City of Chicago v. Evans

Walker, J. This record presents the question, whether under the act of 12th February, 1855, (Special Laws, 304,) horse railways in this State may unite their roads, and make running arrangements with each other. That act, in terms, applies to all railroads organized or incorporated under, or which may be incorporated or organized under, the authority of the laws of this State, and it provides that they shall have the power to make such contracts and arrangements with each other for leasing or running their roads, or any part thereof, also the right of connecting with each other on such terms as shall be mutually agreed upon by the companies interested. This language is manifestly sufficiently comprehensive to embrace horse railways as well as railroads whose cars are propelled by steam or other power, as well roads authorized to transport passengers only, as roads authorized to transport passengers and freight by other power. The language of the enactment embraces dll roads then organized, as well as those which might afterwards become so, and the act makes no distinction, or reservation, as to the character of the railroad. The members of the General Assembly were fully aware that these various roads existed, and if any roads, answering either description, were not designed to be embraced, they would, it appears to us, have limited the operation of the act so as to have excluded them. Horse city railways unquestionably fall within the description of the class of subjects of which they were legislating. They are, in every sense of the term, railroads, they are incorporated under laws of the State, and are embraced within the language of the statute, and we have no doubt within its spirit. Whilst a road chartered for the transportation of persons only, by the use of horse power, could not connect with a road authorized to employ steam power, so as to convert a horse railroad into one using steam, or a road only authorized to transport persons, into a road to transport passengers and freight, yet roads employing the same propelling power, and created for the same purposes, may so connect, under this act, as to use each other’s roads, with their several cars, etc., or may lease from each other all or any portion of their several tracks, and use them for the purposes authorized by their charters. But when two roads connect with each other under this act, they acquire no new or greater powers and privileges than are conferred by their several charters, and each of such roads, while using the road of the other company, must, in all things, conform to the provisions of the charter of the company whose road is being thus used. And when one company leases its road to another, the lessee must, in operating it, be governed by the charter of the lessor. 'The lessee cannot use its franchise and charter privileges on the road of another company, but for the time being must be governed by the charter of the road they are operating. Any other construction would lead to inextricable confusion, and the legislature could never have intended to permit each company, when running, or using their rolling stock upon another road, to carry with them their own charter and privileges wherever their cars and employees might go. We have no doubt that these two horse railways, created for the same purpose, and operated by the same description of propelling power, have the power to connect with each other, make running arrangements, or lease their tracks to each other, ac- ■ cording to this act of the General Assembly. We are unable to perceive any injury that could result to any person by passing the proposed ordinance of the common council. Such an ordinance could confer upon the companies no power, and it may be the act is useless; but, for aught that appears, the common council and the companies differed as to their charter privileges and power to so extend their roads as to connect with each other, without the assent of the common council, and if so, the dispute would be ended by the adoption of the ordinance, and its passage may have been desired for no other purpose. These companies must look to their charters for power, and if it is not thus conferred, it cannot be supplied by any action of the common council, but alone by the General Assembly. It may have been a question whether these companies had the power to extend their roads so as to connect, and the only object in procuring the adoption of the ordinance to obtain the consent of the city preparatory to an application for authority to thus unite their roads, without the design of proceeding to connect them, previous to procuring legislative authority for that purpose. And if so, no possible injury would result by the passage of the ordinance. If the charter of these companies authorizes them to extend their roads on the streets in which they are located, until thereby their roads were connected, they may continue them within their several territorial limits until they intersect on the boundary, without any assent on the. part of the city. If their charters confer no such power, the common council are unable to confer it. They could not extend their roads beyond the line of the territorial district to which their charters limit them. . 8 And if they were to attempt to continue their roads beyond, or to construct a road outside of those limits, under the city ordinance alone, they may undoubtedly be prevented by an appropriate remedy. But until they attempt to act outside of the authority conferred by the General Assembly, there can be no reason why the courts should intérpose. The procuring the adoption of this ordinance is not such an illegal and unwarranted act as can produce injury, and until they attempt to act under it as their only warrant, no reason is perceived why they should be stayed in their action. The passage of ordinances which confer no rights or authority, are harmless, until steps are taken to make them available. For these reasons the decree of the court below is reversed, and the bill dismissed. Decree reversed.