McGann v. People ex rel. Coffeen

• Decision Date: 21 February 1902
• Citation: 194 Ill. 526,62 N.E. 941
• Parties: McGANN, Commissioner of Public Works, v. PEOPLE ex rel. COFFEEN.
• Court: Illinois Supreme Court

194 Ill. 526

62 N.E. 941

McGANN, Commissioner of Public Works,

v.PEOPLE ex rel. COFFEEN.

Supreme Court of Illinois.

Feb. 21, 1902.

Appeal from appellate court, First district.

Mandamus proceedings by the people, on relation of M. D. Coffeen, against Lawrence E. McGann, as commissioner of public works of the city of Chicago, to compel defendant to issue to relator a license to lay a railroad track in a city street. From a judgment of the appellate court (97 Ill. App. 587) affirming a judgment in favor of relator defendant appeals. Reversed.Charles M. Walker, Corp. Counsel, and William H. Arthur, Asst. Corp. Counsel, for appellant.

Morris St. P. Thomas (Elmer H. Adams, of counsel), for appellee.

This is a petition for mandamus, filed by appellee on September 14, 1899, against the appellant, as commissioner of public works of the city of Chicago, to compel him to issue and deliver to the relator a permit in writing authorizing the relator to lay down and construct a switch track in accordance with the terms and provisions of an ordinance passed by the city of Chicago on February 3, 1896. Appellant filed a general demurrer to the petition, which was overruled. Thereupon, on October 21, 1899, the defendant below (appellant here) filed an answer to the petition. To this answer a demurrer was filed by the relator or petitioner. The demurrer was sustained, and leave was given to appellant to amend his answer. On November 14, 1899, appellant, commissioner of public works, filed his amended answer. Petitioner filed a general and special demurrer to certain paragraphs of the amended answer. On February 7, 1900, the court sustained the general and special demurrer to certain portions of appellant's amended answer. On February 26, 1900, appellant made a motion in writing for leave to file an amendment to his amended answer, and presented a draft of the amendment which he so desired to make. The court, however, refused to allow appellant to file the amendment so presented, and overruled his written motion for leave to do so. Thereupon the court entered an order directing the issuance of a writ of mandamus upon the face of the pleadings, and in accordance with the prayer of the petition. From this order appellant prayed an appeal to the appellate court. The appellate court affirmed the judgment of the circuit court, ordering the writ of mandamus to issue. The present appeal is prosecuted from such judgment of affirmance.

The petition for mandamus alleges that the relator is the owner in fee simple and in possession of two lots in Chicago having a north frontage of 170.8 feet on Wayman street; that said lots are improved with a six-story and basement brick warehouse, occupied and used by relator's lessees for the receipt, storage, and sale of merchandise brought into Chicago over various railroads, and, when sold, shipped from time to time from said building over various railroads; that on February 3, 1896, the city council of Chicago passed the following ordinance, to wit:

‘An ordinance granting to M. D. Coffeen permission and authority to construct and operate a private switch.

‘Be it ordained by the city council of the city of Chicago:

‘Section 1. That permission and authority is hereby granted to M. D. Coffeen, or his assigns, to construct, maintain and operate a private single railroad switch for a period of ten years, from and connecting with the tracks of the Pittsburg, Cincinnati, Chicago and St. Louis Railroad Company at a point east of Jefferson street near its intersection with the Milwaukee avenue viaduct, thence on a gradual curve in a south-westerly direction across Jefferson and Wayman streets, and west on and along the south side of Wayman street to Desplaines street: provided, however, that said M. D. Coffeen shall, before laying any part of said track, enter into bond with the said city of Chicago in the penal sum of five thousand ($5,000.00) dollars, to be approved by the mayor, to hold and save the city of Chicago harmless from all damages caused by the passage of this ordinance: provided further, that the privileges hereby granted shall be subject, in all respects, to all ordinances now in force or which may be hereafter passed concerning railroads, and said M. D. Coffeen and his assigns shall keep so much of Wayman street as shall be occupied by said switch in such condition and repair as may be directed by the department of public works: and provided further, that said switch shall be constructed and maintained under the direction and supervision of the department of public works.

‘Sec. 2. This ordinance shall be subject to amendment or repeal at any time for failure to comply with any order of the department of public works concerning proper construction and maintenance of said switch, and upon the expiration of this ordinance said M. D. Coffeen or his assigns shall remove said switch after notice from the department of public works, and in case of failure or refusal to comply with said notice, then the city of Chicago may remove the same at the expense of M. D. Coffeen or his assigns.

‘Sec. 3. This ordinance shall be in force from and after its passage and acceptance by M. D. Coffeen.’

The petition further alleges that this ordinance was approved by the mayor on February 7, 1896, and accepted by the relator, and a bond executed, as required by the ordinance, and approved by the mayor on February 13, 1896; that, under the general ordinances of Chicago, it was relator's duty to obtain a permit from the commissioner of public works before entering upon the work of laying said switch track; that petitioner made his application in writing on February 12, 1896, and on February 15, 1896, the commissioner of public works issued to petitioner a permit in writing, authorizing him to proceed with the construction of said switch track in accordance with the provisions of said ordinance, it being provided that the work should be completed within thirty days, otherwise the permit to be null and void; that the petitioner by the Pittsburg, Cincinnati, Chicago & St. Louis Railroad Company, a corporation, which had agreed to do the work for petitioner, commenced to lay said track, but, before the same had been completed, said railroad company, induced by the Chicago, Milwaukee & St. Paul Railway Company, tore up a portion of the track so constructed, and refused to lay the same or to proceed further with its construction; that on February 25, 1896, after the railroad company had torn up the track, and before petitioner had time to recommence the work, the Chicago, Milwaukee & St. Paul Railway Company filed a bill in the United States circuit court asking that petitioner be perpetually enjoined from constructing said switch track; that afterwards, on April 4, 1896, a decree was entered by said court so enjoining petitioner, which decree of injunction remained in force until November 10, 1898, when the same, in accordance with the mandate of the United States circuit court of appeals, was dissolved and vacated, and on January 9, 1899, said bill was dismissed; that on February 4, 1899, petitioner made application in writing to said commissioner for a permit to construct a switch track in accordance with said ordinance, said ordinance being still in force and effect, the permit formerly issued having become void for the lapse of time; that the said application was approved by the deputy commissioner of public works and the assistant corporation counsel of the city, but the commissioner of public works refused to issue such permit; that petitioner is therefore unable, without violating the general ordinances of the city respecting permits, to proceed with the laying down and constructing of said switch track.

The amended answer of the appellant admits the passage of the ordinance in question on February 3, 1896, and the making of the application for a permit, and the granting of the permit, and that by the terms thereof the laying of the switch track was to be completed within 30 days of the date of the permit; otherwise the permit was to become null and void. But the answer avers that the work of laying said switch track, for which said permit was issued, was not completed within a period of 30 days, nor was it at any time afterwards completed, and that said permit so given by the commissioner became null and void. The amended answer also admits that petitioner applied for another permit to lay said switch track on February 4, 1899, and avers that, before such application was passed upon, the ordinance of February 3, 1896, was repealed by the passage by the city council of the city of Chicago on May 29, 1899, of the following repealing ordinance, to wit:

‘An ordinance repealing an ordinance granting M. D. Coffeen permission and authority to construct and operate a private switch.

‘Whereas, on the third day of February, 1896, this council passed on ordinance entitled ‘An ordinance granting to M. D. Coffeen permission and authority to construct and operate a private switch,’ said switch track to be laid from and connecting with the tracks of the Pittsburg, Cincinnati, Chicago and St. Louis Railroad Company at a point east of Jefferson street near its intersection with Milwaukee avenue viaduct, thence on a gradual curve in a south-westerly direction across Jefferson and Wayman streets, and west on and along the south side of Wayman street to Desplaines street; and whereas, it was represented to the city council by plats that said Wayman street was about sixty (60) feet wide; and whereas, as said Wayman street was not at that time, nor is it at the present time, more than forty (40) feet in width; and whereas, said street was at the time of the passage of said ordinance, and for many years prior thereto, and is at the present time, continually crowded with teams going to and from the railroad freight houses and yards in that vicinity, and said switch track, if laid and operated, would materially...