*1 PARK, v. Cross-Appellee, THE Plaintiff-Appellant, THE CITY OF HIGHLAND al., Cross-Appellants. Defendants-Appellees, COOK COUNTY OF et Division) (1st No. 74-384 District Second 1975. Rehearing December denied Opinion September filed 1975. *2 SEIDENFELD, dissenting. J.,P. Schwartz, Compere, Hollander, Thomas Berle L. High- Richard all of J. J. Park, appellant.
land for (Melvin Carey, Attorney, Chicago Bernard State’s of Rieff and Sheldon Gard- ner, counsel), Attorneys, appellees. Assistant State’s of
Mr. HALLETT the opinion delivered of the court: JUSTICE This action was filed in the Circuit Court of Lake on November 6, 1974, Park, by the City Highland seeking enjoin to Highway Superintendent Cook and its from four-lane di- (replacing single slab) portion vided a two-lane of the that right way (dividing Counties) of Lake Cook Road Lake and Cook which lies within the limits corporate City. of the special appearance defendants filed a and moved to dismiss for jurisdiction County, want of to to transfer case Cook which motion They complaint then on denied. moved to strike and dismissthe vari- (want jurisdiction, ous grounds allege and failure to either judicata res and, denied, irreparable injury actions) or unlawful when this was an- complaint. swered the 19,1974, evidentiary plus arguments,
On November after a hearing, full defendants, (1) the trial enjoined pending disposition court the final case, commencing any Ridge in Red Oak Lane and construction (2) Road); but way of Lake Cook (which right are of the Road north to con- preliminary injunction respect motion for denied right way within of Lake Cook Road. struction preliminary for a has from denial of its motion appealed Road, contending (1) that to in Lake Cook injunction improvements 121,par. ch. 5— (Ill. Rev. Stat. section 5—408 of the Code municipality of over of a 408)requires county obtain the persons constructing, altering maintaining obtained; limits, (2) un- approval has not been which Constitution, it has the its “Home the 1970 der Rule” appro- prior approval, requiring and did enact ordinances been val has not obtained. from the denial their various cross-appealed
The defendants have injunction against the entry preliminary motions and construction Road, Cir- contending (1) that the Ridge outiets Red Oak Lane and them; (2) cuit the mat- jurisdiction Court of Lake that (3) ter judicata judgment; is res of an Court because earlier Federal allege in that complaint that the fails to state a cause of action fails (a) irreparable injury or are (b) either the acts done threatened illegal. Lane and injunction
We reverse Red Oak relating outlets *3 Road, injunction as to Ridge City’s affirm the denial of the motion for and, improvements in Cook that further continua- concluding Lake Road unwarranted, litigation tion of the is dismiss action without remand- the ment. High- leading dispute. plaintiff City
The facts are not in The of really 25,000 is land Park has a in of and therefore population well excess Rule” is situated municipality “Home the 1970 Constitution. Michi- County, immediately the south east comer of Lake west Lake west, Road, 1850’s, gan. and divid- Lake Cook in the mns east established it been a ing years Lake and Counties. at the 30 has past Cook For least road, single two-lane sides maintained pavement both constructed funds, by county tax solely County, using Cook State motor fuel City that ever maintained highway funds. There is no contention County it is not a road. Cook nor is it contended that improved that which lies speed City polices part limits but the sets the County limits, The Lake investigating citations and accidents. issuing County alone that Cook Department long position taken line. and south of right way, both north controls entire sanitary sewer City part has a main The water the northern right part of the in 1971built a on the north portion southern sidewalk way, portion east of involved. here 18
In 1936 County adopted desig- Board of Cook resolution Road, Road, nating Waukegan Greenbay Lake Cook Road to as a approved by Depart- State Aid Road and this was received and the State ment CH Highways, being designated as 101. When State motor used, adopts fuel tax funds are Board a resolution which has to approved Department the State before such funds can be used. Prior to 1967 many municipalities organizations requested had Cook County year widen Lake Cook and in that the County Board Road adopted a resolution and approved by which was received the State De- partment. proposed improvement The designed to alleviate traffic east, congestion, compounded aby crossing railroad to the and to reduce safety plan hazards. highway, The called a four-lane divided to re- place present single pavement, widening two-lane would cut backup of vehicles about half. Road, project begins in Lake 124 Cook feet east of the center line 8,777 of Waukegan point Road and continues east to a feet feet west 3,900 of the All center line of Skokie Boulevard. but feet on borders project contemplated limits. The improving also the Red Oak Lane Ridge Road present right way outlets to the north of the order to realign (in the street 2 feet levels to accommodate a difference of some 30) some to the pavement between the new and these older streets expanded, north. Even as improved highway will still lie some 20 feet right south of the north edge way. of the The Lake Highway Department approved project. County Superintendent Highways Cook sent a plans, set of the already approved by Department Highways, the Illinois to Samuel Lawton, Park, mayor Highland objections project but no to this were meanwhile, until County spent raised the fall of 1972.* In the some *300,000 (of funds), tax plans specifications proj State fuel on for the ect, *2,000,000, which, which estimated to cost some one-half of *1,000,000 expended bordering City. will be entire the area funds, project being solely tax financed State motor fuel highway funds being employed.
In 1971 regional shopping center development began in Northbrook immediately involved, to the south here which will add thousands of vehicles daily congestion to the without adding *4 revenues. City The has consistently opposed position this and its is reflect- ed in its brief appellee it says: where * City, by 9,10,11 12, The attempted its Exhibits objected to establish that it had project (located this on Waukegan Highway) Lake Cook Road between Road and Skokie before the fall of only project but (between these letters related to another to the east Expressway Edens Bay Road). and Green
19 Highland in highway two-lane existing “The conversion of the the immediately abutting highway four and six lane Park into a side of the on the north family developed area single zoned Park, providing without City Highland in the highway front- the residents safety segregation and age road will be huge volume area residential of traffic from now under construction center shopping 145acre generated family single such immediately across the from in only not damage, area, irreparable results in residential in the the houses the taxable values upon depreciating effect the area. and residents area, of the children safety but also to the ”* ours.) (Emphasis adopted In two ordinances City March and December of it Constitu- given in the 1970 (supposedly “Home Rule” effect, which, only “any but tion) require corporations persons not government” than unit of local other itself to obtain the construction, “installation, City commencing any Council before recon- struction, road, repair way, ease- replacement thoroughfare, place open primary purposes ment or for the public use of County approval. vehicular traffic.” The did not seek or obtain Court, seeking In in the City 1973 filed suit Federal District enjoin on the County proceeding project from with the here involved it ground that Air Act and the National Envi- violated the Federal Clean ronmental Act. Part of suit was dismissed on motion Protection summary the rest of 1974. way judgment March filed suit in the Circuit Court November the instant commis- County, seeking enjoin County Lake and its sioner trial court constructing from above described them, action, enjoined pending disposition of (Red some Oak of Lake Cook Ridge Road) outlets Lane and north has appealed County Road but relief. has and the refused other cross-appealed. County’s must with the threshold Logically, we deal first jurisdiction
contention—that the Circuit Lake Court of Commissioner, despite the fact the real estate involved is Lake its initial motion to dismiss or after and, denied, transfer was on grounds, it moved to strike and dismiss other denied, complaint. when that was answered the early (1847, 1869) Illinois cases heavily relies on two 20; Ill. (Schuyler County, People, v. Ill. v. County Mercer McBane 503) And acts were enacted. long practice handed down before modern in the participate those cases the defendant did itself continue to *5 proceedings. We conclude the facts of this and under case under our present practice, statutes and juris- the Circuit Court of Lake had diction over the defendants and doubt that contention merits further discussion.
We next pass to the City’s defendants’ second contention—that the ac- is judicata by barred res of its having previously virtue filed and lost action the Federal Court District under the Federal Clean Air Act, Act and the National Environmental Protection where the court held that said Acts did apply not here involved.
We perceive no merit in this Not only contention. are the alleged causes of action completely different but had juris the Federal Court diction any judgment to enter against or decree so defendants and judge held. The properly disposed trial of this contention and we shallnot discuss it further. brings
This County’s us to third contention—that the com plaint is it allege insufficientin that fails irreparable injury to a neces sary basis a temporary injunction. for is a theory While this sound where private party is it plaintiff, city public body is not when another action, brings statutes, alleging violation of ordinances and State with resulting damages (See City to its v. Chicago residents. North Pixley 354, 147, (1975), 148-52.)Hence, 28 Ill. App. 3d 328 N.E.2d we shall, now, conclude that contention is without merit but we defer complaint that our treatment of the defendants’ related contention that demonstrating insufficient in that it facts the defen allege does doing illegal. threatening anything dants are to do This brings City’s us to the 5—408 the contention—that section first 1973, Highway (Ill. 408) requires Code Stat. ch. par. Rev. 5— to altering, obtain the maintaining county highway within its limits. (Ill. pars.
The Illinois ch. Code Rev. Stat. 1—101 107), through provides system highways, a statewide under 11— supervision pertinent Public Department control of the Works. parts, provides as follows: Legislative Intent
“§1—102. It is the intent this Code for the legislature provide construction, operation public highways maintenance and pro- end that the trafficwill be safety convenience of construction, public moted interests of the relative to be operation public highways maintenance and will subserved Department thereby. legislature is the intent of the to make the highway sys- of Public custodian of the State Buildings Works and De- sufficiently authority tem and to to enable the provide broad ap- partment efficientlyin all areas of adequately to function limitations subject propriate jurisdiction, imposed. hereinafter mandate legislative and the the constitution terms, declare, general intends to legislature specific details be determined leaving Department, duties of the promulgated regulations by reasonable rules and upon coun- legislature it. to bestow It is the further intent authority respect ties, similar municipalities districts and road Depart- and to authorize the jurisdiction their highways counties, coop- ment, municipalities to assist and road districts and coordinate their activities. erate with each other *6 OF DEPARTMENT 1. GENERAL POWERS DIVISION of department Powers and duties “§4—101. stated Sec- Department powers shallhave the duties 101.14, 4—101.1 to inclusive:
tions 4— #
# e with Highways General of Constructed Supervision §4—101.1. State Funds ap- this Code supervision highways
To to which general have or hereinaf- plies Section 1—103heretofore provisions under the in part in whole or ter constructed or thereafter maintained State funds.
see on which state plans, highways of final etc. of Approval §4—101.7 may expended. funds be specifications final esti- approve plans,
To and determine the provi- applies under highways mates for all to which Code expended. funds bemay 1—103 on which State sions Section » [*] # county board. Powers and duties §5—101. du- county county shall have board each 5—101.9 inclusive.
ties in Sections 5—101.1 to stated district township and supervision county, General §5—101.1 highways. county, district township general supervision have of all
To 4— of Section subject provisions highways county, in the 101.1. # e
# county highways. and state Construction of §5—101.3 any To county highway, thereof, construct including fighting county the discretion of the board out of funds available for such purpose, and to construct State highways, provided construction according plans State shall be specifications approved by Department.
# # # Department approval §5 construction mainte- —402. nance by county mandatory—optional. — funds, When motor fuel tax federal aid road funds other funds finance, received from the are State used to or in part, whole highway, thereof, construction of a or section a county, supervi- sion and project by of such Department mandatory and the proceed shall in the 5— manner set forth Section 403.
Any county may thereof, county highway, construct a or section supervision without project of such Department funds, if no motor fuel tax funds federal aid road or other funds received from the State are used to finance such construction. However, at option proceeding 403, any manner set forth in Section highway construc- 5— performed ap- the supervision under of and proval by Department funds, even no motor tax though fuel federal aid road funds or other funds from the State are received used to finance such construction. of Highways supervision Construction
§5—403. *7 department county. by —Procedure
When highway project by construction a County is to be performed supervision approval under the Department of the the procedure shall be follows: shall, resolution,
The county by board specify particular the sec- constructed, of highway type to be the of construction and the amount such be used for construction. This shall resolution submitted to its Department approval. the for When the resolution approved has by Department, county been the the shall sur- cause veys, plans, specifications and estimates of such construction to be made and Department approval. submitted to the
Upon receiving approval, county may the advertise for bids and let responsi- contracts for such construction the lowest bidder; ble approval or with the of the do work Department, the officers, through itself shall agents employees. its No contract be let without approval Department. Department the of the The shall general supervision have of such construction whether done of the construc- Upon completion by or contract.
by county construction that such tion, Department by it is if found surveys, and con- plans, specifications, in accordance with been shall contract), the Department (if the construction tracts county. certify to the so # #
# highways. line §5—405. county on improved or may be constructed highways or im- the construction desire to secure In case two counties
lines. upon or near boun- county highway a situated provement of may, thereof them, county boards respective dary line between To this resolutions, proceedings therefor. initiate by appropriate resolutions, fix the may, concurring boards county end such borne should be of construction which the total cost portion of county.” each
e » [*] municipalities. highways Construction of §5—408. authorities corporate with the board 500, and in population a of over a with municipality in the case of population with a municipality of a its own discretion the case less, funds 500 or construct or maintain limits of thereof, corporate street, within the part lying or complete municipality county, within the to connect municipality.” limits of such corporate located to 1070, p. (This Laws of section as amended June §L) provision requires
It is contention last above cited maintaining any high- have way disagree. within its limits. We Code, which are above set pertinent parts Illinois out, system designation, of control carefully reflects a stratified highways, maintenance roads and planning, construction and throughout respective responsibilities It specifies streets State. State, Transportation, and each of acting through Department districts and munici- government counties, levels of road three local — levels of palities. spells relationships between these four also out the of their actions so as assure government, including the coordination high- systematic system approach providing to the task of workable ways throughout and roads the entire State. *8 counties, reflect, provisions
As it is role of the not these the State agreements with municipalities, to make decisions and enter into County regarding repair designation, planning, construction is “County System” given Highways, responsibility Highway for the 24 County
to the various The “County Highway System” Boards. is defined highways to include designated County all as Highways. The other two government, levels of local including municipalities, are limited to deal- ing highways with and roads not included in the County Highway State or System. Code,
Under the the counties have the locate and extend County highways through into municipalities, they may desig- existing nate streets as County highways. extensions of only part system of the State public highway over which munici- palities have jurisdiction is the “municipal system,” street which is as municipalities defined streets in part “which not high- are a of the State way system a county highway or system.”
Any produce other result would permit any chaos and to municipality 500 of over persons prevent improvement existing an where, highway here, as is being performed by with neces- all sary approvals from the State would jeopardize violate and the systematic structured approach designation, construction and maintenance of highways which is the Highway foundation of State Code.
In the light of this highway setup, structured State us let consider City’s contention —that section 5—408 of re- Highway the Illinois Code quires the approval municipality 500 persons of over county may construct or highway municipality. maintain such Said (Ill. section Rev. Stat. par. 408) provides ch. as follows: 5— “5—408. highways municipalities. Construction of board, The county with the corporate authorities a municipality the case of with a population over 500 less, own discretion the case of a municipality 500 or construct or maintain street, highway funds thereof, part lying corporate any municipality limits of complete to connect or a county county, within the locat- municipality.” ed to the limits (Emphasis ours.)
We application conclude that this section has no the facts in the case is place, being completed before us. the first no here connected, within the Road has words of section. Lake Cook been there since solely by about 1850 and has been maintained Cook But, years. importantly, “county even more funds” are be ing funds State motor employed required by said section. The are funds, funds, including fuel tax project, and the entire north, very slight approved revision of two outlets to the been State since 1967. 5—408
We therefore hold that the first contention —that section be- requires of the Illinois Code to have *9 limits, its maintaining any highway fore obtained, merit. is without not been which its “Home City’s to second brings us This contention— Constitution, to did power it has the and under the 1970 powers Rule” has not prior approval, requiring such enact ordinances been obtained. VII, 6(a) article is section provision involved
The constitutional which, provides as follows: pertinent part, in * * Section, may this a home rule unit Except as limited gov- its pertaining function to any power perform and
exercise to power limited to but not including, and ernment affairs health, and safety, morals public protection regulate for ** ours.) (Emphasis welfare rule units only expanded It us this home seems obvious to affairs, or the involving municipalities other strictly local not those State. county or to Constitutional report Local Government Committee Con- Proceedings, Sixth Illinois Constitutional (7 Record of
Convention 1622) it is said: vention * * * * * proposal, Committee’s The intent of problems local to local authorities give broad to deal with ” ” ours.) (Emphasis Law, ch. Municipal In Froelich’s article on “Home Rule” the Illinois Inst, Education, 24, Novem (Ill. Continuing Legal and 24.81 §§24.12 1974), ber it is said: any func- any power perform
“A unit exercise home rule government and affairs.’ ‘pertaining government to its pow- a limit on rule clearly intended as home language affairs ers. «o « * ‘pertaining government in the Implicit words concern or national concept affairs’was the that matters state power grant ambit of the home rule are not within the concern * ** units, matters, to home rule many clearly of concern even Assembly.” of the General should be left to the determination rule” ordinances here supposed us that the “home seems obvious to involved, Lake region shopping center accoss adopted both after the intended not for the were and are sprouted, Cook Road Northbrook affairs, municipalities City’s but those other government own and State. corporation ordinances, effect, only persons and require These itself, appro- but other than obtain “any government” unit of local “installation, construc- commencing any val Council road, thorough- way, tion, reconstruction, repair replacement fare, place open public easement the use for the primary purpose of vehicular traffic.”
If applied held valid and present factual situation in the case bar, they at are intended to and will affect affairs of the County, and, State and municipalities opinion, not, other our therefore are as they be, must limited to the own affairs. are, know,
While
so far as
there
no Illinois cases as yet dealing
we
attempt by municipality
to block a
approved county highway,
State
there
are decisions
other states. In
v. Thormeyer
Lakewood
(1960),
St.
Op.
12 Ohio.
Ohio
2d
168 N.E.2d
Su
preme Court Ohio
rejected
challenge
municipality’s
to the relocation
improvement
highway by
of a
city
State. The
that the
contended
project required
consent
“home
unit
rejected
rule”
but
court
ground
assertion on the
that the
was “of more than local inter
*10
effect,
est”. To the same
State ex
Turnpike
see
rel. Ohio
Com. v. Allen
(1952),
St.
Op.
Ohio
48 Ohio
its power “Home Rule” the 1970 it has the to and did requiring enact ordinances its before the construct, government” other “unit high of local could alter or maintain a way obtained, its limits which has not is been without merit. enough
These conclusions are in themselves to bar relief seeks, going County’s without into that is contention barred by sitting by regional its laches in 1967until sprouting shop- of a finally in ping oppose widening center 1971caused it to Lake Cook Road, merit, might which have were it contention needed. brings complaint (or
This us to the final County’s contention—that the that fails matter) the evidence for to demonstrate that the threatening acted or is to in unlawfully proposes to act what do widening of Cook and the the north. As Lake Road two small outlets to demonstrated, proposes have that everything we has done fully approved fully to do has since been the State and is author- long by ized under the Illinois Code. this perceive possible
We can no excuse the further continuation of (1) injunction relating to the temporary action. We therefore reverse the Road; (2) affirm Ridge the outlets in Red Oak Lane and improvement of Road; (3) injunction of Lake widening the denial of an as to Cook here, remandment. dismiss the action without part, and dismissed without remandment. part, Affirmed reversed GUILD, J., concurs. SEIDENFELD, dissenting:
Mr. PRESIDING JUSTICE “per- question exceed that the ordinances majority concludes 6(a) limitation contained section and affairs” taining government its interpretation this conclusion on It bases rule article. home sphere power home rule units’ language restricts “pertaining to” subjects regula- affairs,” then identifies as those “strictly which it local unit. With governmental upon any other have no effect tion of which will dissent. respectfully it I and from agree, I do not interpretation ordi- priority municipal gives article 6(c) of the home rule Section If a ordinance. it conflicts with jurisdiction when nance within 6(a) subjects restricted section power home rule were municipality’s extrajuris- no regulation of would have strictly in nature the which local unnecessary. By effect, be 6(c) priority section would dictional then article real- government 6(c), the drafters of the local including section municipality’s a county’s and subject that a within the ambit of both ized units and where might validly regulated both home rule concern as an answer. 6(c) arose section was intended regulatory conflict 6(a) supported is also reading A of the limitations section broader power over 6(i) unit to share concurrent section allows home rule preemption1 has been State subject long with the State so as there no government to that rule unit’s subject pertains and the matter home (7 particular to the State or nation. Record problems affairs and not to (Local Proceedings, Sixth Government Illinois Constitutional Convention 6(m) 1621.) Finally, section states: Report) and functions units shall be construed liber- “Powers of home rule ally.”
Thus, majority’s analysis only subjects upon that the which a home strictly problems regu- rule unit exercise its are those local upon any governmental lation which will other unit have effect *11 contradicted of the entire home rule section. structure subject a question regulate in this case then is do the ordinances Park, Highland government peripheral which relates to the and affairs of governmental notwithstanding. units effect on other is, mind, my subject pertains more difficult to conceive of which Highland the con- government regulation Park’s and affairs than county passes through and for road which struction maintenance if regulation City planning effectively be burdened borders. would discre- Quiet, were could at the unfettered not allowed. residential streets thorough- county major into tion home rule unit be transformed fares, causing depreciation property possi- thus values unnecessary creating Park residents. bly safety Highland unintended hazards to 1 prior to Highway Code was enacted Preemption for the Illinois is not an in this case issue Spring See, v. Peters e.g., anticipation Constitution. not in 1970 Illinois 161,166-67 (1972). County, 142,147-49 (1974), field, v. Ill. 2d Kanellos Cook 53 57 2d Ill. 28 majority acknowledges that there Illinois which are no cases con-
front attempt by municipality an block a however, passage through does, majority borders. The cite cases, two v. Thormeyer, Ohio 171 St. Lakewood Ohio 168 Allen, 168,107 (1960), N.E.2d 289 v. St. and State 158 Ohio N.E.2d 345 (1952), dispose which the opinion concludes of the issue. In addition to little, the fact that these if authority carry any, cases are out-of-state weight in interpreting provisions,2 our own home rule these are dis- cases tinguishable.
Municipal Turnpike consent at issue in Allen Ohio was while interstate, municipal primary highway consent for an or Federal aid Thormeyer. at issue in These roads were more statewide and national concern than the road in instant case. Board, Ill. City Chicago (1974), v. Pollution 2d 484 Control
supreme rejected argument by the Illinois Pollution Control court Environmental Board Agency Illinois Protection that environ- pertain government and pollution mental and matters did not af- fairs 59 Ill. of home rule units. 2d 486-89. pollution,
If with its comprehensive regula- extraterritorial effect and its State, level, municipal at may additionally regulated then the construction and maintenance of roads within munici- pality should subject likewise be municipal regulation. legal As to the issue involved I uphold case would these ordinances. Baum, See Survey I): Limitations, (Part A Tentative Illinois Home Rule Power and
1972 U Ill. L. F. 157.