Chicago & Western Indiana Railroad v. Dunbar

Mr. Chief Justice Dickey delivered the opinion of the Court The decree in this case is clearly erroneous. Under the present laws of Illinois a railroad company organized under the general law of March 1, 1872, has express authority to select its own route, to lay out its road, and to construct the same. This power necessarily includes the power of fixing the terminal points of the proposed road. (Rev. Stat. 1874, p. 803, sec. 20.) This is made exceedingly clear when we read section 29 of that statute, wherein old companies (organized under the act of 1849, but whose terminal points had not been fixed by the General Assembly,) are authorized, if they adopt this act, to proceed thereunder and have all the benefits thereof. And it is declared that “the fixing of the termini by any such corporation shall have the same effect as if fixed by the General Assembly. ” This necessarily implies that the benefits of this act carry with them the power to fix terminal points. The power thus given is, however, subject to a limitation found in the fifth clause of section 20 of the act, wherein it is declared nothing in this act shall authorize “the constn-uction of any railroad upon or across any street in any city * * * without the assent of the corporation of such city. ” This is the only limitation upon the powers of the railroad company, in this regard, found in the Railroad act. If there be no other limitation of this power by other statutes, it is obvious such a railroad company may, as a general rule, select its own route, fix its terminal points and lay out its road, and acquire the right of way and other property necessary for the construction of its road on any and every part of its line, whether within the city limits or without, them, according to its own discretion, for this limitation, by its terms, is confined to the construction of the railroad upon or across streets. The line selected may, without the assent of the city, cross streets, and the company may, without such assent and without violating this limitation, acquire the right of way and construct its road in such cases on every part of .such line, except the parts to be constructed upon or across streets. That part of the construction, and that alone, is, by this limitation, forbidden to be done without the assent of the city. But it is suggested, that the mere existence of the power possessed by the city council of Chicago “to provide for the location, grade and crossings ” of railroads within the city, and “to change the location, grade and crossings” of railroads, is a further limitation upon such power of the railroad company. It is not perceived how this can be so. Congress has power “to provide for organizing, arming and disciplining the militia, ” but in the absence of any law of Congress on that subject, State laws may be passed on that subject. The city possesses the power to act on this subject, but the mere existence of the power can have no effect unless it is exercised by the city. The city council has the power, by law, to regulate and control the use of landing places, wharfs, docks and levees; also, the anchorage, moorage and landing of all water craft and their cargoes within the city, and to m.ake regulations in regard to the use of harbors; but it is not conceived that the mere possession of such powers by the city council, in the absence of the exercise of the same, renders it unlawful for any one to use landing places, wharfs, docks or levees within the city, or makes it unlawful to use the harbor, anchor or moor vessels therein, or to land water craft or their cargoes. All these things may be done lawfully, so long as there is no ordinance forbidding the same. The city council also possesses the power “to direct the location” of packing houses, and breweries, and livery stables, and blacksmith shops; but it is not conceived that the mere existence of the power, so long as it is not exercised, renders it unlawful to erect and construct within the limits of the city such establishments. The power to interfere by such regulations and provisions, does not of itself constitute an interference. The statute has nowhere said, either expressly or by implication, that no livery stable or blacksmith shop shall be built in the city until the city council has exercised its power to direct the location thereof; nor has the statute, either expressly or by implication, said that no railroad shall be located or constructed within the city limits until the city council has exercised its power to provide for the location thereof. Let it be observed, the city council has no power (strictly speaking) to locate a railroad. That power is conferred upon the railroad company. The power of the city is to provide for the location of the railroad by the railroad company, for by law no one other than the railroad company has the power of location. That power is conferred on the railroad company alone, and not upon the city; but it must be exercised by the railroad company subject to such provision, if any, as the city council may lawfully make. The railroad company may, subject to such power in cities and villages, exercise by law all the powers granted by the Railroad act, and the only condition precedent found in the laws as they now stand, is, that the assent of the corporation of the city must be obtained before it may lawfully construct its road upon or across a public street in a city. This has not always been the law in this State. By the general law of 1849 for the incorporation of railroad companies, such companies had not the power to effectively locate their line and fix their terminal points, or exercise the power of eminent domain, until the proposed route and termini were approved by the General Assembly. And it was provided in that statute, that nothing in that act should authorize the company to make “a location of their track within any city without the consent of the common council of such city. ” So long as that statute was in force, it would seem that such company could not lawfully locate any part of their line or construct the same within any city, or proceed to condemn private property for corporate purposes within any city, until the consent of the common council was first obtained. But this section of the act of 1849 is expressly repealed by the act of March 1, 1872, and in lieu of it we have the provision that such company shall not construct its “railroad upon or across any street in any city” without the assent of the city. There is no longer any prohibition (by statute) against locating the route in any part of the city. The prohibition is now confined to the use of streets, and all other parts of the city become open to the operations of the railroad company, until some provision limiting the same is made by the city council. There is no longer any prohibition against the location of the line, even across or upon streets. The present prohibition of the statute relates alone to the construction of the road upon or across streets. It is riot for the courts to judge whether changes in the law, made by the General Assembly, are wise or unwise, beneficial or otherwise. It is enough that the law is changed. The act of 1872 in this regard differs from the act of 1849, not only in the form of its words, but in their scope and meaning. We are not at liberty to disregard a plain change in the law. The law authorizing thé condemnation of private property for railroad purposes is limited to such property as is neeessary for the purpose in question, and no condemnation proceedings can lawfully be had of property not necessary for the construction or use of the railroad; and it is most strenuously insisted that this necessity must be made certain before it is lawful to proceed with condemnation, and that it can not be made to appear that private property within a city will certainly be needed for the construction and use of the railroad company, until the consent of the corporation of the city has been lawfully obtained for the crossing of the streets, and that for that reason the passage of a valid ordinance in this regard is an essential condition precedent to the exercise of the power of condemning private property within the city by the railroad company. The law in no way provides the order in which the railroad company shall proceed in acquiring its right of way. The law does provide the mode in which this right of way may be acquired. Private property may be acquired by purchase or condemnation. (Secs. 18-20 of the Railroad act.) Land along highways, plank roads, turnpikes and canals can be obtained “by the consent of the lawful authorities having control or jurisdiction of the same, or by condemnation. ” (Sec. 20.) And the right of way for crossing or uniting with. other railways may be acquired as provided in section 20, and the right of way upon or across streets in cities, incorporated towns or villages may be acquired by the assent 'of the corporation of such city, town or village. The law has provided one mode of acquiring the right of way across private property, and another mode of acquiring the right of way across streets, but the law has in no way provided the order in which the railroad company shall proceed in acquiring its right of way. If the position of counsel in this regard be sound, it is difficult to perceive how a railroad company could ever proceed to condemn property on any part of its line. It must begin somewhere. And in the first proceedings to condemn, no matter on what part of the line, it might as well be urged by the owner of the property proposed to be taken in such case, that it did not appear that his property was necessary for the corporate purposes until the railroad company should have acquired the right of way on all other parts of the line, and the right to cross all streets of cities or of villages upon the proposed line, for the company might not succeed in getting the right of way elsewhere. It has been the usage of railroad companies in this State for many years, to proceed in their discretion, on the question of the right of way on certain parts of the line, without being required to acquire the right of way in any one part of the line before proceeding to acquire the right of way in another part of the line. In fact, it has been common. to proceed in the matter of acquiring the right of way, by condemnation and otherwise, when only a part of the line had been located, and before the entire line had been located. We are not aware that this position, or any position akin to it, was ever assumed, until taken in the ease of Metropolitan Railioay Co. v. Chicago West Division Railway Co. 87 Ill. 317. In that case it was insisted that the granting by the city council to the Metropolitan Eailway Company of the privilege of using the street in question for railroad purposes, was an essential condition precedent to the right of that company to proceed with its condemnation of private property for corporate purposes, and it was there contended that the ordinance for that purpose, in that case, was invalid, because not legally enacted. This court there said: “The necessity for considering whether that ordinance (giving consent of common council) was legally enacted * * * is not perceived, so far as it can have any direct hearing on the decision of this case. * * * Obtaining the consent of the common council of the city for laying the track of the petitioner’s railway in any given street, is not a condition precedent to condemning such property and interest or privilege as the defendant may have previously acquired, by contract or otherwise, in such streets. That consent may, with equal propriety, be obtained afterwards, and it is immaterial when it is secured. ” And again it is said, the question of the legality of the ordinance “is not a question that in any degree affects petitioner’s right to condemn the property of defendant, or any one else, for the purposes of its organization. ” It would seem, then, that under the present law it is not necessary as a condition precedent to the location of its line within the city by a railroad company, or to the construction of its railroad within the city on such parts of its line as are not loithin any street, or to its power to condemn private property within the city necessary for such purpose, that any ordinance whatsoever should be passed by the city council, either giving assent for the construction of the railroad upon or across streets, or providing for the location of the railroad. It is not necessary, however, in the decision of this ease, that we should go to that extent in the construction of these statutes. In this case the city counc.il of the city of Chicago has passed an ordinance by which the assent of the corporation of the city is expressly given for the construction of this railroad across the streets intersected by its line as located, and also providing for the location of this railroad within the limits of the city; and it is not alleged that the location of the road is in any respect made in violation of the ordinance in question. It is, however, insisted that this ordinance is void, because it fails to designate the precise line upon which the railroad may be coristructed, and omits to designate the precise point at which the road may be constructed across and upon the several streets to be intersected by the railroad. The statute nowhere, expressly or by any reasonable implication, requires such precise certainty. The General Assembly has clothed the city council in general terms with power to provide for the location of railroads within the city, and with power to grant or refuse its assent to the construction of any railroad upon or across streets within the city. The statute does not say how these powers, or either of them, shall be exercised. It surely does not say that no such assent shall be granted except in cases where the points in the streets to be crossed are precisely designated, or that provision for the location shall define precisely the line. The statute itself gives the consent of the State to the construction of such railroads across public highways and navigable streams, without defining the line of the road; and no reason is perceived why the city council may not select its own mode of granting like consent of the city in relation to streets, and also select its own mode of making provisions for the location of the railroad. The statute has not prescribed either the mode or the time in which either of these powers shall be exercised,—all that is obviously left to the judgment and discretion of the city council, in each case. We seek in vain in the language of these statutes for any provision indicating that these powers can only be lawfully exercised on a line precisely defined. The legislature has not prescribed what shall be the limits of the consent of the city as to the crossing of the streets. Obviously that consent may be granted (if the city council think it wise to do so) without specifying the precise point at which the street shall be crossed. The same is true in relation to the exercise of the power “to provide for the location” of the railroad. Under the old statute, and under the powers of the old charter, when no railroad corporation was allowed even to make a location of its track within a city without the consent of the common council, and when the city had the power “to direct and control the location of railroad tracks, ” it was never the practice of the city of Chicago, nor of any other city similarly situated, in making provision for the location of railroad tracks, or in giving its consent to the crossing and use of streets, to define precisely the line upon which such railroad track should be located and constructed. No precedent has been brought to our attention of any provision for the location of any railroad, either by the act of the legislature (when special charters wrere granted) or by any ordinance enacted by any city upon the subject, wherein the precise line of the location of the road was defined in the ordinance or statute; and yet our statute books, and the city ordinances of our large cities, are full of provisions made for the location of railroads, and giving consent to railroad companies to use streets, and to cross them. In the charter under which the Chicago and Rock Island Railroad was constructed is found the following: “The said company shall not he authorized to locate its track within the city of Chicago without the consent of the common council.” Under that act, the common council, in May,. 1851, passed an ordinance providing “that the Bock Island and Chicago Railroad Company,may lay down in any one of the streets of said city, between the west line of State street and the west line of Halsted street, from the south line of said city as far north as the north line of Polk street, a single railroad track, with necessary turn-outs and turning-tables. Said company may extend said track northwardly as far as the south line of Van Burén street, upon any street between the west line of Clark street and the west line of Halsted street, and huild all the necessary turn-outs and turning-tables. Said company may also construct in said city one or more railroad tracks, within the boundaries aforesaid, upon any land they may procure, by purchase or otherwise, and may also construct and use all depots which may be necessary to accommodate the business of said company.” Under that ordinance the Bock Island railroad was brought into the city of Chicago nearly thirty years ago, its track constructed, and its depots erected. It has been in operation ever since, and we are not advised that its right to enter the city and condemn property therein for corporate purposes was ever questioned. Without following out in detail the provisions of the several charters of the respective railroads, or the provisions of the several ordinances by which the railroads have been permitted to enter cities, it may be safely affirmed that in most cases the railroad company was not permitted to enter the city with its road, or to cross its streets, without the consent of the 'city authorities, and that in most cases, if not in every case, where the consent of a city has been granted, the ordinance granting the consent has made provision for the construction of the line within a defined district, and has omitted to define the precise line upon which the railroad should be constructed or the streets crossed. Our attention has been called to many ordinances of the city of Chicago granting permission to railroads to enter the city, and to cross streets in Chicago. Among others, we find such ordinances relating to the Chicago, St. Charles and Mississippi Air-Line railroad, the Chicago and Canada Southern railroad, the Chicago and Illinois River railroad, the Chicago, Burlington and Quincy railroad, the Chicago and Pacific railroad, the Chicago and Evanston railroad, the Illinois and Wisconsin railroad, the Chicago and Great Eastern railway, and to the Fort Wayne and Chicago railway, and in every one of these cases the consent or permission to enter the city and to cross streets was granted to the railroad company by the city, without defining the precise line upon which the track should be located or on which the crossing should be made. In each case permission was given to cross the streets within a district defined in the ordinance. This mode of granting the consent or permitting railroads to enter cities -under the former laws without defining the precise track, and by simply defining a district within which it might be located, was so universal that it must have been known to the General Assembly when the general Bail-road act of 1872, and the general act in relation to cities and villages, in 1872, .were enacted. Had it been intended by the General Assembly to prohibit that mode of granting the license or permission in question by city councils, some language for that purpose would undoubtedly have been used, more definite than that found in either of those statutes. We find no vital objection to this ordinance on the ground that the route of the railroad is not therein defined with more certainty. It is insisted by appellees, that the permission to construct the road across streets at any point to be selected by the railroad company within a given district, is a delegation to the railroad company of powers which can only be exercised by the city council, and that the ordinance is therefore invalid. This does not seem to be so. The railroad company derives its power to locate its road from the act of the legislature, subject to such restraint as the city council may lawfully exercise under the provisions of the act in relation to cities. It is said by counsel for appellees, “the duty” of locating the route within the city, of each railroad, is imposed upon the city council by the City act. This is a misapprehension of the act. As already shown, to locate a railroad is one thing, and to make provision for its location is quite a different thing. The city council, by the City act, has power to make IDrovision for the location, but as already suggested, the city has not the power to locate. That power is in the railroad company, subject to such provisions for the location as the city council may make. Again, the power to provide for the location of railroads is conferred upon the city council, but the duty of exercising that power in all cases is not imposed by law upon the city council. The law leaves to the discretion of the city council the question as to the cases in which the power shall be exercised, and the question as to what provision shall be made upon the subject in each case. Over this discretion the courts have no control. It is next insisted, that this ordinance is void for want of a previous petition of the persons owning property fronting on so much of the street as was proposed to be used in the construction of this road. An examination of the ordinance will show that permission is granted to cross only the streets that intervene between the properties of the railroad company. No authority is granted in the ordinance to use any part of any street lying in front of the property of any other person. The consent to cross streets is limited by the terms of the ordinance to those parts of the streets intervening between property acquired by the railroad company for railroad purposes. Neither of the complainants alleges that he owns property fronting on the proposed crossing of any street on the line. The application of the railroad company to the city council for the passage of this ordinance seems to us to be, in substance, a petition by the owner of all the frontage, and is substantially a compliance with the terms of the statute in that regard, even if we assume that that provision has relation to the mere crossing of streets. The City act provides, “the city council shall have no power to grant the use of or the right to lay down any railroad tracks in any street of the city, * . * * except upon petition of the owners of the land representing more than one-half of the frontage of the street, or so much thereof as is sought to be used for railroad purposes. ” In one sense, to permit a railroad company to lay down its track across a street, is undoubtedly granting “the use of” part of the street for railroad purposes, and is also granting “the right to lay down the railroad track in a street; ” but in the connection in which these words are used in the 90th clause of the 62d section of the act in relation to cities and villages, it is plain that they have no reference to the mere crossing of streets by a railroad track. In that section the words as to “the use of the street, ” and as to the laying down of railroad tracks “in the street, ” plainly have reference to the use of so great an' amount of the street that the frontage upon the part used would have usually several owners; for the provision is, that such a grant shall not be made “except upon the petition of oioners representing one-half of the frontage, or so much thereof as is sought to be used for railroad purposes. ” The General Assembly does not use the same language here as that used in the Railroad act. In that act it is said, no railroad shall be constructed “upon or across any street” without, etc. In the prohibition against granting the use of streets without a petition, etc., the thing designated is spoken of as “the use of” the street, or the right of laying a railroad track “m any street.” The words “in any street” in the city charter, plainly mean the same as the “upon” any street, in the Railroad act. In the Eailroad act it was thought necessary, in order to include the crossing of a street, to add the word “across” to the word “upon.” The word “across” is not found in the phrase in question in the City act, in addition to the word “in, ” and this is because that clause has no reasonable application to the mere crossing of a street. Obviously, this clause has reference only to cases where the city may propose to grant the privilege to a railroa.d company to run along a street for a given distance. This clause has really no application to a case such as is presented in this record. Again, it is insisted that the provision in the 7th section'of this ordinance, that the permission granted in the ordinance is upon the condition that said railroad company “shall permit any other railroad company, not exceeding two in number, which have not at present any right of entrance into the city of Chicago under any existing ordinance, to use the said main railroad track herein authorized to be laid, jointly with the said Chicago and Western Indiana Railroad Company,” is a delegation of the power of the city council, and operates to divest the city council of some of its chartered powers, and for that reason the ordinance is invalid. This position is not tenable. A railroad company having its track lawfully in operation to and into the city of Chicago, has a right, by law, to lease the use of its track to any other railroad company, or to make running arrangements hy which any other railroad company may run its cars upon the tracks of the railroad company owning the same; and the city council has no power to prohibit a railroad company having a track established and in use in a city, from permitting other railroad companies to run their cars upon the same. This. provision, therefore, does not confer upon the railroad company any power whatever, nor does it deprive the city of any power whatever. Obviously, it is a burden imposed by the ordinance upon the railroad company, requiring that it shall furnish additional railroad facilities to the city of Chicago by consenting to make arrangements with such other railroad companies as are described in the ordinance for the joint use of their tracks. This ordinance is characterized by counsel as one that is likely, if effective, to bring great injury upon the city of Chicago, and to produce evil to the public. That is not a question for the determination of this court. We find nothing on the face of the ordinance rendering it vicious, nor is it alleged in the bill that any injury to the public is to result from its passage. We find no sufficient ground to question the validity of this ordinance. The decree of the Superior Court must be reversed and the bill dismissed. Decree reversed. Walker and Scholfield, JJ: We are unable to concur with the majority of the court in the decision of this case. Subsequently, upon an application for a rehearing, the following additional opinion was filed: Mr. Justice Dickey : Counsel for appellee have fallen into some very grave errors in the preparation of their petition for a rehearing. It is first insisted that there is no express authority conferred by statute upon this railroad company to locate its road. This is a mistake. Such a corporation is expressly-required to define in its articles of association “ the places from and to which it is intended to construct the proposed railway; ” (clause 2d, sec. 3, ch. 114, Rev. Stat. 1874,) and is expressly “authorized to proceed to carry into effect the objects set forth in such articles, in accordance with the provisions of this [that] act.” (Sec. 3, same chapter.) By section 18 such corporation is expressly authorized to acquire title to any real estate required for right of way, by purchase or in any manner provided by any law of eminent domain; and by section 20 the power is expressly conferred upon such corporation “to cause such survey for its proposed railway to be made as may be necessary for the selection of the most advantageous route,” and “to lay out its road,” and “to construct the same.” These provisions do not use the word “locate,” but the words used mean the same thing. It is very plain that if the route be selected and laid out, and the road constructed thereon, the. railroad- will surely be located. “Qui hceret in litera hceret in cortice. ” Again, counsel say, in their petition, that “the provision of the act of 1849, prohibiting railroads from entering cities without the municipal consent, "is still in full force and effect, unrepealed and unmodified. ” This is clearly an error. Whatever may be thought of the proviso in the act of 1872 saving “all general laws, * * * so far as the same are not inconsistent” with the provisions of that act, that question is put at rest hy the act of March 31, 1874, wherein that act of 1849 is wholly repealed, without any saving clause affecting the case at bar. (See Rev. Stat. 1874, chap. 131, sec. 1, clause 135, pp. 1012-1017.) This statute must have escaped the attention of counsel. Again, counsel seem to have totally misapprehended the views of the court expressed in the opinion heretofore filed, upon another subject. They say in their petition, “the argument of the opinion is, that the railroad company, and the railroad company alone, has power to locate its route, whether within or without cities, and * * * that this power given to city councils to provide for the location of the track is a power simply to consent to what it can by no means either prohibit or interfere with. ” In other parts of the petition the idea presented is, that this court has, in substance, said that the power conferred upon the city council by the City act does not authorize such council to determine what the location within the city of a new railroad shall be, if at all. And again it is suggested, that this court has in this case decided that the statute gives to the city council only “a right to grant to the railroad company permission to do what the company, under the law, has power to do despite of the council. ” No such thought is expressed in the opinion, and none such can reasonably be implied from any expression it contains. On the contrary, it is therein expressly declared that the power of location conferred by the Eailroad act upon the railroad company must be exercised by it, “subject to such provision as the city council may lawfully make.” And again, in speaking of the freedom with which the railroad company may act in selecting and locating its route, the same is qualified by the words, “until some provision limiting the same is made by the city council.” And again, the opinion says, “the railroad company derives its power to locate its road from the act of the legislature, ” (the Eailroad act) “subject to such' restraints as the city council may lawfully exercise under the provisions of the act in relation to cities.” There is not one word in the opinion expressive of the idea that city councils have no power to control the location of railroad tracks within cities, and it is difficult to conceive how counsel of ability and intelligence could allow themselves to assume that the opinion so teaches. When counsel think fit to characterize unfavorably a given view of the law, they should not attribute such a view to the court, unless clearly justified by the language used in stating the grounds of decision. Before assuming and insisting that the court has announced a palpably untenable proposition, it is certainly not unreasonable to expect of them a careful perusal of the whole of an opinion. Some criticism is indulged in as to the use of the term “locate.” We said: “The city council has no power to locate a railroad. * * * The power of the council is to provide for the location of the railroad by the railroad company, for by law no one other than the railroad company has the power of location, ” etc. It is obvious from the context (upon the most casual reading) that the word “locate” is here used in its primary sense,—meaning, to put in place. The council may direct what the location must be, if at all, but it is for the railroad company, in such case, to make the location or put the track in the place designated. If the railroad company do not choose to so locate their track, it is no function of the city to locate or put the track in place. This surely could mislead no one. We find no ground for further consideration in this case. The application for rehearing is therefore denied. Rehewi'ing denied.