East Side Levee & Sanitary Dist. v. East St. Louis & C. Ry.

• Decision Date: 21 June 1917
• Docket Number: No. 11386.,11386.
• Citation: 279 Ill. 123,116 N.E. 720
• Court: Illinois Supreme Court
• Parties: EAST SIDE LEVEE & SANITARY DIST. v. EAST ST. LOUIS & C. RY.

279 Ill. 123

116 N.E. 720

EAST SIDE LEVEE & SANITARY DIST.

v.EAST ST. LOUIS & C. RY.

No. 11386.

Supreme Court of Illinois.

June 21, 1917.

Appeal from St. Clair County Court; Joseph B. Messick, Judge.

Proceeding by the East Side Levee & Sanitary District against the East St. Louis & Carondelet Railway. From judgment for respondent, petitioner appeals. Reversed and remanded.

Thomas E. Gillespie, of East St. Louis (A. H. Baer and Schaefer & Kruger, all of Belleville, of counsel), for appellant.

T. M. Pierce and Kramer, Kramer & Campbell, of East St. Louis, for appellee.

CARTER, C. J.

This was a proceeding brought by the appellant sanitary district in the county court of St. Clair county to condemn certain property of the appellee railway in that county. The case was submitted to the trial court on a stipulation of facts, a jury being waived. Judgment was entered in favor of appellee in the sum of $78,910, and this appeal followed.

The petition for condemnation alleges the appellant district, by ordinance duly passed and in accordance with plans and specifications attached to said petition, contemplated the improvement of Prairie du Pont creek by the construction of a main channel from and connected with said creek at the easterly boundary line of the appellant district to a connection with what is known as the Cahokia chute of the Mississippi river, and also the construction along the northerly line of said channel of a levee; that in the construction of said improvement it was necessary to cross the right of way of the appellee railway with said channel and said levee; and asked that appellant be allowed to take a strip of ground across appellee's right of way 100 feet in width for the purpose of constructing and maintaining the water channel and that compensation be fixed for such taking. Appellee filed a cross-petition, which set forth that the improvement contemplated the construction of an artificial waterway across the right of way of appellee where there was not then, and never had been, any water course, and at a place where there were no embankments, except the railroad embankment and tracks of appellee; that the construction of this waterway would require the building of a railroad bridge across it; that the construction of the embankment would require appellee to raise its embankment and tracks and reballast the same; and that the construction of said bridge and raising of the embankment would require it to incur costs and expenses in detouring its trains while such changes were being made. The cross-petition further set forth the cost of construction of the bridge and the maintenance of the same, the cost of the elevation of the embankment and tracks and the cost and expense of detouring traiffic, and alleged that appellee would be damaged by being required to meet these changed conditions. The stipulation of facts and the specifications show that it was intended to divert the natural water course of Prairie du Pont creek by the substitution of another channel, and proposed to construct an embankment along the side of said new channel for the purpose of furnishing to the appellant district levee protection; that at the place of crossing there is now no natural water course, and no railroad bridge or structure, except the railroad embankment and tracks of appellee.

Counsel for appellant first contend that, as it is a municipal corporation organized for the sole and exclusive purpose of exercising certain public power and duties assignable wholly to the police power of the state, the appellee railway company is obliged to elevate its tracks and provide sufficient openings for drainage under such police power, and is therefore not entitled to any judgment in its favor for damages because this channel is to be constructed across its right of way or for the construction of the bridge or the elevation of its tracks. Counsel for appellee argue that the ruling of this court in Sanitary District v. Chicago & Alton Railroad Co., 267 Ill. 252, 108 N. E. 312, practically disposes of this question contrary to appellant's contention. Counsel for appellant concede that some of the reasoning, at least, in the last-cited case, is not in harmony with their contention; but they insist that case can, and should in fairness, be distinguished, because that case was practically disposed of, they argue, upon the ground that the Sanitary District of Chicago had not been authorized by statute to construct channels for sanitary purposes across railroad rights of way and to require the expense of elevating tracks and building bridges to be borne by the railroad companies, while section 21 of the act under which this appellant district was organized does authorize the sanitary district to require railroad companies to pay for the construction and elevation of their tracks and for building bridges rendered necessary by the work of the sanitary district.

Section 21 of this act reads:

‘When necessary for or in connection with any of the purposes authorized by this act, the board of trustees may require and compel any steam, electric or other railroad company to raise its tracks to conform to the grade of any levee, or other work intersectingor crossing the same, which may, at any time, be established by such sanitary district, and where such tracks run lengthwise upon or along the line of any such improvement, to require and compel such railroad companies to elevate the same to the surface thereof. Also to require and compel any such railroad companies to maintain and keep open and in repair, ditches, drains, sewers and culverts, along and under their tracks, so that filth or stagnant pools of water shall not stand upon their right of way and grounds, and so that the drainage of adjacent property shall not be impeded or interfered with.’ Hurd's Stat. 1916, p. 1067

In order to give the construction intended by the Legislature to this section, it must be read in connection with the rest of the act. Section 18 of the act provides, among other things, that whenever it is necessary to take or damage private property for right of way or other purposes, for any public work authorized by the act, the sanitary district may cause compensation therefor to be ascertained, and acquire the same in the manner provided under the Eminent Domain Act. Section 15 of the act also provides that the sanitary district may acquire, by purchase, condemnation, or otherwise, any and all real and personal property, rights of way, and privileges, either within or without its corporate limits, required for its corporate purposes, provided all moneys for the purchase or condemnation of any property shall be paid before possession is taken or any work done on the premises damaged by the construction of any levee, outlet, or other work. Section 20 provides that:

‘Whenever it shall be necessary to take or use, for any of the purposes contemplated in this act, any portion of any railroad right of way, or property occupied by the track or tracks of any steam, electric, or other railroad company * * * in the operation or use of which the public has an interest, only such easement, use or rights therein shall be acquired as are necessary for the purposes intended.’ Hurd's Stat. 1916, p. 1066.

We have compared the provisions of this act with the act under which the Sanitary District of Chicago was organized, with reference to the condemnation of property, and are of the opinion that the Legislature did not intend to grant any greater powers under this act than by said Sanitary District of Chicago act as to condemning property across railways. We think a fair construction of section 21, read in the light of the whole act, gives the sanitary district power to compel railways to permit it to cross and to require them to elevate their tracks to conform to the grade of the levee or other work intersecting or crossing the same, but does not provide that such railroads should be required to do this without the sanitary district paying for the property taken or for damages caused by the work so being constructed.

[2] Counsel for appellee furthermore insist that, if the construction be placed upon said section 21 as contended for by counsel for appellant, the section is unconstitutional, in that it would require the taking of property without due process of law. That question, we think, is practically settled by the reasoning of this court in Sanitary District v. Chicago & Alton Railroad Co., supra; but counsel for appellant have argued so exhaustively and with such earnestness on this question that we deem it proper to review the authorities as to the right of appellant to require appellee to elevate its tracks and construct this bridge without compensation, under the police power of the state.

The police power has been defined by this court as that inherent and plenary power in the state which enables it to prohibit all things hurtful to the comfort, safety and welfare of society. It is coextensive with selfprotection, and is not inaptly termed the ‘law of overruling necessity.’ Town of Lake View v. Rose Hill Cemetery Co., 70 Ill. 191, 22 Am. Rep. 71. The extent of this power has never been defined with precision. Indeed, it cannot be accurately defined, and the courts have not been able or willing definitely to circumscribe it. Pumpelly v. Green Bay Co., 13 Wall. 166, 20 L. Ed. 557. The police power is a necessary attribute of every sovereign state. It is inherent in the states of the American Union, and is not a grant derived from or under a written Constitution. The very existence of government depends upon it, as well as the security of social order, the life and health of the citizen, the enjoyment of private and social life, and the beneficial use of property. 6 R. C. L. 183. The boundary line which divides the police power of the state from the other functions of government is often difficult to discern. The limitations of the power have never been...