Rule 23 Order filed               2018 IL App (5th) 170036
January 31, 2018;
Motion to publish granted               NO. 5-17-0036
March 1, 2018;
Opinion filed                                IN THE
March 12, 2018.
                            APPELLATE COURT OF ILLINOIS

                            FIFTH DISTRICT
________________________________________________________________________

THE VILLAGE OF BELLE RIVE, an Illinois      )     Appeal from the
Municipal Corporation,                      )     Circuit Court of
                                            )     Jefferson County.
        Plaintiff-Appellant,                )
                                            )
v.                                          )     No. 16-L-25
                                            )
ILLINOIS CENTRAL RAILROAD COMPANY,          )
an Illinois Corporation, d/b/a CN,          )     Honorable
                                            )     David K. Overstreet,
        Defendant-Appellee.                 )     Judge, presiding.
________________________________________________________________________

       JUSTICE MOORE delivered the judgment of the court, with opinion.
       Justices Welch and Goldenhersh concurred in the judgment and opinion.

                                         OPINION

¶1     The plaintiff, the Village of Belle Rive, an Illinois municipal corporation (village),

appeals the order of the circuit court of Jefferson County that dismissed its complaint against the

defendant, Illinois Central Railroad Company, an Illinois corporation, doing business as CN

(railroad). For the following reasons, we affirm.

¶2                                         FACTS

¶3     The facts necessary to our disposition of this appeal follow. On May 10, 2016, the village

filed a three-count complaint in the circuit court of Jefferson County, which is the county in

which the village is located. In count I of the complaint, the village requested declaratory relief


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and alleged, inter alia, that (1) on April 21, 1925, the village adopted an ordinance (ordinance)

that granted permission to the railroad’s predecessor in interest to construct a rail line through the

village; (2) on May 8, 1925, the railroad’s predecessor in interest accepted the terms of the

ordinance, which provided, inter alia, that it would construct and “thereafter maintain” three

bridges and their accompanying “necessary approaches” over its tracks at Fifth, Tenth, and

Thirteenth Streets; (3) under the ordinance, the village agreed to vacate portions of certain streets

and alleys to make room for the bridges and approaches and subsequently did so; (4) the

ordinance required the railroad to “maintain” the bridges and approaches, which created “a

continuing duty” to keep the bridges “in a safe and passable condition for the public,” and

required the railroad to be responsible for “the entire expense of performing and completing all

of the work set forth in” the ordinance; (5) the ordinance “is a contract between” the village and

the railroad; (6) the village has in all ways upheld its end of the contract, but the railroad has

failed to maintain the bridges and approaches, despite repeated requests from the village to do so;

(7) the railroad’s failure to maintain has led to the closure of the bridges and “completely

obstructed” the ability of the public to “ingress and egress along the streets” where the bridges

are located; (8) “[c]onstruction of railroad grade separations and pedestrian bridges over railroad

tracks are, in part, subject to the jurisdiction of the Illinois Commerce Commission” (ICC); (9)

“[t]he replacement of the 3 bridges would require adherence to current bridge safety standards,

but [the railroad] has failed and refused to request or seek to apply and submit plans to the ICC

for the bridges” to be replaced; and (10) a study estimates the cost to replace the bridges would

be close to $3 million. The relief requested by the village in count I of the complaint included a

judgment declaring that, inter alia, the ordinance created a perpetual easement in favor of the

village over the tracks on the streets in question and the railroad must maintain the bridges at

those locations at its sole expense.
                                                  2

¶4     Count II of the complaint was styled as “Injunction.” The relief sought within this count

included a judgment in the village’s favor in the amount of $3.6 million (which the village

estimated would be the actual cost of replacing the three bridges once “engineering, flagging,

acquisition costs and legal services” were added to the estimate found in the aforementioned

study) and “a permanent injunction requiring [the railroad] to permanently maintain the

replacement bridges after constructed at the expense of [the railroad].” Pleading in the

alternative, count III, which was styled as “Recission,” alleged that the railroad had “materially

breached” the terms of the ordinance and that the railroad’s “promise to maintain the bridges”

constituted “a continuing contractual obligation.” The count requested a judgment “rescinding”

the ordinance and executing “a judicial deed conveying the land previously vacated” back to the

village. All three counts of the complaint also requested “costs of suit” and “such other and

further relief as is deemed just.” Attached to the complaint as Exhibit A was a copy of the

ordinance, as well as a copy of the railroad’s predecessor in interest’s acceptance of the

ordinance; attached as Exhibit B was the “Bridge Location Study” that included the estimate of

the cost to replace the three bridges, as well as an “Average Daily Traffic Map” of the village,

the latter of which was purportedly created by the Illinois Department of Transportation (IDOT)

and downloaded from the IDOT website.

¶5     On June 10, 2016, the railroad filed, pursuant to sections 2-615 and 2-619 of the Code of

Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2016)), a motion to dismiss the

village’s complaint. Therein, the railroad contended, inter alia, that (1) all three counts of the

complaint “must be dismissed” because the circuit court had no “subject matter jurisdiction over

the bridges at issue,” (2) “the Illinois Commercial Transportation Law (formerly the Public

Utilities Act)” preempted the ordinance, (3) the ICC had already “exercised jurisdiction” over the

Tenth Street bridge, (4) the complaint’s claims were barred by both the 5-year statute of
                                             3

limitations for an ordinance violation and the 10-year statute of limitations for breach of contract,

(5) the complaint’s claims were barred by the doctrine of laches, (6) count II must be dismissed

because it improperly sought both monetary and injunctive relief, and (7) count III must be

dismissed because it improperly sought “a judicial deed” when the allegations in the complaint

did not establish that the village ever owned the property at issue.

¶6     In the memorandum of law filed with its motion to dismiss, the railroad noted, with

regard to its statute of limitations and laches defenses, that it was attaching to the memorandum

exhibits that substantiated its position. Attached to the memorandum as Exhibit 2 was a July 16,

2008, order from the ICC that noted that the railroad closed the Tenth Street bridge on November

13, 1995, after it was set on fire by vandals and experienced deterioration and that the bridge was

“actually removed” by the railroad on November 27, 2007. Attached as Exhibit 1 was a February

17, 2006, letter from then-counsel for the village to the railroad that stated that the Tenth and

Thirteenth Street bridges were “closed and barricaded due to their state of severe disrepair,

having not passed safety inspection,” and that the Fifth Street bridge was “on the brink of closure

for the same reason.” The letter requested that the railroad “fulfill its duty under the contract by

replacing, at the railroad’s expense, and as provided in the contract,” the three bridges. The letter

stated that although the village preferred “to resolve this issue amicably,” the village was

“prepared to proceed with further legal action.” Attached to the memorandum as Exhibit 4 was

the June 7, 2016, affidavit of attorney Michael J. Barron, who attested to receiving the February

17, 2006, letter from the village’s then-counsel, as well as the July 16, 2008, order from the ICC.

¶7     A hearing on the railroad’s motion to dismiss was held on January 3, 2017, before the

Honorable David K. Overstreet. On January 12, 2017, Judge Overstreet entered an order, by

docket entry, in which he ruled that the ICC had “exclusive jurisdiction over the issues raised in

[the village’s] complaint and has in fact previously exercised that jurisdiction over the [Tenth
                                               4

Street] bridge without objection by [the village].” Judge Overstreet ruled that the village

“prematurely asks this court to rule on issues prior to seeking relief from the [ICC].”

Accordingly, Judge Overstreet granted the motion to dismiss as to all three counts of the

village’s complaint. This timely appeal followed.

¶8                                       ANALYSIS

¶9     On appeal, the village contends, inter alia, that the trial court erred in its determination

that exclusive jurisdiction over the issues raised in the complaint lies with the ICC. Our standard

of review with regard to a motion to dismiss, whether the motion is filed pursuant to section 2­

615 or section 2-619 of the Code (735 ILCS 5/2-615, 2-619 (West 2016)), is de novo. Phelps v.

Land of Lincoln Legal Assistance Foundation, Inc., 2016 IL App (5th) 150380, ¶ 11. A motion

brought pursuant to section 2-615 of the Code attacks the legal sufficiency of the complaint. Id.

When we analyze a section 2-615 motion, we determine whether the allegations of the

complaint, when viewed in a light most favorable to the plaintiff, are sufficient to state a cause of

action upon which relief can be granted. Id. Such a motion “admits as true all well-pleaded facts,

but not conclusions of law or factual conclusions that are unsupported by allegations of specific

facts.” Id. On the other hand, a motion for involuntary dismissal brought pursuant to section

2-619 of the Code raises an affirmative matter avoiding the legal effect of or defeating the claim.

Id. ¶ 12. We have held that the affirmative matter must be something more than evidence offered

to refute a material fact alleged in the complaint. Id. Therefore, “[a] section 2-619 motion is

properly used to raise affirmative matters that negate the claim, not to challenge the essential

allegations of the plaintiffs’ cause of action.” Id. We note as well that we may affirm the ruling

of a trial judge on any basis supported by the record. See, e.g., Evans v. Lima Lima Flight Team,

Inc., 373 Ill. App. 3d 407, 418 (2007); see also, e.g., People v. Johnson, 208 Ill. 2d 118, 134

(2003). We may do so because the question before us on appeal is the correctness of the result
                                            5

reached by the trial judge, rather than the correctness of the reasoning upon which that result was

reached. See, e.g., Johnson, 208 Ill. 2d at 128.

¶ 10   As described in detail above, all three counts of the village’s complaint are based upon

claims that the railroad breached a “contract” that was created between the parties by the passage

of the ordinance in 1925. We therefore begin by considering the legitimacy of the ordinance. As

the Illinois Supreme Court has recognized, in 1913, the Illinois General Assembly enacted the

terms of what was then the Public Utilities Act (the terms are now found in the Illinois

Commercial Transportation Law (625 ILCS 5/18c-1101 et seq. (West 2016))). See, e.g., City of

Chicago v. Chicago & North Western Ry. Co., 4 Ill. 2d 307, 308 (1954). In so doing, the General

Assembly “vest[ed] general supervision over all public utilities, including railroads, in the Public

Utilities Commission which, by the act of 1921, became the [ICC].” Id. In Chicago & North

Western Ry., the Illinois Supreme Court noted its 1934 holding in City of Chicago v. Illinois

Commerce Comm’n ex rel. Chicago & Western Indiana R.R. Co., 356 Ill. 501 (1934), that when

the Public Utilities Act became effective “the power of the city over grade separations ceased to

exist, making the city incapable of passing new ordinances or of enforcing existing ordinances

with reference to such matters which the act placed within the exclusive jurisdiction of the

[ICC].” Chicago & North Western Ry., 4 Ill. 2d at 312. The court noted that it had “also rejected

an argument that the act violated the constitutional prohibitions against impairment of the

obligations of a contract.” Id. The court reasoned that “[u]nless there is merit to distinctions

urged by the [City of Chicago], the principles of [the 1934 case]” were to prevail, because the act

“clearly vest[ed] the [ICC] with plenary and exclusive jurisdiction over the entire subject matter”

of any contract involving the viaduct and railroad tracks in question, including safety,

maintenance/reconstruction, and the assessment of costs of reconstruction. Id. The court found

no such merit, stating that after considering the city’s arguments, there was “nothing which
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causes us to depart from the principles” of the 1934 case. Id. at 316. Nor are we aware of any

other case from the Illinois Supreme Court, or this court, that has departed from the principle that

when the Public Utilities Act became effective, the power of a municipality over grade

separations ceased to exist, making the municipality incapable of passing new ordinances or of

enforcing existing ordinances with reference to such matters that the statute placed within the

exclusive jurisdiction of the ICC. To the contrary, in a subsequent case, the Illinois Supreme

Court cited Chicago & North Western Ry., as well as the 1934 case and several other cases, for

the proposition that “[i]t is well settled that the [ICC]’s jurisdiction over all phases of grade-

crossing regulation is plenary and exclusive.” City of Chicago v. Illinois Commerce Comm’n, 79

Ill. 2d 213, 219 (1980). The court added, “In the exercise of its power to regulate grade crossings

in the interest of public safety, the [ICC] is vested with wide discretion to determine what the

public interests require and what measures are necessary for the protection and promotion of

those interests.” Id. at 219-20.

¶ 11   In this case, as detailed above, the allegations in the village’s complaint, taken as true,

indicate that the subject matter of the ordinance passed by the village in 1925 encompassed the

construction and maintenance of a rail line through the village, including three bridges and their

accompanying “necessary approaches” over the railroad’s proposed tracks at Fifth, Tenth, and

Thirteenth Streets. Accordingly, the subject matter of the ordinance was then, and is now, subject

to the plenary and exclusive jurisdiction of the ICC. Pursuant to the precedent of the Illinois

Supreme Court, the village did not in 1925 possess the power to pass the ordinance. It is

axiomatic that when a municipality acts beyond its powers in passing an ordinance, the resulting

ordinance is void. See, e.g., Village of River Forest v. Midwest Bank & Trust Co., 12 Ill. App. 3d

136, 139-40 (1973). The village contends that if the ordinance is void, this court should declare

that the village’s “actions in vacating its streets and alleys was [sic] also void” and that the
                                                 7

village “is entitled to possession of its streets and alleys today to the same extent that it had prior

to entering into” the ordinance. Having concluded that the ordinance is void, and that the

village’s complaint was therefore properly dismissed by the circuit court, we see no point in

making such a declaration.

¶ 12   Of course, this does not mean that the village is without a remedy. The question of what

is to be done about a railroad/municipality “contract” regarding the construction and

maintenance of a rail line through the municipality—said “contract” having been created by a

void ordinance that both parties mistakenly believed was valid—when the parties have

performed, at least in part, their obligations under that “contract” for many decades, is squarely

within the parameters of the jurisdiction of the ICC. See City of Chicago, 79 Ill. 2d at 219-20

(well settled that ICC’s jurisdiction over all phases of grade-crossing regulation is plenary and

exclusive; in exercise of power to regulate grade crossings in the interest of public safety, ICC

“vested with wide discretion to determine what the public interests require and what measures

are necessary for the protection and promotion of those interests”). The village has been, and

remains, free to seek from the ICC redress for its grievances against the railroad. We do not

intend, by this opinion, to foreclose any remedies the ICC may deem proper for either party.

¶ 13                                      CONCLUSION

¶ 14   For the foregoing reasons, we affirm the order of the circuit court of Jefferson County

that dismissed the village’s complaint.



¶ 15   Affirmed.




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                               2018 IL App (5th) 170036 


                                     NO. 5-17-0036


                                        IN THE


                          APPELLATE COURT OF ILLINOIS


                                   FIFTH DISTRICT



THE VILLAGE OF BELLE RIVE, an Illinois    )     Appeal from the
Municipal Corporation,                    )     Circuit Court of
                                          )     Jefferson County.
        Plaintiff-Appellant,              )
                                          )
v.                                        )     No. 16-L-25
                                          )
ILLINOIS CENTRAL RAILROAD COMPANY, )
an Illinois Corporation, d/b/a CN,        )     Honorable
                                          )     David K. Overstreet, 

        Defendant-Appellee.               )     Judge, presiding.

_____________________________________________________________________________

Rule 23 Order Filed:          January 31, 2018
Motion to Publish Granted:    March 1, 2018
Opinion Filed:                March 12, 2018
______________________________________________________________________________

Justices:           Honorable James R. Moore, J.

                  Honorable Thomas M. Welch, J., and
                  Honorable Richard P. Goldenhersh, J.,
                  Concur
______________________________________________________________________________

Attorney          Gary L. Smith, Loewenstein & Smith, P.C., 1204 South Fourth Street,
for               Springfield, IL 62703
Appellant
______________________________________________________________________________

Attorney          Kurt E. Reitz, Thompson Coburn, LLP, 525 West Main Street, Suite 300,
for               Belleville, IL 62222
Appellee
______________________________________________________________________________
