City of Chicago v. Illinois Commerce Comm'n ex rel. Chicago & W.I.R. Co.

• Decision Date: 13 June 1934
• Docket Number: No. 22145.,22145.
• Citation: 356 Ill. 501,190 N.E. 896
• Court: Illinois Supreme Court
• Parties: CITY OF CHICAGO v. ILLINOIS COMMERCE COMMISSION ex rel. CHICAGO & W. I. R. CO.

356 Ill. 501

190 N.E. 896

CITY OF CHICAGO

v.ILLINOIS COMMERCE COMMISSION ex rel. CHICAGO & W. I. R. CO.

No. 22145.

Supreme Court of Illinois.

May 17, 1934.

As Modified on Denial of Rehearing June 13, 1934.

The City of Chicago filed with the Illinois Commerce Commission petitions against the Chicago & Western Indiana Railroad Company and another to compel respondents to construct a subway. The Commerce Commission ordered the construction of the subway but apportioned the cost between petitioner and respondents, and on appeal the circuit court confirmed the order of the Commerce Commission, and the City of Chicago appeals.

Affirmed.

FARTHING and SHAW, JJ., dissenting.Appeal from Circuit Court, Cook County; M. H. Finneron, judge.

William H. Sexton, Corp. Counsel, of Chicago (Joseph F. Grossman, Frank J. Breen, and Thomas A. Murphy, all of Chicago, of counsel), for appellant.

J. R. Barse and Samuel Kassel, both of Chicago (John L. McInerney, of Chicago, of counsel), for appellee.

DE YOUNG, Justice.

The city of Chicago filed with the Illinois Commerce Commission a petition, an amended petition and a supplementary petition against the Chicago & Western Indiana Railroad Company and the New York, Chicago & St. Louis Railroad Company. By these petitions, the city charged that public convenience and necessity required the construction of a subway under the tracks of the respondents at Ninety-Fifth street, and sought the entry of an order to compel them to construct the improvement at their sole expense, in compliance with the provisions of certain ordinances theretofore passed by the city council. The Commerce Commission found that public safety and convenience required a separation of grades at the particular intersection, and entered an order for the construction of the subway in substantial conformity with the specifications submitted by the petitioner, and apportioned the cost and expense of the improvement between the petitioner and the respondents. The Commission retained jurisdiction of the cause for the purpose of entering such further orders as it might deem necessary and appropriate. The city filed a petition for a rehearing and the petition was denied. Upon appeal, the circuit court of Cook county confirmed the order of the Commerce Commission. The city of Chicago prosecutes this appeal from the order of the circuit court.

It is alleged in the petitions that on April 5, 1911, the city council passed an ordinance requiring the Chicago & Western Indiana Railroad Company, the New York, Chicago & St. Louis Railroad Company, and other railroad companies to make certain elevations of their respective tracks, and to build certain subways appurtenant thereto, including a subway at Ninety-Fifth street near Stony Island avenue under the tracks of the two railroads first named; that an amendatory ordinance passed on July 15, 1924, altered some of the specifications for the various improvements; that the two companies concerned in this proceeding filed acceptances of the ordinance of April 5, 1911, as amended; that the amended ordinance, to the extent that it requires the construction of subways by the railroad companies, is a contractual obligation, binding upon them, and that the commission should recognize the terms of the ordinance in apportioning the cost of constructing the required subways.

Ninety-Fifth street runs west through the city of Chicago from a point near Lake Michigan to Archer avenue in the county of Cook, a distance of nineteen miles. The street, towards its east end, traverses a district devoted to Industrial purposes, while that portion which extends west from the city limits is an improved state highway running through villages and rural territory. About two and one-half miles west of the eastern terminus of Ninety-Fifth street and a short distance west of Stony Island avenue, six tracks of the respondents cross the former street at grade. Upwards of sixty trains of the Chicago & Western Indiana Railroad Company and a lesser number of the New York, Chicago & St. Louis Railroad Company are operated over these tracks each day, and the number of vehicles which pass over the crossing daily exceeds five thousand. The railroad trains are required to reduce their speed and occasionally to stop before proceeding across the street intersection, and, in consequence, both the trains and the traffic on the street are delayed. The estimated cost of the proposed improvement is approximately $300,000.

The Commerce Commission found that one-half of the total cost of the subway should be borne by the city and the remaining half by the two railroad companies. The New York, Chicago & St. Louis Railroad Company had indicated its willingness to bear its proportion, based on the assumption that the two respondents defray the whole cost of the improvement as required by the ordinance, provided it could obtain a satisfactory adjustment respecting the construction of another subway under its tracks in 103d street. The order directed that the two companies determine the proportion which each should bear on this basis of their assumption together of the entire cost; that, from the reportion allotted to the New York, Chicago & St. Louis Railroad Company, however, there should be excluded any sum chargeable to right of way and adjacent property damage; that the remainder of the cost so charged to the Chicago & Western Indiana Railroad Company should be divided equally between the city and the company; and that the city also should bear that portion of the cost of right of way and adjacent property damage which otherwise would have been assumed by the New York, Chicago & St. Louis Railroad Company.

The appellant concedes that the Commerce Commission had jurisdiction to determine the necessity for the particular grade separation and to prescribe the specifications for the construction of the subway, but contends that, in dividing or apportioning the cost of the improvement, the commission transcended its powers. To support this contention, the appellant relies upon the ordinance of April 5, 1911, as amended by the ordinance of July 15, 1924, both of which were accepted by the Chicago & Western Indiana Railroad Company, the appellee, and the New York, Chicago & St. Louis Railroad Company. The appellant asserts that, by their acceptance of these ordinances, the two railroad companies became obligated, by binding and enforceable contracts, to bear the whole cost and expense of constructing the particular subway. To sustain the order of the commission, the appellee maintains that the apportionment of the cost of the grade separation is one of the Factors involved in the Commerce Commission's exercise of the police power of the state to regulate grade crossings in the interest of the public safety, and that, in so far as the commission's order concerning such cost and expense conflicts with the ordinances, the order supersedes and abrogates their provisions. The question thus presented is whether that part of the contested order which apportions the cost of eliminating the grade crossing impairs a contractual obligation between the appellant and the appellee in violation of constitutional inhibitions.

The Legislature, by the Public Utilities Act (Laws 1921, p. 702 as amended [Smith-Hurd Rev. St. 1933, c. 111 2/3, § 1 et seq.]), created the Illinois Commerce Commission and vested it with general supervision of all public utilities. The commission has the power to regulate their rates and services, to hold investigations, inquiries, and hearings, to make findings and to enter its orders thereon. Section 9 of the act (Smith-Hurd Rev. St. 1933, c. 111 2/3, § 9) requires compliance by public utilities with orders, decisions, or regulations made or prescribed by the commission and within its jurisdiction. By section 10 (Smith-Hurd Rev. St. 1933, c. 111 2/3, § 10), railroadsare included in the act. Section 58 (Smith-Hurd Rev. St. 1933, c. 111 2/3, § 62, Cahill's Rev. St. 1933, p. 2202, c. 111a, par. 77) provides that the commission shall have power, after a hearing, when in its opinion the public safety requires it, to alter or abolish any existing or future grade crossing, or to require a separation of the grades at such crossing, and to prescribe, after a hearing of the parties, the terms upon which such separation shall be made and the proportion in which the expense of the alteration or abolition of such crossing or the separation of such grades shall be divided between the railroad or street railroad companies affected, or between such companies and the state, county, municipality, or other public authority in interest.

The power to require railroads to elevate their tracks and to alter or abolish grade crossings, prior to January 1, 1914, when the original Public Utilities Act (Laws 1913, p. 459) became effective, resided in cities as a part of their police power. Murphy v. Chicago, Rock Island & Pacific Railway Co., 247 Ill. 614, 93 N. E. 381;People v. Grand Trunk Western Railway Co., 232 Ill. 292, 83 N. E. 839;Weage v. Chicago & Western Indiana Railroad Co., 227 Ill. 421, 81 N. E. 424,11 L. R. A. (N. S.) 589. The police power, however, does not inhere in municipal corporations, but is an attribute of sovereignty which belongs to and emanates from the state. City of Chicago v. O'Connell, 278 Ill. 591, 116 N. E. 210, 8 A. L. R. 916;City of Chicago v. M. & M. Hotel Co., 248 Ill. 264, 93 N. E. 753. This essential power of government may be withdrawn by the General Assembly from the agency which has been empowered to exercise it and may be retained or conferred upon some other governmental agency. Chicago, North Shore & Milwaukee Railroad v. City of Chicago, 331 Ill. 360, 163 N. E. 141; City of Chicago v. O'Connell, supra; City of Chicago v. M. & M. Hotel Co., supra. The General Assembly, in its discretion, withdrew from cities the regulatory powers formerly exercised by them over the separation of grades at...