City of Chicago v. Chicago & N. W. Ry. Co., 33316

• Decision Date: 18 November 1954
• Docket Number: No. 33316,33316
• Parties: The CITY OF CHICAGO, Appellant, v. CHICAGO AND NORTH WESTERN RAILWAY COMPANY, Appellee.
• Court: Illinois Supreme Court

Page 553

122 N.E.2d 553

4 Ill.2d 307

The CITY OF CHICAGO, Appellant, v. CHICAGO AND NORTH WESTERN RAILWAY COMPANY, Appellee.

No. 33316.

Supreme Court of Illinois.

Nov. 18, 1954.

John J. Mortimer, Corp. Counsel, Chicago (Robert J. Nolan, Walter V. Lesak, and Brian M. Kilgallon, Chicago, Ill., of counsel), for appellant.

Drennan J. Slater, Edward Warden, and Jordan Jay Hillman, Chicago, for appellee.

DAILY, Justice.

This is an appeal by the city of Chicago from a judgment of the circuit court of Cook County entered in favor of the Chicago and North Western Railway Company, the defendant in an action brought by the city for a declaratory judgment enforcing a contract the parties had entered into on December 31, 1906.

The pertinent facts show that prior to 1884, North Halsted Street, at a point immediately south of the Chicago River, extended across railroad tracks at grade. In that year a viaduct for street traffic was constructed over the tracks, its northern terminal abutting the city's bridge by which Halsted Street passed over the river. It is not clear who bore the expense of constructing the viaduct but defendant, in its brief filed here, says that it did so. In 1906, the city enacted an ordinance authorizing defendant to build a passenger station and, by its terms, vacated certain properties and granted rights of way for which defendant paid in excess of 155,000, and assumed other obligations. During the same year, on December 31, the city and defendant entered into a contract, for the further consideration of $1.00, which made the following provision relative to the viaduct previously described: 'Whenever a new bridge is constructed at Grand Avenue, Erie Street or North Halsted Street and the viaducts, now existing over the tracks of said railway company at the approaches of said bridges, or any of them, shall become insufficient and unsafe to accommodate the needs of the public, then said railway company shall remove said viaduct and construct a new one of sufficient width to accommodate the public and according to plans approved by the Commissioner of Public Works of said City, and the entire cost and expense of such removal and construction shall be borne by said railway company.'

In 1913 the legislature of this State enacted a Public Utilities Act which became effective January 1, 1914, (Laws of 1913, pp. 459-502,) vesting general supervision over all public utilities, including railroads, in the Public Utilities Commission which, by the act of 1921, became the Illinois Commerce Commission. (Laws of 1921, pp. 702-754.) The third paragraph of section 58 of the act (Ill.Rev.Stat.1953, chap. 111 2/3, par. 62,) makes this provision: 'The Commission shall also have power by its order to require the reconstruction, alteration, relocation or improvement of any crossing (including the necessary highway approaches thereto) of any railroad across any highway or public road, whether such crossing be at grade or by overhead structure or by subway, whenever the Commission finds after a hearing that such reconstruction, alteration, relocation or improvement is necessary to preserve or promote the safety of the public or of the employees or passengers of such railroad. By its original order or supplemental orders in such case, the commission may direct such reconstruction, alteration, relocation or improvement to be made in such manner and upon such terms and conditions as may be reasonable and necessary and may apportion the cost of such reconstruction, alteration, relocation or improvement between the railroad company or companies and other public utilities affected, or between such company or companies and other public utilities and the State, county, municipality, or other public authority in interest. The cost to be so apportioned shall include the cost of changes or alterations in the equipment of other public utilities affected as well as the cost of the relocation, diversion or establishment of any public highway, made necessary by such reconstruction, alteration, relocation or improvement of said crossing.'

At this time, many years after the execution of the contract and the enactment of the statute, the city is engaged in a program of improvements, necessitated by the increase of vehicular traffic, which include the construction of a new and larger bridge by the city at the Halsted Street river crossing. The new bridge will be sixty-six feet wide, will have a roadway of forty-six feet and, when completed, the roadway elevation will be six feet, three inches, above the point where the old bridge presently joins the viaduct. In contrast, the viaduct is but forty-nine feet wide overall with a roadway of twenty-eight feet and, in addition, is of a type which has steel girders projecting along and above the length of its surface. The city's plans call for a widening of the viaduct, increasing its elevation, and eliminating the protruding girders. It was to this end, therefore, that the city sought a declaratory judgment to enforce the contract of December 30, 1906, and place the cost and expense of reconstructing the viaduct on the defendant railway.

Defendant filed a motion to dismiss the complaint maintaining, as it has consistently done, that the contractual provisions have been superseded and rendered null and void by the provisions of the Public Utilities Act and that exclusive and plenary jurisdiction over the subject matter, including the apportionment of costs of the reconstruction, is vested in the Commerce Commission. The motion was denied however, and in support of his ruling the hearing judge rendered an opinion which, in substance, was that the city could enforce the contract because it was not the legislative intent to grant the Commerce Commission the power to relieve utilities of obligations existing and entered into before the creation of the Commission, and which, as here, were not originated under the city's police power but under an agreement in which defendant obtained great benefits for itself; that defendant in pleading the exclusive jurisdiction of the Commission over the subject matter is seeking not to avoid the building of the viaduct but to avoid paying for it; and that to allow defendant's theory to prevail would result in the abridgement of the obligation of contract.

When the final pleadings were made the trial court was of the opinion that issues of fact were involved and, accordingly, the following interrogatories were submitted to a jury; '(1) Is the present viaduct the one existing on December 31, 1906? (2) Is the viaduct insufficient and unsafe to accommodate the needs of the public?' The jury answered 'Yes' to the first and 'No' to the second. Based upon these replies the court entered a judgment denying the city's petition for a declaratory judgment and included therein an order stating the contract was not enforcible by virtue of the legal effects of the subsequently enacted Public Utilities Act, and that exclusive and plenary jurisdiction over the subject matter is in the Illinois Commerce Commission.

In appealing to this court, the city urges that section 58 of the Public Utilities Act, (Ill.Rev.Stat.,1953, chap. 111 2/3, par. 62,) as applied in the judgment of the trial court, invalidly impairs the obligations of a contract in violation of both State and Federal constitutions; that the contract in question does not limit the police powers of the Commission, and that exclusive jurisdiction to apportion costs does not lie with the Commission, where, prior to the creation of the Commission there existed a valid contract which in no way limits the police power, and which fixes only the responsibility for cost.

Although the city draws many distinctions and advances numerous arguments to the contrary, we find that City of Chicago v. Illinois Commerce Comm. ex rel. Chicago and Western Indiana Railroad Co., 356 Ill. 501, 190 N.E. 896, is decisive and controlling as to the main issues presently raised. In that case, which we shall hereafter refer to as the Ninety-fifth Street case, the city enacted a track elevation ordinance in the year 1911, requiring certain railroads to elevate their tracks and to build subways under the tracks at the sole expense of the railway companies, the purpose being to eliminate crossings at grade. The companies filed an acceptance of the ordinance within the requred time. After the Public Utilities Act was passed, the city commenced a proceeding before the Commerce Commission charging that public convenience and necessity required a subway under one railroad's tracks at Ninety-fifth Street near Stony Island Avenue. In accordance with the terms of the ordinance, the city sought to compel the railroad to construct the subway at the latter's sole expense. The Commission found that public safety and convenience necessitated the grade separation and entered an order apportioning the cost of the subway between the railroad and the city. The circuit court of Cook County affirmed the order and, on appeal to this court, we held, with two justices dissenting, that the effect of the Public Utilities Act was to make the power to apportion the expense of eliminating a grade crossing inseparable from the power to determine its necessity and manner of accomplishment, and that...