Chicago, M. & St. P. Ry. Co. v. Lake Cnty.

• Decision Date: 02 April 1919
• Docket Number: No. 11902.,11902.
• Citation: 287 Ill. 337,122 N.E. 526
• Court: Illinois Supreme Court
• Parties: CHICAGO, M. & ST. P. RY. CO. v. LAKE COUNTY et al.

287 Ill. 337

122 N.E. 526

CHICAGO, M. & ST. P. RY. CO.

v.LAKE COUNTY et al.

No. 11902.

Supreme Court of Illinois.

Feb. 20, 1919.

Rehearing Denied April 2, 1919.

Appeal from Circuit Court, Sangamon County; E. S. Smith, Judge.

Proceeding before the Public Utilities Commission for alteration of grade crossing. On pertition of Ralph J. Dady, there was an order apportioning costs between the Chicago, Milwaukee & St. Paul Railway, the County of Lake, and the Town of Warren, and an order denying petition of the county and town for leave to intervene as parties defendant and oppose petition, which was reversed by the circuit court. From said circuit court's judgment, the Railway appeals. Judgment reversed, and orders affirmed.

S. D. Scholes, of Springfield, and O. W. Dynes, of Chicago (Burton Hanson, of Chicago, of counsel), for appellant.

Tenney, Harding & Sherman, of Chicago, for appellee Lake county.

E. M. Runyard, of Waukegan (George T. Rogers, of Chicago, of counsel), for appellee town of Warren.

FARMER, J.

Ralph J. Dady, describing himself as attorney at law and state's attorney of Lake county, Ill., filed his petition with the Public Utilities Commission of Illinois on October 22, 1914, reciting that the Chicago, Milwaukee & St. Paul Railway Company is a public utility subject to regulation by said commission, and that the public safety required the alteration of the grade crossing of said railway at Gurnee, Ill. The petition stated the highway at the point crossed by the railway was one of the most traveled roads in the county, and had been selected by the county as a state aid highway first to be improved. The petition stated the tracks were elevated at the point where they crossed said highway, that the approaches were steep, and that trees, shrubbery, and buildings shut off the view of the tracks from the highway. The defendant railway company answered the petition, denying the facts alleged in the petition called for or required the alteration of the grade crossing asked. November 10, 1914, a hearing was had, at which petitioner and the railway company were represented, and evidence was heard as to the condition of the crossing, etc. December 30, 1914, the commission addressed notices to the county clerk of Lake county and to the clerk of the board of highway commissioners of Warren township, in said county, stating that it appeared they were necessary parties to the pending proceeding, and notified them to appear at a hearing of said commission to be had January 14, 1915. At said hearing there were present the petitioner, the railway company by attorney, the clerk of the town of Warren, two highway commissioners of said town, and the county clerk of Lake county. At this hearing, upon the suggestion of the commission, the petitioner asked that time be given the county of Lake and the town of Warren to become and be made parties petitioner to the proceeding. The motion was allowed, and the hearing continued to March 15, 1915.

The board of supervisors of Lake county passed a resolution February 11, 1915, reciting the pending of the proceedings before the commission and the nature thereof, and authorizing the employment of an attorney to represent said county in said proceedings, and that he be instructed and authorized to use every means to prevent the construction of a subway at the railway crossing or the apportionment and assessment of any exorbitant apportionment of the cost upon Lake county. Pursuant to such resolution, James G. Welsh was employed by said county, and on March 16, 1915, he filed his appearance for said county, to which was attached a copy of the resolution of the board of supervisors of February 11, 1915, and asked the commission for 20 days' time in which to file objections of the county to the petition filed by Dady. Leave was granted as asked, and on April 6, 1915, the county of Lake filed its answer, stating that the public would be better protected and the public interest better served by the placing of gates at such crossing than by the building of a subway, and asking that the county of Lake and town of Warren be made parties defendant to the petition. April 22, 1915, the board of supervisors of Lake county passed a second resolution, reciting the pending of the proceeding before the commission, and stating it was the sense of the county board that said crossing was important and dangerous and should be altered by the construction of a subway, and authorizing their attorney, James G. Welsh, to enter the appearance of the county as a copetitioner and use all means to secure an alteration of said crossing by the construction of a subway, and to also keep as low as possible any assessment of costs which might be levied against said county for the construction of the improvement.

On December 21, 1915, a hearing was had before the commission, at which were present the petitioner, Dady, the railway company by counsel, the three highway commissioners of Warren township, the town clerk of said township, and the secretary of the state highway commissioners, who had been made a party. It does not appear the county of Lake was represented, but the commission stated that notice of said hearing was given the attorney representing Lake county November 23, 1915. Testimony was heard at this hearing on the proposed separation of grades. April 20, 1916, the commission entered its order for a separation of grades, and set a hearing for May 10, 1916, to consider the apportionment of costs for such change. At the hearing on May 10, 1916, the petitioner, the railway company, the county of Lake, and the town of Warren were all represented by counsel. The estimate of the cost of the improvement, based upon plans agreed upon, was $30,415. Evidence was heard as to the resources and assessed valuation of property both in the town of Warren and in the county of Lake. The proportion of the cost of the improvement the railway company, the town of Warren, and the county of Lake should bear was discussed, and the division of costs of like improvements or changes in grade between railway companies and different political subdivisions in 10 different states was introduced. On October 5, 1916, the commission entered an order finding the cost of the proposed work to be approximately $30,000, and charged the county with 15 per cent., the town with 25 per cent., and the railway company with 60 per cent. of such cost. Immediately after the entry of such order the county and town filed a petition for leave to interveneas parties defendant and oppose the petition of Dady, and objected to the proportion of the cost to be borne by them. April 17, 1917, the commission denied said petition, which was treated as a petition for a rehearing, and recited that by an error the order of October 5, 1916, charged the county with 15 per cent. and the town with 25 per cent. of the cost, whereas such order should have been that the county and town each pay 20 per cent. of the cost, and entered an order accordingly. The county and town filed a further petition for a rehearing upon the order of the commission denying their petition of April 17, 1917. This was denied by the commission. From such orders the county and town appealed to the circuit court of Sangamon county, where the orders of the commission were reversed. Appellant, the Chicago, Milwaukee & St. Paul Railway Company, has perfected an appeal to this court from the judgment of the circuit court.

There does not seem to us any merit in the contention of appellees that the orders were made without their being parties to the proceeding and without their having an adequate opportunity to be heard.

The crossing in question is in Gurnee, Ill., a small unincorporated village of about 200 population, a...