-20-2007:

There was some disagreement in the 2003 Monroe Marina discussions whether the citizen-taxpaying-owners of the East Randolph condominiums adjacent to Grant Park and Monroe Harbor had "STANDING" to enforce the 1836 and 1839 Dedication Covenant Restrictions and the 4 Ward Decisions. And the 2007 Children's Museum discussions have renewed that same question. This 1970 Illinois Supreme Court decision will give all parties guidance that this question is "settled law" in Illinois.

Added 12-20-2007:

There has been no evidence presented that the Chicago Park District is authorized to donate or lease uniquely-protected public park land for a private pay-for-entry commercial children's learning center. CCM calls themselves a "museum" but does not qualify for that designation under the normal defination of the word "museum". It is apparent that the word "museum" was added within the last decade to attract more donations, and now to be elgible for an estimated $1 million annual share of the museum-in-parks real estate tax fund.