Hunt v. Chicago Horse & Dummy Ry. Co.

• Decision Date: 26 September 1887
• Citation: 121 Ill. 638,13 N.E. 176
• Parties: HUNT, Atty. Gen., v. CHICAGO HORSE & DUMMY RY. CO.
• Court: Illinois Supreme Court

121 Ill. 638

13 N.E. 176

HUNT, Atty. Gen.,

v.CHICAGO HORSE & DUMMY RY. CO.

Supreme Court of Illinois.

September 26, 1887.

Appeal from appellate court, First district; M. F. TULEY, Judge.

C. Beckwith and Wilson & Moore, for appellant.

Francis Adams, for appellee.

MAGRUDER, J.

This is an information in chancery filed by George Hunt, attorney general of the state of Illinois, on relation of John McConnell, George McConnell, and Benjamin F. McConnell,to restrain the appellee company from proceeding with the construction of its railway in certain streets of the city of Chicago. A demurrer filed by the company to the information was sustained by the circuit court, and the information was dismissed for want of equity. The appellate court has affirmed the decree of the circuit court, and the case is brought before us by appeal from such judgment of affirmance. A statement of the substance of the information will be found in the opinion of the appellate court in Hunt v. Railway Co., 20 Bradw. 282.

But two questions are involved. The first relates to the power of the attorney general to prosecute this proceeding. We agree with the appellate court that ‘the institution of the present suit was clearly within the legal authority of the attorney general,’ and we adopt as our own the reasoning of that court upon the subject, as found in 20 Bradw. 282,supra.¹

The second question relates to the right of the city council of Chicago to grant to appellee the use of certain streets without a petition of the owners of the land representing more than one-half of the frontage of such streets. We do not agree with the views of the appellate court upon this branch of the case, and so much of their opinion as relates to it is not adopted.

The only question to be considered is this: Was paragraph 90, § 1, art. 5, of the general ‘Act to provide for the incorporation of cities and villages,’ (Hurd, Rev. St. 1885, c. 24, p. 227,) repealed by ‘An act in regard to horse and dummy railroads,’ approved March 19, 1874, in force July 1, 1874, (Hurd, Rev. St. 1885, c. 66, p. 682.) The general incorporation act above referred to was approved April 10, 1872, in force July 1, 1872. It is one of the allegations of the information, all of which are admitted by the demurrer to be true, that the city of Chicago was organized under this act in May, 1875, nearly a year after the horse and dummy act went into force.

Section 1 of article 5 of the act provides as follows: ‘The city council in cities, and president and the board of trustees in villages, shall have the following powers: * * * Ninth, to regulate the use of streets; * * * twnety-fourth, to permit, regulate, or prohibit the locating, constructing, or laying a track of any horse railroad in any street, alley, or public place; but such permission shall not be for a longer time than twenty years; * * * twenty-fifth, to provide for and change the location, grade, and crossings of any railroad; * * * ninetieth, the city council or board of trustees shall have no power to grant the use of or the right to lay down any railroad tracks in any street of the city to any steam or horse railroad company, except upon a petition of the owners of the land representing more than one-half of the frontage of the street, or so much thereof as is sought to be used for railroad purposes.’

The act in regard to horse and dummy railroads consists of four sections, only two of which need to be noticed. Section 1 provides that ‘any company incorporated for the purpose of constructing, maintaining, or operating any horse or dummy railroad or tramway may enter upon and appropriate any property necessary for the construction of its road,’ etc., ‘and may, subject to the provisions contained in this act, locate and construct its road upon or over any street, alley, road, or highway, * * * in such manner as not to unnecessarily obstruct the public use of such street, alley, road, or highway,’ etc.

Section 3, which is the one of most importance to the present discussion, is as follows: ‘No such company shall have the right to locate or construct its road upon or along any street or alley, or over any public ground in any incorporated city, town, or village, without the consent of the corporate authorities of such city, town, or village, nor upon or along any road or highway, or upon any public ground without any incorporated city, town, or village, except upon the consent of the county board. Such consent may be granted for any period not longer than twenty years, on the petition of the company upon such terms and conditions, not inconsistent with the provisions of this act, as such corporate authorities, or county board, as the case may be, shall deem for the best interests of the public: provided, no such consent shall be granted, unless at least ten days' public notice of the time and place of presenting such petition shall have been first given, by publication in some newspaper published in the city or county where such road is to be constructed, and except upon the condition that the company will pay all damages to owners of the property abutting upon the street, alley, road, highway, or public ground, upon or over which such road is to be constructed, which they may sustain by reason of the location or construction of the road; the same to be ascertained and paid in the manner provided by law for the exercise of the right of eminent domain.’

There is no express repeal of paragraph 90 in the horse and dummy act. If there is any repeal it must be by implication. Repeals by implication are not favored by the law, and a later statute will never be held to operate as a repeal of an earlier statute, unless the two are so inconsistent or repugnant that they cannot be reconciled. To justify a repeal by implication, the repugnance between the statutes must be clear and plain, and if they are seemingly repugnant, it is the duty of the courts so to construe them as to avoid such repeal by implication. In all cases, if a construction can be reasonably given by which both acts may stand, it will be adopted. Harding v. Railroad Co., 65 Ill. 98;Hume v. Gossett, 43 Ill. 299;Barr v. People, 103 Ill. 112,People v. Barr, 44 Ill. 201;City of Chicago v. Quimby, 38 Ill. 278;Card v. McCaleb, 69 Ill. 317;McDonough Co. v. Campbell, 42 Ill. 493;City of East St. Louis v. Maxwell, 99 Ill. 443;Holton v. Daly, 106 Ill. 139.

It is also a well-recognized rule that all statutes relating to the same subject should be construed in pari materia, so as to give them all their appropriate effect and operation. All laws in pari materia are to be construed together, that no clause, sentence, or word of any law shall be superflous or inconsistent. Frink v. King, 3 Scam. 150;Bruce v. Schuyler, 4 Gilman, 272;Catholic Congregation v. Germain, 104 Ill. 440.

Applying these principles of construction to the statutes now under consideration, we see no such inconsistency or repugnance between them that they cannot both stand and be executed together. Paragraph 90 provides that the city council shall have no power to grant the use of the streets, except upon the petition of those owning more than one-half of the frontage of the streets to be used. This paragraph is a limitation upon the power granted by paragraphs 9, 24, and 25, as above quoted. Dock Co. v. Garrity, 115 Ill. 155, 3 N. E. Rep. 448. The charter of the city confers upon the council the power to grant the use of the streets to horse or steam railroad companies, and paragraph 90 restricts and limits the exercise of that power to cases where there is a petition of property owners. The horse and dummy act merely specifies the conditions upon which such limited and restricted power may be exercised in favor of the company desiring to construct or operate a road. It provides that the consent of the council to the use of the streets may be granted for a period of time not longer than 20 years; that such consent may be granted upon the petition of the company desiring it; that 10 days' notice of the time and place of presenting the company's petition must be given by publication in a newspaper; and that the company must pay all damages sustained by owners of property abutting on the street, etc. Paragraph 90 has reference to the relations between the common council as trustee and the property owners as beneficiaries in the trust. It has its origin in the right of the property owners, as a part of the general public, to control and limit the action of the council, which represents them as their agent. It is a doctrine, which cannot be too often called to mind, that the city holds the fee of the streets in trust for the benefit of the public. It follows, naturally, as a cerollary from this doctrine, that the power to grant the use of the streets is conferred upon the council also for the benefit of the public, including the owners of property abutting upon the streets to be used. That power lies dormant until the requisite number of owners authorize its exercise by petition. When they do so, the limitation upon the power of the council no longer exists. That body is then prepared to deal with the railroad companies, and not before.

The horse and dummy act has reference to the relations between the council and the companies who may desire to construct and operate their roads in the streets. That act prescribes the terms upon which the council is to deal with any railroad company after the property owners have indicated their willingness to have the proposed road built. What conflict or antagonism is there between a requirement that the common council shall not give their consent to the use of a street until the property owners thereon present a petition therefor, and a requirement that the company, to whom such consent is to be granted, shall be limited to 20 years, shall present a petition, and give notice thereof and pay damages? Suppose that the ninetieth paragraph be added as a second proviso...