Illinois Central Railroad v. St. Louis & Northeastern Railway Co.

Mr. Presiding Justice Puterbaugh delivered the opinion of the court. The principal and controlling question presented by this record for determination is as to the proper construction and effect of section 209 of chapter 114 of the statute entitled “An act in relation to the crossing of one railroad by another and to prevent danger to life and property from grade crossings,” which reads as follows: “That hereafter any railroad company desiring to cross with its tracks the main line of another railroad company, shall construct the crossing at such place and in such manner as will not necessarily impede or endanger the travel or transportation upon the railway so crossed. If in any case objection be made to the place or mode of crossing proposed by the company desiring the same, either party may apply to the Board of Bailroad and Warehouse Commissioners and it shall be their duty to view the ground and give all-parties interested an opportunity to be heard. After full investigation, and with due regard to safety of life and property, said board shall give a decision prescribing the place where and the manner in which said crossing shall be made, but in all cases the compensation to be paid for property actually required for the crossing, and all damages resulting therefrom, shall be determined in the manner provided by law in case the parties fail to agree.” (Rev. Stat. 1903, Page 1479.) It is insisted by appellant that under said act, where objection to such crossing is made, a railroad company organized under the general railroad act of this State has no right to cross with its railroad track the main track of another railroad at a particular point selected by the company desiring to cross, unless the Railroad and Warehouse Oommission approves the place and manner of the proposed crossing. Appellee, on the contrary, contends that the jurisdiction of the Railroad and Warehouse Commission can only he invoked where the proposed crossing is made in violation of the provisions of such act; that inasmuch as the record shows that the crossing in controversy is constructed “at such place and in such manner as will not necessarily impede or endanger the travel and transportation upon the railway so crossed” the intervention of the Warehouse Commission cannot be invoked. We do not so construe the act in question. Appellee having been organized as a railroad corporation under chapter 114 of the statutes, is subject to all the provisions of the same, and is burdened with the same obligations, restrictions and limitations as other railroad corporations organized under such act, without regard to what motive power is or may be employed in the operation of its trains. Goddard v. Ry. Co., 104 Ill. App., 526; Malott v. Ry Co., 108 Fed. Rep., 313. The clear purpose of the act, when its title, language, the existing circumstances and contemporaneous conditions, the evil sought to be remedied, its necessity and the general objects sought to be attained are considered, is to require that crossings of this character shall be made at such places and in such manner as will not unnecessarily impede or endanger travel or transportation upon the railroad crossed, and that when the question whether or not a crossing is made or proposed to be made, complies with the statute in this regard, is raised by objection, such question is relegated to the Railroad and Warehouse Commission for its final decision and is not one of fact to be determined by the courts. We construe the statute as meaning and intending, not that the commission shall indicate a particular place and no other at which the crossing shall be made, but that they shall have discretionary power only to prevent its being made at any place or in such manner as will unnecessarily impede or endanger travel on the existing line. That while, where objection is made, the commission may determine whether or not a particular crossing desired will be or is dangerous, in case of an adverse decision, the company seeking to cross still has the right to select another place or manner of crossing which, in case of the consent of the municipality and further objection, must in turn be approved by the commission. In other words, the power conferred upon the commission is in its nature that of veto merely. If this construction be reasonable and warranted, the exclusive power of the municipality over the streets within its corporate limits is not interfered with by the act. Its power to control the location of a railroad and to,protect property and persons against injury still remains, no positive power being conferred upon the commission to permit a crossing to be made contrary to the will of the municipal authorities. Bor is the constitutional requirement that the consent of the local authorities of a municipality must first be obtained before the general assembly shall grant the right to construct a street railroad therein, to any extent thereby impinged upon. True it is that the commission may in their discretion, prevent any crossing whatever to be made, within the limits of a municipality, and if such interdictive authority can be said to abridge the exclusive jurisdiction of a city over its streets, conferred by the Cities, Villages, and Towns Act, section 209 must be held, impliedly to repeal or modify such part of such former act as is inconsistent therewith or repugnant thereto. Furthermore, we think that such section may be upheld as an exercise of the inherent power of the State to enact all police laws necessary and proper to secure and protect the life and property of the general public, including not only those who may be resident of a particular municipality, but all who travel upon, or entrust their property to the. custody of railroads. To this extent the local police power of municipalities is clearly subordinate to that of the State. In Malott v. Ry. Co., 108 Fed. Rep., 313, appellee, an electric railroad company organized under the general railroad act, sought to cross its track with that of a railroad of which appellant was receiver. It is there held that section 209, supra, must be construed as in pari materia 'with sections 18 and 20 of the act of March 1, 1872, which provided generally for the exercise of power of eminent domain by railroads, and as making a valid provision for the modification of procedure under such prior statute, so far as relates to the place and manner of constructing railroad crossings, in the interest of greater safety. It is insisted that if the foregoing construction be adopted, it will hereafter be practically impossible for electric railways to secure an entrance to any of our cities and villages, that such railway cannot acquire the right to use any street of a city or village for the reason that interested steam railroad companies can easily purchase the refusal of permits from property owners along a street and thereby prevent the use of the street by an electric railway, and that, if before any street can be used, the commissioners must locate the point of crossing for each railway to be crossed, and the electric railway must acquire the frontage signatures, it will mean that the existing monopolies will be preserved, and the public cannot have the transportation facilities demanded by it. In answer to such suggestion, it may be said that if the hypothesis suggested be reasonable,- and the powers granted the Railroad and Warehouse Commission are too broad and may be exercised in an arbitrary manner, relief should and must be sought from the General Assembly, and not in the courts. After the present appeal was perfected, appellee filed a motion in this court to dismiss the same for the reason that, as alleged, appellant, after .the entry of the order appealed from, interposed and urged in the Circuit Court a motion to dissolve the injunction. Such motion must be overruled. Facts tending to show a release of errors cannot be considered on a motion to dismiss in the absence of a plea of release of errors. R. Co. v. Siegel, 161 Ill., 638; Crosby v. Kiest, 135 Ill., 458; Trustees v. Hihler, 85 Ill., 409. The foregoing views render a determination of the other questions raised and argued by appellant unnecessary. The interlocutory order granting the injunction will be reversed and the cause remanded to the City Court with directions-to dismiss the present bill for want of equity. Reversed and remanded with directions.