People ex rel. Moloney v. General Electric Railway Co.

Mr. Chief Justice Phillips delivered the opinion of the court: Numerous points are argued by counsel as to the right of the relator to an injunction; as to dismissing the bill before final hearing; as to the insufficiency of the ordinance because of the insufficiency of the petition or the consent of abutting owners; that an unauthorized use of a public hig’hway by a street railway company is a nuisance per se, and may be enjoined by the public authorities without proof of further public injury; that equity has jurisdiction to enjoin acts in excess of corporate charter powers, at the suit of the State, upon the sole ground that they are unlawful; that the judgment in the mandamus proceeding against the mayor was not an adjudication which would estop or bar this proceeding by the State; that the ordinance is void for non-compliance with the Horse and Dummy act; that the consenting property owners are trustees to their fellow abutting owners and the public, and the purchased consents are a fraud on-the city council, the public and abutting owners, and are void and cannot be counted; and that the bill should not be dismissed because attorneys of abutting lot owners assisted the Attorney General in the trial of the cause. In response to these numerous poiuts made by plaintiff in error the defendants in error say: “Our position in the court below was, and in this court is, that this information, though filed in form by the Attorney General in behalf of the People of the State of Illinois, yet was not filed for the purpose of asserting any public right or protecting any public interest in the streets covered by appellee’s ordinance, but was in reality filed at the instance and by the procurement of rival railway companies, some of whom are in substantial but unauthorized possession of portions of the streets, and one of them in possession of a monopoly of the territory in which the appellee company proposes to build its street railway line for passenger railway purposes, and that if the court below believed, from the evidence and from his inspection of the premises, that the bill was not prosecuted in behalf of or for the interests of the public, but was in fact prosecuted in the interests of such rival railway companies, it became his duty to dismiss the bill.” This position of the defendants in error renders unnecessary a discussion of any other point than whether or not it was error to dismiss this bill before final hearing if it was not prosecuted solely in behalf of and for the interests of the public, but in the interests of rival companies. It is urged by the plaintiff in error, that where a bill is filed by the Attorney General which alleges a public nuisance is about to be placed in a street, the only question is one of fact; that he does not have to prove any damage, but only show an invasion of rights of the public; that a property owner, on the contrary, must show a special damage different from that sustained by the public; and that when the chancellor is of opinion that there is no damage to the abutting owners’ lots, and the bill is filed merely as a cloak for an attempt on the part of a rival company to keep another out of its territory, the chancellor may, in the latter case, dismiss the bill, but cannot do so if it is filed by the Attorney General. In Doane v. Lake Street Elevated Railroad Co. 165 Ill. 510, we held an abutting lot owner had no right to invoke the aid of a court of equity to prevent the construction of a street railroad, and in that case it was said (p. 519): “The real ground upon which relief by injunction is denied in such cases is, that the use of the street being within the purposes for which it is laid out, and therefore a proper use, the right to occupy is properly a question between the defendant and the municipality having the control of its streets and charged with the duty of keeping them free from unlawful obstructions, or between the defendant and the public generally, the individual being left to his action for damages for any injury resulting to his property. He has no standing in equity on account of public injury or for the purpose of inflicting punishment upon the defendant for its wrongful acts. He can only invoke that jurisdiction in order to protect his property from threatened injury. His injury is a depreciation of. the property which is capable of being estimated in money and recoverable in an action at law, therefore a court of equity will not interfere by injunction.” Where injuries are consequential, merely, a court of equity is not the proper jurisdiction to enforce a- remedy, as a court of law is the proper tribunal for the determination of such questions between individuals and corporations, or between corporations. That which cannot be done directly cannot be done by indirection, and if the information in this proceeding is invoked by rival corporations to prevent the construction of this road, it is an indirect method of procuring an injunction, such as was held in the Doane case could not be sustained. To determine whether the proceeding is improperly invoked, a court of equity may go behind the parties on the face of the record, to see who are the real parties prosecuting the proceeding,—and this may be done even where the proceeding is in the name of the Attorney General. If the proceeding is prosecuted and carried on for the exclusive benefit of an individual or corporation, the court may order an information in such case to be dismissed. In New Hampshire v. Louisiana, and New York v. Louisiana, 108 U. S. 76, the Supreme Court of the United States looked behind and through the nominal parties, though the nominal party was the Attorney General, to ascertain who were the real parties to the suit. Chief Justice Waite, in his opinion, said: “No one can look at the pleadings and testimony in these cases without being satisfied, beyond all doubt, that they were, in legal effect, commenced and are now prosecuted solely by the owners of the bonds and coupons. * * * The bill, although signed by the Attorney General, is also signed and was originally drawn by the same counsel who prosecuted the suits for the bondholders in Louisiana, and it is manifested in many ways that both the State and the Attorney General are only nominal actors in the proceeding. The bond owner, whoever he may be, was the promoter and is the manager of the suits, and while the suits are in the names of the States, they are under the actual control of individual citizens, and are prosecuted and carried on altogether by and for them.” The court ordered the bill so signed by the Attorney General dismissed. In United States v. Beebe, 127 U. S. 338, while the court asserted the undoubted authority of the Attorney General, under the constitution and laws of the United States, to institute a suit in the name of the United States to set aside a patent alleged to have been obtained by fraud, it yet held that the court would examine as to whether such suit was brought for the United States in fact or to enforce the private right of a private party. The court said: “It has been not unusual for this court, for the purposes of justice, to determine the real parties to the suit by reference not merely to the names in which it is brought, but to the facts of the case as they appear on the record.” Again, on page 346, after citing many cases to demonstrate the practice of the court in going behind the nominal parties to see who the real parties were, the court said: “Applying this principle to this case, an inspection of the record shows that the government, though in name the complainant, is not the real contestant party to the title or property in the land in controversy. It has no interest in the suit, aud has nothing to gain from the relief prayed for and nothing to lose if the relief is denied. The bill itself was filed in the name of the United States, and signed by the Attorney General on the petition of a private individual, and the right asserted is a private rig'ht.” And on page 347 it said: “We are of the opinion that when the government is a mere formal complainant in a suit, not for the purpose of asserting any public right or protecting any public interest, title or property, but merely to form a conduit through which one private person can conduct litigation against another private person, a court of equity will not be restrained from administering the equities existing between the real parties by any exemption of the government designed for the protection of the United States alone.” The action of the lower court in dismissing the bill was affirmed. The same position was announced by the Court of Chancery in England in cases involving the very question of a nuisance on the public streets. In the case of Attorney General v. Sheffield Gas Consumers’ Co. 3 DeG., M. & G. 304, it was held that where the Attorney General and the public were mere fictions, and not the real parties concerned, the information should be dismissed. To the same effect is the case of Attorney General v. Cambridge Consumers’ Gas Co. 4 L. R. Ch. App. 71. On principle it cannot be held that where a private individual cannot maintain a bill for injunction in his own name he may do so in the name of the Attorney General, on an information in equity; but it is urged the court erred in assuming to decide, from mere ex parte affidavits, that the suit was only colorable in behalf of the public, and that the real purpose of thus styling the complaint" or information was to enable certain street railroad companies,—rivals in business of the defendant company,— to employ the process and functions of the court in aid of the selfish and private ends of such companies. We need not pause to determine whether such a question may be determined in an incidental or interlocutory way and upon mere ex parte affidavits of affiants whom the adverse party had no opportunity of cross-examining, for the reason we think it appears, from the record, proof other than affidavits was produced, and that the parties voluntarily submitted the question to the court to be decided upon the facts and circumstances developed upon the hearing of the motion. We find from the record the parties, on the hearing of the motion, joined in laying before the court affidavits pro et con, and in rebuttal printed reports of the proceedings of the city council of the city of Chicago, and a printed copy of a message of the majror of the city, and copies of other documents and photographs of still other documents, and finally voluntarily agreed the judge before whom the motion was pending should visit and inspect Plymouth place, Custom House place and Dearborn street, from Polk street to Twenty-second street, and the property abutting thereon. In pursuance of this agreement the trial judge did view and examine such places, street and property. The purpose to be attained by a personal inspection on the part of the judge was to bring in for consideration, in passing upon the motion, such facts as should thus come to the knowledge of the court. We expressly ruled in Culbertson & Blair Provision Co. v. City of Chicago, 111 Ill. 651, that where, by mutual consent of the parties, the jury were allowed to view the premises, such facts as they learned by so viewing the property, bearing upon the issue involved, were proper for consideration in arriving at a verdict. The chancellor in the case at bar understood, and was, we think, warranted in coming to the conclusion, that the parties had submitted the motion to dismiss the bill to him for final decision upon the facts and circumstances brought to his knowledge by the various means employed for that purpose. Acting upon such well-justified belief, the court considered and determined the motion, and, adjudging the ground to be well sustained, dismissed the bill. If the name of the People as complainant in the bill or information was being used for the collusive purpose of concealing the true instigators of the litigation, and to enable them to falsely and unlawfully invoke and employ the powers and functions of the court, it is undeniable it was the province and duty of the court to strike the cause from'the'docket. Whether, then, this information was filed for the protection of the public or said other corporations is the material question here, and from an examination of this record we concur in the opinion of the learned chancellor who heard this case, where he holds, in substance: “In the case at bar, where the proceedings are brought in the name of the Attorney General, and while, presumptively, the rights of the People are involved, the facts and circumstances have impressed this court with the conviction that the real parties in interest and the real parties who would suffer by the building of the road in question are not the People of the State of Illinois, but two rival corporations doing a similar business in the same sections of the city, whose interests would be imperiled by the building of this road. * * * The Western Indiana Railroad Company and its lessees do all the immense freight and passenger business of this road and of several lessee roads in the city of Chicago, between Polk street and Fourteenth street. Between these streets Plymouth court and Custom House place are practically in the possession and under the control of these roads, and the amount of business done is so enormous that the use of either of these streets by a street railway would undoubtedly inconvenience the Chicago and Western Indiana Railroad Company and all of its lessees. The occupation of these streets by a street railway between Polk and Fourteenth streets would make the transaction of the business of these roads much more difficult than at present. It is not to be wondered at that this road should retain counsel, as Mr. Hamline admits it has, to assist the Attorney General in this case. Almost the whole of the street railway traffic of the south side of the city of Chicago is at present conducted by the Chicago City Railway Company. With the exception of Michigan avenue, every street of any length running north and south, leading from the suburbs to the heart of the city, excepting the streets proposed to be occupied by the General Electric Railway Company, are now occupied by the street railways of the Chicago City Railway Company. Every passenger living in the south division of the city of Chicago and desiring to come to the heart of the city upon a street railway must take one of the cars of this company. If the new road be opened up, as contemplated in the ordinance in question, it will compel the Chicago City Railway Company- to divide its passenger traffic with the new road. Thus the interests of the said City Railway Company are seriously imperiled. It is not to be wondered at, then, that this record discloses, by numerous affidavits, that the Chicago City Railway Company has procured revocations, purchased or otherwise, from property owners living along the line of the proposed road. Nor is it to be wondered at that able and eminent counsel has appeared in this court to assist the Attorney General, who meets with silence the charge made in open court that he is being paid for his professional services by this company. Without doubt the interests of both the Chicago City Railwa;r Company and the Chicago and Western Indiana Railroad Company ■and its lessee roads, some of whom carry on a suburban passenger service, would be imperiled by the building of the General Electric Bail way Company. During the long arguments before this court it was not made to appear to the court that any other property owner or citizen, save and except these companies, would suffer any injury from the building of this road. These considerations have been forced upon the court during the arguments, and that they are proper to be taken into account is shown by the language of other courts in passing upon like cases.” From the evidence in this record we cannot escape the conclusion that the inception of this information, its progress in the court below and what has been done here are in the interest of these rival companies. This information does not appear to have been.filed to preserve a public right or benefit. It is, if sustained, preventive of a healthy competition in the interest of the people resident in that part, of the territory of Chicago where the road is proposed to be constructed. It is to the advantage only of the corporations, which the chancellor found were the only parties in interest aiding in this proceeding. The complaint made on this information is not for the public welfare. No public good is here involved. No public policy is subserved by the filing of this information, if it rests alone on the complaint of two rival corporations, which we are constrained to find, from the evidence in this record, it alone rests upon. From the entire record and proceedings we are of opinion the chancellor who heard this case properly dismissed the information. The decree is affirmed. Decree affirmed. Mr. Justice Cartwright, dissenting.