Chicago N.S.&M.R. Co. v. City of Chicago

• Decision Date: 23 October 1928
• Docket Number: No. 18488.,18488.
• Citation: 163 N.E. 141,331 Ill. 360
• Court: Illinois Supreme Court
• Parties: CHICAGO N. S. & M. R. CO. v. CITY OF CHICAGO et al.

331 Ill. 360

163 N.E. 141

CHICAGO N. S. & M. R. CO.

v.CITY OF CHICAGO et al.

No. 18488.

Supreme Court of Illinois.

June 23, 1928.

As Modified on Denial of Rehearing, Oct. 23, 1928.

Suit for injunction by the Chicago North Shore & Milwaukee Railroad Company against the City of Chicago and others, in which the city filed a cross-bill. The Superior Court entered a decree granting in part and denying in part the relief prayed for by the parties named, and the railroad appealed to the Supreme Court; the trial court having granted a certificate of public interest.

Reversed and remanded, with directions.Appeal from Superior Court, Cook County; Denis E. Sullivan, judge.

Ralph R. Bradley, Patrick J. Lucey, and Addison L. Gardner, all of Chicago (Gilbert E. Porter, of Chicago, of counsel), for appellant.

Samuel A. Ettelson, Corporation Counsel, Bernard P. Barasa, Simon Herr, and John G. Drennan, all of Chicago, for appellees.

STONE, J.

Appellant filed a bill in the superior court of Cook county seeking to enjoin the city of Chicago and various of its officers from interfering with appellant's use of the elevated railroad tracks of the Chicago Rapid Transit Company for merchandise dispatch and passenger traffic. The city filed a cross-bill seeking to enjoin appellant from operating its merchandise dispatch trains and passenger trains over the tracks of the transit company. The decree of the superior court granted the prayer of the original bill so far as it related to the traffic of appellant over the elevated tracks from the north boundary of the city of Chicago at Howard street south to Irving Park boulevard, on what is known in the record as the Evanston Division of the Chicago, Milwaukee & St. Paul Railroad. The decree denied the injunction sought in the original bill as it relates to the tracks of the elevated railroad extending from Irving Park boulevard south through and around what is known as the Loop Division and thence south to Sixty-Third street and Dorchester avenue, and granted the injunction prayed in the city's cross-bill as to those tracks. Appellant brings the cause here for review, the trial court certifying that the validity of an ordinance is involved and that the public interest requires that the appeal be taken to this court. The city has not appealed from that portion of the decree granting the prayer of the original bill as to the elevated tracks from Irving Park boulevard north to the city limits.

The question involved in the case is whether appellant has a right to operate its passenger and merchandise dispatch trains over the elevated railroad from Irving Park boulevard south. Appellant contends that this right was given to it or its predecessors by the Public Utilities Commission, later the Commerce Commission, by certain orders enteredMay 28, 1919, and November 2, 1921, in which the commission found that public convenience and necessity required the approval of certain operating agreements between appellant's predecessor and the predecessors of the Chicago Rapid Transit Company, by which agreements the former was permitted to run its electric trains carrying passengers and merchandise dispatch service or package freight over the elevated railroads. The city contends that these orders of the commission are void and of no effect, and that the elevated railroad companies had no right or authority to enter into such an operating agreement with appellant without consent of the city and of certain property owners owning the fee in the streets in a portion of what is known as the Loop Elevated Railway Division and the South Side Elevated; that by the terms of the ordinances by which the city permitted the construction of the elevated railroads, traffic thereon was to be confined to passenger traffic; that this was true also of certain frontage consents given by owners of abutting property in the district referred to. The city also claims that such operating agreements create an additional burden on the streets. As we understand the contention of the city, it is not that the elevated railroad companies which are now merged in the Chicago Rapid Transit Company do not have the right to use the streets, but that appellant has no such right and cannot obtain that right by an agreement with the elevated railroad companies without the consent of the city.

It will be necessary, in order to understand the situation of the parties, to state as briefly as possible the somewhat complicated history of the origin of these utilities.

Appellant, the Chicago North Shore & Milwaukee Railroad Company, herein referred to as the North Shore Company, is the successor to the Chicago North Shore & Milwaukee Railroad, herein designated appellant's predecessor. Appellant owns and operates an interstate commercial electric railroad organized under the Railroad Act. It extends from Linden avenue, in the village of Wilmette, Ill., to the city of Milwaukee, Wis., and has also certain branch lines not here involved. At Linden avenue, in Wilmette, it connects with the tracks of the Evanston Division of the Chicago, Milwaukee & St. Paul Railway Company, known herein as the St. Paul Company. This latter company is an interstate steam railroad corporation organized under the laws of Wisconsin. One of its lines, known as the Evanston Division, extends from Irving Park boulevard, in the northern part of the city of Chicago, north to Linden avenue, in the village of Wilmette. In 1907 it was by ordinance of the city of Chicago required to electrifythat part of its road in the city. By this ordinance it was permitted to operate its Evanston Division line in connection with the Northwestern Elevated Company, one of the elevated railroads later merged into the Chicago Rapid Transit Company, and an incline was constructed between the two roads. During that year the St. Paul Company and the Northwestern Elevated entered into an agreement for the joint operation of that portion of its tracks known as the Evanston Division. Certain other agreements were made between these railroads which are not material here, since the city is not contesting the right of appellant to operate in the city of Chicago from the northern limits south to Irving Park boulevard.

In July, 1910, the city of Chicago passed an ordinance requiring the St. Paul Company to elevate the tracks of the Evanston Division lying in the city of Chicago. On May 7, 1919, the St. Paul Company, with appellant's predecessor and the Northwestern Elevated Company, filed with the Public Utilities Commission a petition seeking the approval of a lease dated March 31, 1919, from the St. Paul Company to appellant's predecessor, of that portion of the former's tracks extending north from Irving Park boulevard and to assent to an operating agreement between appellant's predecessor and the Northwestern Elevated Company for a joint operation by those companies of the Evanston Division of the St. Paul Company. Certain other agreements not material to this case were also involved. The commission on May 28, 1919, entered the order hereinafter mentioned. It found that the city of Chicago had been notified of the hearing and appeared by its attorneys and offered no objection, but stated that on investigation of the lease it could find nothing objectionable to the interests of the public or the city in the terms and provisions thereof and consented to and approved the execution of the lease and operating agreements. The order of the Public Utilities Commission approved this lease and these agreements, and as they have been likewise approved by the decree of the superior court in this case, and the city is not here objecting to the decree or to the jurisdiction of the Public Utilities Commission to enter the order, no further consideration need be given to that branch of the case.

The Northwestern Elevated Railroad Company, the South Side Elevated Railroad Company, the Lake Street Elevated Railroad Company, the Oak Park Elevated Railroad Company, the Metropolitan West Side Elevated Railway Company, the Union Elevated Railroad Company, and the Union Consolidated Elevated Railroad Company were all railroad organizations organized under the Railroad Incorporation Act of this state. Each constructed a part of the elevated railroad system extending south from Irving Park boulevard to and around the Loop and on south to and on Sixty-Third street and other extensions, both south and west, which are not necessary to the consideration of this case. In 1924 parts of them were consolidated into the Chicago Rapid Transit Company, also a railroad organized under the Railroad Incorporation Act, and other portions were purchased by that road, so that for the purposes of this case the elevated railroad structure over which appellant seeks to continue its passenger and merchandise dispatch freight traffic is merged into the Chicago Rapid Transit Company.

In 1921 appellant filed a petition with the Commerce Commission seeking its consent and approval of an intercorporate operating agreement with the various elevated railroads, providing for an extension of through passenger and merchandise dispatch service by appellant over the elevated railroad structures south from Irving Park boulevard to and around the Loop and south to Sixty-Third street, by which agreement the passenger service was to be extended to Sixty-Third street and Dorchester avenue and the merchandise dispatch service to Sixty-Third street and Calumet avenue. After a hearing before the commission, at which hearing the city of Chicago was represented by counsel, the Commerce Commission entered an order finding that there is a public demand for the immediate operation by appellant of cars for the carriage of merchandise dispatch service over the elevated railroad structures through the Loop to Sixty-Third street and Calumet avenue, and that there is a demand for an extension of through passenger service by appellant over the elevated line...