City of Chicago v. Pittsburgh, C., C. & St. L. Ry. Co.

• Decision Date: 07 April 1910
• Citation: 91 N.E. 422,244 Ill. 220
• Court: Illinois Supreme Court
• Parties: CITY OF CHICAGO v. PITTSBURGH, C., C. & ST. L. RY. CO.

244 Ill. 220

91 N.E. 422

CITY OF CHICAGO

v.PITTSBURGH, C., C. & ST. L. RY. CO.

Supreme Court of Illinois.

Feb. 16, 1910.

Rehearing Denied April 7, 1910.

Appeal from Circuit Court, Cook County; Jesse A. Baldwin, Judge.

Action by the City of Chicago against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals directly to the Supreme Court. Reversed and remanded.Loesch, Scofield & Loesch, for appellant.

Edward J. Brundage, Corp. Counsel, Charles M. Haft, Oscar H. Olsen, and James F. Burns, for appellee.

CARTWRIGHT, J.

The circuit court of Cook county entered a judgment in this case in favor of the city of Chicago, the appellee, against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, the appellant, for $4,700 and costs, and the trial judge certified that the suit involved the validity of an ordinance of the city of Chicago, and in his opinion the public interest was such that the appeal from the judgment should go directly to this court.

The judgment was for moneys paid by the plaintiff to property owners as damages to their lots on account of the construction of viaducts over the tracks of the defendant at Western and Ashland avenues, and the facts are as follows: On April 1, 1872, the city of Chicago, by ordinance, granted to the Columbus, Chicago & Indiana Central Railway Company and its successors the right to lay railroad tracks in certain streets on condition that the railway company should erect and maintain viaducts over its tracks at Halsted, Sangamon, Lake, and Madison streets within one year, and annually thereafter erect two viaducts over its tracks at such street crossings as the board of public works might, on or before the 1st day of January, designate, and should indemnify and save harmless the city from all damages, judgments, decrees, costs, and expenses which the city might suffer or might be recovered against it by reason of the grant. The railway companylaid its tracks and complied with the terms of the ordinance by erecting the viaducts named in the ordinance and also constructing the viaducts in question over the tracks at Western and Ashland avenues, as directed by the city. The Chicago, St. Louis & Pittsburgh Railroad Company succeeded the Columbus, Chicago & Indiana Central Railway Company and was in turn succeeded by the defendant. Certain lot owners instituted suits against the city for damages to their lots occasioned by the viaducts at Western and Ashland avenues. The railroad company was not a party to the proceedings, and was not notified of their pendency, and judgments were recovered against the city. On August 28, 1890, the city brought two suits against the Chicago, St. Louis & Pittsburgh Railroad Company, then using the tracks, for the amounts of judgments aggregating $4,700, recovered against the city by such lot owners. Declarations were filed on November 7, 1890, and pleas were filed on March 3, 1891, but nothing further was done with the suits for about 19 years. On February 11, 1901, the city council passed an ordinance for the elevation of the tracks of the defendant, and the Chicago & Northwestern Railway Company, the Chicago, Milwaukee & St. Paul Railway Company, and the Metropolitan West Side Elevated Railroad Company, and the ordinance was approved by the mayor on the same day. It proposed an elevation of the defendant's tracks from the north line of Fulton street northerly and easterly to the west line of Northwestern avenue, thence easterly to a point near Ada street, and provided for the removal of the viaducts at Western and Ashland avenues by the defendant at its own expense. It provided for the vacation of portions of streets on which the elevation was to be constructed, and required the defendant, in lieu thereof, to lay out and dedicate a street 33 feet in width from Jackson boulevard to Monroe street, and a street not less than 24 feet wide from the south line of West Harrison street to the north line of Harvard street, and to improve the same with six-foot cement sidewalk, curbstone, and vitrified brick pavement upon a cement foundation, and to remove the gas pipes, water pipes, lamp posts, sewer pipes and other underground improvements from the parts of the street vacated. The railway company was to remove a stone wall described in the ordinance so as to leave a public alley seventeen feet in width and improve the same, and waive its rights under the ordinance of April 1, 1872, to maintain its tracks at grade, subject to the terms and conditions of said ordinance. In consideration of the removal of the viaducts and the other things to be done by the railway company and the waiver of its rights under the ordinance of April 1, 1872, the city agreed to release, and thereby did release and discharge, the defendant from all damages and claims for damages which then existed or might thereafter be asserted against it, and from any and all judgments which had been or might thereafter be recovered against it or the city, arising from or growing out of the construction of the viaducts across the tracks of the defendant. The work required of the defendant was to be done at its own expense, under the superintendence and subject to the inspection and approval of the commissioner of public works, and at least ten days before the commencement of any part of the work the plans and specifications were to be submitted to the commissioner for his examination. The ordinance provided that it should be null and void unless accepted by the railroad companies within 90 days, and that it should be in force and effect from and after its passage, approval, and publication. The ordinance was accepted, the defendant removed the Western and Ashland avenue viaducts, the commissioner of public works approved the plans and specifications, and the tracks were elevated by the defendant and the streets and alley laid out, dedicated to the public and improved. The defendant expended $840,000 doing the work required of it by the ordinance. The ordinance was published in the council proceedings of February 11, 1901, in book form, but was not otherwise published. In 1909 the two suits brought by the city in 1890 were consolidated and brought to trial by the city. A jury having been waived, there was a trial before the court, and the judgment appealed from was rendered.

The agreement created by the ordinance and its acceptance and full performance thereof by the defendant having been proved, it was entitled to judgment if the city was bound by its agreement, and the claim of the city, which was sustained by the trial court, was that it was not so bound, but could repudiate its obligation and recover under the original ordinance of April 1, 1872. It is argued in support of that claim that the agreement and release were without consideration and therefore void, because the defendant was already bound to elevate its tracks by virtue of a provision in the ordinance of 1872 that the privileges granted should be subject to all general ordinances then or thereafter in force concerning railroads in the city, and because the city could compel elevation under its general police powers. It is clear that the provision of the ordinance of 1872 that the defendant should be subject to general ordinances concerning railroads had no relation to the subject of elevation of the tracks. That subject was not within the language used, and the ordinance made specific provision for securing the safety of the public by viaducts over the tracks which were to be laid in the streets. It is equally clear that the defendant had not become bound to elevate its tracks merely because the city had power to compel the elevation if it should see fit to exercise the power. If the defendant had become legally bound to elevate its tracks when an ordinance should be passed requiring elevation, it was not so bound until an ordinance was passed, and when this ordinance was passed it was not legally bound to elevate them except in accordance with the terms and conditions of the ordinance. The ordinance also specified things to be done by the defendant which the city could not have compelled under the police power or any other power which it possessed, and the argument that there was no consideration for the agreement is baseless.

Another proposition is based on the doctrine that the city had no authority to contract away or abrogate its police power, but could at any time make such police regulations as might be necessary for the safety of the persons and property of the public. It is therefore contended that the city could at any time have required the defendant to remove the viaducts and elevate its tracks without any condition, leaving it still liable for the damages occasioned by the viaducts, and that the agreement to release such damages was illegal and void. Railroad corporations are subject to police regulations in the interest of the public safety and welfare, and power has been given to cities to do certain specific things in the exercise of that power and a general authority to pass and enforce all necessary police ordinances, and to pass all ordinances, rules, and make all regulations proper or necessary to carry into effect the powers granted to them. But the Legislature cannot, under the guise of police regulations, arbitrarily invade personal rights or private property. There must be some obvious and real connection between the actual provisions of police measures and their assumed purpose. Counsel also lose sight of the rule of law that where power to legislate on a given subject is conferred on a municipal corporation, and the details of the legislation are not prescribed by the Legislature, it is implied that the power will be reasonably exercised. Assuming that the elevation of railroad tracks comes within the general police power with which cities are invested, the power is given in general terms, and an ordinance...