People ex rel. Dwight v. Chicago Rys. Co.

• Decision Date: 09 December 1915
• Docket Number: No. 9852.,9852.
• Citation: 270 Ill. 87,110 N.E. 386
• Parties: PEOPLE ex rel. DWIGHT v. CHICAGO RYS. CO. et al.
• Court: Illinois Supreme Court

270 Ill. 87

110 N.E. 386

PEOPLE ex rel. DWIGHT

v.CHICAGO RYS. CO. et al.

No. 9852.

Supreme Court of Illinois.

Oct. 27, 1915.

Rehearing Denied Dec. 9, 1915.

Error to Superior Court, Cook County; Charles M. Foell, Judge.

Petition for mandamus by the People, on the relation of Walter E. Dwight, against the Chicago Railways Company and others. Judgment for defendants sustaining their demurrer to the replication, and plaintiff brings error. Affirmed.William R. Moss, B. F. Langworthy, and S. S. Gregory, all of Chicago, for plaintiff in error.

John J. Herrick, Horace Kent Tenney, John W. Beckwith, Corp. Counsel, and Charles M. Haft, all of Chicago, for defendants in error.

COOKE, J.

On February 14, 1911, a petition was filed in the circuit court of Cook county in the name of the people of the state of Illinois, on the relation of Walter E. Dwight, president of the village of Oak Park, praying for a writ of mandamus requiring the Chicago Railways Company and the County Traction Company to forthwith establish and thereafter maintain a rate of fare of five cents for transportation of each passenger in one direction between the Seventy-Second avenue terminals of the County Traction Company in the village of Oak Park (Seventy-Second avenue being the western boundary of the village of Oak Park) and the eastern terminals of the Chicago Railways Company in the city of Chicago, the said terminals in the city of Chicago being in that portion of the city commonly known as the ‘loop district.’ The right to this relief was by the petitioner based primarily upon section 3 of an ordinancepassed by the board of trustees of the village of Oak Park on June 4, 1903, which ordinance conferred upon the Chicago Consolidated Traction Company, as the sucessor of the Cicero & Proviso Street Railway Company, the right to maintain and operate street railways upon certain streets in the village of Oak Park until December 1, 1948. Said section 3, so far as here material, is as follows:

‘Sec. 3. From and after the passage and acceptance of this ordinance the rate of fare for each passenger, for any one ride in one direction, between the Seventy-Second Avenue terminal points of the lines of said company in said village of Oak Park and the eastern terminal points of the lines of the Union Traction Company in the city of Chicago, which eastern terminal points shall be within that district of the city of Chicago bounded on the north by the Chicago river, on the west by the south branch of the Chicago river, on the south by Van Buren street and on the east by Lake Michigan, shall be five cents, and no more, during the entire term of its franchise in said village, which shall include the right to a ride in each direction over and along the following routes, namely: (A) Upon the Chicago avenue line in Oak Park by way of Chicago avenue and Forty-Eighth avenue to the Lake street surfacr lines in the city of Chicago, and thence by transfer to the eastern extremity of said Lake street lines. (B) Upon the Lake street line in the village of Oak Park by way of the Lake street surface lines in the city of Chicago to Forty-Eighth street, and thence by transfer to the eastern extremity of said Lake street line. (C) Upon the Madison street line in the village of Oak Park and the city of Chicago to West Fortieth street in the city of Chicago, and thence by transfer to the eastern extremity of said Madison street lines. (D) Upon the Twelfth street line in the village of Oak Park by way of Twelfth street to the eastern terminusof said line, and thence by transfer upon the Union Traction lines to the eastern extremity of said Union Traction lines.’

The obligation on the part of the County Traction Company to comply with the requirements of said section 3 was claimed by the petitioner to exist by reason of the fact that the County Traction Company had succeeded to the rights and franchises conferred by said ordinance on the Chicago Consolidated Traction Company, and was at the time of filing the petition herein operating the street railways in the village of Oak Park which had been formerly operated by the Chicago Consolidated Traction Company by virtue of said ordinance of June 4, 1903, and was and is therefore bound by all the terms and provisions of said ordinance. The obligation on the part of the Chicago Railways Company to comply with the requirements of said section 3 was claimed by petitioner to exist by reason of the fact, as charged in the petition, that the Chicago Union Traction Company, at the time of the passage and acceptance of the ordinance of June 4, 1903, owned, controlled, and operated, under the name of the Chicago Consolidated Traction Company, the system of street railways in the village of Oak Park, and the acceptance of the ordinance by the Chicago Consolidated Traction Company was, in effect, the acceptance of that ordinance by the Chicago Union Traction Company; that the defendant the Chicago Railways Company is the successor of the Chicago Union Traction Company and is the beneficial owner of the street railway system in the village of Oak Park, and is operating the same under the name of the County Traction Company, and by reason thereof is bound by the terms and provisions of the ordinance of June 4, 1903.

For the purpose of supporting the charge that the provisions of said section 3 are binding upon the Chicago Railways Company, the petition sets forth substantially all the facts disclosed by the opinions in Chicago Union Traction Co. v. City of Chicago, 199 Ill. 484, 65 N. E. 451,59 L. R. A. 631, and Chicago Union Traction Co. v. City of Chicago, 199 Ill. 579, 65 N. E. 470, which show the intimate relation existing between the Chicago Consolidated, traction Company and the Chicago Union Traction Company a short time prior to the passage of the said ordinance of June 4, 1903, and which we held in the last-mentioned case established the charge there made that the Chicago Union Traction Company was the beneficial owner of the lines of street railways operated under the name of the Chicago Consolidated Traction Company, including the lines in the Village of Oak Park. The petition then alleges than on or about April 22, 1903, receivers were appointed by the federal court for the Chicago Union Traction Company and for the West Chicago Street Railroad Company and the North Chicago Street Railroad Company respectively; the two companies last named being then the owners and lessors of a large portion of the street railway system operated by the Chicago Union Traction Company. It is further alleged that the Chicago Railways Company was organized under the laws of this state on October 30, 1903, for the purpose of reorganizing the street railway system of the Chicago Union Traction Company, including the lines operated under the name of the Chicago Consolidated Traction Company; that thereafter, as a result of negotiations between representatives of the Chicago Union Traction Company and its lessors and the city of Chicago, the city council of the city of Chicago, on February 11, 1907, passed an ordinance granting authority to the Chicago Railways Company, its lessees, successors, and assigns, to construct, reconstruct, maintain, and operate, for the term of 20 years (subject to the right of the city to purchase the same at any time), a system of street railways in, upon, and along certain streets in the city of Chicago upon which the receivers for the Chicago Union Traction Company were then operating street railways without any franchise from the city, one of the conditions of the grant being that the Chicago Railways Company should within a specified time acquire all the property constituting the system of street railways then operated by the receivers for the Chicago Union Traction Company, and another condition being that the city of Chicago should receive 55 per cent. of the net receipts from the operation of the system of street railways to be acquired by the Chicago Railways Company. The petition then sets out various steps taken in the suits in the federal court in which receivers were appointed for the Chicago Union Traction Company, the West Chicago Street Railroad Company, and the North Chicago Street Railroad Company, which culminated in a sale on January 25, 1908, by a special master commissioner, under a decree of the federal court, of all the property, estate, rights, franchises, contracts, credits, choses in action, and effects of the Chicago Union traction Company, the West Chicago Street Railroad Company, and the North Chicago Street Railroad Company, to a committee acting under a plan and agreement of reorganization and readjustment promulgated by the Chicago Railways Company and approved by the federal court and by the city of Chicago, and the petition then alleges that on February 25, 1908, the special master commissioner, acting under order of the federal court, conveyed the property thus purchased by the said committee to the Chicago Railways Company, as the assignee and successor in interest of the said committee. The petition alleges that thereafter, on or about June 1, 1908, default was made in the payment of interest on certain bonds of the Chicago Consolidated Traction Company, and foreclosure proceedings were brought in the Circuit Court of the United States for the Northern District of Illinois to foreclose the mortgage securing said bonds, and receivers were appointed; that on October 6, 1910, a decree of foreclosure was entered and a sale of all the property of the Chicago Consolidated Traction Company was directed; that accordingly, on November 30, 1910, all of the property of the Chicago Consolidated Traction Company was sold at public auction under said decree to one Andrew Cooke, acting for and on behalf of the Chicago Railways Company; that thereafter, on or about December 27, 1910, Andrew Cooke filed in said cause his petition asking that a portion of the property purchased by him at...