People ex rel. Healy v. Clean Street Co.
80 N.E. 298
Ill.
1907
Check Treatment
Mr. Justice Wilkin

delivered the opinion of the court:

Thе first question for our determination is the validity of the ordinance which is the basis of the contract entered into between the city and Jenney. It is claimed by appellants that it is void because it seeks to delegate to the mayor, chairman of the finance committee and commissioner of pub-' lie works discretionary power which is vested solely in the city council.

Section 62 of the City and Village act authorizes city authorities to lay out, establish, open, alter, widen, extend, grade, pave or otherwise improve streets, alleys, avenues, sidewalks, whаrves, parks and public grounds and vacate the same; to plant trees upon the same; to prevent and remove encroachments or obstructions upon the same; to provide for the cleansing of .the same; to regulate the use. of sidewalks and all structures therеunder, and to require the owner or occupant of any premises to keep the sidewalks in front of or along the same free from snow and other obstructions; ■to regulate and prevent the throwing or depositing of ashes or garbage, or any offensive matter, in, and to prevent injury to, any street, avenue, alley or public ground.

It will be seen that the control over the streets and alleys of a city or village, under this statute, is very broad, and absolute power over them is vested in the municipality. But the authority is not vested in the mayor, chairman of the committeе on finance or commissioner of public works, but is conferred upon the legislative branch of the city government. In other words, it is vested in the city council, and can only be exercised by it through ordinances duly passed. The ordinances may, of course, be enforced or cаrried into effect after they are so passed, by the mayor or other officials designated for that purpose. It is a well known ‍‌​‌‌​‌‌‌‌​‌‌‌​‌​‌​‌‌‌‌​​‌​‌​‌​‌​‌‌​​​‌​​‌‌‌‌‌‌‌‌‍rule of law that the city council cannot delegate to any of its officers discretionary authority which is vested by statute or charter in it. In the Americаn and English Encyclopedia of Law, (vol. 20,—2d ed.—p. 1217,) the rule is announced as follows : “The governing body of a municipal corporation is not at liberty to delegate to a committee, or an officer or agent, governmental, legislative or discretionary functions confided tо it by the legislature of the State, in the absence of express authority for such delegation.” To the same effect see Cooley’s Const. Lim. (gth'ed.) p. 249, and Dillon on Mun. Corp. (3d ed.) secs. 96, 97.

The question has been before this court on many occasions and uniformly decided in conformity with the rule above stated. In the early case of City of East St. Louis. v. Wehrung, 50 Ill. 28, the charter of the city of East St. Louis conferred upon the city council power to regulate the selling of spirituous liquor. The council passed an ordinance prohibiting the sale of spirituous liquor, under penalty, withоut a license, and the city treasurer was authorized to grant the license, to fix the amount to be paid therefor, and, with the concurrence of the mayor, to reject any application for the same, and in the decision of the case on this point we said (p. 31) : “The оrdinance under which this proceeding was instituted delegates to the treasurer of the city the power to determine the amount that each applicant for a license shall pay, not less than $50 for six months. As a general rule, where power is conferred upon a municiрal corporation to regulate any calling or business they are powerless to delegate a discretionary authority to others or to an individual. In creating such bodies it is designed to aid the government in the preservation of good order, and to protect more effectually persons in the particular community from injuries and annoyances that cannot be so readily guarded against by the general laws of the State. And in conferring the power upon the corporate body it is with the intention that it shall be exercised by the body created аnd in thefinode prescribed, and any departure from such auhority or any attempt by the body to transfer their powers to others is unwarranted. * * * If the treasurer may, under this ordinance, refuse licenses with the concurrence of the mayor, then they, and not the city council, would regulate or suppress dram-shops; and if the treasurer may, in his discretion, fix the sum to be paid, then he, and not the city council, would discharge the duty.” To the same effect, see City of Chicago v. Stratton, 162 Ill. 494; People v. McWethy, 177 id. 334; Lindblad v. Board of Education, ‍‌​‌‌​‌‌‌‌​‌‌‌​‌​‌​‌‌‌‌​​‌​‌​‌​‌​‌‌​​​‌​​‌‌‌‌‌‌‌‌‍221 id. 261; Wilder v. Aurora Electric Traction Co. 216 id. 493.

This ordinanсe authorized the three city officials therein named, or a majority of them, to take such steps as tliey might deem effective to prevent the casting of waste paper and other litter upon the streets, in violation of .the existing ordinances of the city, and to take such action as they might deem proper for the erection upon the streets of suitable boxes for the collection of such litter, and .to provide for the cleaning of and keeping clean such boxes, and to enter into any contract, for a term not to excеed fifteen years, for the purpose of accomplishing said object. An ordinance could not well be drawn giving greater power and authority to a set of officials than was done by this one. By its terms the officials were not even given general directions as to the manner in whiсh they were to exercise the power conferred upon them. The only limitations were, that the contract was not to be for a longer period than fifteen years and that the city was not to be made liable to pay for the erection or maintenance of thе boxes. Outside of these limitations the officials were authorized to place obstructions in the street at any places they might see fit, of any size or any character. It cannot be seriously contended that this was not a governmental and legislative function delegated tо the city council by virtue of section 62, supra, and such power as the city council was only authorized to exercise by virtue of an ordinance properly passed, providing for at least the general conditions under which the work should be done. The city council had control over its streets and alleys, with full power to keep them clean. But that power and duty could not be delegated to others. The defense, therefore, that the method adopted by the city of Chicago for disposing of the waste ■paper and other rubbish accumulating upon its streets was the most practicable and effective means of so doing, and all of the argument based on'that defense, cannot avail against the express provisions of the statute and the firmly established rule above set forth, and, however potent it might be if addressed .tо the legislature, can have no controlling influence upon our decision. The ordinance was void, and the trial court should have so held.

We find nothing in the case of Savage v. City of Salem, 23 Ore. 381, to which our attention has been called since the submission, which militates against this conclusion.

The contract entered into with Jenney was to run for a term of ten years, unless sooner terminated, and it rested upon the said ordinance. It, the contract, provided that he should have full control and authority over the outside surface of the' boxes, and might rent or sell it for advertising purposes to any one he saw fit, the only limitаtion upon that right being that no advertisement should appear upon the boxes which was of an immoral or disreputable character. He was permitted-to charge for such advertise-merits such prices as he might see fit, but was to account to the city for a certain portion of the amount received. By this contract he was authorized to use .the streets and public places of the city for the purpose of advertising the private business of any person or corporation and have exclusive control over the ‍‌​‌‌​‌‌‌‌​‌‌‌​‌​‌​‌‌‌‌​​‌​‌​‌​‌​‌‌​​​‌​​‌‌‌‌‌‌‌‌‍same. The сity authorities had no power to grant or delegate any such right or privilege. While the' title to .the streets and alleys of a city is vested in the city and it has full power and control over .them, yet this authority must be exercised according to well established rules of law. The public authorities are merely the custodians or, trustees for the public, which must be given the full use and enjoyment of all such streets without obstruction, and without authority of the city council to use or encroach upon them, or authorize others to do so for purely private purposes. By the ordinаnce and contract the city authorities sought and attempted to turn over the use of certain portions of the street for the exclusive benefit of private individuals, and their action in this regard must be held illegal and void.

In the case of State v. City of St. Louis, 161 Mo. 371, the question here involved was before the Supreme Court of that State and the foregoing view sustained. In that case it appears that the municipal assembly of the city of St. Louis passed an ordinance purporting to authorize the board of public improvements to maintain boxes similar to those in question, and to enter into a cоntract with Fred R. Belt for the erection and maintenance of the same. Belt was to have the right to use the outside of all boxes for advertising purposes, and was to pay into the city treasury, at the end of each quarter, fifteen per cent of the gross receipts. The рrincipal controversy was as to the authority of the municipal assembly or the board of public improvements under the charter, in disposing of which the court, among other things, said: “But there is another view to be taken of this ordinance. It subjects the public streets to a purely private purpose, to-wit, the advertising of the individual business and enterprises. Can the city devote its streets to such purpose ? We hold that it cannot. The charter gives the city power to regulate the use of the streets. Under this grant it may, it is true, not only regulate the travel thereon, but it may allow gas, water and sewer pipes- to be laid therein and permit telegraph and telephone poles to be erected therein. But all of these uses are consistent with the use for which-they are dedicated or condemned. * * * Referring now to the ordinance, it will be observed that it confers upon Belt the exclusive right to place advertisements on such boxes for the benefit of himself and his assigns. In a word, the city has attempted to farm out its sidewalks and streets to a private person for advertising. Belt is free to make his own charges for advertising. No рower is reserved to the city, even if it' were a purpose to which it could devote the streets, to regulate the charges for advertisements. * * * But it is said that it is no objection to a public franchise that its owner may derive a private gain therefrom. This is unquestionably true when the use is public and the gain arises out of that use, such as street cars, telegraph and .telephone lines. In this case, however, the pecuniary profits to Belt arise from a source wholly distinct from any public use. They will not flow naturally from his right to erect and maintain boxes for waste paper, but solely from a distinct privilege in which the public are not interested, to-wit, his exclusive right to use the streets for advertising purposes., and purely provide a collateral enterprise. We are clear that the streets cannot be devoted to such a private рurpose.”

The foregoing reasoning and conclusion are, in our opinion, unanswerable. The ordinance in this case, which is the basis of the contract, and the subsequent resolution of the city council, clearly attempt to confer upon George H. Jenney and the Cleаn Street Company the special privilege .of using the public streets and sidewalks for advertising purposes. Section 22 of article 4 of the constitution of 1870 forbids any such ordinance, contract or resolution.

Other questions are presented and discussed, such as whether the boxеs are a nuisance, whether they are purprestures, and whether or not a court of equity will assume jurisdiction of the cause before they have been declared to be ‍‌​‌‌​‌‌‌‌​‌‌‌​‌​‌​‌‌‌‌​​‌​‌​‌​‌​‌‌​​​‌​​‌‌‌‌‌‌‌‌‍a nuisance by a jury. No good purpose would be served in considering these points, as the questions аlready considered, in our opinion,-are conclusive of the case and must determine it contrary to the finding of the trial court.

Some doubt was expressed at the oral argument whether the appeal was properly taken directly to this court. . No such point is made by сounsel for appellees in their printed briefs and argument, but as the question goes to our jurisdiction we have given it consideration. The ground upon which the appeal was taken to the Supreme Court doubtless was that it involved the validity of said ordinance and resolution of the сity council, and the contract, under the provisions of the constitution. It is provided by section 22 of article 4, supra, of the constitution, that the General Assembly shall not pass a law granting to any corporation, association or individual any special or exclusive privilegе, immunity or franchise whatever. Ordinances of municipal corporations must be in harmony with the constitution, and if in conflict therewith they are void. (Hibbard & Co. v. City of Chicago, 173 Ill. 91.) If the validity of an ordinance involves a construction of the constitution, this court has jurisdiction on direct appeal, under section 88 оf the Frac- . tice act. (Wood v. City of Chicago, 205 Ill. 70, and cases cited; People v. Harrison, 223 id. 540.) The appeal was ‍‌​‌‌​‌‌‌‌​‌‌‌​‌​‌​‌‌‌‌​​‌​‌​‌​‌​‌‌​​​‌​​‌‌‌‌‌‌‌‌‍properly taken from the circuit court directly to this court.

The decree of the circuit court will be reversed and the cause remanded for further proceedings in accordance with the views above expressed.

Reversed and remanded.