East St. Louis Ry. Co. v. City of East St. Louis, 35-D.

• Decision Date: 09 August 1926
• Docket Number: No. 35-D.,35-D.
• Citation: 13 F.2d 852
• Parties: EAST ST. LOUIS RY. CO. v. CITY OF EAST ST. LOUIS et al.
• Court: U.S. District Court — Eastern District of Illinois

13 F.2d 852 (1926)

EAST ST. LOUIS RY. CO. v. CITY OF EAST ST. LOUIS et al.

No. 35-D.

District Court, E. D. Illinois.

August 9, 1926.

J. L. Flannigen, of East St. Louis, Ill., and B. P. Alschuler, R. C. Putnam, and G. T. Johnson, all of Aurora, Ill., and G. A. Huebner, for plaintiff.

R. V. Gustin, Corporation Counsel, Martin Drury, City Atty., and Charles A. Karsh, all of East St. Louis, Ill., for defendants.

Francis X. Busch, Corporation Counsel, and James J. Coughlin and C. Morton Doty, Asst. Corporation Counsel, all of Chicago, Ill., as amici curiæ.

LINDLEY, District Judge.

The plaintiff filed its bill against the defendants, the city of East St. Louis and certain commissioners thereof, alleging that as a public utilities corporation, organized under the laws of Illinois, by virtue of a franchise granted by ordinance of the city of East St. Louis on the 3d day of February, 1903, it obtained permission and authority to construct and operate its system of street railways over certain streets, including Third street, in the city of East St. Louis, for a period of 20 years; that the ordinance by its terms expired on February 3, 1923; that on May 3, 1926, the city adopted an ordinance directing the removal of the said street railway track; that the defendants claim that plaintiff has no authority to maintain its tracks or operate its cars on Third street, the original franchise ordinance having expired; that the city claims the right to prohibit the operation of the cars and cause the tracks to be removed under and by virtue of certain laws of the state of Illinois, being the grant by the state Legislature to the city of municipal power to control the streets and the use of the same; that plaintiff claims that its tracks are lawfully in the street and that the city has no right to remove the same or order the same removed, for the reason that the Public Utilities Acts of Illinois have vested in the Illinois Commerce Commission the exclusive control and jurisdiction of the plaintiff and its public operations; that the Utilities Acts impliedly repeal those portions of the City and Village Acts upon which the city relies in asserting its power to adopt the ordinance now complained of; that the municipality has thus been divested of the power under which it asserts the validity of the ordinance, attempting to force plaintiff to take up said track; that plaintiff has the full right and authority to keep and maintain its tracks and to operate its cars thereover until the said Illinois Commerce Commission shall lawfully order to the contrary; that the defendants threaten forcibly to remove the tracks; that such threatened action will be in contravention of the Fourteenth Amendment of the Constitution of the United States and deprive the plaintiff of its property without due process of law because the city is without power so to act; that other parts of plaintiff's system are being operated in connection with the said Third street line under proper franchise ordinances, and that the enforcement of the alleged ordinance will seriously hamper the service rendered under such ordinances, and the public safety and convenience be jeopardized; that the threatened action will cause irreparable damage to plaintiff, the city of East St. Louis being insolvent and incapable of responding in damages.

The bill prays that the defendants be enjoined from removing the said tracks in said Third street and from interfering with the operation of the cars of plaintiff on said tracks. A temporary injunction has been issued, and the defendants now move to dismiss the bill upon the ground, first, that the court has no jurisdiction of the cause, as no federal question is involved; and, second, that, if the court has jurisdiction, under the Constitution and laws of the state of Illinois, the city of East St. Louis has full and exclusive power and authority to adopt the ordinance complained of and to enforce its provisions.

The Fourteenth Amendment to the Constitution of the United States provides that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law."

It is apparent that the prohibitions of the amendment are directed against state action. The city of East St. Louis is a municipal corporation organized under the laws of the state of Illinois. It is an arm of the state, and its acts, within the purview of the authority granted to it by the statutes, are the acts of the state. Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362, 14 S. Ct. 1062, 38 L. Ed. 1031. If, in pursuance of its authority granted by the Legislature, it adopts an ordinance confiscatory in character, that ordinance becomes the act of the state, and, upon complaint of the party suffering such confiscation, may be enjoined as an act of the state, in contravention of the powers granted to the federal government by the states in the Fourteenth Amendment. Home Tel. & Tel. Co. v. Los Angeles, 227 U. S. 278, 33 S. Ct. 312, 57 L. Ed. 510.

If the city adopts an ordinance which is not authorized under the granted power of the state Legislature, such act is not the act of the state and cannot be enjoined because of violation of the Fourteenth Amendment, but may be declared void by the proper tribunals of the state in a proper cause brought for such purpose. Barney v. N. Y., 193 U. S. 429, 24 S. Ct. 502, 48 L. Ed. 737.

The contention of the plaintiff is that the city of East St. Louis had no power to adopt the ordinance in question, for the reason that the acts of the Legislature upon which it relies have been repealed by the Public Utilities Acts of Illinois, and that these latter acts have vested the power to act in the Illinois Commerce Commission, to the exclusion of the city of East St. Louis. The plaintiff represents further, however, that the city insists that it still has the power to act, for the reason, as it alleges, that its grant of authority has not been repealed by the Public Utilities Acts, and that jurisdiction and power to act in the premises has not by said latter acts been vested in the Commission, but remains in the city by virtue of the granted power under earlier acts of the Legislature; that the city adopted said ordinance under a supposed right so to do and in pursuance of its supposed power, that is, its grant of authority under earlier acts; and asserts, as a proposition of law, that the city of East St. Louis, by claiming to act under a grant of power from the state of Illinois, is acting as an agency of the state, and thus brings its acts within the inhibitions of the Fourteenth Amendment. It is this color of title, this supposed right of power, alleged to be void, which the plaintiff insists gives the court jurisdiction, on the ground that a city and its officers, acting under color of right as an agency of the state, come within the provisions of the amendment. Plaintiff admits that, if there be no color of right, that if the act of the city be plainly beyond its municipal power, it may not and does not bind the state, and is not within the provisions of the amendment.

In the opinion of the court, plaintiff's position cannot be maintained. In the case of Barney v. City of New York, 193 U. S. 430, 24 S. Ct. 502, 48 L. Ed. 737, the court held that the averment in a bill to enjoin the construction of a rapid transit railroad tunnel under a city street, that, by such construction, complainant as an abutting owner, is deprived of his property without due process of law, does not bring the case within the jurisdiction of a federal Circuit Court, where the bill, on its face, proceeds upon the theory that the action sought to be enjoined was forbidden by state legislation. The court said: "Controversies over violations of the laws of New York are controversies to be dealt with by the courts of the state. Complainant's grievance was that the law of the state had been broken, and not a grievance inflicted by action of the legislative or executive or judicial department of the state; and the principle is that it is for the state courts to remedy acts of state officers done without the authority of or contrary to state law." The court proceeds further by saying: "There are many cases in this court involving the application of the Eleventh Amendment which draw the distinction between acts of public officers virtute officii, and their acts without lawful right, colore officii; and in Pennoyer v. McConnaughy, 140 U. S. 1 11 S. Ct. 699, 35 L. Ed. 363, Mr. Justice Lamar defined the two classes to be those brought against officers of the state as representing the state's action and liability, and those against officers of the state when claiming to act as such without lawful authority."

To be sure the court there declared that the act complained of was forbidden by state legislation, but it will be observed that plaintiff claims in the present case that the ordinance complained of is forbidden by the Utilities Acts and is therefore void. Such contention indeed is its sole ground for assertion of confiscation.

This case was followed in Glucose Refining Co. v. Chicago (C. C.) 138 F. 211, denying federal jurisdiction over a suit to enjoin enforcement of a city ordinance alleged to have been passed in excess of charter powers; Farson v. Chicago (C. C.) 138 F. 186, denying preliminary injunction in suit to restrain enforcement of city ordinances licensing chauffeurs, alleged to be void on ground that city had no power to pass same; City of Savannah v. Holst, 132 F. 903, 65 C. C. A. 449, denying federal jurisdiction over suit to enjoin enforcement of a city ordinance alleged to have been passed in violation of the requirements of the state law; City of Memphis v. Cumberland Tel. & Tel. Co., 218 U. S. 630, 31 S. Ct. 115, 54 L. Ed. 1187, holding suit to enjoin a municipal ordinance fixing telephone...