City of Chicago v. Carpenter

Mr. Justice Hand delivered the opinion of the court: Section 5 of the Supplemental Park act, approved April 16, 1869, (1 Private Laws of 1869,) is as follows: “Sec. 5. The commissioners to be appointed under said act are hereby vested with the same powers and duties as are conferred by said act in relation to lands designated for parks, over all streets running longitudinally along and adjoining any and all of the proposed parks, or strips of land designated in said original act, as are conferred by said act in relation to such parks and strips of land, as may be necessary to improve and keep in repair the same, in connection with the said parks or strips of land without obstructing the fences or other structures, free access to the said streets from existing roads and streets, and by owners of land abutting on the same.” The avenue sought to be improved runs longitudinally along and adjoining the east boundary of Washington Park, and the question to be decided is, whether the jurisdiction over and the right to improve said avenue rests in the city of Chicago or in the board of South Park commissioners. In our opinion, in view of the section of the Park act above set out and the stipulation contained in the statement of facts preceding this opinion, it must be held that the board of South Park commissioners has jurisdiction over and the right to improve said avenue, and that the city of Chicago is powerless to make such improvement by special assessment or otherwise. It seems clear from the repeated decisions of this court that the legislature, where private rights will not be violated, has power to transfer the jurisdiction over streets and avenues situated similarly to this avenue, from the city of Chicago to the park commissioners, and empower said commissioners to improve the same, and that section 5 was passed with the view to transfer the jurisdiction and control over all streets and avenues running longitudinally along and adjoining the parks controlled by said park commissioners, to the extent that they should assume jurisdiction and control over the same, to them. (People v. Walsh, 96 Ill. 232; West Chicago Park Comrs. v. McMullen, 134 id. 170; McCormick v. South Park Comrs. 150 id. 516.) In People v. Walsh, supra, on page 249 it is said: “In cases of property dedicated to public uses there are, most usually, two classes of interests affected: one that of the public generally, and the other that of private parties. * * * The legislature represents the public. So far'as concerns the public, it may authorize one use to-day and another and different use to-morrow. If the new use affects private rights, proceedings for condemnation may have to be invoked, but so far as it affects the public alone, its representative, in the absence of constitutional restraint, may do as it pleases.” And in McCormick v. South Park Comrs. supra, on page 525 the court say: “Regardless of where the fee in the street might, in such case, be found ultimately to be lodged, the power of the legislature, where private right will not be violated, to change the possession and control of the trust, cannot be questioned.” In Adcock v. City of Chicago, 172 Ill. 24, it was held that an objection to the confirmation of a special assessment, to the effect that the street upon which the proposed improvement was about to be constructed, was within the jurisdiction of the park commissioners and that the city had no control thereof, cannot be sustained in the absence of evidence that the park commissioners had taken control of the street under the Park act, and the question is presented here whether or not the evidence in this case shows that the 'park commissioners have assumed control over the avenue sought to be improved. The evidence upon that question is contained in the fifth and sixth paragraphs of the stipulation entered into by the parties. In making public improvements the law does not recognize the east half or the west half of a street, and it seems clear that the acts "of the park commissioners in constructing a curb wall on the west side of the roadway of the avenue for the distance sought to be improved, in putting down a granite concrete sidewalk upon the west line of said avenue, and in constructing sixteen catch-basins in the west half of the avenue for the same distance, is stroiig evidence of the assumption of jurisdiction and control over said avenue by the park commissioners by virtue of the powers conferred upon them by the terms of section 5 of said supplemental act. There is no evidence in this record that the improvements referred to were made with the city’s consent, and without such proof we think the presumption is they were constructed and paid for by the park commissioners by virtue of the powers conferred upon them by law, and not of their own wrong or as abutting owner, and the improvements having been made without interference on the part of the city, it is estopped to deny the jurisdiction and control of the park commissioners" over said avenue. Chicago and Northwestern Railway Co. v. West Chicago Park Comrs. 151 Ill. 204; West Chicago Park Comrs. v. Sweet, 167 id. 326; Aldis v. South Park Comrs. 171 id. 424. The park commissioners having assumed jurisdiction and control over the part of G-ottage Grove avenue which adjoins the park system, the Park act confers upon them ample power to improve the same. McCormick v. South Park Comrs. supra. The judgment of the county court will be affirméd. Judgment affirmed.