                                                                                 Digitally signed by
                                                                                 Reporter of Decisions
                                                                                 Reason: I attest to
                               Illinois Official Reports                         the accuracy and
                                                                                 integrity of this
                                                                                 document
                                      Appellate Court                            Date: 2018.05.08
                                                                                 14:40:36 -05'00'




           Village of Belle Rive v. Illinois Central R.R. Co., 2018 IL App (5th) 170036



Appellate Court           THE VILLAGE OF BELLE RIVE, an Illinois Municipal Corporation,
Caption                   Plaintiff-Appellant, v. ILLINOIS CENTRAL RAILROAD
                          COMPANY, an Illinois Corporation, d/b/a CN, Defendant-Appellee.



District & No.            Fifth District
                          Docket No. 5-17-0036


Rule 23 order filed       January 31, 2018
Motion to
publish granted           March 1, 2018
Opinion filed             March 12, 2018



Decision Under            Appeal from the Circuit Court of Jefferson County, No. 16-L-25; the
Review                    Hon. David K. Overstreet, Judge, presiding.



Judgment                  Affirmed.


Counsel on                Gary L. Smith, of Loewenstein & Smith, P.C., of Springfield, for
Appeal                    appellant.

                          Kurt E. Reitz, of Thompson Coburn, LLP, of Belleville, for appellee.



Panel                     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
     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.
¶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

                                                  -2-
     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 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 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.




                                                  -3-
¶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 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 causes us to depart from the principles” of the 1934 case.


                                                     -4-
       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 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.

                                                    -5-
