Chicago & A. Ry. Co. v. City of Carlinville

• Decision Date: 16 December 1902
• Citation: 65 N.E. 730,200 Ill. 314
• Parties: CHICAGO & A. RY. CO. v. CITY OF CARLINVILLE.
• Court: Illinois Supreme Court

200 Ill. 314

65 N.E. 730

CHICAGO & A. RY. CO.

v.CITY OF CARLINVILLE.

Supreme Court of Illinois.

Dec. 16, 1902.

Appeal from appellate court, Third district.

Action to recover a penalty by the city of Carlinville against the Chicago & Alton Railway Company. From a judgment of the appellate court affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.

Patton & Patton (William Brown, of counsel), for appellant.

William H. Steward, City Atty., and A. J. Duggan, for appellee.

HAND, J.

This was a suit brought by the appellee against the appellant before a police magistrate to recover a penalty for a violation of the following ordinance of the city of Carlinville: ‘Sec. 261. No railroad company, or conductor, engineer or other employé of such company managing or controlling any locomotive engine, car or train upon any railroad track, shall run, or permit to be run, within the limits of said city, any passenger train or car at a greater rate of speed than ten miles per hour, nor any freight train or car at a greater rate of speed than six miles per hour, under a penalty, in either case, of not exceeding $25 for each offense.’ A trial was had, and judgment was rendered against the appellant, from which it appealed to the circuit court, where a jury was waived, and a trial had before the court, which resulted in a judgment against the appellant for $5 and costs, which judgment has been affirmed by the appellate court for the Third district, and a further appeal has been prosecuted to this court.

The appellant objected to the introduction of said ordinance in evidence on two grounds: First, that said ordinance was unreasonable, and therefore void; second, that said ordinance is an unreasonable restriction upon interstate commerce, and an unnecessary hindrance to the speedy carrying of the United States mail, and in conflict with the constitution of the United States. The court overruled said objections, and admitted the ordinance in evidence, to which ruling of the court the appellant excepted, and has assigned the same as error in this court. The objections will be disposed of in the order in which they were made and are here presented.

The city of Carlinville is located upon the main line of the appellant's railroad, and is about midway between the cities of Spring-field and East St. Louis. It has a population of about 3,600, and is the county seat of Macoupin county. The tracks of appellant run through the incorporated limits of the city from the northeast towards the southwest for about one mile and a quarter. The principal part of the city is located on the east side of its tracks, which cross four streets within the city, two of which are among the principal thoroughfares of the city. The city has the usual residences, stores, shops, and public buildings common to a county seat of its size, and a coal shaft, grain elevator, and pickle factory are located within the city near the main line of appellant, which obstruct, to a considerable extent, the view of its tracks and approaching trains. The Alton Limited is a fast train, which was equipped for the accommodation of through passengers between the cities of Chicago and St. Louis. It makes but few stops, and runs in competition with similar trains operated between said points by the Illinois Central and Wabash Railroads, which very nearly parallel its route. The distance between Chicago and St. Louis by appellant's line is about 280 miles, about 65 miles of which is within incorporated cities, towns, and villages in the state of Illinois. The distance between said cities by the other railroads referred to is about the same as that over appellant's line, but the Illinois Central and Wabash Railroads have a less amount of track within the limits of incorporated cities, towns, and villages. The Alton Limited schedule time between Chicago and St. Louis is 7 3/4 hours. It carries the United States mail, and runs to make connection with railroad lines from the east and northwest entering and leaving Chicago, and from the west and southwest entering and leaving St. Louis, carrying through passengers and the United States mail. It was admitted that the Alton Limited had been run by the appellant within the incorporated limits of the city of Carlinville at from 50 to 60 miles per hour, and at a prohibited rate of speed, and in violation of said ordinance, if said ordinance was valid, and binding upon it. The city of Carlinville is organized under the general law providing for the incorporation of cities and villages, and passed the ordinance in question under and by virtue of the power conferred upon it by that act, subject to the limitation imposed by the act in regard to fencing and operating railroads. [200 Ill. 319]Paragraph 21 of section 1 of article 5 of the general incorporation act (Hurd's Rev. St. 1899, p. 275) provides that cities shall have the right ‘to regulate the speed of * * * cars and locomotives within the limits of the corporation,’ and section 24 of the act in regard to fencing and operating railroads (Hurd's Rev. St. 1899, p. 1332) provides ‘that no such ordinance shall limit the rate of speed, in case of passenger trains to less than ten miles per hour, nor in any other case to less than six miles per hour.’ Subject to the limitation that no ordinance shall be passed which limits the speed of a passenger train to less than 10 miles per hour, and in any other cases to less than 6 miles per hour, the matter of regulating the speed of trains within incorporated cities and villages is left entirely to the municipal authorities. City of Lake View v. Tate, 130 Ill. 247, 22 N. E. 791. That cities and villages have the power, by ordinance, to regulate the speed of trains within their corporate limits, is recognized by the courts of this country, so far as we have been able to discover, without exception, provided such regulation is reasonable. Railway Co. v. Deacon, 63 Ill. 91; Railroad Co. v. Haggerty, 67 Ill. 113;Meyers v. Railroad Co., 57 Iowa, 555, 10 N. W. 896,42 Am. Rep. 50;Crowley v. Railway Co., 65 Iowa, 658, 20 N. W. 467,22 N. W. 918;Whitson v. City of Franklin, 34 Ind. 392;Railway Co. v. Harrington, 131 Ind. 426, 30 N. E. 37;Weyl v. Railway Co., 40 Minn. 350, 42 N. W. 24. In Railway Co. v. Deacon, supra, on page 93, 63 Ill., it is said: ‘Though the legislature has granted franchises to railway corporations, and authorized thorized them to procure the right of way and operate their trains by the power of steam, yet they have not unlimited descretion in the regulation of the speed of trains. They cannot act recklessly, and in disregard of the safety and rights of others. The state has reserved to itself the power to enact all police laws necessary and proper to secure and protect the life and property of the citizen. Prominent amongst the rights reserved, and which must inhere in the state, is the power to regulate the approaches to and the crossing of public highways and the passage through cities and villages, where life and property are constantly in imminent danger by the rapid and fearful speed of railway trains. The exercise of their franchises by corporations must yield to the public exigencies and the safety of the community.’ In Railroad Co. v. Haggerty, supra, an objection was made to the admission in evidence of an ordinance of the town of Camp Point prohibiting the running of trains within the town at a greater rate of speed than six miles per hour. On page 115, 67 Ill., the court say: ‘It is contended that the ordinance is null and void because the town had no authority to pass such an ordinance, and because the company was expressly authorized by law to fix and regulate the rate of speed of trains upon its road. There is no grant of power to this town, in express terms, to regulate the rate of speed of railway trains passing through the town, but by its charter (Priv. Laws 1857, pp. 540, 541) the board of trustees of the town have the power to declare what shall be considered as nuisances, and to prevent and remove the same, and to regulate the police of the town, and to make such ordinances as the good of the inhabitants of the town may require. Under these powers we think the town possessed the authority so to order the use of private property within its limits as to prevent its proving dangerous to the safety of the persons and property of citizens; and we view the ordinance in question as but a police regulation for the preservation of the safety of persons and property, the adoption of which was no more than a fair exercise of the police power vested in the town.’

The books and reported cases seem to agree that courts may declare void an ordinance passed by a city or village by virtue of its implied powers, if, in the opinionof the court, it is unreasonable; but when the ordinance is passed by express authority conferred upon the municipality by the legislature, such power is not so clear, and there is conflict of authority upon that proposition. Burg v. Railway Co., 90 Iowa, 106, 57 N. W. 680,48 Am. St. Rep. 419. The rule adopted in this state is that, where the ordinance is passed in pursuance of power expressly conferred by the legislature, and the details of such municipal legislation are prescribed by the legislature, an ordinance passed in pursuance of such power cannot be held invalid by the courts as being unreasonable; but when the details of such legislation are not prescribed, an ordinance passed in pursuance of such power must be a reasonable exercise thereof, or it will be pronounced invalid. City of Lake View v. Tate, supra; Hawes v. City of Chicago, 158 Ill. 653, 42 N. E. 373,30 L. R. A. 225;Wice v. Railway Co., 193 Ill. 351, 61 N. E. 1084,56 L. R. A. 268. It is said in the Tate Case, on page 252, 130 Ill., and on page 793, 22 N. E.: ‘Where the power to legislate on a given subject is conferred, and the mode of its exercise is not prescribed, then the ordinance passed in pursuance...