South Chicago City Railway Co. v. Calumet Electric Street Railway Co.

Mr. Justice Wilkin delivered the opinion of the court: This is, in effect, an attempt to specifically enforce a contract by injunction. It is said in Pomeroy’s Equity Jurisprudence (sec. 1341): “An injunction restraining the breach of a contract is a negative specific enforcement of that contract. The jurisdiction of equity to grant such injunction is substantially coincident with its jurisdiction to compel a specific performance. Both are governed by the same doctrine and rules. It may be stated as a general proposition, that whenever the contract is one of a class which will be affirmatively specifically enforced, a court of equity will restrain its breach by injunction, if this is the only practical mode of enforcement which its terms permit.” Unless, therefore, the contract upon which the relief here sought is based is one which a court of equity would, if called upon to do so, specifically enforce between the parties, the demurrer was properly sustained by the circuit court. It has been often said by this and other courts that courts of chancery will exercise a sound legal discretion, in view of all the terms and conditions of a contract, as well as the surrounding facts and circumstances, in determining whether it will specifically enforce such contract or not. We regard it as perfectly clear that no such rights are shown by the complainant, by its bill in this case, as entitle it to invoke the aid of a court of chancery to enforce the contract between it and the defendant, for the reason that, as appears upon its face, the contract is illegal and void, as against public policy. Counsel for appellant, in their argument, attempt to separate that part of the contract which relates to the crossings at Ninety-first and Ninety-second streets from that part which pertains to making future grade crossings, and insist that the first is not only not against public policy but clearly in the public interest, and to that extent, at least, should be enforced; and that as to the latter part, it was not so far against public policy as to render it void,—the position, as we understand it, being, that even, though the latter part of the agreement should be held void, still the former should be sustained. We do not think that contention could be maintained as to the crossings at Ninety-first and Ninety-second streets, even if the contract should be held divisible. We are, however, unable to see upon what principle this agreement between the parties can be held valid in part unless it is valid as a whole. (Henderson v. Palmer, 71 Ill. 579.) Nor do we understand that the bill proceeds upon any such theory. The contract is an entirety, that part of it relating to future crossings being in consideration of the contract for grade crossings at the places named. It will be sufficient, therefore, to determine whether or not the contract, as a whole, is one which a court of equity can be called upon to enforce. It sufficiently appears from the bill that these corporations were, at the time the contract was entered into, rivals for public patronage in that part of the city in which their lines were located. Under their organization they owed the duty to the public to use their respective franchises unrestrained by contract, and any agreement between themselves, or with others, which tended to prevent the discharge of that duty, is violative of the public right, and void. The duty which they owed to the public could not be “avoided by neglect, refusal, or by agreement with other persons or corporations.” (Peoria and Rock Island Railway Co. v. Coal Valley Mining Co. 68 Ill. 489.) It is not denied that the municipality has the exclusive right, in the control of its streets, to determine upon what grade the street car lines should cross each other. These companies, when they entered into the contract in question, knew that the city of Chicago would not, generally, at least, permit street railway tracks to cross each other except at grade, and hence the agreement can reasonably be considered as no more nor less than a contract that they would not cross each other’s tracks at all, and that is, in effect, an agreement that neither company shall invade the territory occupied by the other, even though both the interest of the corporation and the public convenience might require it to be done. Whatever tends to prevent competition among such companies and create a monopoly in their hands is against public policy. Chicago Gas Light and Coke Co. v. People's Gas Light and Coke Co. 121 Ill. 530; People ex rel. v. Chicago Gas Trust Co. 130 id. 268. In Bestor v. Wathen, 60 Ill. 138, the action being by bill in equity to enforce a contract to lay off a town upon certain land, it was said (p. 140): “When the people, through the legislature, grant to a company the right of eminent domain for the purpose of constructing a railway, the grant is made because it is supposed the road will bring certain benefits to the public. When the company is incorporated and subscriptions are made to the stock, the money is subscribed upon the understanding that the officers entrusted with the construction of the. road will so locate its line and establish its depots as to bring the highest pecuniary profit to the stockholders compatible with a proper regard to the public convenience. These, and these alone, are the considerations which should control the action of the president and directors of the road, and so far as they permit their official action to be swayed by their private interests they 'are guilty of a breach of trust towards the stockholders and of a breach of duty to the public at large.” It was also held in Marsh v. Fairbury, Pontiac and Northwestern Railway Co. 64 Ill. 414, that equity would not enforce the specific performance of a contract on the part of a railroad company to locate a depot at a particular point, and at no other, in a town, the enforcement of such a contract being regarded as against public policy; and it was again said: “The specific execution of a contract in equity is a matter not of absolute right in the party, but of sound discretion in the court; and in deciding whether specific performance should be enforced against a railway company the court must have regard to the interests of the public,”—citing Raphael v. Railway Co. L. R. 2 Eq. Cas. 37. To the same effect is St. Louis, Jacksonville and Chicago Railroad Co. v. Mathers, 71 Ill. 592. It seems to be thought by counsel for appellant that as the defendant company was, at the time of entering into the agreement, under no duty to extend its lines across appellant’s track, and could not be compelled thereafter to do so, therefore the contract was not illegal. This position we regard as wholly untenable. The interest of these companies and the interest of the public to have the street car lines extended as the demand therefor should arise are the same. One or both of the companies would, in its own-interest, furnish such additional facility for travel as the public necessity required,—just as the defendant has done, as shown by this bill. Any contract which tended to deprive the public of that benefit is clearly violative of the public right, against public policy, and void. The principle is, that such corporations shall not bind themselves by contract not to serve the public interest as the demand arises. To say the defendant was not bound to extend its lines though it might be necessary to do so to serve the public convenience is one thing, but to say that it shall not do so because of the binding force of its contract with an individual or corporation is quite another and very different thing. Doane v. Chicago City Railway Co. 160 Ill. 22, sustains the principle here announced. It may be said that neither of these street car companies was at the time legally bound to extend its tracks, and on the theory here contended for the public would, during the entire period of the existence of the contract, be deprived of necessary facilities for street car travel, however great might be that necessity and however much the company might desire or be inclined to furnish that facility. The bill stated no ground for equitable relief and was properly dismissed. The judgment of the Appellate Court will accordingly be affirmed. Judgment affirmed.