specially concurring in part and dissenting in part:
I disagree with the conclusion that the defendants waived their demand for a bill of particulars by failing to renew it after the amended complaint was filed. Since Count I of the amended complaint was identical with the original complaint, filing a new demand for a bill of particulars would have been only a needless duplication. In Marion v. In re Estate of Wegrzyn (1968), 93 Ill. App. 2d 205, 236 N.E.2d 328, the only case cited by the majority which deals with a bill of particulars in instances where an amended complaint had been filed, the amendment differed substantially from the original complaint. In the interest of simplifying litigation and reducing the volume of court records and paper work the judicial process requires, the demand for a bill of particulars directed to the original complaint should in this case be applicable to the amended complaint even though the demand was not formally repeated by an additional document.
I concur with the majority that the city responded sufficiently to the demand for the bill of particulars by advising the defendants that the original hang-on tickets would be made available for their inspection. This procedure, similar to the one provided for producing documents containing information sought by interrogatories (Supreme Court Rule 213(d)), is more expedient than burdening the court records with written responses setting forth the particulars of the time and location of each of more than 11,000 parking violations. Based on the assumption that the city will make the hang-on tickets available for inspection in a form legible enough so that the defendants can compile from them the information with respect to each violation sought by the request for the bill of particulars, I agree that reversal of the dismissal order as to Count I is appropriate.
So far as Count II of the complaint is concerned, I would affirm the circuit court. I see no constitutional defects in the ordinance as interpreted by the city. I simply do not agree that section 364 of the Chicago Traffic Regulations or the numerous ordinances regarding parking found in chapter 27 of the Chicago Municipal Code are fairly susceptible to the interpretation given it by the city and ratified by the majority opinion.
As the majority points out, section 364 applies to other sections of the Chicago Municipal Code which relate to parking. Section 364 makes the owner presumptively liable for a parking violation in some instances even where the other sections as worded do not. Three examples taken from chapter 27 illustrate this point. Section 308(a) provides:
“When signs have been erected upon any street indicating that 999 parking is prohibited during designated horns 9 9 9 no person shall park any vehicle on said street in violation of any such signs.”
That ordinance applies to a person who parks a vehicle, not to the owner unless the owner is such a person. Section 311(a)(13) provides:
“It shall be unlawful for the operator of any vehicle to 9 9 9 park such vehicle in 9 9 9 the following places 9 9 9: At any place where official traffic signs have been erected prohibiting 999 parking.”
This ordinance on its face is a prohibition directed to the operator rather than the owner unless the owner is also operating the vehicle. Similarly, section 329 applies to the owner only if he is the operator. It provides:
“It shall be unlawful for the operator of any motor vehicle 9 9 9 to park such vehicle in such parking meter zone for a period of time longer than is designated on the meter for the value of the coin 9 9 “deposited in such meter.”
For a person who may not fit the description of the offender as set forth in these three ordinances to be made presumptively liable by section 364, and then precluded from rebutting the presumption because the person who actually parked or operated the vehicle was his lessee or his bailee is neither logical nor reasonable. This is particularly true where the only basis for reaching this result is a rule labeled by the majority as one of substantive law, but gleaned by the majority from the application of traffic regulations of the city of Boston which contained no provision making the owner only “prima facie responsible” and in many respects differed from the Chicago ordinances.1 A rule of substantive law is suspect if its effect is to transform a presumption which the ordinance in question clearly provides is rebuttable into an irrebuttable one in situations where the owner’s bailee or lessee rather than the owner was the offender. If the city of Chicago intends to preclude the owner from rebutting the presumption raised by its ordinance by showing the owner’s lessee or bailee was responsible for the illegal parking, the ordinance should be amended to state that. Instead, the majority has masked its distortion of the ordinance by using the label of “a matter of substantive law” to rewrite the traffic ordinances set forth above, and others as well, by concluding that the owner has no defense and is guilty where his lessee or bailee is the person who operates the vehicle or parks it.
I agree that (i) illegal parking of cars on city streets is a public mischief; (ii) as a matter of public policy and traffic administration the city authorities should not be required to keep watch over parked vehicles to find out who parked them; (iii) the car rental companies can protect themselves against illegal parking of their cars by their customers, and they should not be permitted to escape responsibility for their cars illegally parked on city streets and at the city airport. I applaud the result the majority strives to reach, but it should be accomplished by an amendment of the ordinance instead of by an interpretation carving an irrebuttable presumption under some circumstances out of an ordinance which on its face provides only for “prima facie responsibility” in all circumstances. I would, therefore, affirm the circuit court’s construction of the ordinance in response to Count II of the complaint. In the interest of freeing the streets of illegally-parked cars owned by the defendants, I would urge the City Council of Chicago to amend the city traffic regulations so that they provide the owner is responsible for illegal parking of a vehicle which is in the possession of his bailees, lessees or customers.
Commonwealth v. Minicost Car Rental, Inc. (1968), 354 Mass. 746, 242 N.E.2d 411, and Commonwealth v. Ober (1934), 286 Mass. 25, 189 N.E. 601, on which the majority relies, dealt with rules and regulations of the Boston Traffic Commission.