delivered the opinion of the court:
As will be seen from the statement preceding this opinion, the only question involved in this case is a question of costs. The court below dismissed the original, amended and supplemental bills at the costs of the appellant here, which was the complainant below. The appellant insists, that the bill should have been dismissed at the costs of the present appellees, who were the defendants below. In order to determine whether the costs should have been paid by the appellant or by the appellees, it is necessary to consider whether the original and amended bills of the appellant presented such equities as entitled it to relief. (Booth v. Gaither, 58 Ill. App. 263).
First—It is charged by the appellant in the original and amended bills, that the act entitled “An act to provide for pleasure driveways in incorporated cities, villages and towns,” approved March 27, 1889, in so far as it authorizes the corporate authorities of such municipalities to take public highways for pleasure driveways, and gives them power to prohibit traffic teams thereon, and to impose penalties for the violation of ordinances prohibiting the travel of such teams thereon, is unconstitutional and void; and. that any ordinance passed by any city, village or town under and in pursuance of said act is also illegal and void as being based thereon. The first question, therefore, presented for our consideration is whether or not the act of March 27,1889, is constitutional.
Section 1 of the act provides “that the city council in cities, the president and the board of trustees in villages or the board of trustees in incorporated towns, whether incorporated under the general law or special charter, shall have the power to designate by ordinance the whole or any part of, not to exceed two streets, roads, avenues, boulevards or highways, under their jurisdiction, as a public driveway, to be used for pleasure driving only, and to improve and maintain the same, and also to lay out, establish, open, alter, widen, extend, grade, pave, or otherwise improve and maintain not more than two roads, streets or avenues, and designate the same as pleasure driveways, to be used for pleasure driving only: Provided, said powers shall only be exercised when said corporate authorities are petitioned thereto by the owners of more than two-thirds (§) of the frontage of land fronting upon said proposed pleasure driveways.”
Section 2 of said act provides, that “said pleasure driveways may be laid out, extended and improved under the provisions of article 9 of an act to provide for the incorporation of cities and villages, approved April 10,1872, in force July 1,1872, and any and all amendments thereto.” I Section 3 of said act provides, that “said corporate authorities may, by ordinance, regulate, restrain and control the speed of travel upon said pleasure drives, and prescribe the kind of vehicles that shall be allowed upon the same, and in all things may regulate, restrain and control the use of said pleasure driveways by the public or individuals, and may exclude therefrom funeral processions, hearses and traffic teams and vehicles, so as to free the same from any and all business traffic or objectionable travel, and make the same a pleasure driveway for pleasure driving only, and may prescribe in snch ordinances such fines or penalties for the violation thereof as they are allowed by law to prescribe for the violation of other ordinances.” (Sess. Laws of Ill. 1889, p. 83).
The town of Cicero, one of the appellees herein, is an incorporated town created by a special act of the legislature. (3 Private Laws of Ill. 1869, p. 666). By its charter the town of Cicero has, among others, the following powers: “To control and regulate the highways, streets, alleys and public places and abate any obstructions, encroachments or nuisances thereon. * * The board of trustees shall have power from time to time, first, to open and lay out any new street, alley or highway, and to cause any street, alley or highway to be altered, widened, extended, laid out, vacated, bridged, graded, macadamized, paved, planked, clayed, graveled or otherwise improved, and keep the same in repair.”
It will be observed that, by section 1 of the act of 1889, not to exceed two streets or roads can be used for pleasure drives only; that is to say, the municipality may set apart and designate one or two streets as pleasure driveways, but not more than two. This restriction as to the number of streets or roads to be designated as pleasure driveways leaves all the other streets a:nd roads in the municipality to be used for general travel and for traffic teams.
It is also to be observed, that the power to set apart a street or road as a pleasure driveway can only be exercised, when the corporate authorities are petitioned thereto by the owners of more than two-thirds of the frontage of land, fronting upon said proposed pleasure driveways. The power of the corporate authorities is thus limited and restrained by the wishes of a large proportion of the property owners, whose property fronts upon the road or street to be converted into a pleasure driveway.
Counsel for appellant take the ground, that the right of each citizen to travel on and use the common public highways with an ordinary vehicle in the prosecution of his lawful business is a property right, of which he can not be deprived without due process of law. They also contend that, when this right is taken from the citizen by the provisions of the above act, there is thereby a taking' of private property for public use without just compensation. In other words, counsel invoke, in favor of their contention that the act is unconstitutional, sections 2 and 13 of article 2 of the constitution. (1 Starr & Curt. Ann. Stat.—2d ed.—pp. 100, 113). Counsel furthermore refer to many decisions, which hold that the fee of the streets in cities or incorporated towns is held in trust by the corporation for the benefit of the public; and that a limitation of the use of such a street to the purposes of a pleasure driveway, instead of general traffic, is a violation of the trust.
Such an act, as the act of 1889, does not in any way deprive a citizen of his property without due process of law, or take or damage private property for public use without just compensation, or involve any violation of trust upon the part of the municipal authorities.
“The legislature of the State represents the public at large, and has, in the absence of special constitutional restraint and subject * * * to the property rights and easements of the abutting owner, full and paramount authority over all public ways and public places.” (2 Dillon on Mun. Corp.—4th ed.—sec. 656). “The plenary power of the legislature over streets and highways is such, that it may, in the absence of special constitutional restrictions, vacate or discontinue them, or invest municipal corporations with this authority. Without a judicial determination, a municipal corporation, under the authority conferred by its charter to locate and establish streets and alleys and to vacate the same, may constitutionally order a vacation of a street; and this power, when exercised with due regard to individual rights, will not be restrained at the instance of a property owner, claiming that he is interested in keeping open the streets dedicated to the public.” (Ibid. sec. 666).
While it is true that the public highways are for the use of the general public, it is at the same time true that the legislature is a representative of the public at large. As such representative, it may grant the use or supervision and control over the highways to a municipal corporation, so long as the highways are not diverted to some use, substantially different from that, for which they were originally intended. There is no special restriction in the constitution of this State upon the power of the legislature in this regard. A city or incorporated town not only bears a property or private relation to the State, but it also bears a political relation thereto. In its political relation, it is merely an agency of the State. The municipal corporations of the State are the mere creatures of the State, and exist by the authority of the legislature and subject to its control. Hence, when a city or incorporated town holds a street for the benefit of the public, it holds it for the benefit of that entire public, of which the legislature is the representative. As the municipality is a mere agent of the State, the legislature can direct the manner, in which it shall control the streets within its limits. The property rights and easements, which the municipality has in public streets and ways, are held by it at the will of the legislature. Of course, this statement is subject to the further statement, that such property, as the municipality holds in its private capacity, is as much protected by the constitution as the property of the private citizen. But, so far as it holds property as a mere agency of the government of the State, the constitutional provisions above referred to have no application, because the State can control the agencies created by it for the purposes of government. An act, which limits the use of a street to the purposes of a pleasure driveway, is, in no sense, class legislation. All the citizens are entitled to the úse of the street for the purpose of a pleasure driveway. Neither the act of 1889, nor the ordinances passed by the town of Cicero in pursuance thereof, unjustly discriminate between the rights of citizens to travel over Austin aveúue, or other streets of the town. The act is general in its operation upon all citizens, who may think proper to employ their vehicles for other than traffic purposes over the street or streets of the city or town designated as pleasure boulevards. When an ordinance imposes restrictions upon citizens of a particular part of-the city, or grants a particular privilege to a particular part of the citizens, not given to all others, then it may be obnoxious to the charge of making an unjust discrimination between the citizens; but the act here under consideration is not subject to any such charge.
Section 22 of article 4 of the constitution provides, that the General Assembly shall not pass local or special laws “vacating roads, streets, alleys and public grounds.” This provision of the constitution recognizes the right of the General Assembly to vacate roads and streets, provided that it does so by general laws, and not by local or special laws. Of course, the right of the legislature to vacate streets is subject to the condition, that such vacation is not for the benefit of private parties, or for the purpose of devoting the streets so vacated to private uses. The right of the municipality to vacate the street is to be exercised only when the municipal authorities, in the exercise of their discretion, determine that the street is no longer required for public use and convenience. (Smith v. McDowell, 148 Ill. 51). The power to vacate or discontinue a street, qualified in the manner thus stated, necessarily involves the power to change the use of the street. The greater power of absolutely vacating necessarily includes the lesser power of regulating or restraining. If, therefore, the legislature had the power to confer upon the town of Cicero the authority to vacate one of its streets, it certainly had the power to confer upon that municipality the power to limit the use of a street to a particular purpose benefiting' all the public, and not exclusively shared by any class of the citizens.
In People v. Walsh, 96 Ill. 232, it was held, that it is competent for the legislature to transfer the control of a street in a city or village to park commissioners, to be by them improved and controlled for boulevard and park purposes, where such purposes are. not inconsistent with their use for ordinary travel. In People v. Walsh, supra, the case of People v. Kerr, 27 N. Y. 188, was referred to with approval and the following quotation was made therefrom: “So far as the existing public rights in these streets are concerned, such as the right of passage and travel over them as common highways, a little reflection will show that the legislature has supreme control over them. When no private interests are involved or invaded, the legislature may close a highway and relinquish altogether its use by the public, or it may regulate such use or restrict it to peculiar vehicles, or to the. use of particular motive power. It may change one kind of use into another, so long' as the property continues devoted to public use. What belongs to the public may be controlled and disposed of in any way which the public agent sees fit.” (City of Chicago v. Rumsey, 87 Ill. 348; City of Chicago v. Union Building Ass. 102 id. 379). It is said by Dillon, in his work on Municipal Corporations, (4th ed. sec. 657): “As respects the public or municipalities', there is, in the absence of special constitutional restriction, no limit upon the power of the legislature as to the uses to which streets may be devoted.” This court held to the same effect in Meyer v. Village of Teutopolis, 131 Ill. 552. (True v.Davis, 133 Ill. 522; Barrows v. City of Sycamore,150 id. 588; Simony. Northup, 27 Ore. 487).
This court has in many cases recognized the power of the city of Chicago to turn over a particular street to the control of park commissioners, and to permit the use of the street to be regulated and governed by such commissioners. These cases concede the power of the legislature over the public streets, and its right to change the possession and control of the same when private rights are not violated. Ordinarily, such private rights are the rights of abutters, or property owners owning property fronting upon such street, and not the rights of citizens as to the character of the vehicles which they may drive over the streets. (McCormick v. South Park Comrs. 150 Ill. 516; West Chicago Park Comrs. v. McMullen, 134 id. 170).
There is nothing unreasonable in excluding traffic teams from a street designated and intended to be a pleasure driveway. Such a driveway must be constructed and paved in a particular manner; and if heavy teaming is allowed, injury would result and frequent repairing would be made necessary. Neither can it be said that pleasure and recreation are not as much for the good of the people as business and traffic. (Barrows v. City of Sycamore, supra).
The legislative authority to do what is here objected to was conferred upon the town of Cicero under its charter before the passage of the act of 1889. But the act gave further protection to the rights of the people by requiring the assent of the owners of more than two-thirds of the frontage upon the street.
Our conclusion is that the act of 1889 is not unconstitutional for any of the reasons here urged_against its validity.
Second—It is next insisted by appellant, that the ordinances of January 16, 1892, and of May 23, 1896, passed by the board of trustees of the town of Cicero, were illegal and void upon the alleged ground that no petition was presented to the. corporate authorities of the town by the owners of more than two-thirds of the frontage of the land between the termini mentioned in said ordinances; and that the said ordinances are uncertain, unreasonable, not general and not impartial, as reserving to the corporate authorities the privilege of enforcing them or not at their pleasure.
The exhibits attached to the affidavits and answers show, that petitions were filed for converting Austin avenue into a boulevard between the termini named in the ordinances; that these petitions were referred to a committee for verification; that such committee reported that all the signatures thereto had been verified, and that the signatures of the petitioners represented more than two-thirds of the frontage. The act of 1889 does not specify any particular kind of petition, and does not require that the petition shall be a single document. It appears here, that the town board was petitioned by the owners of more than two-thirds of the frontage of land fronting upon the driveway; and we are inclined to the opinion, that the town board was sufficiently and legally petitioned to designate Austin avenue as a pleasure driveway between the termini mentioned in the ordinances.
But the other ground, upon which the ordinance of May 23, 1896, is attacked as invalid, is of a more serious character. By the ordinance of May 23,1896, all persons are forbidden to take any omnibus or heavy vehicle or any traffic vehicle upon either of the boulevards therein named, except private wagons conveying families, “or upon special permission of this board.” The meaning of this provision is, that all traffic vehicles, except private wagons conveying families, are only forbidden the use of the boulevards in case their owners do not obtain the special permission of the board of trustees. In other words, the discretion is lodged with the board of trustees to permit or not to permit traffic vehicles to be used upon the boulevards in question. The ordinance, in so far as it invests the board of trustees with the discretion here indicated, is unreasonable. It prohibits that which is, in itself and as a general thing, perfectly lawful, and leaves the power of permitting or forbidding the use of traffic teams upon the boulevards to an unregulated official discretion, when the whole matter should be regulated by permanent local provisions operating generally and impartially. The ordinance is not general in its operation. It does not affect all citizens alike, who use traffic vehicles. It is only persons driving traffic vehicles upon the boulevards without the permission of the board of trustees, who are' subjected to the penalties of the ordinance. The ordinance in no way regulates or controls the discretion vested thereby in the board. It prescribes no conditions, upon which the special permission of the board is to be granted. Thus, the board is clothed with the right to grant the privilege to some, and to deny it to others. Ordinances, which thus invest a city council or a board of trustees with a discretion which is purely arbitrary, and which may be exercised in the interest of a favored few, are unreasonable and invalid. The ordinance should have established a rule by which its impartial enforcement could be secured. This position is sustained by the weight of authority. (City of Chicago v. Trotter, 136 Ill. 430; Rich v. City of Naperville, 42 Ill. App. 222; In re Frazee, 63 Mich. 396; Plymouth v. Schultheis, 135 Ind. 701; State Center v. Barenstein, 66 Iowa, 249; Commissioners v. Gas Co. 12 Pa. St. 318; Austin v. Murray, 16 Pick. 126; Landis v. Vineland, 54 N. J. L. 75; State v. Mahner, 43 La. Ann. 496; State v. Dulaney, id. 500; Tick Wo v. Hopins, 118 U. S. 356; Newton v. Belger, 143 Mass. 598; 1 Dillon on Mun. Corp.—4th ed.—sec. 321; Baltimore v. Radecke, 49 Md. 217).
It is insisted by appellees, that the ordinance of May 23, 1896, is not void in the respect here indicated as to the whole of the ordinance, 'but only void as to the part of it, which makes the use of traffic teams upon an avenue or boulevard dependent upon the special permission of the board of trustees. In support of this contention the well known rule is invoked that, where certain provisions of an ordinance are void, the court will not declare void those provisions relating to the subject matter of the ordinance, which are distinct and separate from the void provisions. If an ordinance, or even the same section of an ordinance, contains two separate provisions, relating to different acts, with distinct penalties for each, one of which is valid and the other void, the ordinance may be enforced as to that part of it which is valid. When an ordinance consists of several distinct and independent parts, although one or more of them may be void, the rest are equally valid as if the void clauses had been omitted. But where an ordinance is entire, and each part has a general influence over the rest, and one part of it is void, the entire ordinance is void. The void part of the ordinance makes the whole ordinance void, if the void and valid parts are so connected as to be essential to each other. (1 Dillon on Mun. Corp.—4th ed.—sec. 141). We are inclined to think, that the objectionable clause is here so intimately connected with the other portions of the ordinance, as to permeate the whole and make the whole void. The ordinance does not positively and absolutely exclude all traffic teams, but it only excludes such traffic teams as the board of trustees may not specially permit to pass over the avenue. But if it were true, that the void portion of the ordinance can be separated from the valid portion so as to permit the latter to stand, it is nevertheless the fact that the portion of the ordinance, which confers upon the board of trustees the discretionary power already referred to, is the portion thereof which applies to the appellant in this case. The prosecutions were instituted against it or its employes, because it was driving traffic vehicles over the boulevard, and not because it was driving private wagons containing families. The arrests of appellant’s employes were made because of a violation of that part of the ordinance, which confers the discretion upon the board, and which is, therefore, void.
Our conclusion upon this branch of the case is, that the ordinance of May 23, 1896, must be regarded as having been invalid, because of the discretionary power conferred upon the board of trustees.
Third—It is claimed by the appellees, that a court of equity had no jurisdiction in such a case as was made by the bill and amended bill of the appellant herein. The want of jurisdiction is sought to be established on two grounds. In the first place, it is said that the appellant did not allege in its bill any special damage to itself, different in degree and in kind from that suffered by the public at large. The general rule is that, when the duty about to be violated by the corporation or its officers is public in its nature, and affects all the inhabitants alike, one not suffering any special injury cannot in his own name, or by uniting with others, maintain a bill for injunction. A private individual cannot maintain a bill to enjoin a breach of public trust without showing that he will be specially injured thereby. Where no injury results to the individual, the public only can complain. Hence, in the declaration or bill the party complaining must allege and prove some special damage, different in kind and degree from that suffered by the general public. (City of Chicago v. Union Building Ass. supra; Barrows v. City of Sycamore, 150 Ill. 588; Field v. Barling, 149 id. 556; Smith v. McDowell, supra). If the rule thus, announced is applied to the allegations of the bill in this case, it will be seen that facts are set up, which show a special injury to the appellant different in kind and degree from that suffered by the general public. The complaint made is not of the inconvenience suffered from being forbidden to travel upon the boulevard with traffic wagons. Such inconvenience is suffered by all other persons using traffic wagons in common with the appellant. But the bill shows, that there were only two avenues in the town of Cicero running north and south, which could be used by the appellant for the purpose of delivering its lumber and building material to the persons to whom it was sold. These two avenues were Central avenue and Austin avenue. The bill alleges, that Central avenue was rendered impassable by the building of a sewer therein and a trench for the sewer, and the throwing up of dirt upon the sides of the trench. It also avers, that the appellant was forbidden to use Austin avenue by the town authorities under the ordinances in question. It was thus shut off from the use of any avenue, and thereby prevented from delivering the lumber and other material, sold by it, to the parties, entitled to receive it. Its business was in this way injured and destroyed. The appellant, therefore, suffered a special injury different from that which was sustained by the general public.
In Shero v. Cary, 35 Minn. 423, which was an action for obstructing a highway, a complaint was held to be insufficient in the necessary averments,of special damage, which alleged generally that the plaintiff was compelled to travel by longer and worse roads, and could only reach certain places by trespássing upon private lands, and was thereby prevented from marketing his produce. The decision in that case, however, was based upon the decision in the case of Houck v. Wachter, 34 Md. 265. Upon reference to the latter case, the declaration showed that, by reason of a certain obstruction in the highway, appellant was obliged to travel a longer and more circuitous route; and it was held that the declaration did not show such special damage as to entitle the appellant to maintain an action. It was, however, said in that case, that the declaration did not aver, that the highway, which was obstructed, was the only way to and from appellant’s farm, or that such highway was necessary to enable him to pass and re-pass from his farm to mill and market. The plain intimation of the court there is that, if the allegation had been that the highway obstructed was the only way to and from the farm, there would have been a sufficient allegation of special damage. But the mere fact, that appellant was obliged to proceed by a very circuitous route, was not a statement of any other inconvenience suffered by him than that which was common to the rest of the traveling community. It was also therein said that, when a plaintiff had been delayed for four hours by an unlawful obstruction in the highway, and was thereby prevented from performing his journey as many times in a day as if the obstruction had not existed, there was a sufficient special or particular injury to entitle him to maintain the suit, because it appeared that he was engaged in carrying coal upon the highway, and the damage he suffered was in the conduct of his business, and of a substantial nature, and was different in kind from that suffered by the public at large. So, in the case at bar, under the facts already stated, the appellant suffered damag'e of a substantial nature in the conduct of its business, which was different from that suffered by the general public.
In the second place, it is said that an injunction will not issue to prevent the enforcement of an invalid ordinance; and that no case was made by the bills, which justified the appellant in coming into a court of equity. It is true that, where an ordinance has been enacted by the proper authorities, a court of equity will not interfere by injunction to restrain its enforcement in the appropriate courts upon the ground that such ordinance is illegal, or upon the alleged innocence of the parties charg'ed; nor will the court enjoin proceedings for the enforcement of such an ordinance for the purpose of determining the validity of the ordinance, when the defendant has an adequate remedy at law. But it is well settled, that there are two exceptions to the rule, that courts of equity will not interfere to restrain trespasses, whether committed under the forms of law or otherwise. These exceptions are first, to prevent irreparable injury, and second, to prevent a multiplicity of suits. It may be that the bills of appellant could not be sustained for the purpose of preventing a multiplicity of suits, because the suits sought to be enjoined were not between different persons assailing the same right and thing-, but were cases where the right was disputed between two persons only for themselves alone. However this may be, the bills were sufficient upon the other ground, that is to say, for the purpose of preventing irreparable injury. The appellant showed, that it had no means of transacting its business without the use of Austin avenue, and that, whenever one of its wagons went upon such avenue, the driver thereof was arrested under the ordinance, and a number of prosecutions were instituted against it. The bill alleges, that the officers of the town, instituting these prosecutions, were insolvent, so.that no damages could be recovered against them in an action at law. In Poyer v. Village of DesPlaines, 123 Ill. 111, and Chicago Stock Exchange v. McClaughry, 148 id. 372, and Comrs. of Highways v. Green, 156 id. 504, there were no allegations in the bills, that the parties charged with the trespasses were insolvent. In this respect, those cases are different from the case at bar. In Owen v. Crossett, 105 Ill. 354, it was said (p. 357): “It is first urged in affirmance of the- decree dismissing the bill, that it will not lie to enjoin a trespass. Such is undoubtedly the rule where it is a simple trespass to property, and is but a single act, and the person committing or threatening the trespass is able to respond in damages; but where he is insolvent, and repeated trespasses of a grave character are threatened to be repeated, equity will interfere to prevent the wrong by restraining the threatened trespass.” This language expressly fits the facts in the case at bar.
Our conclusion is, that a court of equity had jurisdiction to entertain the bills filed by the appellant, both upon the ground that the bills showed a special damage to the appellant different in kind and degree from that suffered by the general public, and also upon the ground that appellant, according to the showing of the bills, had suffered irreparable injury.
Inasmuch as the appellant was properly in a court of equity, and inasmuch as the ordinance, under which its employes were prosecuted, was void by reason of the discretion vested in the board of trustees, a case was made by the original and amended bills, which entitled the appellant to relief even though its charge, that the act of 1889 was unconstitutional, was not sustained. The original, amended and supplemental bills, therefore, should have been dismissed by the circuit court at the costs of the appellees, and not at the cost of the appellant. Of course, after the ordinance of May 23,1896, was repealed, and the new ordinance of July 27, 1896, was passed without the objectionable clause, and after all the prosecutions ag'ainst appellant’s employes were dismissed, there was no longer a necessity for continuing the litigation between the parties to these suits, except so far as it was necessary to dispose of the question of costs. The prayer of the supplemental bill, filed by the appellant, was for a dismissal of the suit at the costs of the defendants thereto, the present appellees. We are of the opinion, that the prayer of the supplemental bill, in this respect should have been granted; and that the court erred in requiring the appellant, instead of the appellees, to pay the costs of the proceeding.
For the error thus indicated, the decree of the circuit court is reversed, and the cause is remanded to that court with directions to dismiss the bills at the costs of the defendants below.
Versed and remanded.