In the case of Elizabeth Nitze Paepcke, et al. Appellants v. The Public Building Commission of Chicago, et al. Appellees, docket number 43240-Agenda 81-May, 1970, filed October 1, 1970, the Supreme Court of Illinois in a landmark decision of significance in the field of environmental, park and recreation and conservation law held:

(1) Park districts, school districts and other units of local government have the authority to convey lands owned by them to The Public Building Commission for authorized public use in accordance with comprehensive development plans;

(2) Overruled the doctrine laid down by the Illinois Supreme Court in the Droste v. Kerner case, 34 Ill. 2d 495; Koehler v. A Century of Progress, 354 Ill. 347; McPike v. Illinois Terminal Railroad Co., 305 Ill. 298; McCormick v. Chicago Yacht Club, 331 Ill. 514; Carstens c. City of Wood River, 344 Ill. 319; and

(3) That taxpayers who are the beneficiaries of a public trust have a right and standing to enforce that trust through an equitable class or representative action.

The Chicago Daily News edition of October 2, 1970, in an article concerning the issuing of $52 million in bonds for six schools in Chicago reported as follows:

"Authorization for the construction of the Vincennes Middle School in Washington Park came Thursday, two days after a controversial Illinois Supreme Court ruling that permits the condemnation of park land for the building of schools,"

While this article would indicate that park lands could now be condemned by the Chicago Public Building Commission, the City of Chicago or the Board of Education of Chicago for the construction of schools, such was not the holding of the Court.

The Supreme Court of Illinois in the case of Elizabeth Nitze Paepcke, et al. Appellants, v. The Public Building Commission of Chicago, et al. Appellees, docket number 43240, May, 1970, held that the Chicago Park District had authority to convey to the Public Building Commission of Chicago certain park lands owned by it for the purpose of implementing plans to construct schools and recreational facilities in Washington and Douglas Parks as a part of a program of construction, renovation and rehabilitation of public school facilities in Chicago. The Court did not, however, have before it any question involving condemnation nor did it make any reference to condemnation procedures.

In the Paepcke case, the appellants sought to prevent the Public Building Commission of Chicago, the City of Chicago, the Board of Education of Chicago and the Chicago Park District from carrying out the program developed by those respective bodies to construct, repair, renovate and rehabilitate public schools and parks and recreational facilities. The plaintiff's Complaint alleged a class or representative action brought on behalf of three classes of citizens, namely (1) citizens, residents and taxpayers of the City of Chicago; (2) citizens, taxpayers and residents of areas of the city served by a large regional park such as Washington Park; and (3) citizens, taxpayers and residents of an area served by a large regional city park who own real property bordering on or located within the immediate vicinity of the park in respect to which there was a plan to construct a school within the boundaries of the park. Plaintiffs contended that the parks in question were dedicated and held in public trust for use only as park or recreational facilities. They further contended that those of the plaintiffs who were property owners adjacent to or in the vicinity of the park have a private property right to the continuation of the park use of which even the Legislature cannot deprive them. They further contended 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 original dedication of the park lands and that no change of a park use could be permitted because the Legislature had not explicitly so provided by statute.

The park site in which the school had been recommended was in accord with a comprehensive plan for the City of Chicago and in cooperation with the Board of Education and the Chicago Park District. The site had been designated in Washington Park for the erection of a school-park facility. The Chicago Park District, in accordance with that plan, proposed to convey to the Public Building Commission a total of 3.839 acres of ground. On 2.586 acres of the site the Building Commission proposed to construct a school for approximately 1,500 students which would be leased to the Board of Education. The remaining 1.253 acres would be utilized in the construction of a gymnasium and recreational facilities which would be leased to the Chicago Park District.

The trial court rejected all of the plaintiffs' contentions and found that the plaintiffs in each of the three classifications had no such interest or property rights in the subject parks which was sufficient to enable or entitle them, or any one of them, to maintain the action "except as taxpayers."

The Supreme Court found that it was clear from the undisputed facts that there had been a dedication by the General Assembly of these lands for use as public parks. It further found that such a dedication having been made, the agency created by it, namely, the Chicago Park District,

Robert A. Stuart is General Counsel for the Illinois Association of Park Districts

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holds the property in trust for the uses and purposes specified and for the benefit of the general public. The Court had before it two questions:

(1) Would plaintiffs who were property owners adjacent to or in the vicinity of the park dedicated by the Act of 1869 have a private property right to enforce the public trust and to require that no change of park use be permitted because the Legislature had not explicitly so provided by statute?

The court answered the first question in the negative holding clearly that the plaintiffs had no private property right to a continued use of the park which even the Legislature could not disturb. The Court in answering this question said:

"The mere dedication by the sovereign of lands to 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, 77 L. Ed. 331, 53 S. Ct. 177.)"

As to the second question, the Court overruled the finding of the trial court holding that the plaintiff as a taxpayer has an equitable interest in the public property which is sufficient to enable him to maintain a class or representative action and further that this right to sue does not depend upon an injury to his property. In so holding the Court in the Paepcke case overruled its finding in the case of *Droste v. Kerner, 34 Ill. 2d 495. In the Droste case, the Supreme Court held that an individual taxpayer or property owner, in the absence of statutory authority conferring the right, had no standing in equity to enjoin an alleged misuse of property held in trust for the public unless he alleged and proved that he did suffer special damage, different in degree and kind from that suffered by the public at large. Thus, the Court in the Paepcke case followed the dissent written by Justice Schaeffer in the Droste case stating that:

"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 Court then in disposing of the question of whether there had been a sufficient manifestation of legislative intent to permit the diversion and reallocation of property use contemplated by the comprehensive plan proposed by defendants referred to its opinion in tlie case of People ex rel. Stamos v. Public Building Commission, 40 Ill. 2d 164. In the Stamos case the court held that the Public Building Commission Act and other acts pertaining to the amendments of the School District Code and the Park District Code

"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 . . ."

The Court further dealing with that question held that

"Further, it was specifically decided in Stamos, p. 186, that the Chicago Park District was authorized to contribute property for the purposes specified . . . The power to donate under section 13 of the Public Building Commission Act, (111. 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 . . .'"

It is perhaps significant to note that Mr. Justice Burt in writing the opinion in the Paepcke case found it appropriate to comment upon the general question of public trusts and to refer to the approach developed by the courts in the State of Wisconsin dealing with a diversion from the original contemplated use of public properties or public lands held in trust.

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LEGISLATIVE NOTES

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In commenting upon the Wisconsin approach in dealing with diversion problems, the Court said:

"In at least two cases, City of Madison vs. State, 1 Wis. 2d 252, 83 N. W. 2d 674; and State v. Public Service Corn., 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 tlie 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 tlie 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 tlie issues as presented in this case we believe that standards such as these might serve as a useful guide for future administrative action."

The Court further concluded as follows:

"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 pressure 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 heretobefore 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."

*Undoubtedly, the major significance of the Paepcke decision lies in the overruling of its prior holding in the Droste case. In that case, the plaintiff instituted two separate taxpayer actions to enjoin the sale and transfer of 194.6 acres of submerged lands in Lake Michigan by the Chicago Park District and the State of Illinois to the United States Steel Corporation. This conveyance was made in accordance with the provisions of Senate Bill 782 passed by the 73rd General Assembly and approved June 26, 1963. The defendants filed Motions to Dismiss the actions on the grounds that plaintiff had not alleged facts showing special damage or injury to himself different in degree or kind from that suffered by the general public. These Motions were denied and defendants filed Answers alleging the validity of Senate Bill 782. United States Steel Corporation challenged the standing of plaintiff to maintain the action. The trial court dismissed the Complaint for want of equity finding that Senate Bill 782 was valid. The Supreme Court on appeal held first that title to the lands submerged by the waters of Lake Michigan lying within the boundaries of Illinois rested in the State of Illinois in trust to protect the rights of the public in the use of those navigationable waters for fishing, boating, recreational and other public purposes. The court said at page 599:

"This did not mean, however, that the shoreline was required forever to remain unchanged except by natural causes. An equally important part of the doctrine was that the State might from time to time relinquish its trust as to specific parcels of submerged lands by action of the General Assembly in granting to a shore owner title to those lands adjacent to his property where the grant in aid of commerce and where the public interest in the lands and waters remaining was not substantially impaired. (Illinois Central Railroad Company v. Illinois, 146 U.S. 387, 36 L. Ed. 1018)"

In dealing with the right of plaintiff to maintain his action, the court laid down the doctrine overruled in the Paepcke case to the effect that a taxpayer in the absence of statutory authority conferring such right has no standing in equity in Illinois 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 in kind from that suffered by the public at large.

In a strongly written dissent Mr. Justice Schaeffer disagreed with the majority of the court and urged that a state taxpayer is entitled to invoke equitable jurisdiction to enforce his rights as a member of the taxpaying public in the subject of a public trust. In his dissent at page 511, Mr. Justice Schaeffer said:

"The taxpayer's right to sue does not, however, depend upon any injury to his property. Indeed, he need not be an owner of real property. His right to sue is grounded upon his status as a taxpayer, and it is his equitable interest, as a taxpayer, in the public property which is being illegally disposed of that determines his standing to maintain the action."

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