Chicago Dock & Canal Co. v. Garrity

• Decision Date: 14 November 1885
• Court: Illinois Supreme Court
• Parties: CHICAGO DOCK & CANAL CO. v. GARRITY and others.

115 Ill. 155

3 N.E. 448

CHICAGO DOCK & CANAL CO.

v.GARRITY and others.

Supreme Court of Illinois.

Filed November 14, 1885.

Error to appellate court, First district.

W. C. Goudy

and W. A. Montgomery, for plaintiff in error.

M. A. Roke & Son, for defendants in error.

SCHOLFIELD, J.

1. The first question discussed in the arguments on behalf of the respective parties relates to the mode of exercising the power by the city council to pass an ordinance authorizing the location of railway tracks in the streets of the city of Chicago. Both sides agree that the city council has power to that end, but they disagree as to the statute by which it is conferred, and, as a consequence, as to the limitations under which it can be exercised. The city of Chicago was organized under the general law in relation to the incorporation of cities, etc., at the time of the passage of the ordinance in controversy here; and plaintiffs in error contend that the ninth and twenty-fifth clauses of section 1 of article 5 of that law (1 Starr & Curtis 465) confer the power, and that it is subject only to the limitations contained in clause ninetieth of the same section; and in section 13 of article 3 of the same law, while the defendants in error contend that the power is conferred by the ninth clause of section 1 of article 5 of the amendment to the charter of the city of Chicago of March 9, 1867, (1 Private Laws 1867, p. 771,) and subject to the limitations contained in that section, as well as to those contained in the ninetieth clause of section 1 of article 5 of the general incorporation law. It is provided by section 6 of article 1 of the general incorporation law that ‘* * * from the time of such organization, or change of organization, the provisions of this act shall be applicable to such cities and villages, and all laws in conflict therewith shall no longer be applicable; but all laws, or parts of laws, not inconsistent with the provisions of this act shall continue in force and applicable to any such city or village the same as if such change of organization had not taken place,’-and it therefore becomes necessary to inquire whether the ninth clause of section 1 of article 5 of the amended charter of 1867 is inconsistent with the provisions of the general law. That clause provides that the city council shall have power--

‘To authorize the use of the streets and alleys in said city by railroad companies, or city railway companies, for the purpose of laying tracks and running cars thereon; provided, however, permission or authority shall not be given, nor shall any such grant or permission already given be extended, unless by vote at least of three-fourths of all the aldermen elected, such votes to be entered by ayes and noes on the records of the council: and provided, further, that no grant, consent, contract, or permission heretofore given or made, or hereafter to be made or given, shall, in any case, be extended until within one year of the expiration of such grant, consent, contract, or permission: and provided, further, that in case of a veto by the mayor, any such grant or permission shall receive the votes of three-fourths of all the aldermen elected, to take effect as an act or law of the corporation.’

The ninth clause of section 1 of article 5 of the general incorporation law confers power upon the city council to regulate the use of streets, and the twenty-fifth clause of the same section confers power upon the common council in these words: ‘To provide for and change the location, grade, and crossings of any railroad.’ Eliminating all the words not pertinent to the provisions in question it reads: ‘To provide for * * * the location * * * of any railroad.’

In Moses v. Pittsburgh, Ft. W. & C. R. Co., 21 Ill. 522, and Murphy v. City of Chicago, 29 Ill. 279, the charter vested the common council with the exclusive control and regulation of the streets of the city, and with power to ‘direct and control the location of railroad tracks.’ See Pub. Laws, 2d Session 1849-51: ‘Act to reduce the law incorporating the city of Chicago, and the several acts amendatory thereto, into one act,’ etc., (pages 145, 146, cls. 30, 39, § 4, c. 4;) and it was held that this conferred power upon the common council to authorize the location of the railway tracks in the streets. Following that ruling, it must be held there was like power conferred by the ninth and twenty-fifth clauses of section 1 of article 5 of the general incorporation law. The power to regulate the use of the streets, although not so expressly declared, is, in the latter act, as exclusive as in the former; and the word ‘regulate,’ as used in the latter act, embraces everything included within the meaning of ‘control and regulation’ in the former. ‘Control’ is a necessary incident of ‘regulation,’ and it is implied in the latter act as clearly as it is expressed in the former. So, also, ‘to provide for the location of any railroad,’ is clearly as comprehensive as ‘to direct and control the location of railroad tracks.’ ‘To provide for’ implies, of necessity, power to ‘direct and control;’ for the location can only be in conformity with the mode provided for, i. e., in subordination to the direction and control prescribed by the ordinance. But, in our opinion, this power is subject to the limitation imposed by the ninetieth clause of section 1 of article 5, which declares ‘the city council or board of trustees shall have no power to grant the use of or the right to lay down any railroad tracks in any street of the city to any steam or horse railroad company, except upon a petition of the owners of the land representing more than one-half of the frontage of the street, or so much thereof as is sought to be used for railroad purposes.’ It is very chear that ‘natural persons' are here within the intention, although not within the letter, of the act; for the injury against which protection is intended to be afforded is the laying of the railway tracks in the streets. By whom the tracks shall be laid and the cars thereon operated is manifestly of no consequence whatever. The same result in all respects will follow the laying of railway tracks in the streets, and operating cars thereon by individuals, as will follow the laying of them by corporations. The use of the word ‘company,’ we have no doubt, was simply because such tracks are almost always laid and operated by companies. The clause should be read as including both corporations and individuals. Perry Co. v. Jefferson Co., 94 Ill. 214;St. Louis & J. & C. R. Co. v. Trustees, 43 Ill. 303.

This, it will be observed, is not a grant of power, but a limitation upon a power assumed to be granted by some other provisions of the same statute; for this statute professes to be a complete city charter in and of itself, without reference to other statutes. And, since no one claims that any other than the ninth and twenty-fifth clauses can be construed to be a grant of power to lay tracks in the street for steam railways, the reasonable inference is that the legislature intended the ninetieth clause as a limitation upon the power granted in those clauses. Assuming, then, that the common council are vested with this power, subject to this limitation, section 13 of article 3 of the same statute directs in what manner that body shall exercise it. It provides that ‘the yeas and nays shall be taken upon the passage of all ordinances, and on all propositions to create any liability against the city, or for the expenditure or appropriation of its money, and in all other cases at the request of any member, which shall be entered on the journal of its proceedings; and the concurrence of a majority of all the members elected in the city council shall be necessary to the passage of any such ordinance or proposition: provided, it shall require two-thirds of all the aldermen elect to sell any city or school property.’ This proviso adds force to the comprehensiveness of the general language in the first part of the section, and conclusively shows that it was not intended that the concurrence of more than a majority of the members elected to the city council should be indispensable to the passage of an ordinance in relation to any other subject than that of selling any city or school property. The maxim expressio unius est exclusion alterius is applicable. Broom, in his work on Legal Maxims, under this head says: ‘A statute, it has been said, is to be so construed, if possible, as to give sense and meaning to every part; and the maxim was never more applicable than when applied to the interpretation of a statute.’ 4th Ed. 419, 420, *512.

Here, then, we have upon the same subject inconsistent requirements. Under the amendment of the city charter of 1867 permission or authority to lay tracks in the street shall not be granted by the city council unless by a vote of at least three-fourths of all the aldermen elected. Under the general incorporation law such permission or authority may be granted by a vote of a majority of all the members elected in the city council. It cannot be said that the provisions of the general law are supplementary to the amendment of 1867, in that that amendment is supplementary to the general law; for no exception in its favor is made in the general law, and that law assumes to provide a system the details of which are complete. To illustrate: The amendment of 1867 has no application, in any view, to any other city than Chicago. The general law applies to every city in the state organized under it. In every city not previously organized under a special charter, and in every city previsously organized under a special charter not containing provisions authorizing the laying of railway tracks in the streets, either there is a denial of power to lay railway tracks in the streets, or...