dissenting:
By a curious inversion the majority opinion first decides the case on the merits, and then determines that the plaintiff has no standing to raise the issues that have already been decided. I am unable to agree with either determination. The nature of the problems, and their importance, preclude a cursory statement of the reasons for my disagreement.
Illinois has long recognized the right of a citizen and taxpayer to sue in equity to enjoin the misappropriation of public funds. In Colton v. Hanchett, (1852) 13 Ill. 615, a taxpayer was permitted to sue to enjoin the county Board of Supervisors from illegally disbursing county revenue, because the case involved “a question affecting the public interest” and because no other remedy was as “direct, speedy and efficacious.” And in City of Springfield v. Edwards, (1877) 84 Ill. 626, the court sustained an injunction to restrain the incurring of municipal indebtedness in violation of the constitutional debt limit, saying: “We may dismiss the objection that the complainant does not show in his bill that he is injured by the acts complained of, otherwise than in common with all other tax-payers in the city, with the observation that it has been held in this State that such an injury is sufficient to entitle him to an injunction, and that the question is not open to further discussion. Colton et al. v. Hanchett et al. 13 Ill. 615; Perry et al. v. Kinnear et al. 42 id. 160; and Beauchamp v. Board of Supervisors, etc. 45 id. 274.” 84 Ill. at 631.
In 1887 the doctrine that had previously been applied to illegal expenditures of public funds was applied to the illegal disposition of public land. In McCord v. Pike, 121 Ill. 288, the court held that a taxpayer’s bill in equity would lie to restrain the board of county commissioners of Cook County from illegally executing and delivering a deed conveying property of the county. In Littler v. Jayne, (1888) 124 Ill. 123, the court applied the same doctrine to the misuse of state assets. In this case a state taxpayer sought to enjoin the State House Commissioners from approving vouchers which would have led to the expenditure of funds under an illegal contract. Without prolonged discussion, and upon the authority of the local government cases, the propriety of the action was sustained. See also Burke v. Snively, (1904) 208 Ill. 328.
In 1915 the court decided Jones v. O’Connell, 266 Ill. 443, and Fergus v. Russel, 270 Ill. 304. In the Jones case a taxpayer brought an action to restrain the county treasurer of Cook County from illegally retaining a percentage of inheritance taxes which he would collect in the future, and to compel him to pay over to the state treasurer amounts he had illegally retained in the past. In sustaining the plaintiff’s right to equitable relief, the court said: “If taxpayers have a right or interest which the bill in this case was intended to protect it is of a purely equitable nature, the legal right and title being in the State. If the defendant, O’Connell, has money in his hands which he has no right to retain but which he is bound to pay to the State treasurer, the sum retained by him must be made up by taxation, and every tax-payer has an equitable right to see that the money so unlawfully retained shall be paid to the State treasurer for the use of the State. This court has always recognized that rule and has uniformly held that the tax-payers are in equity the owners of the property of a municipality, and whenever public officials threaten to pay out public funds for a purpose unauthorized by law or misappropriate such funds, equity will assume jurisdiction to prevent the unauthorized act or to redress the wrong, and this is because the right and interest are equitable in their nature and are not recognized by courts of law.” 266 Ill. at 447.
In Fergus v. Russel, the underlying basis of the taxpayer’s suit was again articulated. There a state taxpayer sued to enjoin the payment of a number of legislative appropriations. The court said “We have repeatedly held that tax-payers may resort to a court of equity to prevent the misapplication of public funds, and that this right is based upon the tax-payers’ equitable ownership of such funds and their liability to replenish the public treasury for the deficiency which would be caused by the misappropriation. * * * Upon principle and reason we perceive no distinction between the right of a taxpayer to enjoin the misappropriation of public funds from a municipal treasury and the right to enjoin an invalid appropriation of the public funds from the State treasury.” 270 Ill. at 314, 315.
The majority opinion disposes of plaintiff’s right to maintain his nonstatutory action in a single sentence, stating that a taxpayer “has no standing in equity 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 reaching this conclusion the court relies upon two decisions which involved taxpayers’ actions: Koehler v. A Century of Progress, 354 Ill. 347, and McPike v. Illinois Terminal Railroad Co. 305 Ill. 298. These decisions do not, in my opinion, justify a departure from the long-standing recognition of the right of a taxpayer to enjoin the illegal alienation of public property.
In Koehler v. A Century of Progress a taxpayer was denied standing to enjoin an alleged temporary misuse of public land and to seek the appointment of a receiver to collect “just and reasonable” rents from the private corporation which was permitted to use the public land. The court said: “The lands involved here and which are described in the bill are held in trust by the South Park Commissioners for the use of such lands by the public. An obstruction or mis-use of public property which does not result in special injury to the individual cannot be complained of except by the people. To entitle a tax-payer to maintain a bill to enjoin a breach of public trust, he must, in the absence of statutory authority conferring such right, show that he is specially injured thereby. * * * He is entitled to invoke equitable jurisdiction only to protect his property from threatened injury, and unless it is shown that he will suffer damage, different in degree and kind from that suffered by the public at large, he will not be heard to complain of mis-use of public property. Carstens v. City of Wood River, 344 Ill. 319; McCormick v. Chicago Yacht Club, 331 id. 514; McPike v. Illinois Terminal Railroad Co. 305 id. 298; Hill v. St. Louis and Northeastern Railway Co. 243 id. 344.” 354 Ill. at 349, 350-
In McPike v. Illinois Terminal Railroad Co. the court said: “The rule is that the obstruction or misuse of streets or other like property held by the city for the use of the public which does not result in special injury to the individual cannot be complained of by an individual. If special injury results to the individual he may enjoin such obstruction although the city has given its acquiescence thereto. (Oehler v. Levy, 234 Ill. 595; Hamilton v. Semet Solvay Co. 227 id. 501; Guttery v. Glenn, supra; City of Chicago v. Union Building Ass’n, 102 Ill. 379; McDonald v. English, 85 id. 232.)” 305 Ill. at 302.
The cases relied upon by the majority and the line of authority of which they are a part rest upon considerations other than those that have supported the taxpayer’s action. Their roots lie in the doctrine of public nuisance and they have regarded the encroachments, obstructions and misuse of public property with which they were concerned as public nuisances. In Guttery v. Glenn, 201 Ill. 275, 290-291, for example, the court said: “If, however, it were true that Union street is a street, which crosses the public square, then its enclosure by the board of trustees was a public nuisance. It is well settled that a public nuisance will not be restrained at the suit of a private person, unless such person suffers therefrom a special and particular injury distinct from that suffered by him in common with the public at large. In the American and English Encyclopedia of Law, (vol. 10— 1st ed. — p. 838) it is said: ‘Where the nuisance is public, the plaintiff, to obtain an injunction, must allege in his bill, and prove if need be, special damages peculiar to himself distinct from the public at large.’ In McDonald v. English, 85 Ill. 232, we said (p. 236) : ‘We regard the rule as well settled, that for any obstruction to streets, not resulting in special injury to the individual, the public, only, can complain. Where, however, the obstruction is such that a public prosecution is authorized, and, at the same time, an individual has been specially injured thereby, as well as where the act has been private and an offense against the individual, solely, he may maintain an action and recover for his special injury.’ (City of Chicago v. Union Building Assn. 102 Ill. 379; City of East St. Louis v. O’Flynn, 119 id. 200; Smith v. McDowell, 148 id. 51; Pittsburg, Fort Wayne and Chicago Railway Co. v. Cheevers, 149 id. 430; Chicago General Railway Co. v. Chicago, Burlington and Quincy Railroad Co. 181 id. 605).”
City of Chicago v. Union Building Association, 102 Ill. 379, appears to be the primary authority in this line of cases. And in that opinion, which was written by Mr. Justice Scholfield, the public nuisance flavor strongly appears in the authorities relied upon. Five years later, Mr. Justice Scholfield also wrote the opinion of the court in McCord v. Pike, 121 Ill. 288, a taxpayer’s action to restrain the members of the Board of County Commissioners from executing and delivering a deed conveying property owned by the county. In sustaining the taxpayer’s action, he said: “The first question to be considered is, will a bill in equity, by tax-payers, lie in a case like the present? The contention of plaintiff in error is, that such a bill will lie only in the name of the Attorney General, or of the State’s attorney of the county, as the representative of the public. In some States, and notably in New York, this is the rule. (See Roosevelt v. Draper, 23 N.Y. 108.) But the ruling in this State is different. It is here held, that where an unjust and illegal burden is being imposed on the tax-payer by the municipality, or the money or property of the municipality, to replace which taxation must be levied, is being wasted or squandered, the tax-payer has such a direct interest that a bill to enjoin the threatened burden will lie. Colton v. Hanchett, 13 Ill. 615; Prettyman v. Supervisors, 19 id. 406; Perry v. Kinnear, 42 id. 160; Drake v. Phillips, 40 id. 389; Chestnutwood v. Hood, 68 id. 132; Devine v. County Commissioners, 84 id. 590; Mayor of Springfield v. Edwards, 84 id. 626; Railroad Co. v. People, 92 id. 170; Leitch v. Wenworth, 71 id. 147.
“It seems to be supposed that something was said in Chicago v. Building Association, 102 Ill. 379, contrary to this rule. It is very certain that was not intended, and, we think, if the question there really under consideration be kept in view, and it be also kept in view that the language employed was with reference to that question only, it will appear that nothing there said can reasonably be held to have the effect of announcing a different rule, from that sustained by the cases cited supra.” 121 Ill. at 290-291.
The distinction between the two lines of cases lies in the fact that in the cases involving misuse, obstructions and encroachments the complaints are “bottomed on the proposition that the alleged illegal use of the park property was of special injury and damage to his [the plaintiff’s] property.” (Carstens v. City of Wood River, 344 Ill. 319, 321-322.) 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.
In my opinion, neither Koehler v. A Century of Progress nor McPike v. Illinois Terminal Railroad Co. can be regarded as overturning the established policy of the State with respect to the rights of taxpayers. That policy had been adhered to by this court throughout the history of the State both before and after those decisions. ( See Bowes v. City of Chicago, (1954) 3 Ill.2d 175.) That the legislature did not intend that a citizen and taxpayer should be forced to rely solely upon the efforts of public law officers for the protection of public rights is apparent from the statute referred to in the opinion of the majority. And the legislative policy is further illustrated by another statute, enacted in 1871, which allows a taxpayer to sue any person to recover “any money or property belonging to the municipality.” Laws of 1871, p. 218, art. X, sec. 4; now Ill. Rev. Stat. 1963, chap. 24, par. 1 — 5—1.
There is apparently no decision in a taxpayer’s action which has squarely involved the disposition of public property of the state, as distinguished from the disbursement of its public funds. But no reason has been suggested to support a distinction between the two situations. McCord v. Pike, (1887) 121 Ill. 288, held that with respect to local units of government no such distinction should be drawn, and I see no justification for a different conclusion with respect to the funds and property of the State. I would therefore hold that the plaintiff has standing to maintain his action and thus reach the merits.
The plaintiff challenged the validity of S.B. 782 on the ground that it is special legislation in violation of section 22 of article IV of the constitution of Illinois. That section provides: “The general assembly shall not pass local or special laws in any of the following enumerated cases, that is to say: for — * * * Vacating roads, town plats, streets, alleys and public grounds; * * * Granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever.” S.B. 782 unmistakably grants to the United States Steel Corporation the “special or exclusive privilege” of removing materials from the bed of Lake Michigan without paying the statutory charge of 10 cents per cubic yard which the Department of Public Works and Buildings would otherwise be authorized to impose. S.B. 782 also terminates the rights of the public in lands submerged beneath the waters of Lake Michigan and grants those lands to the United States Steel Corporation, and it is thus a special law “vacating public grounds.” In my opinion it clearly falls within the constitutional prohibitions against special legislation.
The steel company cited four cases in support of the validity of the statute. The most recent of these, Smith v. Virgin Islands, (3rd cir. 1964) 329 F.2d 135, (cert. denied 377 U.S. 979, 12 L. Ed. 2d 747,) sustained a grant of public land to a private corporation against an attack upon due process grounds. There is no mention in the opinion of any constitutional provision against special legislation. In Roberts v. Brooks, (E.D.N.Y. 1896) 71 Fed. 914, (affirmed on other grounds, (2d cir. 1897) 78 Fed. 411,) an act of the New Jersey legislature which granted a private person the right to “erect and maintain” a private dock over State tidal lands was challenged as repugnant to a subsequently enacted provision of the New Jersey constitution “forbidding the grant to any corporation, association, or individual any exclusive privilege, immunity or franchise whatever.” Concerning this constitutional provision, the court said: “This would seem to apply to incorporeal things, and not to curtail the right of the legislature to dispose of the state’s tangible property; but, if it did, it appears not to have been adopted till 1875 — long after this grant.” (71 Fed. at 915.) In First Construction Co. of Brooklyn v. State, (1916) 156 N.Y.S. 911, the appellate division held that a grant to a corporation of lands submerged under tidal waters conformed to a State constitutional provision which authorized the appropriation of “public moneys or property” for private purposes upon the vote of two thirds of the members of each house of the legislature, and therefore did not violate another section of the State constitution which prohibited the grant of an “exclusive privilege, franchise or immunity” to a private corporation. In Patterson v. Trabue, (1830) 26 Ky. 598, a State legislative grant of land to a private person was sustained against a challenge on the ground that it violated a constitutional provision prohibiting “the granting of exclusive privileges.” The court said: “The commonwealth is absolute proprietor over its vacant domain. She may sell it upon such terms as she deems fit. * * * “every patent for land grants an exclusive privilege to the patentee * *
To the extent that these four decisions bear at all upon the problem before this court, they are certainly not decisive. None of them involves a constitutional prohibition against special legislation “vacating public grounds”, and none involves the grant of a special privilege like the privilege to remove fill from the bed of the lake without cost which is granted to the steel company by S.B. 782.
The opinion of the majority does not mention the cases relied upon by the steel company. Instead, it bases its conclusion that S.B. 782 is valid upon what is to me a surprising misreading of the opinion of this court in People ex rel. Moloney v. Kirk, 162 Ill. 138. That case involved the extension of Lake Shore Drive in Chicago over submerged lands of the State. The extension was to be located more than 1000 feet east of the westerly shore line of the lake. The statute in question authorized the park commissioners to acquire “the riparian or other rights” of the shore owners by purchase or eminent domain, and it also provided that: “* * * in all cases where any boulevard or driveway is extended under the provisions hereof, the submerged lands lying between the shore of such public waters and the inner line of the extension of such boulevard or driveway shall be appropriated by the board of park commissioners to the purpose of defraying the cost of such extension, and to that end such board of park commissioners are authorized to sell and convey such submerged lands in fee simple, by deeds duly executed on its behalf by its president and under its corporate seal, and every deed executed in pursuance hereof shall vest a good title in the grantee to the premises intended to be conveyed thereby.”
Concerning the statute involved in the Kirk case, the majority opinion states: * * the Board of Park Commissioners was authorized by the statute to execute and make such conveyances to various shore owners.” (Emphasis supplied.) But the statute involved in the Kirk case did not authorize the park commissioners to execute conveyances “to various shore owners.” If it had done so, it would have presented the problem raised in the case before us. Instead, it authorized the park commissioners to sell and convey the submerged lands for the purpose of defraying the cost of the extension of Lake Shore Drive.
The opinion of the majority apparently attaches great significance to the fact that in the Kirk case the submerged lands were ultimately conveyed to specific grantees. But this fact is of no significance in determining whether or not the legislation authorizing the conveyances is special or general. Every conveyance must run to a specific grantee. The statute in the Kirk case neither named nor identified the grantees of the submerged land that was to be reclaimed, whereas the statute in the present case is itself a conveyance to a specific grantee.
The contention that invalidation of this statute as special legislation would cast doubt on titles that rest upon previous conveyances of this type is not convincing. The equitable doctrine of laches is applicable to taxpayers’ actions, (Bowman v. County of Lake, (1963) 29 Ill.2d 268, 280, and if a taxpayer has stood by without asserting his rights until the grantee has proceeded by partial or complete use under the grant, the defense of laches would be applicable against the taxpayer and the defense of estoppel against the public authorities, including the State. See People ex rel. Prindable v. New York Central Railroad Co. 400 Ill. 507, 516-18; Clokey v. Wabash Railway Co. 353 Ill. 349, 370; Melin v. Community Consolidated School District, 312 Ill. 376, 383; State v. Illinois Central Railroad Co. 246 Ill. 188, 234-5.
The State is not precluded from effectively providing for the disposition of its public grounds. The General Assembly has enacted general statutes providing for the disposition of land of municipal corporations and park districts. (See e.g., Ill. Rev. Stat. 1963, chap. 24, pars. 11 — 76—1, 2, 3; chap. 105, pars. 10 — 7, 10 — 7a-d.) Indeed, general statutory provisions were involved in the two leading cases in which substantial grants of submerged land were sustained by this court. (People ex rel. Moloney v. Kirk, (1896) 162 Ill. 138; Bowes v. City of Chicago, (1954) 3 Ill.2d 175.) The considerations advanced to justify the enactment of S.B. 782 — the provision of a substantial base for the imposition of general property taxes, the job creating potential of the proposed use, and the like, — can be taken into account in such legislation.
For example, if the State should decide that it would be in the public interest that a particular parcel of submerged land underlying Lake Michigan be filled in and devoted to some other purpose, the General Assembly might so declare and might offer the submerged lands for development for the use or uses so determined. A conveyance of the land in question to the highest and best bidder, having in view the legislative purpose for which the land is to be filled in, might then be authorized. In such a procedure, it would, of course, be necessary to compensate the abutting owner for the loss of his right of access. But a conveyance resulting from such a procedure would be very different from what is before us — a legislative conveyance to a particular grantee for an unspecified use. Such a conveyance, in my opinion, is exactly what the constitutional provision against special legislation vacating public grounds was designed to prevent.