McCartney v. Chicago & Evanston Railroad

Mr. Justice Sheldon delivered the opinion of the Court: It is contended by appellants that the Chicago and Evans-ton Eailroad Company ceased to have corporate existence on the 8th day of August, 1870, (the day the constitution of 1870 went in force,) by virtue of section 2, of article 11, of that constitution, which reads : “All existing charters or grants of special or exclusive privileges, under which organization shall not have taken place, or which shall not have been in operation within ten days from the time this constitution takes effect, shall thereafter have no validity or effect whatever. ” It is denied that the charter of the company was in operation within the time fixed by the constitution. The facts appearing are, that the company was incorporated February 16, 1861. The persons named as incorporators in the charter, constituted the first board of directors. The capital stock was fixed at $100,000, with power to increase it to $300,000. The incorporators named in the charter met February 19, 1861, and, by resolution, accepted the charter, and the following day elected a president, vice-president, secretary and treasurer. April 16, 1861, at a meeting of the directors, it was resolved that the president be authorised to survey routes and locate the road, and to make contracts for right of way and depot grounds. Eesolutions were also passed authorizing the opening of books for the subscriptions to capital stock, and regulating the same. The stock was subscribed, but it does not appear that any payments were made on any of the subscriptions. February 21, 1861, the commissioners of highways of the towns of Lake View and Evanston granted permission to the company to lay down and operate their railroad along and across all roads and highways along and upon which the route of their road might be located, and March 10, 1862, at a meeting of the board of directors, such grants of rights of way were accepted, by resolution. At the same meeting the president reported that he had purchased depot grounds in Evanston, and had contracted to give one share of stock therefor, and it was voted that the purchase be approved. At a meeting of the stockholders, June 10, 1864, the capital stock was increased to $300,000, which was subscribed the same month, but it does not appear that any payments were made on any of the subscriptions. August 17, 1864, the commop council of Chicago passed an ordinance giving permission to the company to lay a track, commencing in the city of Chicago, at the corner of Madison and La Salle streets, and running thence north, on designated streets, to the northern limits of the city, and authorizing the company to construct a bridge over the Chicago river. The company, on the 25th of August, 1864, passed certain resolutions, declaring as to what was the proper construction of the ordinance, and, with such construction, the ordinance was accepted. February 6, 1865, the General Assembly passed an act confirming the above ordinance. This was a legislative recognition that the company had then a corporate existence, and that it had taken corporate action, in the way of carrying out the purpose of its charter, to the extent of having secured from the city of Chicago permission to lay its track in the streets of the city, and to bridge the Chicago river. January 9, 1865, the annual election of the corporation was held, and certain persons were elected directors. In the summer of 1865, John Evans, a subscriber of stock, filed a bill in the Superior Court of Cook county, against the Chicago and Evanston Eailroad Company and others, on which a writ of injunction was allowed, by which all of the persons who were then acting as directors, or claiming to be such, were enjoined from assuming to act as directors of the company by virtue of the election held January 9, 1865. The injunction remained in force until in 1872, when it was dissolved. 'The existence of this injunction may afford somewhat of explanation for the intermission of any further-corporate action during the pendency of the injunction. These enumerated acts show that in addition to organization, there was considerable of corporate action in effectuation of the object of the charter. It is said that because it does not appear that any money had been received or expended, or any work done in the actual construction of the road previous to the time fixed by the constitution, the charter was not at that time in operation. The constitution is silent as to what extent the charter should have been in operation, requiring, merely, its being in operation. This was not the case of a dormant charter or of but a mere paper organization, as is claimed, and in view of all the corporate action 'which, in this case had been had toward carrying out the purpose of the incorporation, we can not say that the charter of this company was not in operation at the time of the adoption of the constitution of 1870. It is denied that the Chicago and Evanston Eailroad Company has authority to construct and operate a railroad within the city of Chicago. Stress is laid upon the peculiar language of the charter in giving power to construct apxl operate a railroad “from the city of Chicago to any point in the town of Evanston, ” as indicating the intention to make the southern terminus of the road the northern boundary of the city of Chicago. The case of Northeastern Railroad Co. v. Payne, 8 Rich. (S. C.) 177,—the only one cited by appellant’s counsel in support of this position,—is in point, as sustaining it. We are aware of no other like authority. The words from and to a place, have frequently, in the charter of a company, been construed to mean from and to a point within the place from, and to which the corporation was authorized to construct its road, and especially where there is found in the body of the' act anything indicating that intention. Moses v. Railroad Co. 21 Ill. 516; Farmers’ Turnpike Co. v. Coventry, 10 J. R. 389; Mohawk Bridge Co. v. Railroad Co. 6 Paige, 554; Mason v. Railroad Co. 35 Barb. 373; Western Pennsylvania Railroad Co.’s Appeal, 99 Pa. St. 155. This is the reasonable interpretation which, we think, should be adopted in this case, as required by the public object of the grant, in the accommodation of the public with railroad facilities. The difference of language employed with respect to the two places of Chicago and Evanston,—the language being, “from the city of Chicago to any point in the town of Evans-ton, ”—is remarked upon as showing that the road was to commence to run from the northern boundary of the city of Chicago; that if the intention had been to run from any point in the city of Chicago, it would have been so expressed, as it was in regard to Evanston. We do not attach any special importance to this difference of phraseology. The concluding sentence of section 2 of the charter, that “no authority is or shall be granted to said company, or to any other corporation or party, by the city of Chicago, to lay any railroad track in Wells, Dearborn,” and certain other streets named, in the city of Chicago, “but the laying of the same is hereby expressly prohibited, ” seems to indicate that the legislature intended to give power to enter the city and run to a point within it,—else why prohibit the use of certain streets within the city ? Appellant’s counsel would refer this prohibition to the “North Chicago Horse Railroad Company, or any other company or party” with whom the second section of the charter provides that the Chicago and Evanston Railroad Company “may contract to operate their road, or the road of such other party, either separately' or jointly, as may be agreed upon, ” and their construction being that these words last quoted were a restriction on the right to enter the city, and showed the purpose was to allow the company to build its road from a point in the town of Evanston to the northern limits of the city, and then, by contract with the North Chicago City Bailroad Company, or some other company, to enter the city. We do not agree with this view. We consider that the charter gave to the Chicago and Evanston company the power to construct their road to a point within the city, and also gave to them the further power to contrast with the North Chicago Horse Bailway Company, or any other company, for the reciprocal operation of each other’s road, either separately or jointly, as might be agreed upon, and that this power given to so contract with the North Chicago Horse Bailroad Company, or any other company, was not a limitation on the Chicago and Evanston company as to entrance in the city. But were there doubt on this point, it would seem to be removed by the act of the General Assembly of February 6, 1865, which confirmed the ordinance of August 17, 1864, giving permission to the company to lay its railway tracks in certain streets of the city, and declared that the ordinance should be held to confer on the company power and authority to construct and operate their road in the streets and over the bridge mentioned therein, until the same should be altered, changed or amended by the common council, with the consent of the company. It is strenuously insisted that the Chicago and Evanston Bailroad Company, if it has a corporate existence, and authority to construct its road to a point within the city of Chicago, is, within the limits of Chicago, only a street railway. The proposition is, that since the acceptance by the Chicago and Evanston Bailroad Company of the ordinance of August 17, 1864, it was and is, and for the remaining period of its corporate existence must continue to be, a street railway company within the limits of the city of Chicago, and has forever abandoned and surrendered the right to the use of steam as a motive power within the city; that upon the signing of the ordinance by the mayor, accompanied; as the ordinance was, with the company’s resolution in regard to it, there became a complete contract between the company and the people, represented by the city authorities, which contract, in brief, was, that in consideration of the grant by the city of the valuable rights embraced in the ordinance of August 17, 1864, the company renounced and abandoned, for all time to come, the use of steam as a motive power within the limits of the city, from which contract the company has never been released ; that there being thus an absolute incapacity on the part of the company to operate any tracks by any other than animal power within the limits of Chicago, resulting from the voluntary contract of the company thus entered into, upon full consideration, the city was powerless to grant or the company to receive the right to operate by steam within the city limits, as attempted by the ordinance of December 24, 1883. There is, throughout the ordinance of August 17, 1864, and the company’s resolution in regard to it, not a word expressive of the idea of anything perpetual, or of future limitation or restriction, in relation to the subject matter. Under and by the terms of the ordinance, the company acquires something from the city, but it does not abandon or surrender anything. The ordinance' gives permission to the company to lay a railway track on certain streets in Chicago. The resolution of the company in regard to it is, that the intention and proper construction of the ordinance is, that the company shall operate its cars within the limits of Chicago with animal power only. It merely declares what the ordinance means,—defines the extent of the permission granted by it,—■ so that by the ordinance, with the company’s resolution, there was given permission to use animal power only. And that was the sum of it. Under the permission given by that ordinance, there could clearly be used animal power only. There was power in the city to give permission to use both animal power and steam power, or either, within the city. It saw fit, by that ordinance, to only give permission to use animal power. But there-is no language in the ordinance indicative that the city might not, by some future ordinance, permit the use, within the city, of steam as a motive power, or suggestive of the idea that the city was tied up from giving, and the company from receiving, ever afterward, permission to so use steam power within the city. All of anything savoring of perpetual, or of restriction in the" future, which we discover in the ordinance, is in respect of the power of-the city to recall what it granted by the ordinance. It may be that the city could not, without the consent of the company, withdraw the permission which was granted by the ordinance. The only possible foundation which we are able to se,e for this claim made by appellants, is, that the charter authority is but to build either a horse railroad or a steam railroad,— that there was an option with the company to build either kind of road, but that it was an option which could only be once exercised, and that therefore, when the company accepted the ordinance permitting the use of animal power, only, within the city, that was an exercise of its option to construct within the city a horse railroad; that there remained no further option on the subject, and that under the charter, the road within, the city must ever afterward remain a. horse railroad. We can not adopt this construction of the charter. The power given by the charter was to operate the road to be constructed, with “horse power or locomotive cars.” We read this as giving an option to the company to use either animal power or steam power, or both, upon their road, or any part of it; that this was a continuing option, which might be exercised from time to time; that after the use, for a time, , of either kind of power, the other kind might be substituted, as the company saw fit; so that when the common council gave to-the company permission to use, within the city, only animal power, there could be, under that permission, only the authority to use that kind of power within the city; but still the right remained, under the charter, to use steam power within the city whenever the city authorities should give permission to do so. The act of February, I860, confirms the ordinance of August 17, 1864, and provides expressly that the ordinance may, from time to time, be changed, altered or amended, and such other provisions be made as to the •common council may seem proper, and be agreed to by said ■company. Appellee’s counsel place reliance upon this act as giving lull legislative authority to the city council to pass the ordinances of June 12, 1872, and December 24, 1883, granting to the Chicago and Evanston company permission to operate their road, within the city of Chicago, by steam power. If -we could agree with appellant’s counsel that there was, by the acceptance of the ordinance of August 17, 1864, a loss to the company of all right under their charter, at any time .afterward, to operate their road within the limits of Chicago by steam power, even by permission of the city, then we should have difficulty in finding in this act alone, a source of legislative authority to use steam power within the city. The "title of that act is: “An act. concerning horse railways in ihe city of Chicago.” The constitution of 1848, in force at "the time of the passage of the act, has the provision: “And no private or local law which may be passed by the General Assembly shall embrace more than one subject, and that shall be expressed in the title. ” If this road within the city of Chicago was, at the time of .the passage of this act, in all respects but a mere horse railway in the city, it might well he doubted whether the converting of it into a steam railroad, or the giving to the city authority to make such conversion, would be a subject expressed in the title of the act. But we do not feel the necessity of recourse to this act as giving the legislative authority. We look to the charter of the company as giving to it the right to operate its road within the city of Chicago with steam power, regarding, as already said, the right as never having been lost to the company, but as ever having remained, with authority to so exercise it whenever permission to do so should be given by the city. It is contended that the Chicago and Evanston company has no authority to change its tracks in the city of Chicago, as provided may be done by the ordinance of December 24, 1883. The charter of the company confers upon the corporation no power of relocation, and it is insisted that there is conferred but one power of location, and that the power of location having once been exercised, is exhausted, and that no new location of its line can be made, and hence that the power of location was exhausted by the ordinance of August IT, 1864, and that there can be no new location of its line, as contemplated by the ordinance of December, 1883. We shall not meddle with the question of the general power of a railroad company to change the location of its line of road once made, in the absence of any power of relocation given by its charter. There may not be entire agreement of the authorities upon that question. We shall confine ourselves to the power in this regard which exists with respect to this particular railroad within the city of Chicago. The city of Chicago has been incorporated under the general law in relation to cities and villages, of 1872, since May, 1875. By clause 25, section 1, article 5, of that act, the city council has power “to provide for and change the location, grade and crossings of any railroad. ” By clause 9, to regulate the use of streets. The ordinance of August 17, 1864, located the road on certain streets in the city, in accordance with the desire of the company, and fixed the place for bridging the river. The act of February, 1865, confirmed that ordinance, and declared that the ordinance should be held to confer on the Chicago and Evanston Railroad Company power and authority to construct and operate their road in the streets and over the bridge mentioned therein, until the same was altered, changed or amended by the common council, with the consent of said company, and that such ordinance might, from time to time, be changed, altered or amended, and such other provisions be made as to the common council might seem proper, and be agreed to by the company. It appears to us that there was here full legislative warrant for the change of location that was made. We deem it immaterial that there is no provision on the subject in the charter of the company. The ordinance of June 12, 1872, changed the route of the railroad from that mentioned in the ordinance of 1864, and required the surrender of a certain street mentioned in the former ordinance. The changes authorized by the ordinance of 1883 are: To remove the tracks of the company from the northwestern end of Hawthorne (formerly Jones) avenue, and from Southport avenue, and relay them on a line nearly two blocks east of Southport avenue, across a tier of lots which have been purchased or acquired by condemnation by the company; to extend the tracks from the southern end, as laid at the junction of Larrabee street and Hawthorne avenue, southeasterly, across land purchased, or acquired by condemnation, to the east bank of the north branch of the Chicago river, on block 9, a short distance north of the Kinzie street bridge; to construct a bridge across the river at that point, and extend the tracks thereon; to extend' the tracks from the west bank of the river to a point of connection with the tracks laid on Canal street, which tracks lead into the union depot on the west side of the river, between Madison and Adams streets. This is an alteration and change of the location of the tracks of the railroad, and of the place of bridging the river, as they were fixed by the ordinance of 1864. It is in these respects an alteration and change of that ordinance, although the ordinance of 1883 does not so purport on its face, and we think that such change of location comes clearly within the express power given by the act of 1865, to alter, change and amend the ordinance of 1864, and make other provisions upon the subject, as well as within the power given to the city by the general law, to provide for and change the location, grade and crossings of any railroad within its limits. It is denied that these railroad companies have authority to 'bridge the north branch of the Chicago riyer. As is alleged, the information is filed in a dual right or capacity of the State,—being, first, the proprietary right of the State to the soil underlying its navigable waters; and second, its representative capacity to protect the interests of navigation in behalf of its citizens concerned therein. ' It appears that at the time of the hearing of the case in the court below, the Chicago and Evanston company was the owner of the lots and docks on the east side of the river at .the point where the bridge is proposed to be built, and had commenced proceedings to acquire title to the private property on the west side, under the law of eminent domain, since when, as alleged, it has acquired such title under such pro-. ceedings. It follows, then, that the company, as owner of the property on each side of the river, is also owner of the fee in the underlying soil of the river there, and may make any use of such river bed as suits its purpose, so that it does not materially or unlawfully interfere with the public easement to the use of the water in the stream. This is abundantly settled by the decisions in this State: Middleton v. Pritchard, 3 Scam. 520; Canal Trustees v. Havens, 11 Ill. 557; City of Chicago v. Laflin, 49 id. 172; Braxon v. Bressler, 64. id. 488; Railroad Co. v. Stein, 75 id. 41. There is, then, in this case no question of purpresture,—there is no intrusion upon the property of .the State, and no public nuisance resulting from an invasion of the property rights of the people, and the information manifestly fails upon the first ground of the proprietary right of the State to the soil underlying its navigable waters. In the recent decision of the Supreme Court of the United States, in the case of Escanaba Co. v. Chicago, 107 U. S. 678, sustaining an ordinance of the city of Chicago requiring all bridges across the Chicago river to be closed within certain hours, the doctrine is laid down, that until Congress acts upon the subject, the power of the State over bridges across its navigable waters is plenary. And it is there said: “And nowhere could the power to control the bridges in that city, (Chicago,) their construction, form and strength, and the size of their draws, and the manner and time of using them, be better vested than with the State, or the authorities of the city upon whom it has devolved that duty. ” The city we look upon as the representative of the State, with respect to the control of streets, and highways, and bridges, within the city limits. The general act for the incorporation of cities and villages, adopted by the city of Chicago, contains the following provisions: Article 5, section 1, clause 7, gives the city council power to lay out, establish and alter streets, etc., and vacate the same. Clause 9, “to regulate the use of the same.” Clause 25,’ “to provide for and change the location, grade and crossings of any railroad.” Clause 28, “to construct and keep in repair bridges, viaducts and tunnels, and to regulate the use thereof.” Article 5, section 10: . “The city or village government shall have jurisdiction upon all waters within or bordering on the same, to the extent of three miles beyond the limits of the city or village, but not to exceed the limits of the State. ” The ordinance of December, 1883, provides as to the construction of the bridge, that “said bridge shall be constructed in such a manner as not to unnecessarily obstruct navigation, and on a plan to be approved by the commissioner of public works of the city of Chicago.” The State itself, no doubt, might construct the bridge. It might, as the legislature has here done, vest the local government of the city with authority to build the bridge. But it is claimed that the authority is reposed only in the city itself to build bridges, and is a power which is incapable of being -delegated by the city to another. We do not consider that there is any delegation of the power in the case. The city, through the corporation, does build the bridge. It matters-little by what hands the bridge is built, or who lets the contract for the construction. The essential thing is determining whether the public interest calls for a bridge, and where and in what manner it shall be built,—and this is done by the city authorities. We think the authorization by the city, as in this case, of the building of the bridge by a corporation, comes fairly within the power given to the city to construct and keep in repair bridges, and to regulate the use thereof. But further, the same may be remarked of the act of 1865, as expressly authorizing the building of the bridge, as was said of the act in reference to the change of location of the road. The ordinance of August 17, 1864, authorized the Chicago and Evanston company to construct a bridge to cross the Chicago river at La Salle street. The act of 1865, in confirming that ordinance, certainly gave the legislative sanction to the building by the company of a bridge at La Salle street, and the provision of the act, that the ordinance might, from time to time, be changed, altered or amended, gave the power, we think, to change the place of the building of the bridge from La Salle street to the place designated in the ordinance of December, 1883. It is insisted that these defendant railroad companies have no right to use Hawthorne avenue and Canal street longitudinally, as there has not been the consent thereto of a majority of the property owners upon such streets. The provision of the statute upon the subject is as follows : “The city council or board of trustees shall have no power to grant the use of, or the right to lay down, any railroad tracks in any street of the city, to any steam or horse railroad company, except upon a 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.” (Section 62, clause 90, of article 5, of the general city and village incorporation law, before cited.) The Chicago and Evanston company disclaims any intention to run longitudinally through any portion of Canal Street, and the ordinance does not seem to give the permission to do so, the language, in this respect, being, “thence across the Chicago river by means of a bridge, and across West Kinzie street, to a point of connection with the railroad tracks now laid on Canal street. ” As respects Hawthorne avenue, the fourth section of the ordinance of December, 1883, provides that the Chicago and Evanston Eailroad Company “may use and operate all railroad tracks hereby authorized to be laid, and heretofore authorized to be laid, in Hawthorne avenue, for all general business incident to railroads, by freight, passenger and other cars, and by steam or other power. ” The tracks theretofore authorized to be laid in Hawthorne avenue were under and by virtue of the ordinance of June 12, 1872. Section 1 of that ordinance, after naming a certain route, provides, “and also to put down and construct and maintain, for passenger cars only, a single or double track, from the north side of Willow street, in Hawthorne avenue, to Larrabee street.” It is by virtue of this ordinance, alone, that any authority had been given to lay tracks in Hawthorne avenue, and reference is made to this provision in the fourth section of the ordinance of December, 1883. This ordinance, in 1872, was passed when the city of Chicago was acting under its former special charter, and before the time of its becoming incorporated, in 1875, under the general act for the incorporation of cities and villages, under which it has ever since been acting. The former special charter, in 1872, did not require the consent of the majority of the property owners fronting upon a street, in order to the laying down in it of a railroad track. Such requirement is only by the general act. It is under and by virtue of the ordinance of June 12, 1872, that the Chicago and Evanston company claims justification of the authority given by the ordinance of 1883 to use the tracks in Hawthorne avenue “for all general business incident to railroads, by freight, passenger or other cars, ” without having obtained the consent of a majority of the property owners fronting upon the street. But the permission and authority which were granted by the ordinance of 1872, to lay tracks in Hawthorne avenue, was to “put down, construct and maintain, for passenger cars only, a single or double track. ” Here is a careful restriction to passenger cars only. Permission to lay down a track for passenger ears only, is something quite different from a permission to lay a track for freight cars. There is a substantial and most material distinction as respects the two classes of ears, the hurtful effects from the operation of freight cars in the streets of a city being very much greater than in that of passenger cars. It is said that the consent required is only as to the laying down of tracks, and not as to the use of tracks which have been constructed; that the laying of the tracks was under authority of the ordinance of 1872; that the ordinance of 1883 but permitted an enlarged use of tracks already laid,— a use for freight cars; that in case of a railroad track, once rightfully laid, there is no restriction upon the city as to granting any use of it. This we regard a too strict interpretation of the provision in question. Where a railroad company lays its track in a street, having but the right to construct and maintain a track for passenger cars only, we think that under this provision of the statute the city has not power afterwards to grant the use of the track for the operation of freight cars upon it, except upon a petition of property owners upon the street, as named in the statute. The granting of the use of freight ears upon a track which was one for passenger cars only, would, we consider, within the intendment of this statute provision, be tantamount to granting the right to lay down a track for freight uars, and so come within the provision. But if the grant of this use for freight cars be unauthorized, it is objected that the complainants in this case have no right to any relief as to the use of freight ears in Hawthorne avenu'e; that the city has the exclusive control of the streets, and represents the public in all matters concerning them, and that no complaint can be made other than by the city, or by the abutting property owners, whose consent should have been obtained. Where this required consent has not been obtained, the city is absolutely without power to grant the license, and the exercise of it would be wholly without warrant, and unlawful. It is not the city alone, or abutting property owners, that are concerned about the unlawful obstruction of a street of a city. All the people of the State are entitled .to the use of such street as being a public highway, and are interested to have it maintained free from unlawful obstruction, and we are of opinion that the complainants in this ease are entitled to the relief they ask as to the use of freight cars in Hawthorne avenue, to prevent a public nuisance. Much of what has been said with respect to the Chicago and Evanston Eailroad Company applies, of course, to the Chicago and Lake Superior Eailroad Company. The latter company stands in a different position from the former, in its having filed a demurrer, and thereby admitted the allegations of the information. But as we do not see that the ordinance of December, 1883, does authorize the use of Canal street lengthwise, we think the decree of dismissal of the information may stand against both companies alike, although the Chicago and Lake Superior company has not, like the other company, disclaimed any right or intention of using Canal street lengthwise, under the ordinance of December 24, 1883. The decree dismissing the information will be affirmed in all things except in the respect of the use of freight ears in Hawthorne avenue. In that respect the decree is reversed, and the cause remanded for further proceedings conformable to this opinion. Decree reversed in part and in part affirmed.