Mills v. City of Chicago

• Decision Date: 25 January 1904
• Parties: MILLS v. CITY OF CHICAGO et al.
• Court: U.S. District Court — Northern District of Illinois

127 F. 731

MILLS v. CITY OF CHICAGO et al.

United States Circuit Court, N.D. Illinois.

January 25, 1904

W. D Guthrie, for complainant.

Granville Browning, for defendant city of Chicago.

GROSSCUP Circuit Judge.

The bill is by a citizen of California, a stockholder of the Peoples Gas Light and Coke Company, suing in behalf of himself and all other stockholders of the company similarly situated, against the city of Chicago and the gas company citizens of Illinois. The object of the bill is to restrain the city from enforcing an ordinance passed by the city council of Chicago, October 15th, 1900, forbidding manufacturers of gas from demanding or collecting, from consumers of gas within the city, more than seventy-five cents per thousand cubic feet, and attaching a penalty of from twenty-five to two hundred dollars to each violation thereof. The bill charges that the ordinance is invalid; first because the city council had no power from the state, to regulate gas rates; and secondly, because the ordinance impairs the obligation of an alleged contract embodied in the special charter of the Peoples Company by act of the legislature February 7th, 1865 (1 Laws 1865, p. 589). Relief in equity is asked on the ground of prevention of multiplicity of suits, and because there is no ground of prevention of multiplicity of suits and because there is no adequate remedy at law to protect the company's rights in the premises.

Prior to the commencement of this suit, as the bill shows, another suit had been instituted by the Peoples Gas Light and Coke Company charging first, that such ordinance was beyond the city council's delegated powers, and secondly, if enforced, would impair the company's contract rights under its charter, and asking the same character of relief. That suit went to final hearing on demurrer to the bill, resulting in a right, but without prejudice to any other suit in respect to the question of the city's power to regulate rates; and on appeal from this decree by the company, the suit is now pending in the Supreme Court of the United States.

In that case I held that the gas company obtained no immunity in its charter from the right of the state, in the exercise of its general powers, to reasonably regulate the rates at which gas should be manufactured and sold. Thus holding, the jurisdiction of the court failed, for the case no longer could be said to arise under the constitution and laws of the United States. On that account I expressly declined to pass on the question whether the city council had power delegated to it from the state to regulate rates; holding that such question was not before the court. But in the suit now under consideration, that question is brought directly in point.

The right of Mills, a stockholder, to maintain this bill, on the state of facts here existing, is challenged. Though it lies at the threshold of the case I will pass that question until the main question-- the power of the city of Chicago to regulate rates of gas-- is disposed of.

Has the city the power by ordinance to regulate the rates of gas supply? A municipal corporation possesses only such power as is granted by the legislature in express words, or such as is fairly implied from power expressly granted, or is essential to the specific object and purpose of municipal existence. No one has pretended that the regulation of the price of gas is essential to the specific object for which the city of Chicago was created; hence that source of possible power may be dismissed without further discussion.

The chief argument of counsel for the city is, that the power is to be found in the statute of Illinois, known as the City and Village Act, and their finger is laid on the eleventh, thirteenth and sixty-sixth sections as the clauses containing the grant (Hurd's Rev. St. 1901, c. 24, Sec. 62). These sections are as follows:

'The city council in cities, and president and the board of trustees in villages, shall have the following powers:

'Eleventh: To provide for the lighting of the same (streets).'

'Thirteenth: To regulate the openings therein (in streets) for the laying of gas or water mains and pipes and the building and repairing of sewers, tunnels and drains, and erecting gas lights: Provided, however, that any company heretofore organized under the general laws of this state, or any association of persons organized, or which may be hereafter organized for the purpose of manufacturing illuminating gas to supply cities or villages, or the inhabitants thereof, with the same, shall have the right, by consent of the common council (subject to existing rights), to erect gas factories, and lay down pipes in the streets or alleys of any city or village in this state, subject to such regulations as any such city or village may by ordinance impose.'

'Sixty-Sixth: To regulate the police of the city or village and pass and enforce all necessary police ordinances.'

It is plain to me that the sixty-sixth section, while granting power to regulate the police of the city or village, cannot be enlarged to include power to regulate the prices of gas. The power delegated by the state to the city is not the police power of the state by itself. Such manifestly was not the purpose of the section. The section looked, not to the police power of the state in its wide constitutional sense, but to a police in the sense of a local constabulary.

The eleventh section contains no such grant as is claimed....