The Toledo v. the City of Jacksonville.

• Decision Date: 31 January 1873
• Citation: 67 Ill. 37,16 Am.Rep. 611,1873 WL 8121
• Parties: THE TOLEDO, WABASH AND WESTERN RAILWAY CO.v.THE CITY OF JACKSONVILLE.
• Court: Illinois Supreme Court

67 Ill. 37

1873 WL 8121 (Ill.)

16 Am.Rep. 611

THE TOLEDO, WABASH AND WESTERN RAILWAY CO.

v.THE CITY OF JACKSONVILLE.

Supreme Court of Illinois.

January Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Morgan county; the Hon. CHARLES D. HODGES, Judge, presiding.

This was a suit brought by the city of Jacksonville against the Toledo, Wabash and Western Railway Company, before a justice of the peace, to recover a penalty for a violation of the ordinance of the city referred to in the opinion of the court. The cause was taken to the circuit court by appeal, where a trial was had before the court, without a jury. The court found the defendant guilty, and rendered judgment in favor of the plaintiff for $50. The defendant appealed.

Mr. WILLIAM H. BARNES, for the appellant.

Mr. EDWARD DUNN, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This action was brought to recover a penalty for a failure to comply with an ordinance of the city which required the railroad company to keep a flagman by day and a red lantern by night at the point where its track crosses the street or State road just west of the bridge known as “rock bridge.”

It is stipulated that the company did not keep a flagman at the crossing indicated; that it is within the bounds of the city; that it is an important crossing, and much used; that it has been so used by the railroad and the inhabitants for the last twenty-five years, and that, by resolution of the city council, the company is not required, at this point, to run its trains at a rate of speed not greater than eight miles per hour, as required by general ordinance.

The charter of the city contains the usual grants of power to pass such ordinances as may be deemed necessary for the good government of the city, to control streets and alleys, to declare what shall be deemed a nuisance and abate the same, and to control the laying of railroad tracks in the streets and alleys. It contains no express grant of power to pass the ordinance in question. The right to do so is claimed under the police power of the municipality.

Waiving the question of the power of the city to pass the ordinance without being expressly authorized by the general assembly, we shall treat the case as though the city had the right, by the grants in its charter, to exercise all the power in the regulation of its domestic affairs that the State could do for the general welfare of the people. There can be no question that railway corporations are subject to police regulations as well as private citizens. The general assembly, when the public exigencies require it, has power to regulate corporations in their franchises so as to provide for the public safety. The exercise of this right in no manner interferes with or impairs the powers conferred by their acts of incorporation. The G. and C. U. R. R. Co. v. Loomis, 13 Ill. 548; Thorpe v. Rutland and Burlington R. R. 27 Ver. 140.

Under this power, it has been held that the legislature may require railroad corporations, notwithstanding no such right has been reserved in the charters, to fence their tracks, to put in cattle guards, to place upon their engines a bell, and to do many other things for the protection of life and property. This power is inherent in the State, and it can not part irrevocably with its control over that which is for the health, safety and welfare of society.

But such regulations must be what they purport to be, police regulations, and must be reasonable when applied to corporations or individuals. What are reasonable regulations, and what are subjects of police powers, must necessarily be judicial questions. The law-making power is the sole judge when the necessity...