City of Chicago v. O'Connell

• Decision Date: 07 June 1917
• Docket Number: No. 11068.,11068.
• Citation: 116 N.E. 210,278 Ill. 591
• Parties: CITY OF CHICAGO et al. v. O'CONNELL et al.
• Court: Illinois Supreme Court

278 Ill. 591

116 N.E. 210

CITY OF CHICAGO et al.

v.O'CONNELL et al.

No. 11068.

Supreme Court of Illinois.

April 19, 1917.

Rehearing Denied June 7, 1917.

Appeal from Circuit Court, Cook County; Thomas Taylor, Jr., Judge.

Suit by the City of Chicago and others against William L. O'Connell and others. From adverse decree, the named defendant and others appeal. Reversed and remanded, with directions.

Carter, J., dissenting.

P. J. Lucey, Atty. Gen., William B. Scholfield, of Marshall, and Timothy F. Mullen and Everett Jennings, both of Chicago, for appellants.

Samuel A. Ettelson, Corp. Counsel, Chester E. Cleveland, Ralph G. Crandall, W. W. Gurley, Horace Kent Tenney, Harry P. Weber, and George W. Miller, all of Chicago, for appellees.

COOKE, J.

On October 18, 1915, the city of Chicago filed a bill for injunction in the circuit court of Cook county seeking to restrain the State Public Utilities Commission and the members thereof from enforcing a certain order made by the Commission on September 29, 1915, relating to the equipment and operation of street cars in the city of Chicago. The order complained of required the Chicago Surface Lines, the Chicago City Railway Company, and the Chicago Railways Company to operate street cars upon their lines at intervals to be determined by mothods prescribed in the order, according to the relative seating capacity of cars passing a given point during certain periods fixed by the order and the aggregate number of passengers carried on said cars during such periods; to provide ‘turn-back’ or ‘loop-back’ service in the territory outside the loop district sufficient to comply with the service standard prescribed by the order; to prepare and submit to the Commission, within 60 days, a comprehensive plan for the re-routing of cars in order to secure maximum track capacity; to proceed at once to acquire the equipment necessary to carry out the provisions of the order; to install within 60 days and use such trailers as may be necessary during the rushhour period to comply with the service standard prescribed by the order; to make application within 30 days to the proper municipal authorities of the city of Chicago for necessary permits and authority, and to the property owners for the necessary frontage consents authorizing and empowering the railway companies to make such track changes as may be required to enable them to comply with the provisions of the order; to display on all cars separate route and destination signs on the front and a route sign on the side; and to hereafter submit to the Commission the plans for all new passenger cars and for the remodeling of all old passenger cars for approval of the width of passageways, height of steps, type, and location of seats, platform arrangements, and such other details as affect the adequacy of service as the Commission may, from time to time, require. The Commission retained jurisdiction of the cause for the purpose of making any necessary modification of the order and such suplemental orders as it should deem proper and just.

The bill alleges that the city of Chicago was organized as a municipal corporation more than 70 years ago under a special charter, and was subsequently, on May 3, 1875, organized under the City and Village Act of 1872 (Hurd's Rev. St. 1915-16, c. 24); that the Chicago City Railway Company was organized as a corporation under certain special acts of the Legislature, and the Chicago Railways Company, the Calumet & South Chicago Railway Company, and the Southern Street Railway Company were organized under the general Incorporation Act of this state. The bill then alleges that the city of Chicago, on February 11, 1907, passed two certain ordinances, which were approved by the voters of the city at an election held April 2, 1907, and which are commonly referred to as the ‘settlement ordinances'-one authorizing the Chicago City Railway Company to construct, maintain, and operate a system of street railways in the city of Chicago, and the other authorizing the Chicago Railways Company to construct, maintain, and operate a system of street railways in the city of Chicago, upon the terms and conditions therein prescribed-and alleges that the settlement ordinances were thereafter accepted by the Chicago City Railway Company and the Chicago Railways Company, and that the latter company thereafter, on February 25, 1908, acquired title to the street railway properties theretofore known as the Chicago Union Traction System; that thereafter, on March 30, 1908, the city council passed an ordinance authorizing the Calumet & South Chicago Railway Company to construct, maintain, and operate a system of street railways in the city of Chicago upon substantially the same terms and conditions as were contained in the settlement ordinances, and that this ordinance was accepted by the Calumet & South Chicago Railway Company on June 1, 1908; that thereafter, on March 15, 1909, the city council passed an ordinance authorizing the Southern Street Railway Company to construct, maintain, and operate a system of street railways in the city of Chicago upon substantially the same terms as contained in the settlement ordinances, which ordinance was accepted by the Southern Street Railway Company. The bill alleges that the settlement ordinances and the two subsequent ordinances above mentioned together embodied a plan for the comprehensive rehabilitation, construction, reconstruction, equipment, re-equipment, and extension of the street railway systems in the city, for the establishment of through routes, the exchange of transfers, the purchase of the surface lines by the city at some future time, the rates of fare to be charged, and the division of the net earnings of the railways between the city and the companies, and for the creation of a permanent expert supervising board. The bill further alleges that on November 13, 1913, the city council passed an ordinance authorizing and requiring unified operation of the surface street railways in the city of Chicago, which ordinance is commonly referred to as the ‘unification ordinance’; that the four companies above mentionedaccepted this ordinance, and in compliance therewith entered into an operating agreement in the form prescribed by the unification ordinance.

The bill alleges that the ordinances above mentioned constitute valid and binding contracts between the city of Chicago and the respective street railway companies, and charges that the order of the Commission, and the Public Utilities Act (Hurd's Rev. St. 1915-16, c. 111a) in so far as it purports to confer upon the State Public Utilities Commission power and authority to make such order, impair the obligation of such contracts and deprive the city of property without due process of law, take the city's private property without compensation, deny the city the equal protection of the laws, and deprive the city of the jurisdiction and control conferred upon it by the Constitution over the street railways within the city, contrary to and in violation of sections 2, 5, 13, 14, and 19 of article 2 and section 4, art. 11 of the state Constitution, and of section 10 of article 1 and the Fourteenth Amendment of the Constitution of the United States, and that the order is ultra vires because the Public Utilities Act, properly construed, does not deprive the city of the power, authority, and control vested in it by the Constitution and statutes of the state over its streets and over the construction and operation of street railways therein.

The Chicago City Railway Company, the Chicago Railways Company, the Calumet & South Chicago Railway Company, and the Southern Street Railway Company, defendants, after answering the bill, filed a cross-bill, seeking the same relief as that sought by the original bill. The cross-bill is substantially the same as the original bill, except it sets out in detail a history of the development of the present system of street railways in the city of Chicago. The additional matters contained in the cross-bill, as well as the provisions of the settlement ordinances and the unification ordinance, are fully set forth in the opinions filed in Chicago Union Traction Co. v. City of Chicago, 199 Ill. 484, 65 N. E. 451,59 L. R. A. 631;Venner v. Chicago City Railway Co., 236 Ill. 349, 86 N. E. 266;Venner v. Chicago City Railway Co., 258 Ill. 523, 101 N. E. 949;People v. Chicago Railways Co., 270 Ill. 87, 110 N. E. 386;People v. City of Chicago, 270 Ill. 188, 110 N. E. 366; and People v. Chicago Railways Co., 270 Ill. 278, 110 N. E. 394. It is therefore unnecessary to set them out in detail in this opinion. It will here suffice to briefly mention certain provisions of the settlement ordinances and the unification ordinance.

The settlement ordinances granted to the street railway companies permission and authority to construct, reconstruct, maintain, and operate a system of street railways upon and along certain streets in the city of Chicago for a period of 20 years, subject to the terms, provisions, and conditions of the ordinances, and in consideration thereof the street railway companies surrendered and released all rights in the streets of the city other than those granted by the settlement ordinances. The settlement ordinances created a board of supervising engineers, to consist of three members-one to be appointed by the city and one by the street railway companies, and the third member was designated by name in the ordinances-and provided that all construction, reconstruction, equipment, re-equipment, extensions, and additions should be done, made, and acquired under the direction and supervision of the board of supervising engineers and that all contracts and payments therefor should be made only upon the written approval of said board; that the cars to be thereafter acquired by the railway companies should be of the number, character, and equipment specified in the settlement ordinances, and of a...