Petition for Writ of Certiorari — Hickey v. Illinois Central Railroad

- ) | JOHN F. DAVIS, CLERK

IN THE | or ‘

Supreme Court of the United States

Oorossn Team, 1966. ay ;

4

ie

_ LAWRENCE i ‘HICKEY GEORGE D. SULLIVAN, JR.,

| BURTON H. YOUNG, and THOMAS R. BENZ,

Petitioners,

ILLINOIS CENTRAL RAILROAD COMPANY,,.

: - an Dlinois corporation, es .

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUHREME COURT OF ILLINOIS

v

‘LEONARD R. HARTENFELD

ie, .- 89 South LaSalle Street

: Chicago, Illinois 60603

Attorney for Petitioners

*)

Of Counsel: >

GEORGE F. ARCHER

7 South Dearborn Street

- Chicagé, Llinois .60603

McCORMICK & HENDERSON, INC., CHICAGO

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INDEX

Ny PAGE

Petition for a Writ of Certiorari to the Supreme Court °

a ee

OQ n-w

of Illinois ileal

Opinion Below .......... :

_ Jurisdiction peas

Questions Presented ¢ |

_Statutes and Constitutional Provisions Involved ..”’

Statement neice ccesceedieeeelewesth

Reasons for Granting the Writ | ‘ : ene 14

Conclusion © -:.....::co-+++-+ Siaubiciisinn | bat eres 26

Appendix ‘icBinaie : ee App. 1,2 °

———" Br Opinions and Sllisin below ...... = AP. 3-36

CITATIONS

~~ Cases:

Ancient Egyptian Arabic Order N.M. 8. v. Michaux,

279 U. Bs PHI Pinnactssgbtitensetaes , 24

"Deposit Bank v. Frankfort, 191 U. s. fem een 19

Dill v. ‘Widman, 413 Il. 448 ne = 20...

Dupasseur v. Rochérau, 21 Wall. 130, cones ae.

" Gibbons v. Ogden, 9 Wheat. 1, 61 L.Ed. 23 (1824) 20

Hickey, et al., v. Illinois Central Railroad Co.,‘(7th —

Cir. 1960), 278 F.2d 529, cert. den., 364 U.S. 918... -7

Illinois Central Railroad Co. v. Illinois, 146 U. S.

B87 Tio... 7 , | 1 et seq. °

"28 U.S.C., Section 1257(3)

ws

19 ..-

5

eas il 4

a =e Sa a _ PAGE

Illinois ex rel. Hunt v. lines Central Railroad

Co., 184 U.S. 77 - Let seq.

“i ‘Siteaaiait Coal & Coke Co. v. "United States, 274 °

US. 640. ne

Martin v. Hunter’s Lessee, 1 bar 304, 4 L. Ed. .

a (1816) 20

McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ko 579.

_ (1819) S.cveieoes :

- Sanitary District of Chico v. United States, 266

US: 405° cnqensesnbcoetiae

_— State v. 7. Venus of. Asaeried Land Co., 160 Mich 680,

.125.N.W. 770 23

Stoll v. Gottlieb, 305 US. 165, 167 «

__ United States v. California, 332 US. 19. degli 17, 20, 21 .

Ward v. Love County, 253 U.S. 17, 22, 23............- 22

\ * ° :

Constitution of the United States

- and Federal Statutes

United States Constitution, A Article VI — :

Clause) .

United States Constitution, Article fo Tg Section 1 and |

2 5

"United States Constitution, XIVth Amendment — “¢

3 Stat. at Large 428 5

3 Stat. at Large 536 | 6

Co ‘

IN THE

| Supreme Court of the United States

ats -Ocrone Tero, 1966. oe

ony

2 Me

-

"LAWRENCE P. HICKEY, GEORGE D. ‘SULLIVAN,

BURTON H. YOUNG, and THOMAS R. BENZ, |

Petitioners,

‘~

vs.

ILLINOIS. CENTRAL RAILROAD COMPANY,

/ an Iinois corporation,

s va

Respondent,

PETITION FOR A WRIT OF CERTIORARI TO THE

‘SUPREME. COURT OF. ILLINOIS

* Lawrence P. Hickey, George D. : Sullivan, a r., Burton

H. Young and Thomas R. Benz, ‘petitioners herein, . re-

spectfully pray that a writ of certiorari issue to review

the “Judgment of the Supreme Court of Illinois entered in

this cause on September 23, 1966, rehearing denied on

October 27, 1966, \

‘In the case below the State of Illinois and the City of

Chicago intervened as additional party plaintiffs in support

of petitioners’ position (Statement, p. 11, infra). Peti-

tioners are taxpayers whose right to sue has. been recog-

nized by the Supreme Court of Illinois in the two appeals

to. that court from the trial court in the instant case.

.

~ Via Ate ar hie Beis axial ee

- ee RBI Sidi ESATO,

.. ‘QPINIONS BELOW |

The opinion of the Supreme Court of Illinois for which |

review is sought (R. 5-23) is reported in —— IIl.2d ——;

220 N.E.2d 415, and is printed in the Appendix hereto, *

pp. 3-27. ae ee. . ae

~The opinion of the trial court (R. 4,"Pages 537-542),

granting Respondent’s motion to dismiss the amended com- __ |

_ plafnt, is not repo@d. This opinion is printed in_the

Appendix: hereto, ‘pp. 31-35. . : ee i

~ JURISDICTION |

The judgment of the Supreme Court of Illinois sought

“to be reviewed, affirming on direct appeal the trial court's”

- decree, was dated and entered ‘on September 23, 1966 7

(BR. 24) and is printed in the Appendix hereto, pp. 29-30. + .

A timely petition for rehearing filed on October 7, 1966 ° -,

(R. 25, 26, 27, 28) was denied on October 27, 1966 (R. 29; :

App. 28). The trial court’s decree dismissing the amended

complaint was dated and entered ‘on October 28, 1965 (R. 4..

pp#642-543) and is printed in the Appendix hereto, pp. 36-

- The jurisdiction of this Court is invoked under 28 U.S.C...’

Section. 1257(3). The federal questions sought to be re-

. viewed were timely and properly raised in the complaint

_ filed ‘in the trial court and in a brief submitted to the

*Supreme Court of Illinois as detailed in the Statement,

pp. 6, at 10, 13 infra. ° ee bape tie

eee

"QUESTIONS PRESENTED

The State. of Illinois and the Illinois Central Railroad’

~ were parties to- a suit, 146 US 387, 184°US 77, in which an

1888 federal decree, predicated upon federal questions,

adjudicated that certain lands, originally consisting of . .

submerged lands in Lake Michigan granted to the State.

_ “pursuant fo Congressional Acts when ¢he State was incor-

porated, were owned by the State in trust for’ “the es cael

of the State. The air rights alone over these lands are now ~

worth hundreds of millions of dollars, are along Chicago’s

lake front and are: of crucial public importance. _ yt

In twice affirming. the degree, this Court adjudicated that

the trust.impressed upon the title’ of the State to these lands .

was of a special character which prevented the State from

‘being divested of such title except for public purposes in

‘the best, interests of all the People. Even thé Illinois

Legislature, according to this Court’s holding, could not

disavow this trust by giving the title to these lands to the ©

railroad solely for its private gain’ and purposes. (The

same trust was held ‘by_this Court to attach to’ the sub-

merged lands of the Great Lakes owned by all of the states

bordering these laker.) |

~Petitioners here seek to enforce ' said federal dete c

against the railroad.as res. judicata and to prevent the rail-

road from usurping the title to these lands and air rights.

By its judgment -below, the Illinois Supreme Court has

now given the railroad title to these lands and air rights.

on the sole ground that the State was barred by laches

- and estoppel from asserting its title under the 1888 federal :

\deeree. The Court held that local public agencies’ and

officials, by their conduct in disavowing the State’s title,

- Gfused the State to lose its title to these lands and air ©

rights. (These agencies and officials had no authority from

the State to dispose of State property; ori the contrary,

‘their duties required them to protect the.Btate’ 8 apie!

The questions presented are: 3

@

4

4

‘1. Did the Illinois Supreme Court violate the jurisdic-

__ tion and judicial power vested in this Court by Sections 1 -

and 2 of Article III and’ the Supremacy Clause ——-

VI) of the Constitution of the United States: °

a. by failing to give effect to the 1888 federal decree as

res judicata, the State and the railroad having been parties.

to both ‘the instant case and the earlier case in which the

1888 decree was entered and the lands encompassed 7” said

decree having been involved i in the instant case? %

. db, by. giving title to these lands to the railroad ‘ail

thereby nullifying the 1888 federal decree which had ad-

judicated ‘that gaid federal trust attached to the State’s

title to these lands and prevented the lands from being given |

~ awayto private. interests except for a public purpose?

_ @+ by avoiding the significance of the 1888 federal decree

_. and, formulating as a matter of state law a doctrine’ of .

: estoppel | and laches, plainly untenable (as the railroad

was a party to the 1888 decree), instead- of deciding the

merits of this case? Can.the Illinois Supreme Court thus

become the final arbiter of said federal decree? -

2. Can any branch of any state government, bordering

- on the Great* Lakes, by a state court decree, state statute -

or conduct of administrative state officials give the title to

the submergett lands of the State in these lakes to private —

interésts for non-public purposes’ without violating the

federal trust adjudicated by this Court ‘regarding a“

lands? : °

_* 8, Did the court below, by failing to recognize a give

- full effect to said 1888 federal -decree, deprive the People of

the State of Illinois and the petitioners, the beneficiaries

‘of said trust, of their property without due process.of law .

in violation of the Fourteenth Amendment to the Constitu-

tion of the- United States? |

e'

STATUTES AND CONSTITUTIONAL

". PROVISIONS INVOLVED |

. United States Constitution,’ Article VI:

‘“This Constitution, and the Laws ‘of the United

States which shall be made in Pursuance thereof; and

all Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme .

..Law,of the Land; and the: J udges in every State

shall be bound thereby, any Thing in the Constitution ©

or Laws of any State to -the Contrary notwith-

standing.’ "

United States Constitution, Article Il, Sections: 1 and

2: :

“Section 1.. “The judicial power - -of the’ United

States, shall be vested in one supreme Court, and in

such inferior Courts as the Congress may from time

’ to time ordain and_ostablish . .

**Section 2. The judicial fewer shall aud to all

Cases, in‘ Law and Equity, arising under this “Con-’

stitution, the Laws of the United States; and Treaties.

ae or which shall be aiceien, under their ‘Authority

a

*

" United States Constitution, XIVth Amendment :

‘¢ |. . No State shall make or enforce any law wkich

shall abridge the privileges and immunities of citizens

of the United States; nor shall any State deprive any

~ person of life, liberty, or property, without due process

of law; nor deny to any person within its ae :

the equal protection of the laws. =

3 Stat. at Large 428 (April 18, 1818), Chap. LXVII.—

‘‘An Act to enable the people of the Illinois territory to.

form a constitution and state government, and for the |

admission of such state into the Union on an equal footing

with the original states. ”” This statute i is | printed in Ap-

pendix hereto, pp. App. 1-2.. 1 nes

- 6

3 Stat. at Large 536 (December 3, 1818), ‘“Resouvion

* declaring the admission of the ‘state of ‘Tilinois into the

Union.’’ This statute is printed in Appendix hereto, p.

| APP. 2.

| STATEMENT

As the court below observes, the factual background of

’ this case is highly complex (App. p. 6). It involves

six years of litigation in the Illinois courts, previous liti-

gation before this Court: and in the State courts and

events going back to 1851.

"This case is an outgrowth of the hide of this Court -

in [linois Central Railroad Co. v. Illinois, 146 U.S, 387, and

’ Illinois ex rel. Hunt v. Illinois Central: Railroad Co.,

184 U.S. 77, twice affirming on appeal a decree entered in

1888 by the then Circuit Court of the United States for

the Northern District of Illinois, 33 F. 730, and the United.

States Circuit Court of Appeals (7th Cir3, 91 F. 955.

_ These earlier federal opinions, known .as the ‘Lake

Front. Casés’’, involved the State of Illinois, the City of

Chicagd and: the Illinois ‘Central Railroad Co., all parties -

to the instant case. A crucial portion of the same land is

involved in the instant case —the lakefront lands: in. the

City of Chicago between the Chicago River and 16th Street |

_ (146 U.S. 387, 433), an area almost the size of, and immedi-

‘ ately adjacent to, downtown Chicago. The balance of the

lands’ involved in the instant case stretch approximately

four and one-half miles along the lakefront south of 16th

. Street. (See maps at R. 3, pages 243, 249; and R. 4, pages

366 and 367, Exhibit S-1).

“Today, the air rights idiomas to these lands alone -

are worth hundreds of millions of dollars.

7

{ The instant case was filed against the respendent, Illinois

\Gentrat Railroad Co.; in 1960 in the Cireuit Court of Cook

County, Illinois by petitioners, suing on behalf of the State

of Illinois and the City of Chicago, in petitioners’ various

capacities as taxpayers, citizens and voters of the State _

of Illinois and the City of Chicago, as citizens- of the.

United States, and also pursuant to certain Illinois Acts

which gave them the statutory right to sue on behalf. of .

‘the State and the City (R. 3, pages 179-182).* |

The State of Illinois and the City of Chicago were addi-

tional parties plaintiff in the Court below in support of

petitioners’ position, as hereinafter noted. The matter was

decided on the pleadings and the relevant portions thereof _

- are summarized here. Petitioners’ amended complaint. (R.

3, pages 179-270) alleges that: |

‘ALLEGATIONS OF PETITIONERS’ COMPLAINT |

All of the lands i in question were created by the railroad

filling in from the natural shoreline of 1852 the submerged

waters of Lake Michigan in progressive stages beginning

in 1852 until sometime after 1930 (R. 8, pages 183-186).

A portion of the lai.ds were so reclaimed pursuant to the

authority granted the railroad in the 1851 charter it re-

ceived from the State - Legislature to use the waters of .

‘*In 1959 the same plaintiffs suing as state and federal taxpayers

filed a suit against the Illinois Central Railroad Co. in the federal

courts seeking to"recover on behalf of the Statqof Illindis and the

City of Chicago a portion of the lands and air rights involved in

the instant case, Hickey, et al. v. Illinois Central Railroad Co., (7th

Cir. 1960), 278 F.2d 529, cert. den., 364 U.S. 918. The latter

case, however, did not involve the same legal issues, and particularly

did not involve the federal constitutigpal questions, presented - in

the instant case. )/Pursuant to the decision of the United States

Court of Nessie in that case that it was a matter for the. state

courts to decide whether petitioners could sue as state taxpayers,

petitioners filed*the instant case in 7 oe state courts.

na a

RD ae nr» OB OS I itd et Sa nih OD tip ncaa hes Ailes tpt SR Bt Nitin, i Sake ett Mota Sinn

8

Lake Michigan { for railroad purposes. The Charter Te- |

quired the railroad to obtain the consent. of the’ Cit; >

which was obtained by various ordinances (R. 3, page 188).

But neither the’Charter from the State nor the ordinances !

purported to convey title to the railroad (R. 3, page 195).

A portion of the lands were created by filling pier struc-

tures, and slips between these structures, the railroad had

built into the lake. This was in violation, of this Court’s

permanent injunction issued in the Lake ‘Front Cases en-

joining the ‘railroad from further filling in the slips and

the waters of Lake Michigan, 184 U.S. 77, 87 (R. 3, page

185). ( The Court below appears to acknowledge this viola-

( tion (App. p. 11).)

Upon. its admission to the Union in 1818, . Congress

granted to the State of Illinois in trust for the People »

the title to all of the submerged lands between the State’s -

natural shoreline and the middle of the lake, 3 Stat. at

Large 428 (April 18, 1818) —7T 3 Stat. at Large 536

(December 3, 1818) App.-2; (R:-8, page 187). The lands

in question were filled in subsequent to 1818 and, by opera-

tion. of law, such reclaimed submerged lands were im-

pressed with the same trust in the public interest and the ~

State forthwith became the owner thereof (R. 3, page

187).

The State has since prea held and does: now hold the

title and ownership of fhese reclaimed lands in trust for

the People of the State subject to such title thereto or

other rights therein as may have been granted by the.

State to the City of Chicago and subject further to the ©

railroad’s easement for railroad purposes only (R. 3, page ©

- 187). eee

A

* . title in fee to all of the lands encompassed in the decree

The complaint: further alleges that in the Lake Front

) Cases, 146 U.S. 387; 184 U.S. 77, this Court adjudicated —

that the reclaimed par submerged lands. encompassed by

the 1888 decree, comprising a major portion of the lands

involved in the instant case, were owned in fee by the

State of Illinois in trust for the People of: the State for

public purposes ;‘that the railroad had only an easement.

for railroad purposes in these lands, and by reclaiming

them from the submerged waters of Lake Michigan never

. acquired any title thereto nor the right to dispose of same

to others by. way of deed or otherwise; that said decree

gave the railroad title to certain pier structures the rail-

road had built out into the lake but not to the state owned ©

bed of the lake underneath the piers; that said decree per-

petually enjoined the railroad from filling in the slips

between the piers or any more of Lake Michigan; that

since the Lake Front Cases the railroad removed the piers

‘and filled in the waters in- the area formerly occupied

by said structures, afid also-the-water in the former slips, |

presently constituting vast areas of reclaimed land between

the Chicago River and 16th Street, all i m violation of said ,

perpetual. federal injunction.

_ Farther, it is new wrongfully onlllevinia: the ownership

and dominion over these. immensely valuable lands a id air

eral right which should be protected by t

(R. 3, pages 191- 192).

ALLEGATIONS OF PETITIONERS’ COMPLAINT

| RAISING FEDERAL QUESTIONS -

The complaint emphasized that the Lake Front Cases

were res judicata on the fact that the State owned the

in trust for the People, subject to an easement in favor

f ~

10

of the votive for railroad purposes only; that in the

‘event the state court should fail to recognize and give full

force and effect to said federal court adjudications by.de-

claring and decreeing that the railroad had no title;to these

reclaimed lands, such failure would constitute. an abroga-

tion of the judicial power of the United States in violation.

of Sections 1 and 2 of Article III of the Constitution of

the United States and would. also deprive the people and |

citizens, and-the plaintiffs in their various representative —

capacities, of rights, privileges and ,immunities arjsing

under the Fourteenth Amendment to the Constitution of

the United States (R. 3, pages 193-195, 222, 232-284). '

The complaint also. alleges that the railroad claims title

_ to these.lands under the 1930 and 1912- 1913 decrees entered

a by Hlinois trial courts in non-adversary boundary line pro-

_ ceedings referred to in the opinion of the court below (App.

pp. 14, 8, 11); that these decrees were void because these _

proceedings were purely statutory in nature and the stat- _

ute expressly applied to, and became legally operative only

. with respect to true owners of shorelands (and riparian

rights appurtenant thereto), which the railroad was not,

because the Lake Front Cases had adjudicated that: the

State owned the shorelands-and riparian rights involved in

these State proceedings (R. 3, pages 196-217). Further,

that said state court decrees and the statute upon which

they were based, as so construed by said decrees, were

in violation of the Fourteenth Amendment to the Consti-

tution of the United States as the effect of said decrees

was to make a wrongful gift or donation to a’private cor-

poration of these lands so adjudicated by the federal courts

to be publicly owned, and as such constituted action by the

State Government which deprived the People of the State,

and the petitioners in their various representative capaci-

ties, of property without due process of law (B. 3, page

232).

11 -

The complaint sought a declaration by, the state court

» that the lands and air rights’ in question. belong to the

State and that the railroads be required to turn over to

the State all proceeds from all sales which it had’ made

of portions’ of these lands and air rights and that the

* railroad: be enjoined from making any other r dispositions 7

of ‘this property (R. 3, pages 233-236).

In 1962 the © City of Chicago intervened and adopted the

~ amended complaint of ‘petitioners (R. 3, pages 290-295).

Subsequently, the Attorney General of the State of: Illinois -

, intervened and filed in the trial court an intervening com- °

_. plaint expressly aligning the State of Illinois with, and in |

support of the position of, the petitioners and the City of

Chicago. The Attorney General’s complaint in substance

‘’ adopted petitioner’s complaint, except for the said federal

éonstitutional alc mees (R. 4, pages: 334-367).

THE PLEADINGS OF RESPONDENT

The railroad filed a motion to dismiss the petitioners’

and City’s complaint (R..3, pages 2-6; 178, 271-275) and

an answer to the State’s intervening complaint (R. 4, pages

368- 518). The State filed a reply -(R. 4, pages 518-528).

Thereupon, the railroad filed a motion for judgment on

the pleadings as against the State (R. 4, pages 532-535)

and the trial court heard the motions simultaneously, as

the complaints presented common legal issues be 4, pages.

535-536).

The. railroad’s elerweabl pleadings directed against all

the complaints asserted that the.railroad owned these

lands by reason of the Lake Front Decisions, 146 U.S.

387, 184 U. 8. 77, which ‘the railroad conceded to he res

judicata on the parties, the boundary lire decrees of 1930

and 1912-1913, and because of laches and estoppel arising

out of the conduct of State and City officials. The rail-

“12

'. road’s pleadings. denied any violation of this Court? s wer-

manent injunction because the filling in of the slips was —

done with the consent of the Department of Public Works

of the State of Illinois, the City of Chicago and the Corps

of Engineers (R. 3, page 9; R. 4, pages 389, 396, 397, 419).

“The trial court’s decree in the case below granted both

motions and adjudicated that ‘‘defendant Illinois Central

) Railroad’ Company is the owner in fee simple of all the

lands claimed in this cause by the State of Illinois and the

City of Chicago, or on their behalf, between the Chicago |

River and the north: line of Randolph Street and south of

11th Place, or Park Row, in the City of Chicago, Cook

. County, Illindis’? (R. 4, page 542). The -trial court in-

_ terpreted the 1888 federal decree entered in the Lake Front

cases as vesting title in‘ fee simple in the railroad (R. 4,

pages 537-542) to all of that portion of the lands involved

' {nthe instant case encompassed by said decree. a

The railroad has conceded - that the Lake Front Cases’

adjudicated that the City owned that portion of the original* —

lands in question between Randolph Street and 11th Place,

commonly known as Grant Park, subject to the railroad’s

‘ easement fér railroad purposes only. Accordingly, the

said trial’court decree did not include that portion~of ©

" “the City owned lands (R. 4, pages 542-543). This, of

course, was in accord with petitioners’ allegations. As a

result, the only lands involved on the subsequent appeal

_ to the Illinois Supreme Court were those claimed on behalf -

of the State.

‘The trial court did not tebe on the oni of saline

and estoppel raised by the railroad and its opinion makes

no reference thereto (R. 4, pages 537-542). |

Tite attempts of the taxpayers to havé discovery to dis-

‘prove the existence of innocent purchasers of value from

13

the railroad of the air rights herein involved were pro |

-hibited by the trial court jams 3, pages 279-289, R. 4, seas :

528-536). aes ;

On appeal to the Supreme Court. of Illinois by petitioners,

_ the State of Illinois and the City of Chicago, acting jointly,

that court affirmed the trial court’s decree solely on the

ground of estoppel and laches. It carefully. noted that it

was not passing upon the issue as to whether the Lake

Front Cases gave title to these lands to. the State or the

_ railroad (App.-p..23). i.

-Instead, it held that the disavowal of the State’s title

by various State and City agencies and officials (who had

no authority to dispose of the State’s title) barred the

State from asserting the title it claimed under the Lake

Front Cases, 146 U.S.’ 387, 184 U.S. 77. In so doing, the

court failed to pass upon the federal constitutional ques- —

tions raised in. petitioners’ complaint hereinbefore men-

tioned, and in ‘petitioners’ brief filed with the Supreme ~

Court of Illinois attacking the trial court s decree (Sup-

plemental, Recerd, anil 2-4).

' 14

REASONS FOR GRANTING THE WRIT --

The judgment of the court below squarely presents to

_this Court substantial federal questions involving a federal- _—

‘state conflict of national importance with reference to the

submerged lands ‘of the Great Lakes. The answers to —

these questions will decide whether the State of Illinois

or the Illinois Central Railroad owns the. miles of lands

and air rights involved in the instant case worth hundreds

of millions of dollars and of crucial public importance. ;

Hs

tL

_ The decision of the Illinois Supreme Court is in conflict.

with the decisions of this Court in Illinois Central Railroad

- Co. v. People of the State of Illinois and the City of Chi-

cago, 146 U.S. 387, and Illinois ex rel. Hunt v. Illinois Cen- |

tral R. Co., 184 U.S. 77, twice affirming on appeal the de-

cree entered in 1888 by the then Circuit Court of the Unit-

ed States for the Northern District of Illinois, 33 F. 730

(1888) .and the. United States Circuit Court of Appeals

(7th Cir., 1899), 91 F. 955. These federal opinions, known

as the ‘‘Lake Front Cases’’, involved the identical parties.

and a crucial portion of the land as in the instant case, and

are res judicata in favor of the State and the _—— as to |

the i issues herein.

‘The case at bar is in the nature of a bill in equity in aid

of the federal decree entered.in the Lake Front: Cases in

1888.' It is an appropriate method of securing on behalf .

of the State of Illinois and the People the benefits of the

Lake Front decree when subsequent events have made nec-

essary. some further relief in order that the State and the

People may enjoy the full fruits of their victory in the

Lake. Front Cases. Independent Coal &. Coke Co. v. United .

- States, 274 US. 640,

-™,

j

A

‘B., eae

The Lake Front aa held the vedlidiead and renin 7

lands. of Lake Michigan encompassed by the decree therein, -

now of immense value se of Vast public importance, were

-.owned in fee by the Stat@in trust for the People of Illinois

‘‘for purposes in-which the whole: People arg interested . .

for public’use’’. 146 U.S. 452, 456 and 457.*: This Court

further held that even.the. Illinois Legislature could not |

nullify this trust. Title to these -lands could not be given:

to the Ilinois Central Railroad for its private gam, for a

non-publie purpose. 146 U. 8. 452-460.

Yet, now, ‘sixty-four years” later, the Illinois Supreme.

Court, ignoring. res judicata, nullifies the 1888 decree of

the United States ‘Circuit Court, twice one by this

Court i in‘the Lake Front Cases. . ;

The principal i issue before the Court halew involved a con-

struction of this 1888 decree as to whether it vested title

to these lands in the State in trast for the People, .as the

. petitioners contend, or ‘whether said decree vested title in. -

the railroad, as the latter contends. The state court side-

stepped this issue. It-ignored the holdings of the Lake |

Front decisions. It innovated a doctrine of estoppel and .

laches in an attempt {0 avoid the impact of the Lake Front

> decree. The State now is precluded from asserting title

to these lands because’ some public officials; who had no

authority to dispose of title and rights to the lands, failed

to protect the public trust from usurpation by ‘the railroad.

Never before has the State of Illinois been stripped of

any lands by this estoppel and laches emai, let alone

* The only interest the railroad obtained by the 1888 decree 'v was

.a railroad easement and title to certain piers and other structures,-

but not the State’s: title.to the bed of the lake hades which ow,

were constructed. .184 U.S. at t 85.

a

ANN Aa NA ial Aaa aN Se oat GN ed ic Diana ve tonnes hibnioncinniehis git wnabsid

ia aes

16°

So:

reclaimed and submerged lands ‘subject to the federally

endowed trust.

&

NATURE -OF THE TRUST

The Lake Front Cases adjudicated that this trust is of

' -@ unique character: Ben nice

‘‘But it is a title different in character from that which

the State holds in lands intended for sale .. . It is-a

title held in trust for the People of the State ... The

trust devolving upon the State for the public, and |

which can only be discharged by. the A aos | and’.

‘ control of property in which the public has an interest,. |

_ cannot be relinquished by a transfer of property. The

- control of the State for the purposes of the trust can

never be lost, except as to such parcels as are used in

promoting the interest of the public therein, or can

. be disposed of without any substantial impairment of

the public interest in-the lands and waters remaining

... The State can no‘more abdicate tts trust over prop- . .

- |. erty in which.the whole people are interested, like

a navigable waters and sotls under them, so'as to leave.

' them entirely under the use and control of private

parties, except in the instanée of parcels mentioned

for the improvement of the navigation and use of the

waters, or when parcels can be disp8sed of without .

impairment of the public interest in. what remains, .

than it can abdicate its police powers in the adminis-

tration of government and the preservation of the

peace ... The trust with which they are held, there-

fore, is governmental and cannot be altenated, except

in those instances mentioned of parcels used in the

improvement of the interest thus held, or when par-

eels can be disposed of without detriment to the pub-

lie interest in the lands and waters remaining.’’ 146

’ OLS. at 452,453, 455, and 456. (Emphasis’ added.)

The: Lake Front decisions were a final determination, and

res judicata, of the character of the fiust impressed upon” .

the State’s title 6 the reclaimed and submerged. lands. |

4

Oo.

| 17

This title is incapable of being destroyed through estoppel |

or laches in the same manner as this Court held in United

States v. California, 332 U.S..19. There it was decided

* that the United States could not be estopped from asserting

its title to its tide lands where federal agencies and offi-

cials, over a period of many years, had disavowed the

ownership of these lands.

* “As a matter of fact, the record plainly demonstrates

that until the California ‘oil issue began to be pressed

in the thirties, neither the states nor the Government

had reason to focus attention on the question of which

of them owned or had paramount rights in or power

over the three-mile belt. And even. assuming that

Government agencies have been negligent in. failing

to recognize or assert the claims of the Government

at an earlier date, the great interests of the Govera-

ment in this ocean area are not to be forfeited-as a

result. The Government, which holds its. interests

here as elsewhere in trust for all the people, is not to -

be deprived of those interests by the ordinary court .

rules designed particularly for the private, disputes

over individually owned pieces of property; and offi-

cers who have no authority at-all to dispose of Gov- _

“ernment property cannot by their conduct cause the

Government to lose its valuable rights by their ac-

quiescence, laches, or failure to act.’’ 332 US. 19,

at 40.

Likewise, in the instant case, none of ‘the public agencies

or officials had any authority to dispose of State property.

.. Nor were the aif rights herein (now worth hundreds of

millions) of dollars, App. p. 5) of significance until just -

prior to the filing of petitioners’ consplaint, :

«

Because the Lake. Front decisions were res judicata on

the title to the lands owned by the State and upon the na-°

ture of the trust impressed upon such title, the court: be-

low lacked the jurisdiction and power to formulate a doc-

oa

18 -

trine of estoppel and laches under State law which for all

practical purposes nullified the title the State received

under the decree of 1888 in the Lake Front Cases. By at-

tempting to do so, the Court below usurped the judicial

powers vested in this Court by Sections 1 and 2, Article

IM, and the Supremacy Clause (Article VI) of the heen

States Constitution..

This trust, of federal origin, impressed upon all..the

J submerged lands off its shores to the middle of Lake Michi-

gan was granted to the State of Illinois by ‘Congressional

Aets creating the boundaries of the State and granting

_ the federal lands within such boundaries to the State. (146

U.S. 434, 435; 3 Stat. At Large 428, 536, App. pp. 1-2)

The trust doctrine is founded upon the necessity of pré-

serving to all the People the use of navigable waters, and

- the submerged lands under the Lake owned by the State

are subject always to the paramount right of Congress

to control navigation in furtherance of the Congressional '

power to regulate. interstate and foreign commerce. 146

U.S. 435, 436 ‘and 437. Cf. Sanitary District of Chicago v.

United States, 266 U.S. 405, 425, wherein this Court held

that the United States may have an ‘‘ultimate sovereign

interest”? in Lake Michigan. : .

‘It was sdlely on the basis of this ie, and the inability —

of the.Staté Legislature to disavow said trust, that this |

‘ court held the constitutional rights of the Illinois Central

Railroad were not violated by an Illinois Act repealing an

earlier Act which attempted to grant to the railroad title .

. to the submerged lands involved in.the Lake Front Cases

for a non-public purpose. 146 U.S. at 460. |

The Lake Front Cases therefore plainly involved a con-

struction of the Federal Constitution and the nature of

_the trust impressed upon the title the State received under

19 .

- . the Congressional Acts. Thus, the petitioners in the instant

case are seeking the vindication of federal rights adjudicat-

ed by a federal decree in favor of the State.

Petitioners having properly and: timely asserted in the |

* State courts below the Lake Front Cases, and the federal

e decree of 1888 entered therein, a8 res judicata, and the:

Supreme Court of Illinois having refused to give said

_ federal decisions and decree such effect,.a federal question

; reviewable i in this Court under 28 U.S.C. Section 1257 (3),

| Rocherau, 21 Wall. 130, 134. ..

exists. Stoll v. Gottlieb, 305 US. 165, 167; Dupasseur v.

~

“Moreover, semhathor a federal judgment — been given

due force and effect in the state court isa federal question

reviewable by this court which will determine for itself

eneig such judgment’has been given due weight or other-

"S

”” Deposit Bank v. Frankfort, 191 U.S. 499, 515.

“The interpretation of the decree entered in the Lake

Front. Cases concerning the title and the nature of the

federal trust, and the methods by which the-title can be.

. Shorn of: such trust, are matters ultimately within the.

judicial powers of this Court.

On the second appeal i in the- Lake Suet Cases, 184 U.S. |

77, this Court refused: to reopen the decree affirmed on the

first appeal, 146 Uv, S. 387, for -the purpose of litigating ©

an igsue decided on the first appeal. This Court: on the

second appeal held:

‘‘Hivery matter embraced . the original ines of

the Circuit Court, and ak sige open by the decree of

this court, was conclusive y determined; as between

- the parties, by our former decree, and is not subject

- to reexamination on this appeal. ” "184 US. at 93.

When this Court so refused to reopen its own ‘decree, |

it is evident that the Supreme Court of Illinois cannot now

20

do so by voiding said decree indireetly ‘iwenshs ened

and laches. y '

Having adjudicated the title of the State to these lands

under the federal decree in the Lake Front Cases, there

can be no doubt whatsoever since Martin v. Hunter’s Les-

see, 1 Wheat. 304, 4 L. Ed. 97 (1816), that this Court may .

take whatever action it deems necessary to construe, pro-

tect and enforce the title vested, by said decree against

nullification by a State court. State recalcitrance can be

met by entry of judgment in this case as in Martin v.

Hunter’s Lessee. Cf. McCulloch v. Maryland, 4 Wheat. 316,

4 L. Ed. 579. (1819) ; Gavene vy. Ogden, 9 Wheat. 1, 6 L.

| Kd. a8 (1824).

"LACHES AND ESTOPPEL ARE PLAINLY

. UNTENABLE

The court below, in discussing what it states’ to be the

vital question on the estoppel and iit App. P. 23, cites .

Dill v. Widman, 413 Tl. 448:

‘‘The party claiming the estoppel must have lied

upon the acts or representations of the~ other and:

have had no — or convenient means of know-

_ing the true fae

There. can be no aeaee with this proposition o Illinois

law, but it is inapplicable here, for the simple reason that

the railroad was a party to the Lake Front Cases and, of

course, had the *<knowledge’’. as well as ‘‘the convenient

eee cat the true facts’’. ae

é court below casually nods tothe principle of Ugited

States v. California, 332 U.S. 19, but claims ‘‘in the con-

text of the extra-ordinary circumstances here prevailing

',. the basic concept of right and justice preclude the

State from now asserting any claims to the lands in- ’

volved’’. 220 N.E.2d at 426, 427, .

2. > ’

fe sane wel et nat Gre nts stle wens.

21°

-

The yailroad having been a party to the Lake Front.

Cases, ‘‘the basic concept of right and justice?’ should

. preclude the railroad from avoiding the res judicata effects

. | ofsthe Lake Front decree through any estoppel and laches.

Furthermore, it is difficult to understand how “the ae

is basic concept of right and justice’? favors the ‘Ygilroad

-when it filled in a substantial portion of the lands in

question after the Lake Front Cases. in violatién of the

injunction issued in those cases perpetually enjoining the

railroad from further filling in the lake, 184 U.S. 77, 87.

Moreover, this Court ’s holding in United States v. Cali-

ie forma, 332 U.S. 19, 40, is pertinent for another reason:

- “We have not overlooked Califorpia’ S argument, but-

tressed by earnest briefs on behalf of other states,

that improvements have been made along and near

' the shores. at great expense to- public and~ private

agencies. And we note the Government’s suggestion °

that the aggregate value of all these improvements

are small in comparison with the tremendous value of*’ |

the. entire three mile belt here in controversy. But

however this may be, we are faced with the issue as

to whether state or nation has paramount rights in

anid power over this ocean belt, and that great national

question is not dependent upon what expenses may

have been.incurred upon mistaken assumptions.”’

In addition, in the instant case the relief sought against

_. the railroad is a declaration that the State owns the lands

and air rights in question and that the railroad be re-

quired to pay the State such proceeds as the railroad re- .

ceived from purported sales of the air rights to third

_parties who have been innocent purchasers for value. The

fact that the latter may exist (which has not been deter-

Z| ’ a | | 29 a

|

; — mined. to ‘date)* would create no’ estoppel or. laches in :

i

United States, 274 U.S. 640.

_ For, the foregoing reasons, on the face of the opinion

; of the court below, and without resorting to the detailed

denials of. the railroad’s. pleadings concerning laches

and estoppel, the holding of that court with respect to the

latter is plainly untenable. This Court cannot be deprived

_ of its jurisdiction and power to review a state court judg-

POM EDS Seah Km tie

4 ment interposing a non-federal ground of decision’ which is

; plainly untenable. Ward v. Love County, 253 U.S. 17, 22

| i and 23. in SA :

] : I.

| :. . The extent to which the legislative, judicial and execu-

tive branches of the states bordering on the Great Lakes

i have the power to divest their respective states of titles

‘ to submerged ‘lands of the lakes held under the federal .

Bee trust established by this Court in the Lake Front Cases,

4 “146 U.S. 387, 184 U.S. 77, id a substaiitial federal question

_ inherent in this case not heretofore determined by this

Court. . «&

| | ’ * The Lake Front Cases held that this federal trust ap-

plied to all of the Great Lakes, 146 U.S. at 435, 436 and\ —

437, and it prevented any Great Lake State from being _

divested of its title to’ submerged lands in these: lakes

except for a public purpose in. the best interests of all the

People, 146 U.S. at 452 and 453..

* Petitionefs were denied their requested discovery aimed at ascer-

taining whether any innocent purchasers for value existed (R. 3,

| : pages 279-289; R. 4, pages 528-536)... The trial court did not pass

F on laches or estoppel _ (See — 31).

&

_ favor.of. the railroad. Ct... a Coal. Coke Co.v. |

nome, £

rte ts :

Fae. - npsal

~~-Jands-in. the Great Lakés, the states have assumed that

‘their state Jaws completely govern the disposition of these

Notwithstanding the. federal trust imposed upon the .

titles under which the various states hold their submerged

lands. As a result there are no uniform safeguards ap-

plicable to such dispositions, each state exercising its in-:

dependent judgment. The Supreme Court of the State of

Michigan, for example, State v. Venus of America Land

Co., 160 ‘Mich. 680, 125 N.W.-770, has held, directly con-

trary to the Supreme Court of the State of Illinois in —

_ the case below, that estoppel and laches. will not apply with

respect to the submerged lands in the Great Lakes owned

by the State of Michigan.

-¢ While state law might apply for purposes of deciding

riparian rights and similar issues, it should ‘always, be

subject to the federal trust: prohibitions against disposing

of these lands to-private interests contrary to the public

good.

The judgment of the court below emphasizes the urgent :

need for this Court to emphatically reaffirm the federal

. trust in the submerged lands of the Great Lakes to pre- _

vent further unlawful encroachments on these lands by

public officials and state legislatures. In no ‘other way can

the submerged lands be protected from further violations

of the federal trust, the local laws of the various states

being inconsistent and inadequate for that purpose.

In the instant case,. any portion of the lands- not en-

compassed by the 1888 decree in the Lake Front Cases

are still protected from usurpation by the railroad under |

the doctrine of the federal trust of: submerged lands in’

the Great Lakes. The disavowal of such trust by public:

. agencies and officials cannot be a legitimate basis for the

estoppel and laches upon whieh the court below based its

decision.

24

The trust, a federal right asserted in the court below,

was disregarded,, This. Court then has the jurisdiction -

and power to remedy this situation. As this Court held -

in Ancient Egyptian Arabic Order N.M. 8. v. Michaua, 279 :

_U. S. 732, at pages 744, 745:

_- ‘The right thus specially a up in the state court is

\ a federal right. Whether it was denied or not given

due recognition by the challenged decree,.as affirmed,

is a question on which the defeated claimants are en-

titled to invoke the judgment of this court, as is done

in their petition for certiorari. And it is our province

to: inquire not only whether the right was denied in

direct terms, but also whether it was denied. in: sub-

stance and- effect by interposing a nonfederal ground

of decision having no fair support.” |

By ‘tail to give effect to the federal trust, and the

federal decree ypheld by this Court in the Lake Front

Cases, 146 U.S. 184 U.S. 77, the judgment of the court

below deprived the petitioners and the People of Illinois,

the beneficiaries of said trust, of these lands without due

process of law in violation of the Fourteenth Amendment.

- to the Constitution of the United States.

The judgment of the court below exemplifies the dan-

ger of having the submerged lands of the Great Lakes,

important natural resources, depleted at the expense of

the People in violation of said federal trust.:

For the reasons ‘stated in Y this sstitinn, this Court has

the ultimate power to interpret the federal decree in the

Lake Front Cases, 146 U.S. 387, 184 U.S. 77, for the ‘pur

pose of deciding whether the enormously valuable lands

in question are owned by the State or by the railroad, and,

' thus, whether they are to be developed in the best in-

terests of the People under public guidance or at the whim

of the railroad for its private gain. Whatever this Court

decides in this respect, at least there will have been a

Sia

a

xX 25

decision on the merits of this case.- It would be grag

and in frustration of the public interest,. for the. railro

to be deemed the owner’.of these lands without the neces-

| me of its proving title thereto. — :

THE INTEREST OF THE: UNITED STATES

The United States also has a substantial. teterest 1 in the

outcome of this case, in addition to. the compelling virtue of -

seeing that its decrees are respected.

Petitioners’ complaint alleges that the City requires |

the air rights over the railroad’s tracks at 25th Street, a

‘ portion of the air rights involved:in this suit, for the con--

_ struction of an overpass connecting important arterial

_ highways in the City. This overpass will not interfere

with the railroad’s use of its. tracks. The railroad. has

demanded from the City $2,500;000.00 for these air rights, .

in. spite of the decision of this Court in the Lake Front

. Cases, 146 US. 387, 184 US. 17 (R. 3, Pagé 228).

This overpass recently was built. If the duilaiinant of

the court below stands, the City will have to pay the rail-

road for these air rights. This Court may take judicial

notice of the fact that under various federal aid programs |

to municipalities and states a. principal portion. of the

$2,500, 000. 00: will be -paid by federal matching funds.

That this one example will. not be an isolated case is

evident from the fact that the lands and air rights in.

question comprise miles. of valuable lakefront lands. Un-

questionably, i in the future a multitude of recreational, eul-

. tural and other public projects will be built on portions of

these lands and air- rights. In each case it will be néées-

sary for. the public authorities ‘to condemn them for the

projects, and federal aid will ‘be used. Over a period of - °

time such federal’ financial assistance could. . amount to

many millions of dollars.

a

ee ey ee n

- so

| Of Counsel:

CONCLUSION. —

This Petition for a Writ of Certiorari is the last chance

available to assert the title the State obtained under the

\

- Lake Front Cases, 146.U.9. 387, 184 U.S. 77, to these most

important lands and air rights. The decision below, unless _

reversed by this Court,/will be equivalent toa perpetual

- denial of such title because the petitioners, taxpayers, the

State of Illinois and the City of Chicago were all parties.

The state court decision, if it stands, will be binding

forever upon everybody who could . conceivably contest

. the railroad’s usurpation, of these lands and air rights

.

owned by the State in trust for the People,

For the reasons mentioned herein, this Petition for a

Writ of Certiorari:-should be granted.

_ Respectfully submitted,

_ Lerowarp R. HArrenveip |

Counsel for the Petitioners

Georce F’. ARCHER