Chicago Motor Coach Co. v. City of Chicago

Decision Date17 December 1929
Docket NumberNo. 17454.,17454.
Citation337 Ill. 200,169 N.E. 22
PartiesCHICAGO MOTOR COACH CO. et al. v. CITY OF CHICAGO et al.
CourtIllinois Supreme Court

337 Ill. 200
169 N.E. 22

CHICAGO MOTOR COACH CO. et al.
v.
CITY OF CHICAGO et al.

No. 17454.

Supreme Court of Illinois.

June 19, 1929.
Rehearing Denied Dec. 17, 1929.


Suit by the Chicago Motor Coach Company and others against the City of Chicago and others. From an adverse decree, complainants appeal.

Reversed and remanded, with directions.

Stone and Heard, JJ., dissenting.

[169 N.E. 23]


[337 Ill. 201]Appeal from Circuit Court, Cook County; Hugo M. Friend, Judge.
Ryan, Condon & Livington, of Chicago (James G. Condon, Irvin I. Livingston, Charles Le Roy Brown, John J. Sharon, Lionel A. Mincer, Frank H. Scott, Leland K. Neeves, and David J. Greenberg, all of Chicago, of counsel), for appellants.

337 Ill. 202]Samuel A. Ettelson, Corp. Counsel, Francis X. Busch, and James J. Coughlin, all of Chicago (William J. Tuohy, C. Morton Doty, C. R. Larrabee, Leon Hornstein, Frederick A. Bangs, and James I. McCarthy, all of Chicago, of counsel), for appellees.
DUNN, J.

The circuit court of Cook county having sustained a demurrer to a bill for an injunction and dismissed the bill for want of equity, the complainants have appealed.

The Chicago Motor Coach Company and several of its employees, in behalf of themselves and all other persons similarly situated and with like rights, filed a bill in the circuit court of Cook county against the city of Chicago, its mayor and superintendent of police to restrain the enforcement of an ordinance of the city. The bill was twice amended, and, a demurrer to the second amended bill having been sustained, the court dismissed it for want of equity. The complainants have appealed directly to this court; the validity of a municipal ordinance being involved, and the judge having made the statutory certificate required for such appeal.

It appears from the bill that the Chicago Motor Coach Company is an Illinois corporation organized in 1913 under the name of Chicago Motor Bus Company, which was later changed to Chicago Motor Coach Company, to operate for public use, in the transportation of persons for compensation upon streets in the city of Chicago, omnibuses propelled

[169 N.E. 24

by gasoline, kerosene, or petrol power, or any other type of vehicle running on the ordinary surface of the ground and not on fixed rails, which may at any time be lawfully used, and to do a general omnibus business; that since its organization it has operated motorbusses upon certain streets in Chicago for the transportation of persons for hire; that before it began to operate motorbusses on the streets the state Public Utilities Commission, and afterward its successor, the Illinois Commerce Commission, on the application[337 Ill. 203]of the company issued to it certificates of public convenience and necessity for the operation of motorbusses over certain designated boulevards, including 19 streets which were named in the bill, and that in pursuance of its charter and such certificates of public necessity and convenience it has developed and established and is now maintaining and operating a comprehensive and extensive system of motorbus transportation of passengers for hire on the boulevards, parkways, and streets in the city of Chicago through the residential and business sections, extending from Devon avenue, in the north part of the city, to Ninety-Second street, in the south part, a distance of approximately 20 miles, and is daily operating its busses on fixed time schedules, on fixed routes, designated in the certificates of public convenience and necessity, which routes aggregate 47.6 miles in extent, of which approximately 41.6 miles are located in boulevards and parkways which are under the jurisdiction of the Lincoln Park Commissioners and the South Park Commissioners, and only approximately 6 miles along the 19 streets of the city of Chicago mentioned in the bill; that the routes connect, so as to comprise one system of transportation, and the corporation is now employing 287 motorbusses in the operation of such routes and systems, which are carrying on an average from 145,000 to 150,000 passengers daily; that on November 22, 1922, the city council of the city of Chicago enacted an ordinance by which all general ordinances of the city were revised and codified in the form of a comprehensive code known as the ‘Chicago Municipal Code of 1922,’ section 2761 of which declares it to be unlawful for any person, firm, or corporation to operate motorbusses as common carriers on any street in the city of Chicago without first having obtained a specific grant of authority to do so from the city council in the form of an ordinance designating the routes and fixing the terms and conditions under which such busses may be operated, and section 2762 provides a penalty for a violation[337 Ill. 204]of the ordinance; that on February 5, 1924, the city of Chicago notified the company that the use made of the streets mentioned in the bill by motorbusses of the company is unlawful in the absence of special franchise, license, or permission, and that unless within 10 days application was made to the city council for a franchise, license, or permission to operate its busses in the streets named, the city would proceed to arrest the drivers of the busses and prevent the unlawful operation of such busses on the streets. The bill averred that the attempt to enforce the sections of the ordinance mentioned would cause irreparable injury to it and damages which could not be adequately compensated, and prayed that the defendants be enjoined from enforcing sections 2761 and 2762 of the Chicago Municipal Code of 1922 and from interfering with the operation of the motorbusses upon the streets mentioned in the bill.

The question for decision is, Has the city the power to prohibit the operation on its streets of motorbusses, as common carriers of passengers, by a public utility which has obtained a certificate of public convenience and necessity for such operation from the Illinois Commerce Commission? The appellants deny this power; the appellees affirm it. The city of Chicago is organized under the general Cities and Villages Act. It has no inherent powers. It is thoroughly settled, and too well known to require the citation of any authority, that in this state cities are creatures of the Legislature and derive all their powers only from the statutes which the Legislature enacts. To authorize the exercise of any power by a city a statute must be shown expressly granting the power or making a grant in such terms as necessarily imply its existence. The absence of such grant excludes the power. Statutes granting powers to municipal corporations are strictly construed, and a reasonable doubt of the existence of the power must be resolved against it. The city, in exercising the power granted to it by the Legislature, acts as the agent of the state, and the Legislature [337 Ill. 205]may at any time change its agent and by another statute provide that the power previously exercised by the city shall be exercised by some other agency. There is no disagreement about these statements of the law. The appellants deny that the Legislature has ever authorized cities to prohibit the operation on their streets of motorbusses as common carriers of passengers, and aver that if it ever has done so the power has been withdrawn by the Public Utilities Act (Smith-Hurd Rev. St. 1927, c. 111 2/3, §§ 1-95).

The powers which may be exercised by cities organized under the Cities and Villages Act are enumerated in section 1 of article 5 of that act (paragraph 65 of chapter 24 of the Revised Statutes), as amended. This section consists of 101 clauses, many of which refer to powers to be exercised in regard to streets, alleys, and public grounds. The only two material to be considered here are clauses 7 and 9, which confer power: ‘Seventh-To lay out, to establish, open, alter, widen, extend, grade, pave or otherwise improve streets, alleys, avenues, sidewalks,

[169 N.E. 25]

wharves, parks and public grounds, and vacate the same, and for such purposes or uses to take real property or portions thereof belonging to said city or village and already devoted to a public use when such taking will not materially impair or interfere with the use already existing and is not detrimental to the public. * * * Ninth-To regulate the use of the same.’

Automotive vehicles are lawful means of conveyance and have equal rights upon the streets with horses and carriages. Christy v. Elliott, 216 Ill. 31, 74 N. E. 1035,1 L. R. A. (N. S.) 215, 108 Am. St. Rep. 196,3 Ann. Cas. 487;Ward v. Meredith, 220 Ill. 66, 77 N. E. 118;Indiana Springs Co. v. Brown, 165 Ind. 465, 74 N. E. 615,1 L. R. A. (N. S.) 238,6 Ann. Cas. 656;Shinkle v. McCullough, 116 Ky. 960, 77 S. W. 196,105 Am. St. Rep. 249. Many cases have been decided respecting the validity and construction of statutes and ordinances regulating their use upon public highways, and it has been uniformly held that the state, in the exercise of the police power, may regulate their speed and provide other reasonable rules and restrictions as to their use. [337 Ill. 206]Commonwealth v. Kingsbury, 199 Mass. 542, 85 N. E. 848, L. R. A. 1915E, 264,127 Am. St. Rep. 513; Christy v. Elliott, supra; State v. Swagerty, 203 Mo. 517, 102 S. W. 483,10 L. R. A. (N. S.) 601, 120 Am. St. Rep. 671,11 Ann. Cas. 725;State v. Mayo, 106 Me. 62, 75 A. 295,26 L. R. A. (N. S.) 502,20 Ann. Cas. 512. Driven by indifferent, careless, or incompetent operators these vehicles may be a menace to the safety of the traveling public, and it has been held that under its authority to regulate the use of the streets a city may enact ordinances which may diminish this danger, and for this purpose may regulate the speed of automobiles and repress their careless management. City of Chicago v. Kluever, 257 Ill. 317, 100 N. E. 917;People v. Schneider, 139 Mich. 673, 103 N. W. 172,69 L. R. A. 345,5 Ann. Cas. 790; Commonwealth v. Kingsbury, supra; Brazier v. Philadelphia, 215 Pa. 297, 64 A. 508,7...

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