McClaughry v. Village of Antioch

Nos. 2--97--0397 and 2--97--0572 (Consolidated)
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

WILLIAM McCLAUGHRY, FAYE ) Appeal from the Circuit Court
McCLAUGHRY, CECILE KELLY, ) of Lake County.
BRENDA LYTNER, JEFFREY BROCK, )
FRANK WEISSMULLER and JAMES G. )
DUGGAN, )
)
Plaintiffs-Appellants, )
)
v. ) No. 96--CH--994
)
THE VILLAGE OF ANTIOCH; MARILYN )
SHINEFLUG, as the Mayor of the )
Village of Antioch; METRA; and )
WISCONSIN CENTRAL RAILROAD, )
LTD., ) Honorable
) Emilio B. Santi,
Defendants-Appellees. ) Judge, Presiding.
_________________________________________________________________

WILLIAM McCLAUGHRY, FAYE ) Appeal from the Circuit Court
McCLAUGHRY, CECILE KELLY, ) of Lake County.
BRENDA LYTNER, JEFFREY BROCK, )
FRANK WEISSMULLER and JAMES G. )
DUGGAN, )
)
Plaintiffs-Appellees, )
)
v. ) No. 96--CH--994
)
THE VILLAGE OF ANTIOCH and )
MARILYN SHINEFLUG, as the Mayor )
of the Village of Antioch, )
)
Defendants-Appellants )
) Honorable
(METRA and WISCONSIN CENTRAL ) Emilio B. Santi,
RAILROAD, LTD., Defendants). ) Judge, Presiding.
_________________________________________________________________
JUSTICE RATHJE delivered the opinion of the court:

The plaintiffs, William McClaughry, Faye McClaughry, Cecile
Kelly, Brenda Lytner, Jeffrey Brock, Frank Weissmuller, and James
G. Duggan, brought suit against the defendants, the Village of
Antioch, Marilyn Shineflug, in her capacity as mayor of Antioch
(collectively the Village), METRA, and Wisconsin Central, Ltd.
(collectively the railroads). Count I of the suit sought a writ of
mandamus ordering the Village to enforce Antioch's nuisance
ordinance against the railroads. Count II of the suit sought to
enjoin the railroads from sounding their train horns on the basis
that the noise created thereby constituted a nuisance.
All the defendants filed motions to dismiss. The trial court
found that the Illinois Commerce Commission (Commission) had
exclusive jurisdiction over the issue of railroad safety and
granted the defendants' motions to dismiss. The trial court did
not reach the issue of whether the complaint stated a cause of
action.
Thereafter, the Village filed a petition for attorney fees
pursuant to Supreme Court Rule 137. 155 Ill. 2d R. 137. Following
a hearing, the trial court denied the fee petition.
On appeal the plaintiffs raise the following issues: whether
the trial court erred in ruling that it lacked jurisdiction to
enjoin the railroads' horn sounding as a nuisance; and whether the
trial court erred in not issuing a writ of mandamus ordering the
Village to enforce its nuisance ordinance against the railroads.
The Village filed a separate appeal from the trial court's order
denying the request for attorney fees. The two appeals have been
consolidated for our review.
Section 18c--7101 of the Illinois Commercial Transportation
Law (Commercial Act) provides as follows:
"Jurisdiction over Rail Carriers. The jurisdiction of
the Commission under this Sub-chapter shall be exclusive and
shall extend to all intrastate and interstate rail carrier
operations within this State, except to the extent that its
jurisdiction is preempted by valid provisions of the Staggers
Rail Act of 1980 or other valid federal statute, regulation,
or order." 625 ILCS 5/18c--7101 (West 1994).
Section 18c--7402 of the Commercial Act sets forth the safety
requirements for railroad operations and provides in pertinent part
as follows:
"Bell and Whistle-Crossings. Every rail carrier shall
cause a bell, and a whistle or horn to be placed and kept on
each locomotive, and shall cause the same to be rung or
sounded by the engineer or fireman, at the distance of a [sic]
least 1,320 feet, from the place where the railroad crosses or
intersects any public highway, and shall be kept ringing or
sounding until the highway is reached; provided that at
crossings where the Commission shall by order direct, only
after a hearing has been held to determine the public is
reasonably and sufficiently protected, the rail carrier may be
excused from giving warning provided by this paragraph." 625
ILCS 5/18c--7402(2)(a) (West 1994).
Prior to the commencement of the lawsuit in this case, the
Commission held hearings at which the rail carriers presented their
positions as to whether they wished to be excused from whistle
sounding as required by section 18c--7402(2)(a). Several rail
carriers indicated that they would continue to sound their whistles
even if excused from doing so by the Commission. The
representatives from several municipalities also presented their
views on the whistle sounding. The City of Chicago voiced no
objections to whistle sounding at Chicago crossings. However,
several municipalities such as La Grange, Riverside, Westmont,
Elmwood Park, Mount Prospect, and Elmhurst requested that the rail
carriers be excused from sounding their whistles within their
communities and presented evidence in support of their position.
In addition, letters were received from other municipalities
stating their positions.
Based upon the record from the hearings, the Commission
entered an order which provided in pertinent part as follows:
"(8) Illinois Compiled Statute 625 ILCS 5/18c--7402
authorizes the Commission to excuse registered rail carriers
from sounding whistle warning(s) after hearing(s); such
statute does not give the Commission any authority to prohibit
the sounding of such whistle warning(s); the Commission has
established a standard under which it excuses railroads from
sounding whistle warning(s); however, if governmental
authorities (communities) desire that a registered rail
carrier sound whistle warning[s] at crossings within its
jurisdiction, it may contact the affected rail carrier and
such carrier can continue to sound whistles even if excused
from whistling by this Commission;" (Emphasis added.)
By virtue of the Commission order, the railroads in this case
were excused from sounding their whistles/horns at five out of the
six crossings located within the Village limits.
The plaintiffs in this case are residents and/or owners of
property located in close proximity to Wisconsin Central's right-
of-way in Antioch. The allegations of their complaint may be
summarized as follows. There are six grade crossings within the
municipal limits of Antioch. Approximately 20 trains per day
travel through the Village, 10 of which are between 8 p.m. and 6
a.m. Despite the fact that for five out of the six of these
crossings the Commission has determined that it is not necessary to
sound their horns, Wisconsin Central has directed its locomotives
to sound their horns commencing at one-quarter mile in advance of
each crossing. The sounds of the horns reach a level of 85 to 95
decibels as measured near the plaintiffs' residences.
According to the plaintiffs, the noise caused by the
locomotive horn sounding has caused them a variety of physical
disorders, disruption of their social lives and entertainment
enjoyment, and loss in property values. Finally, the plaintiffs
conclude that the horn-sounding activity constitutes a nuisance
under the Village's nuisance ordinance; however, the Village
refuses to enforce the ordinance against Wisconsin Central and
METRA, whose trains utilize the Wisconsin Central right-of-way.
Therefore, the plaintiffs sought enforcement by writ of mandamus of
the Village's nuisance ordinance and an injunction against the
railroads to enjoin them from the nonemergency sounding of their
locomotive horns.
The plaintiffs contend, first, that the Illinois legislature
did not delegate to the Commission exclusive jurisdiction over all
railway safety issues. In support of that contention, the
plaintiffs point out that the judiciary has the power to determine
whether the Commission has exceeded its jurisdiction, that the
legislature has conferred jurisdiction over grade crossing safety
on the courts and the municipalities, and that the circuit courts
have jurisdiction to hear safety-related negligence actions against
rail carriers.
It is well settled that the Commission'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).
In the exercise of its power to regulate grade crossings in the
interest of public safety, the Commission 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. City of Chicago, 79 Ill. 2d at 219-20.
The plaintiffs fail to explain why the fact that the
Commission's decisions are subject to judicial review somehow
deprives the Commission of its exclusive jurisdiction over the
determination of matters of railroad safety. See 625 ILCS 5/18c --
2201 (West 1994). Moreover, section 18c--7403(1) specifically
exempts the enforcement actions as to grade crossing obstructions
from the Commission's exclusive jurisdiction. 625 ILCS 5/18c--
7403(1) (West 1994).
Finally, the fact that common-law negligence actions involving
railroad safety are heard by the circuit courts does not divest the
Commission of its exclusive decision-making authority in making
railroad safety determinations in the first place. In such cases,
once the Commission has investigated a crossing and has approved
the installation of safety devices, the installation of such
devices shall be deemed adequate and appropriate, and a conclusive
legal presumption is created which overcomes an argument that other
warning devices should have been installed. See Espinoza v. Elgin,
Joliet & East Ry. Co., 165 Ill. 2d 107, 121 (1995). The existence
of such a presumption, which is based upon the Commission's
determination of a rail carrier safety issue, supports the concept
that the Commission has the exclusive determination over rail
carrier safety issues.
Next, the plaintiffs contend that the plain language of
section 18c--7101 does not oust the circuit courts from their
jurisdiction over nuisance actions. The plaintiffs attempt to read
the Commission's exclusive jurisdiction as covering only "rail
carrier operations." In their brief, the plaintiffs argue that
"rail carrier operations" means simply "those 'operations' that
affect a railroad as a 'carrier.' It does not mean 'horn-blowing'
at grade-crossings."
However, the plaintiffs ignore the language of section 18c--
7402 which specifically provides that, as part of its operational
requirements, a locomotive must be equipped with a bell and a
whistle or horn which must be sounded unless otherwise excused.
625 ILCS 5/18c--7402(2)(a) (West 1994).
The plaintiffs liken their situation to that of a party
injured as a result of the violation of a safety standard. In
their case, the plaintiffs claim they were injured as a result of
the railroads' sounding of train horns. They argue that the
courts, not the Commission, have the authority to assess damages in
the cases involving safety violations.
At the outset, we observe that, by continuing to sound their
horns, the railroads in this case have not violated any safety rule
promulgated by the Commission. The Commission's order in this case
provided that the trains were "excused," not prohibited, from
sounding their horns. In issuing its order, the Commission
followed the requirements of section 18c--7402(2)(a), which does
not provide for a prohibition of horn sounding by the rail
carriers, only for the excusal of such activity. 625 ILCS 18c--
7402(2)(a) (West 1994). It is also worth noting that the
Commission's order in this case provided that a community could
contact the rail carrier to continue the whistle sounding, but not
to discontinue the whistle sounding.
Thus, plaintiffs are not in the position of a party who has
been injured by the violation of a safety rule.
We next address the plaintiffs' argument that the Commercial
Act provides no mechanism for the plaintiffs to demand the
enforcement of the Commission s order. However, as even the
plaintiffs acknowledge, the Commercial Act does provide a procedure
for judicial review of a Commission order. See 625 ILCS 5/18c--
2201(1) (West 1994).
The plaintiffs difficulty here is not the lack of a procedure
to secure enforcement of a Commission order but that the remedy
they seek is not the enforcement of a Commission order. Under
section 18c--7402(2)(a) of the Commercial Act, the legislature has
set forth that whistle/horn sounding is mandatory unless excused by
the Commission. Nothing in section 18c--7402 grants the Commission
the authority to prohibit whistle/horn sounding. Thus, the remedy
the plaintiffs seek, that the Commission prohibit the railroads
whistle/horn sounding, is not available because the legislature has
determined that whistle/horn sounding is necessary for the public
safety.
Next, the plaintiffs contend that, in any event, the
Commission does not exercise jurisdiction over METRA. Therefore,
even if the trial court s jurisdictional ruling is correct as to
Wisconsin Central, it does not apply to METRA. The plaintiffs
acknowledge that METRA is controlled by the Metropolitan Transit
Authority Act (70 ILCS 3605/1 et seq. (West 1994)) and the Regional
Transportation Authority Act (Regional Act) (70 ILCS 3615/1.01 et
seq. (West 1994)). Section 2.11 of the Regional Act provides:
"The provisions of general or special orders, rules or
regulations issued by the Illinois Commerce Commission
pursuant to Section 57 of 'An Act concerning public
utilities', approved June 29, 1921, as amended, which pertain
to public transportation and public transportation facilities
of railroads will continue to apply until the Service Board
determines that different standards are necessary to protect
such health and safety." 70 ILCS 3615/2.11 (West 1994).
METRA asserts, and the plaintiffs do not dispute, that METRA has
not issued any safety regulations.
The plaintiffs argue that since neither statute governing
METRA adopted section 18c--7101 et seq. of the Commercial Act, the
exclusive jurisdiction provision contained in section 18c--7101
does not apply to METRA. Moreover, they point out that section
2.11 of the Regional Act refers to a section of the Public
Utilities Act (220 ILCS 5/8--505 (West 1994)), not the Commercial
Act. Section 8--505 grants the Commission the power to issue
orders governing the safety of plants, equipment, or other property
of a public utility. Actually, section 2.11 of the Regional Act
specifically refers to [s]ection 57 of An Act concerning public
utilities. In Espinoza, our supreme court noted that the Public
Utilities Act was the precursor of the Commercial Act. Espinoza,
165 Ill. 2d at 122; see also Dolton ex rel. Winter v. CSX
Transportation, Inc., 196 Ill. App. 3d 564, 567-68 (1990) (the
Commission s regulation of railroad operations under the Public
Utility Act continued under the Commercial Act). Finally, section
18c--7101 of the Commercial Act provides that the exclusive
jurisdiction of the Commission extends to all intrastate and
interstate rail carrier operations within the State, except as
preempted by federal law.
We conclude that the Commission has exclusive jurisdiction
over the area of rail carrier safety and, therefore, that the trial
court correctly dismissed the plaintiffs' suit for lack of
jurisdiction. While plaintiffs maintain that this result leaves
them without a remedy in violation of article I, section 12, of the
Illinois Constitution of 1970, which provides that every person
shall find a remedy for all injuries and wrongs received (Ill.
Const. 1970, art. I, 12), the power and adequacy of the available
remedy rest with the legislature. Goldstein v. Hertz Corp., 16
Ill. App. 3d 89, 99 (1973).
In light of our finding that the Commission has exclusive
jurisdiction over matters of railroad safety, we need not address
the issue of federal preemption.
We now address the issue of the denial of the plaintiffs
request for a writ of mandamus to require the Village to enforce
its nuisance ordinance against the railroads whistle/horn
sounding.
The plaintiffs contend that, regardless of the language of
section 18c--7101 of the Commercial Act, municipalities have the
right to regulate noise within their borders. See 65 ILCS 5/11--5-
-2 (West 1994) ("The corporate authorities of each municipality may
prevent or suppress *** noises *** in any public or private
place").
The plaintiffs note that section 23 of the Environmental
Protection Act (415 ILCS 5/23 (West 1994)) acknowledges the dangers
from excessive noise and permits the Pollution Control Board
(Board) to adopt regulations prescribing limitations on noise
emissions (415 ILCS 5/25 (West 1994)). The plaintiffs reason that,
because the Board's comprehensive regulations do not regulate noise
emitted from railroad rights-of-way, the Board must have intended
that the municipalities have the authority to regulate the nuisance
of railroad horn sounding.
Finally, the plaintiffs point out that the Village did not
appear at the hearings conducted by the Commission nor did it
request that the railroads continue to sound their horns. Thus,
goes the plaintiffs' argument, the Village has not complied with
the administrative prerequisites and cannot argue that the
Commission has preempted the area of horn sounding.
Mandamus is not a writ of right but is awarded only in the
exercise of sound judicial discretion in accord with legal
principles. Beer Barn, Inc. v. Dillard, 227 Ill. App. 3d 68, 69
(1992). " 'A writ of mandamus is a remedy at law to command a
public official to perform some ministerial, nondiscretionary duty
in which the party seeking such relief has established a clear
right to have it performed and a corresponding duty on the part of
the official to act.' (Emphasis added.)" Beer Barn, Inc., 227 Ill.
App. 3d at 69-70, quoting People ex rel. Ryan v. Retirement Board
of the Fireman's Annuity & Benefit Fund, 136 Ill. App. 3d 818, 820
(1985).
Relying on Dolton, 196 Ill. App. 3d 564, the Village argues
that the plaintiffs have failed to show a clear right to the
issuance of a writ of mandamus. Although the issue in Dolton
concerned the exercise of home rule authority and the Village here
is not a home rule municipality, we believe that the discussion in
Dolton of the regulation of rail carrier operations by
municipalities is applicable to the case before us.
In Dolton, the Village of Dolton had enacted an ordinance
prohibiting certain obstructions by trains of railroad/highway
grade crossings and imposing fines for violations of the ordinance.
Following trials at which certain railroads were found guilty and
fined for violating the ordinance, the railroads appealed, and the
reviewing court found that the ordinance was an unconstitutional
exercise of Dolton's home rule powers. In making that
determination, the court utilized the three-pronged analysis set
forth in People ex rel. Bernardi v. City of Highland Park, 121 Ill. 2d 1 (1988), to determine the validity of the exercise of home rule
authority. While concluding that the first prong, the extent to
which the conduct in question affects matters outside the
municipality, could be resolved in Dolton's favor, the court stated
as follows:
"Regarding the second prong, we conclude that regulation
of railroad operations, including the specific conduct
involved here, traditionally has been placed outside the scope
of municipal power. Beginning January 1, 1914, the effective
date of 'An Act to provide for the regulation of public
utilities' (1913 Ill. Laws 459), the General Assembly
indicated the intention to vest regulation over railroad
operations with State, as opposed to local, government.
[Citations.] Moreover, since July 1, 1921, the effective date
of 'An Act concerning public utilities' (1921 Ill. Laws 702),
that power is enjoyed exclusively by the Illinois Commerce
Commission (Commission). [Citation.] The plenary nature of
the Commission's power to regulate railroad-highway grade
crossings and to make provision for the safety of the public
at such crossings has been long recognized by Illinois courts.
[Citation.] Further, on January 1, 1986, the Commission's
authority to regulate the field was continued under the
Illinois Commercial Transportation Law [Commercial Act] (Ill.
Rev. Stat. 1985, ch.95«, par. 18c--1101 et seq.), the
comprehensive recodification of the then existing
transportation regulatory schemes (see Ill. Rev. Stat. 1985,
ch. 95«, par. 18c--1102(a))." Dolton, 196 Ill. App. 3d at 567-
68.
As for the third prong of the test, which level of government
has the more vital interest in that regulation (Bernardi, 121 Ill.
2d at 13), the Dolton court stated:
"Regarding the third prong of the Bernardi analysis, we
need only look to the stated public policy underlying
codification of the [Commercial Act] to conclude the State,
rather than the Village, has the more vital interest in
regulating rail transportation, in general, and railroad-
highway grade crossing, in particular. In section 18c--1103
of the [Commercial Act], the General Assembly expressly
recognized the State's interest in 'actively supervis[ing] and
regulat[ing] commercial transportation of persons and property
within this state,' as the policy foundation for
recodification of then existing transportation schemes into
the [Commercial Act]. (Ill. Rev. Stat. 1985, ch. 95«, par.
18c--1103.) To the extent municipalities across the State
might, through home rule authority, pass ordinances affecting
railroad operations, the goals enumerated in section 18c--
1103, including 'insur[ing] a stable and well-coordinated
transportation system for shippers, carriers and the public,'
would be jeopardized. [Citation.] To permit municipalities
to exercise concurrent regulation in the field of railroad
operations would certainly subject carriers to multiple, and
possibly conflicting, governmental requirements and disturb
the existing comprehensive regulatory scheme." Dolton, 196
Ill. App. 3d at 569-570.
We therefore agree with the Village in this case that, while
a municipality may have general statutory authority to abate
nuisances such as excessive noise, this authority has been
preempted in the area of railroad safety.
In addition, the duty sought to be performed must be a
ministerial, nondiscretionary one. Beer Barn, Inc., 227 Ill. App.
3d at 69-70. The duty sought to be performed here is the
enforcement of an ordinance. Whether to prosecute the commission
of an offense is within the exclusive discretion of the prosecutor.
See People v. Edgeston, 243 Ill. App. 3d 1, 11 (1993) (it is within
the exclusive discretion of the State's Attorney to choose which of
several charges to bring against a defendant or whether to
prosecute at all). Therefore, as the enforcement of the nuisance
ordinance in this case was a discretionary duty, the plaintiffs are
not entitled to a writ of mandamus.
We conclude therefore that the trial court did not err in
denying a writ of mandamus to the plaintiffs.
We now turn to the issue raised by the Village in its separate
appeal.
The Village contends that the trial court erred in denying its
motion for attorney fees pursuant to Supreme Court Rule 137. In
its petition for fees, the Village alleged that the plaintiffs
attorney and James Duggan, one of the plaintiffs, were informed at
Village board meetings and by correspondence that the Village had
no legal basis upon which to stop the railroads from sounding their
train horns. In its order denying the request for attorney fees,
the trial court stated that the plaintiffs had a legally
justiciable claim. On appeal, the Village asserts that it was
included in the suit against the railroads only for harassment
purposes, because it refused to enforce its nuisance ordinance
against the railroads as requested by the plaintiffs.
Rule 137 imposes an affirmative duty on both litigants and
attorneys to conduct an investigation of the facts and law before
filing an action, pleading, or other paper. Kellett v. Roberts,
281 Ill. App. 3d 461, 464 (1996). The rule requires that a party
or his or her attorney sign pleadings and other legal papers to
certify that he or she has read the document, has made a reasonable
inquiry into its basis, and believes that it is well grounded in
fact or existing law, or that there is a good-faith argument for
the extension, modification, or reversal of existing law, and that
it is not interposed for any improper purpose, such as to harass or
cause unnecessary delay or needless increase in the cost of
litigation. 155 Ill. 2d R. 137.
The decision to award sanctions under Rule 137 is within the
sound discretion of the trial court. North Shore Sign Co. v.
Signature Design Group, 237 Ill. App. 3d 782, 790 (1992). A trial
court abuses its discretion only if no reasonable person would take
its view. Fremarek v. John Hancock Mutual Life Insurance Co., 272
Ill. App. 3d 1067, 1074 (1995). A court should not impose
sanctions on a party who presents objectively reasonable arguments
for his position, regardless of whether the arguments are deemed to
be unpersuasive or incorrect. Ambrose v. Thornton Township School
Trustees, 274 Ill. App. 3d 676, 685 (1995).
While the plaintiffs may have presented objectively reasonable
arguments in support of the position they took against the
railroads, the same is not true of their position as to the
Village. The Dolton case clearly establishes that a municipality,
even a home rule one, may not legislate in the area of railroad
safety. Dolton, 196 Ill. App. 3d 564. We note that the plaintiffs
do not address, let alone attempt to distinguish, the Dolton case
in their briefs.
The plaintiffs point to the minutes of a Village board meeting
(attached to the Village's response to the plaintiffs' answer to
the Village's petition for attorney fees) in which the Village
clerk reported that two out of seven municipalities surveyed had
ordinances in place banning train whistles. However, according to
the clerk's report, the creation of such ordinances requires a
hearing before the Commission and that the Village sign an
agreement with the railroad releasing the railroad from liability
in the event of an accident. In other words, the plaintiffs were
aware that the Village could restrict the whistle/horn sounding
based only upon an ordinance specifically enacted for that purpose
and could not utilize its nuisance ordinance to accomplish it.
We conclude that the trial court abused its discretion in
failing to award attorney fees pursuant to Rule 137 to the Village,
and therefore the case must be remanded to the trial court for a
hearing to determine the amount of the award of attorney fees to
the Village.
The judgment of the circuit court of Lake County is affirmed
in part and reversed in part, and the cause is remanded with
directions.
Affirmed in part and reversed in part; cause remanded with
directions.
GEIGER, P.J., and THOMAS, J., concur.