The opinion
JUSTICE MURRAY, dissenting:
I respectfully disagree with the majority’s conclusion that the involved City of Chicago ordinance is invalid as applied to the plaintiffs and its reversal of the trial judge’s final order.
The court’s decision as it now stands is contrary to decisions of the Illinois Supreme Court which have held that a municipal corporation has the power to regulate or prohibit the use of its streets for private gain. Olsen v. City of Chicago (1962), 25 Ill. 2d 292 , 184 N.E.2d 879 ; City of Decatur v. Chasteen (1960), 19 Ill. 2d 204 , 166 N.E.2d 29 .
The cases cited and relied on by the majority, Springfield Park District v. Buckley (1986), 140 Ill. App. 3d 524 , 488 N.E.2d 1071 , and Salomone v. City of Canton (1961), 30 Ill. App. 2d 474 , 175 N.E.2d 663 , involved the improper exercise of powers delegated to a non-home-rule unit by the legislature regarding use of streets within its boundaries. The City of Chicago is a home rule unit of local government. The involved ordinance was the exercise by a home rule unit of a power it was granted by the 1970 Constitution, not by the State legislature. (Ill. Const. 1970, art. VII, §6.) The only statute involved in this case is the statute creating the medical center district and conferring on the Medical Center Commission certain powers. (Ill. Rev. Stat. 1985, ch. 111%, par. 5001 et seq.) That statute expressly provides that it “not be construed to limit the jurisdiction of the City of Chicago to territory outside the limits of the District nor to impair any power now possessed by or hereafter granted to the City of Chicago or to cities generally except such as are granted to the Commission by Section 8 of this Act.” (Ill. Rev. Stat. 1985, ch. HV-lz, par. 5019.) Section 8 of the act creating the medical center district confers power to the Medical Center Commission to improve and manage.the district, but does not limit the power of the City of Chicago over the streets of the district lying within the City. Ill. Rev. Stat. 1985, ch. lllVa, par. 5018.
The Constitution of 1970 expressly provides that “Powers and functions of home rule units shall be construed liberally.” (Ill. Const. 1970, art. VII, §6(m).) By suggesting that the ordinance is invalid because evidence presented to the trial court indicated no relationship between the “Whereas” clauses of the ordinance and its substantive provision is to adopt a narrow, rather than liberal, construction of the home rule powers of the City of Chicago contrary to the mandate of the Illinois Constitution.
The preamble to an act, as well as the text, may be examined by a court to determine legislative intent. (Radford v. Cosmopolitan National Bank (1964), 52 Ill. App. 2d 240 , 201 N.E.2d 622 .) However, a declaration of policy or a preamble is not part of the act. (Hayen v. County of Ogle (1983), 116 Ill. App. 3d 80 , 451 N.E.2d 612 , aff’d (1984), 101 Ill. 2d 413 , 46 N.E.2d 124 .) It is an improper mode of statutory construction to create an ambiguity in a statute or ordinance by reference to a policy section of an act. (Brown v. Kirk (1976), 64 Ill. 2d 144 , 355 N.E.2d 12 .) The majority, by suggesting that the evidence fails to support the “Whereas” portions of the ordinance, creates an ambiguity between the ordinance itself and its statement of policy.
Further, the plaintiffs may have a right to use the streets of Chicago by reason of their license, but they have no due process or legally protected right from the City’s subsequent regulation of the streets of the medical center district prohibiting their use by mobile food dispensers. (Foster & Kleiser v. City of Chicago (1986), 146 Ill. App. 3d 928 , 497 N.E.2d 459 .) There was no evidence that the ordinance was applied discriminatorily or that the City otherwise abused its constitutional or statutory jurisdiction in enacting the ordinance. Absent such evidence, the trial court properly denied the plaintiffs’ request to enjoin the application of the ordinance as it applied to them.
The plaintiffs are not without a remedy. There is nothing in the ordinance to prevent them from seeking permission from the Medical Center Commission to park and vend their food on its property or the property of one of the medical institutions located within the medical district. If the Commission denied such permission, the act and the law provide a judicial remedy if the Commission acts illegally. Ill. Rev. Stat. 1985, ch. IIIV2, par. 5015.
Finally, the majority opinion misstates the facts relating to the ordinance. The journal of the council’s proceedings of September 6, 1984, discloses that a proposed ordinance was introduced on December 15, 1982, and referred to the city council’s committee on traffic control and safety. On September 6, 1984, the committee submitted a report that the following ordinance be passed “as a substitute” for the proposed ordinance previously referred to. The substitute ordinance reads in part:
“Section I, Chapter 27 of the Municipal Code of the City of Chicago is hereby amended by adding thereto in italics a new section 27 — 269.1 as follows:
‘No person shall conduct the business of a mobile food dispenser or peddler as defined in this Code on any public way within the boundaries of the Medical Center District to-wit: ***.’” (See Journal of Proceedings, Chicago City Council, September 6,1984, at 8747-48.)
The ordinance passed by unanimous vote. Alderman Natarus moved to reconsider the vote and his motion lost.
The “Whereas” clauses referred to by the majority were not in the ordinance when presented to the council according to the council journal. “[T]he parliamentary history of a bill in the legislative journal is the only evidence that is recognized in the courts of this State, and it cannot be aided or contradicted by evidence aliunde.” (People ex rel. Coutrakon v. Lohr (1956), 9 Ill. 2d 539, 551 , 138 N.E.2d 471 .) The majority, by referring to “Whereas” clauses not contained in the ordinance presented to and passed by the council according to its journal of proceedings, is unknowingly violating this established rule.
For the above reasons, I would affirm the trial judge.