delivered the opinion of the court:
April 25, 1949, the city of Kankakee passed an ordinance providing for the issue of $430,000 in “Motor Vehicle Parking System Revenue Bonds,” for the stated purpose of acquiring eight certain tracts of real estate to be used for the operation of off-street vehicle parking lots in the business section of the city. Some of the tracts sought were vacant, while the use of others would entail the purchase and removal of structures. The action of the city was purportedly based on the power granted it by article 52.1 of the Revised Cities and Villages Act, (Ill. Rev. Stat. 1949, chap. 24, art. 52.1,) titled, “Special Powers — Parking Space for Motor Vehicles.” We shall hereafter refer to this statute as the “Parking Act.” On August 5, 1949, Warren G. Poole, the owner and operator of a private parking lot in the business district, Carl L. Wolf, a downtown business man, Fred W. Swannell, Sr., a property owner and taxpayer, and Harry H. Pippin, a motor vehicle operator in the city, filed a complaint in the circuit court of Kankakee County seeking to enjoin the city, its mayor and clerk, from proceeding under the ordinance. It was alleged that both the statute and ordinance are invalid for reasons later discussed in detail. Defendants filed an answer, the case was called for trial, and evidence was heard. The trial court then entered a decree which found the Parking Act to be constitutional, with the exception of section 8, (Ill. Rev. Stat. 1949, chap. 24, par. 52.1-8), which section authorizes municipalities acquiring parking facilities under the act to lease them on a year-to-year basis, collect rentals and to make contracts for their operation and management. It was the opinion of the trial court that the foregoing provision allows a municipality to lend financial aid to private enterprise, and permits the surrender of the municipalities’ police power. The decree further found the city ordinance to be invalid on the ground that it was not a reasonable exercise of the power granted by the Parking Act, first, because no necessity for the parking lots was shown to exist in Kankakee, and, second, because it allowed the income from existing parking meters to be pledged as security for the bonds issued to finance the acquisition of the new facilities. In conclusion the decree enjoined the city and its officers from proceeding under the ordinance. They have appealed directly to this court, the validity of both the statute and the ordinance being involved and the trial judge having certified that, in his opinion, the public interest requires a direct appeal. It is appellants’ position that the Parking Act is constitutional in its entirety and that the ordinance is valid. Plaintiffs-appellees have filed a cross appeal urging that the Parking Act is completely unconstitutional.
Any decision as to the validity of the ordinance is, of course, encompassed in a determination of the constitutionality of the Parking Act. Some examination of the statute is therefore necessary. The act, which contains ten sections, (Ill. Rev. Stat. 1949, chap. 24, pars. 52.1-1 to 52.1-10, incl.,) was first adopted by the legislature in 1947 and amended in 1949. It is before us for the first time. Section 1 provides in part that a municipality may: “Acquire by purchase or otherwise, own, construct, equip, manage, control, erect, improve, extend, maintain and operate motor vehicle parking lot or lots, garage or garages, parking meters, and any other revenue producing facilities necessary or incidental to the regulation, control and parking of motor vehicles * * * as the corporate authorities may from time to time find the necessity therefor exists, * * *” etc. The section continues that land may be acquired by various means, including eminent domain, and that its purchase may be accomplished by the issue and sale of bonds. Section 2 describes the bonds, the interest they may bear, the manner of sale, and provides that such bonds may be payable only from the proceeds of the operation of “any or all” of the city’s parking facilities. Section 3 relates to the content and form of the ordinance to be adopted by the municipalities. Section 4 provides that whenever bonds are issued, it shall be the duty of the corporate authorities to establish fees for the use of the parking facilities, sufficient to defray the cost of operation and maintenance, and the payment of principal and interest on the bonds, such revenues to be set aside as a separate fund and to be used only as provided in section 5. In section 6 the remedies of the bondholders are set forth, while section 7 authorizes the municipalities to make reasonable rules regarding the use, management and control of the parking facilities. As previously indicated, section 8, which was held unconstitutional by the trial court, authorizes the lease of the facilities, on a yearly basis, to the highest bidder. Section 9, which has some bearing on the matter here presented, contains the limitation that proprietary activities other than the operation of parking facilities, are unauthorized. Section 10 is a provision relating solely to financing by municipalities with a population in excess of 500,000.
The basic concept of appellees’ attack on the Parking Act is that it authorizes a taking of property for a private use, as distinguished from a public use, in violation of section 13 of article II of our constitution. Specifically it is urged that the use authorized is private, (1) because it benefits individuals rather than the community; (2) because it allows a community to go into business in direct competition with private citizens; (3) in that the power to lease the parking facilities manifests a private purpose; and, (4) because cities so acquiring property might attempt to devote it to a private use. Further, on the assumption that the use is a private one, it is contended that the act violates the due-process clause of both the Federal and State constitutions because it allows the taking of a taxpayer’s money for a private purpose. In the same vein it is urged that the Parking Act allows a municipal corporation to lend financial aid to a private undertaking in violation of section 20 of article IV of the Illinois constitution.
It is conceded that before the right of eminent domain may be exercised the law requires that the use for which land is taken shall be a public as distinguished from a private use. (People ex rel. Tuohy v. City of Chicago,
In examining the given use before us, vis., the taking of land for the operation of off-street parking facilities, we find no express declaration in the Parking Act of the policy or purpose which fostered the legislation. While not binding on the court, such declarations are usually presumed to be right. We are fully cognizant that the regulation and control which a municipality may exercise over its streets and the vehicles which use them has been the subject of much legislation and of many decisions of this court. It can no longer be doubted that the regulation of streets and traffic is in the interest of public health, safety^ welfare, convenience and necessity, and thus for a public purpose. Undoubtedly the stopping or parking of vehicles along the street is a legitimate use of the street, but it is a use which is subject to legislative control. In City of Bloomington v. Wirrick,
We are aware of the fact that the modern economy and way of life are closely geared to the automobile, which fact has to be kept in mind in many aspects of community planning. A large proportion of urban dwellers today get from one place to another by automobile or other conveyances which use the city streets. Each passing year reveals a continued increase both in the number of urban dwellers and in the number of automobiles on our streets and roads. The result has been to create a problem of national significance, for in many instances the outmoded business streets of cities suffer from a traffic congestion which has strangulated movement and business, directly affected the safety of those who use and cross them, and affected the value and protection of adjacent properties. Ambulance, fire and police vehicles have difficulty reaching the scene of an emergency, while the toll of pedestrians killed on busy city streets seems to increase with each day’s news. The economic value of time lost to business because of congested streets can only be surmised. Further, the economic effect of traffic strangulation has been reflected in slumping values of business real estate and a proportionate decline in local tax income. As we view it, there is involved the safety and well-being of all the residents of a community so affected. To provide for off-street parking facilities is certainly a step to meet the public need. We are of the opinion that the Parking Act embraces the taking' of land for a public use.
Appellees’ objections which go to the operation of the act do little to alter that conclusion. The argument that the use is private because it enables a municipal corporation to enter into business in direct competition with individuals who are now operating parking lots cannot be sustained. A similar contention was made and rejected in People ex rel. Curren v. Wood,
The contention that the authority given the municipality to lease the parking facilities imputes a private purpose to the act is also without merit. It has frequently been held that a city may lease property it owns when it is empowered to do so by the statutes. (People ex rel. Tuohy v. City of Chicago,
As regards the nature of the act, appellees’ last assertion is that the public purpose is destroyed by the provisions which permit a municipality, once owning land, to use it for any type of private business it may choose. Appellees do not point out the language which is susceptible of such interpretation nor do we find that it exists. Section 9 specifically states that the act “shall not be construed as authorizing any municipality to engage in any proprietary activity at or with any such parking facilities other than the parking of motor vehicles.” We find no merit to the contention made. Speculation that a city might attempt to devote the land acquired to a private purpose could not render the act invalid but would be ground for future judicial relief should the need arise.
Appellees next urge that the act violates the due process clause of both the State and Federal constitutions in that it allows the use of taxpayers’ money for a private purpose. In view of our finding that the purposes and functions of the Parking Act are public ■ rather than private, this contention is untenable. It should be noted too that the act provides for no tax or license, but rather only for a reasonable fee for the use of the facility.
It is also argued, and the trial court held, that section 8 of the act violates section 20 of article IV of the constitution, because leasing would permit the grant of aid to private enterprise, it being the appropriation of public funds for benefit of a private person, and would constitute a surrender of the city’s police power. We have previously pointed out that leases permitted by an act do not detract from the public use or purpose of lands acquired by a municipal corporation, and that under the Parking Act the lease permitted is for a public use, making any profit to the lessee an incident to that use. It has been frequently held that section 20 of article IV does not prohibit appropriation of public funds to private corporations or individuals where the money is to be spent for a public purpose. (Cremer v. Peoria Housing Authority,
The second phase of this appeal involves the validity of the ordinance passed by the city of Kankakee, and a determination of whether the city has exceeded the powers granted by the Parking Act. It would serve no useful purpose to set forth the ordinance in detail and we shall discuss only those provisions over which controversy has arisen. It will be recalled that the trial court held the ordinance invalid (1) because, in his opinion, no necessity for the parking facilities was shown to exist, and, (2) because the Parking Act granted no authority to pledge the income of parking meters already installed as security for the bonds to be issued for the payment of the off-street parking sites. In this court appellees advance additional grounds, which were raised by the pleadings, namely, that the ordinance provides for a relinquishing of the city’s right of police power until all the bonds are paid, and that it is invalid as being revenue producing rather than regulatory.
The trial court’s finding that no necessity was shown to exist for the taking of land for parking facilities may be answered simply by an unbroken line of decisions which hold that where the right to condemn exists, and the property is subject to the exercise of the right of eminent domain and is being condemned for a public use, and the right to condemn is not being abused, courts cannot deny the right to condemn on the ground that the exercise of the power is unnecessary or not expedient, as the determination of that question devolves upon the legislative branch of the government, and is a question which the judicial branch of the government cannot determine. (Smith v. Chicago and Western Indiana Railroad Co.
Section 9 of the ordinance, which was specifically found to be invalid, provides, among other things, for the pledge and use of revenue from existing parking meters to retire the bonds issued for the purchase of the lots embraced by the ordinance. The evidence disclosed that the revenue from the present meters was approximately $55,000 a year, and that $6433.36 was still due on the payment for such meters. The trial court held that the use of income from existing facilities was not authorized by the Parking Act. Appellees have not argued the point on this particular ground. It is true that section i(d) of the act, to which the court below seems to have directed its sole consideration, authorizes the acquisition of sites, buildings and facilities and the pledging of “the revenues thereof.” In the light of further language of the act, we consider this to be merely a grant of power rather than a limitation. Section 2, which relates solely to bonds, provides that bonds issued by a municipality pursuant to the act shall “be payable solely and only from the revenues to be derived from the operation of any or all of its parking facilities and shall be secured by a pledge of the revenues of any or all of its parking facilities.” We note, too, that section i(e) gives the municipality power to issue bonds or borrow money “for the purpose of acquiring, completing, erecting constructing, equipping, improving, extending, maintaining or operating any or all of its parking facilities, * * etc. It is of further interest that section i(a) authorizes the ownership, operation and maintenance of “parking meters.” So far as we can determine, this appears to be the first direct expression of the legislature on the subject, since this court upheld the use of parking meters in City of Bloomington v. Wirrick,
Relying on the cases of City of Joliet v. Alexander,
Next to be considered is the contention that the city has, by section 13 of the ordinance, contracted away to the bondholders its right of police power until such bonds are paid. This assertion is based on the language of the section which says that “after the issuance of the bonds no changes, additions or alterations of any kind shall be made to this Ordinance in any manner except in accordance with the provisions of this Ordinance, or until such time as all of said bonds issued hereunder and the interest thereon shall be paid in full.” Appellees construe this provision as leaving the city absolutely powerless to act in the case of future change or emergency. Taking other provisions of the ordinance into consideration, we cannot say that such a dire result would be reached. Section 10(d) provides that the city may change the location of parking meters whenever necessary for traffic regulation and control. Section 10(a) provides that the city may withdraw any existing off-street parking facility for the purpose of erecting multiple level parking structures. It is also provided, under section 10 b), that while the city will at all times establish and maintain reasonable fees, charge rates for the use of the facility, and provide for the collection, segregation and application of such revenues, it may in its discretion provide free off-street parking in an area not to exceed twenty-five per cent of the square foo'age of all the facilities of the city. Section 5 reserves the right to redeem the bonds before maturity, beginning November 1, 1935, by publication of notice of redemption. It is apparent that the city has reserved unto itself a wide discretion in the matter of location, regulation and control, and that, while it has pledged itself to fix and collect reasonable fees and charges, it has not bound itself to fix any specific unalterable amount of fee or charge. In this respect the instant case may be distinguished from City of Danville v. Danville Water Co.
The final contention of appellees, that the ordinance is revenue producing rather than regulatory, is based on section 9(e) which provides that all moneys remaining after setting up the necessary accounts for bond payments, repairs, etc., shall be credited to the suspense account and that the city may transfer one half the surplus for any year to the general purpose corporate fund, to be used only for the repair and maintenance of streets and the regulation and control of traffic on said streets. This the city is allowed to do by section 1 (b) and section 5 of the Parking Act. Appellees’ argument is made in the face of the fact that an ordinance fixing the rates for the use of the facility has not yet been adopted, giving no sound basis for knowing whether the fee charged will bear a reasonable relation to the burden that the ordinance and Parking Act cast upon the city. Complaint is also made that the ordinance makes no provision for what will occur when the bonds issued have been retired, and appellees forsee that the city will be enriched far in excess of the amount necessary to cover the cost of regulation and maintenance of the parking facilities. Such contemplation could not, as we have said before, render the ordinance presently invalid. If such future events occur, the law provides ample remedy for the situation to be corrected either by the city council or by the courts on proper complaint.
For the reasons stated, we conclude that both the Parking Act and the city ordinance are not subject to the objection here raised, and are valid in their entirety. The judgment of the circuit court of Kankakee County is accordingly affirmed in part and reversed in part, and the cause is remanded, with directions to dissolve the injunction entered against appellants.
Affirmed, in part and reversed in part and remanded, with directions.