81 Ill. 523 (Ill. 1876), Central City Horse Railway Co. v. Fort Clark Horse Railway Co.

• Citation: 81 Ill. 523
• Opinion Judge: Mr. Justice Breese.
• Party Name: THE CENTRAL CITY HORSE RAILWAY COMPANY, etc. v. THE FORT CLARK HORSE RAILWAY COMPANY
• Attorney: Mr. H. B. HOPKINS, Mr. L. HARMON, and Mr. J. HOUGH, for the appellant. Mr. D. MCCULLOCH, and Mr. H. W. WELLS, for the appellee.
• Case Date: January 01, 1876
• Court: Supreme Court of Illinois

Page 523

81 Ill. 523 (Ill. 1876)

THE CENTRAL CITY HORSE RAILWAY COMPANY, etc.

v.

THE FORT CLARK HORSE RAILWAY COMPANY

Supreme Court of Illinois, Central Grand Division

January 1, 1876

APPEAL from the Circuit Court of Peoria county; the Hon. THOMAS F. TIPTON, Judge, presiding.

Decree reversed.

Mr. H. B. HOPKINS, Mr. L. HARMON, and Mr. J. HOUGH, for the appellant.

Mr. D. MCCULLOCH, and Mr. H. W. WELLS, for the appellee.

OPINION

Mr. Justice Breese.

The General Assembly of this State, on February 21, 1867, passed an act entitled "An act to provide for the construction of horse railways in the city of Peoria," by which the corporators therein named were authorized and empowered to construct and maintain horse railroads along such streets in the city of Peoria as the city council might authorize.

The city council, on October 6, 1869, adopted an ordinance authorizing complainants to construct and maintain horse railways along certain streets named therein, of which Adams street was one, the whole length thereof. Complainants duly organized as a corporation under the act of 1867, and built

Page 524

and equipped a horse railway along Adams street, and commenced operating the same for near three miles, in December, 1870, at a cost of eighty thousand dollars. It was the first railway of the kind constructed in that city, and when the enterprise was inaugurated it was understood to be of doubtful result to the proprietors, in a financial view, and can only produce productive results by centering it, in its entirety, under the exclusive supervision of one authority and head.

In July, 1872, certain individuals became an incorporation under the general law, under the corporate name of the "Fort Clark Horse Railway Company." Articles of association were duly executed and filed in the office of the Secretary of State, and the usual license by that functionary, to commissioners named therein, to open books for subscription to its capital stock.

In May, 1873, the report of the commissioners, filed in the office of the Secretary of State, showed the entire stock had been subscribed. The corporation was duly organized May 17, 1873, whereupon, the Secretary of State issued a certificate of incorporation.

Before the organization of this company had been perfected, and on August 6, 1872, the city council of Peoria passed an ordinance, conferring upon a railroad company, with the name of defendants' company, authority to construct and maintain a horse railway over certain streets in the city, within certain limits, some eight different streets, of which Adams street was not one.

In August, 1874, complainant company, having completed their road four years previously, and then in the profitable enjoyment of their franchise, producing some equivalent for their great outlay, were met by an application of this last constructed corporation to the city council...