People Ex Rel. v. Chicago West Div. Ry. Co.

Decision Date31 October 1885
Citation18 Ill.App. 125,18 Bradw. 125
PartiesTHE PEOPLE EX REL., ETC.,v.CHICAGO WEST DIVISION RAILWAY CO.
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding. Opinion filed January 6, 1886.

This was a petition for mandamus to compel the Chicago West Division Railway Company to extend its Ogden avenue horse car line from Douglas Park to the city limits, at Lawndale. The material facts are substantially as follows:

July 1, 1880, a majority, by frontage, of the owners of property on Ogden avenue, between Western avenue and the city limits, petitioned the common council to grant permission to said railway company to lay its tracks on Ogden avenue to the city limits; also to pass such ordinance or issue such order as the council might be legally authorized to do, to compel said railway company to lay its tracks and run its cars upon said extended line without unnecessary delay.

February 7, 1881, the common council passed an ordinance, the first section of which authorized the railway company to extend its line on Ogden avenue to the western limit of the city.

Section two provided as follows:

(1) “Said tracks shall be laid and in actual operation from Western avenue to the western line of Douglas Park on or before the first day of June, 1881.”

(2) “From the western line of Douglas Park to Lawndale as soon as the same can be constructed, operated and kept in repair without actual loss.”

The railway company, February 23, 1881, filed with the city clerk its written acceptance of said ordinance.

Subsequently, and in July, 1884, appellant Bliss and one other person, on their own behalf and on behalf of the citizens residing in the vicinity of Lawndale, presented a petition to the common council praying for the appointment by the council of a committee to inquire into and report whether the public necessity existed for the extension of said horse railway to Lawndale, and whether the construction of the same was then the duty of said railway company, and whether the said extension could be constructed, operated and repaired without actual loss; which petition was referred to the judiciary committee of the council for inquiry and report. The committee reported that the extension of the line from Douglas Park to Lawndale could be constructed, operated and kept in repair without loss, and recommended the passage of an ordinance commanding the railway company to make such extension within sixty days.

August 4, 1884, the council adopted the report of the committee and passed the ordinance as recommended, requiring the line to be completed within sixty days after notification of the passage of the ordinance.

The petition for a mandamus alleges the service of a copy of the ordinance upon the company, its refusal to comply therewith, and prays for the issuance of a writ of mandamus to compel it so to do.

The defendant company answered, admitting the passage of the ordinance, its acceptance of the same, and says it extended its line to the western boundary of Douglas Park as thereby required. Denies that it became its duty to submit to any other terms or conditions than those contained in the ordinance; denies that the extension of its line from Douglas Park to Lawndale ever could have been, or could then be constructed, operated and kept in repair without actual loss. Says it has no knowledge of the alleged presentation of a petition to the common council relative to the construction of said line from Douglas Park to Lawndale and its reference to a committee; denies that the action of said committee or the order of the council requiring said line to be constructed was binding upon the railway company, etc.

The plaintiff demurred to the answer, assigning various causes which the court overruled, and the plaintiff abiding by its demurrer the writ was dismissed. The plaintiff appealed to this court.

Messrs. C. C. & C. L. BONNEY and Mr. L. M. PAINE, for appellants; that the passage of the order of the council commanding said extension is a proper exercise of the police power, cited C. & A. Ry. Co. v. People, 105 Ill. 660; Dunne v. People, 94 Ill. 141; Munn v. Ill., 94 U. S. 132; Hawthorn v. People, 109 Ill. 311.

Mr. C. BECKWITH and Mr. H. S. MONROE, for appellee; that the question as to whether the extension could be constructed and operated without loss could not be decided by the council, cited Commonwealth v. Proprietors of New Bedford Bridge, 2 Gray (Mass.), 339; State v. Noyes, 47 Me. 204; Washington Bridge Co. v. State, 18 Conn. 53.WILSON, J.

The defendant company was authorized by its charter to construct a double or single track railway in and along such streets in the west division of the city of Chicago as the common council might authorize it to do, in such manner and upon such terms and conditions as the council and the railway company might agree upon. By the passage of the ordinance authorizing the railway company to extend its Ogden avenue line from Western avenue to Douglas Park, and thence to Lawndale, and its acceptance by the company, a contract was created, which in respect to its terms and conditions, is to be construed by the same legal rules as are applicable to contracts between private persons. State v. Noyes, 47 Me. 189; Commonwealth v. Proprietors of New Bedford Bridge, 2 Gray, 339; Dartmouth College v. Woodward, 4 Wheaton, 518; Fletcher v. Peck, 6 Cranch, 89; King v. Dedham Bank, 15 Mass. 454.

By the contract the railway company undertook to extend its line from Western avenue to Douglas Park, unconditionally by the first day of June, 1881, and from Douglas Park to Lawndale “as soon as the same could be constructed, operated and kept in repair without actual loss.” This latter clause is plain and unambiguous in its terms and it must be presumed was intended by the parties to be as binding as any other provision of the contract. It could not be changed by the common council by adding new provisions or altering...

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  • State ex rel. Attorney Gen. v. Madison St. Ry. Co.
    • United States
    • Wisconsin Supreme Court
    • November 8, 1888
    ...within the constitutional protection, and could not be rescinded by the subsequent act of such municipal corporation. People v. Railway Co., 18 Bradw. 125;State v. Railway Co., 85 Mo. 263, and see page 282; Quincy v. Bull, 106 Ill. 337;Burlington v. Railway Co., 49 Iowa, 144;Sims v. Railway......

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