People ex rel. City of Chicago v. Chicago City Ry. Co.

• Decision Date: 07 April 1927
• Docket Number: No. 17833.,17833.
• Parties: PEOPLE ex rel. CITY OF CHICAGO v. CHICAGO CITY RY. CO.
• Court: Illinois Supreme Court

324 Ill. 618

155 N.E. 781

PEOPLE ex rel. CITY OF CHICAGO

v.CHICAGO CITY RY. CO.

No. 17833.

Supreme Court of Illinois.

Dec. 23, 1926.

Rehearing Denied April, 7. 1927.

Proceeding by the People, on the relation of the City of Chicago, for a writ of mandamus to be directed to the Chicago City Railway Company. Judgment for defendant, and petitioner appeals.

Reversed and remanded.

Duncan, J., dissenting.Appeal from Circuit Court Cook County; Oscar M. Torrison, judge.

Francis X. Busch, Corporation Counsel, and James J. Coughlin, both of Chicago (C. Morton Doty, William J. Tuohy, and C. R. Larrabee, all of Chicago, of counsel), for appellant.

Charles M. Haft and Harry P. Weber, both of Chicago, for appellee.

THOMPSON, J.

This appeal is from the decision of the circuit court of Cook county dismissing the petition of the city of Chicago in which it asked that a writ of mandamus issue directing the Chicago City Railway Company to remove its tracks and trolley poles from their existing location in Twenty-Second street between Archer avenue and Michigan avenue and relocate them in the same street to conform to the center line of said street as and when widened.

Twenty-Second street is an east and west street in the city of Chicago, 66 feet in width, with a paved roadway of 38 feet. As an aid to the lake front improvement, the city council has, under the Local Improvement Act (Smith-Hurd Rev. St. 1925, c. 24, § 698 et seq.), instituted proceedings for the widening of Twenty-Second street west from Michigan avenue to Archer avenue by condemning a 54-foot strip of land on the south side of the street. The railway company now maintains a double track occupying a 16-foot strip in the center of the old 38-foot roadway. The new roadway is to be 88 feet wide, and if the street car tracks were to remain in their present location the north line of the 16-foot strip would be 9 feet from the north curb, and the south line of the strip would be 63 feet from the south curb. The traffic on Twenty-Second street at the point in question is heavy, and when the street has been improved as planned it will be a part of one of the main arteries of travel south from the principal business district and traffic on it will be greatly increased. The improvement cannot be completed according to plans and specificationsunless the tracks of the railway company be located on a strip in the middle of the street. All these facts are admitted by the pleadings, and it is also admitted that the public improvement will promote the public welfare, comfort, and convenience.

The concrete case arising on the record in this case is this. The city of Chicago, a municipal corporation charged with the duty of providing and maintaining safe and adequate streets for the public welfare and convenience, has adopted a reasonable and suitable plan to accomplish that object. That plan cannot be carried out unless the railway tracks and trolley poles, erected in what will be the north half of the street as and when widened, are removed. Their removal will render it necessary for the railway company to reconstruct them in the middle of the widened street, if the continues to operate its road. The relocation will cost about $300,000.

Appellee contended in the circuit court that an order requiring it to relocate its tracks at its own expense would deprive it of its property without due process of law, would take and damage its property for public use without compensation, and would impair the obligation of its contract ordinances with appellant, contrary to the Constitution of the state and the Constitution of the United States, and its contentions were sustained. These questions are certified to this court in accordance with section 104 of the Practice Act (Smith-Hurd Rev. St. 1925. c. 110).

[1] A street railway acquires no interest or estate in the soil by laying its rails on the streets under an ordinance permitting it. The grant made by the city is merely a license to the railway company to construct and operate its road upon certain streets (City of Sullivan v. Central Illinois Public Service Co., 287 Ill. 19, 122 N. E. 58;Chicago City Railway Co. v. People, 73 Ill. 541), which becomes a contract when it is accepted and acted upon in a substantial manner (Peoria Railway Co. v. Peoria Railway Terminal Co., 252 Ill. 73, 96 N. E. 689;City of Chicago v. Chicago & Oak Park Elevated Railroad Co., 250 Ill. 486, 95 N. E. 456;City of Chicago v. Chicago Telephone Co., 230 Ill. 157, 82 N. E. 607,13 L. R. A. (N. S.) 1084,12 Ann. Cas. 109).

[2] In so far as the contract between the city and railway company relates to matters which do not affect the public safety, welfare, comfort, or convenience, the constitutional prohibition against impairing the obligation of a contract applies, but where, under the police power, the city directs some improvement to be made by the railway company which will promote the public safety, welfare, comfort, or convenience no contractual obligation of the city is impaired, because the city has no power to surrender any of the police powers delegated to it by the legislature. City of Chicago v. O'Connell, 278 Ill. 591, 116 N. E. 210, 8 A. L. R. 916.

[3] The license under which the railway company constructs, maintains, and operates its railroad was granted and accepted subject to a reserved police power on the part of the city to regulate the use and enjoyment by the railway company of the street in such manner as the public convenience or safety at any time might require. Louisville Bridge Co. v. United States, 242 U. S. 409, 37 S. Ct. 158, 61 L. Ed. 395;People v. New York Railways Co. 217 N. Y. 310, 112 N. E. 49;People v. Geneva, W., S. F. & C. L. Traction Co., 112 App. Div. 581, 98 N. Y. S. 719;Pittsburg, Cincinnati, Chicago & St. Louis Railway Co. v. Chicago City Railway Co., 224 Ill. App. 380. The permission given a railway company to use the streets of a city is in subordination to the general power of the municipality over its streets.

[4] The city is under no obligation to conform its treatment of its streets to the construction of the company's roadbed, but, on the contrary, the company must conform the construction of its roadbed to such reasonable regulations as are made by the municipality in the reasonable exercise of its powers concerning the use, control, regulation, and improvement of its streets. Street railways occupy public streets subject to the use of such streets by the public, subject to such burdens as may be made necessary by reason of the improvement of such streets, and subject to such changes in the construction of roadbeds as improved and changed conditions may demand. City of Detroit v. Ft. Wayne & Elmwood Railway Co., 90 Mich. 646, 51 N. W. 688.

[5][6] The...