City of Chicago v. Pennsylvania Co.

• Decision Date: 21 December 1911
• Citation: 96 N.E. 833,252 Ill. 185
• Parties: CITY OF CHICAGO v. PENNSYLVANIA CO.
• Court: Illinois Supreme Court

252 Ill. 185

96 N.E. 833

CITY OF CHICAGO

v.PENNSYLVANIA CO.

Supreme Court of Illinois.

Dec. 21, 1911.

Error to Municipal Court of Chicago; Sheridan E. Fry, Judge.

Action by the City of Chicago against the Pennsylvania Company. There was a judgment for plaintiff, and defendant brings error. Reversed.

Loesch, Scofield & Loesch, for plaintiff in error.

Edward J. Brundage, Corp. Counsel (Charles M. Haft, of counsel), for defendant in error.

COOKE, J.

The city of Chicago brought suit against the Pennsylvania Company in the municipal court to recover a penalty for failure to maintain lights in the subway over which the lines of said railroad cross Twenty-Second street, in the city of Chicago. The city based its right to recover on section 1997 of its Municipal Code of 1905, which is as follows: ‘1997. Lights at crossings.-Every person or corporation owning or operating any steam, elevated or street railway whose track or tracks cross or intersect at, above or below grade any of the streets within the city, shall, and they are hereby required to, provide at their own expense proper and sufficient lights, and care for the same, at all such crossings or intersections. Such lights shall be of such kind as may be approved by the commissioner of public works.’

Section 1998 provides for a fine of not less than $10 nor more than $100 for a failure to comply with the provisions of the preceding section. The city secured judgment in the municipal court, and a fine of $50 was assessed against the railroad company, and this writ of error has been sued out to review the record of the municipal court.

There is no dispute in regard to the facts. For many years prior to 1900 the plaintiff in error or its predecessors had operated a steam railroad on the surface of Stewart avenue, which runs north and south and across Twenty-Second street. This occupation of Stewart avenue prior to 1900 was authorized by various city ordinances which are not involved in this proceeding. On June 18, 1900, the city council of the defendant in error passed an ordinance requiring the plaintiff in error to elevate its tracks from Twenty-First street southwardly to Fifty-Third street. This ordinance provided for subways to be constructed by plaintiff in error in certain streets, among which was Twenty-Second street. The character of the subway provided for in Twenty-Second street was specified in the ordinance, and it has been constructed in accordance therewith and accepted by defendant in error. The distance from the surface of the roadway to the railroad structure above is 13.5 feet. The evidence shows that as a result of the overhead crossing the street beneath the same is somewhat darkened in the daytime and is rendered darker at night than it otherwise would be; that lights are required in the said subway to protect the public from the danger of collisions, and also from the danger of coming in contact with iron posts erected in the roadway to support the superstructure of the railroad; that after the completion of the elevation of its tracks in 1908 plaintiff in error maintained lights in said subway until January 15, 1909, when it ceased to light said subway and has since refused to do so. Plaintiff in error offered to prove that defendant in error appropriated a large sum of money annually for street lighting, and that plaintiff in error had paid the taxes assessed against it for such purposes. This evidence was excluded by the trial court.

Plaintiff in error contends that the track elevation ordinance of 1900, when accepted and complied with by it, became a contract, which cannot be changed without the consent of both parties, and that defendant in error cannot cast additional burdens upon it unless it be in the reasonable exercise of the police power; that even if the power to impose the burden of lighting the street intersections exists when it crosses a street at grade, it ceases when the railroad is elevated and the dangers of the grade crossing are eliminated; that defendant in error has no power, in the absence of a statutory provision, to pass an ordinance requiring railroad companies to light their tracks within the city; that the defendant in error having assumed the duty of lighting its streets, cannot relieve itself of such burden by an ordinance placing the burden upon the railroad company; that to place the burden of lighting this subway upon the railroad company is a taking of its property for public use without just compensation and is a denial to the company of the equal protection of the laws, in violation of both the state and federal Constitutions.

[1] If the city has the right to impose this duty upon plaintiff in error, it is only because of the general police power possessed by it. No express grant has been given by the state which authorizes it to require a railroad company to maintain lights at any particular place. There is, however, a general police power possessed by the city by which all persons, natural or artificial, may be subjected to such reasonable restrictions and requirements as are found to be proper and requisite to secure the health, comfort, and convenience of the people. City of Chicago v. Union Traction Co., 199 Ill. 259, 65 N. E. 243,59 L. R. A. 666. The general police power thus possessed by a city is a continuing power, and is one of which a city cannot divest itself, by contract or otherwise. It follows, therefore, that if the defendant in error has the right to impose this duty upon plaintiff in error as a valid exercise of its police power, the contention that the track elevation ordinance constitutes a contract which is violated by section 1997 of the...