People v. City of Chicago

• Decision Date: 26 July 1932
• Docket Number: Nos. 20993,21019.,s. 20993
• Citation: 182 N.E. 419,349 Ill. 304
• Parties: PEOPLE v. CITY OF CHICAGO et al. BASS et al. v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

349 Ill. 304

182 N.E. 419

PEOPLE

v.CITY OF CHICAGO et al.

BASS et al.

v.CITY OF CHICAGO et al.

Nos. 20993, 21019.

Supreme Court of Illinois.

July 26, 1932.

Information in quo warranto brought by the Attorney General on behalf of the People against the City of Chicago and others was consolidated with a bill by Elizabeth M. Bass and others against the City of Chicago and others. From an order and judgment dismissing the information in quo warranto and from a decree dismissing the bill, the People in the first case and complainants in the second case take separate appeals.

Judgment and decree affirmed.

DUNN, J., dissenting.

No. 20993:

Appeal from Circuit Court, Cook County; S. H. Klarkowski, Judge.

No. 21019:

Appeal from Superior Court, Cook County; William J. Lindsay, Judge.

No. 20993:

Oscar E. Carlstrom, Atty. Gen., and John L. McInerney, of Chicago, for the People.

William H. Sexton, Corp. Counsel, Walter L. Fisher, Allen T. Gilbert, Schuyler, Dunbar & Weinfeld, and Cooke, Sullivan & Ricks, all of Chicago, for appellees.

Lester L. Falk, Homer H. Cooper, Frank H. Scott, and John E. MacLeish, all of Chicago, amici curiae.

No. 21019:

Butler, Foster, Pope & Ballard, Brundage, Landon & Holt, Hamlin & Cleary, and Sydney J. Frank, all of Chicago (Stephen A. Foster, Herbert Pope, Frank E. Harkness, Charles G. Little, Edward J. Brundage, and Harry F. Hamlin, all of Chicago, of counsel), for appellants.

William H. Sexton, Corp. Counsel, Walter L. Fisher, and Allan T. Gilbert, all of Chicago, for appellees.

ORR, J.

The first entitled of these two consolidated cases is an appeal from an order and judgment of the circuit court of Cook county dismissing on the merits an information in quo warranto brought by the Attorney General on behalf of the people against the city of Chicago and Charles F. Clarke, E. T. Cunningham, and Phelps Kelley, as respondents. The information there alleged, in substance, the following: On May 19, 1930, the city of Chicago passed an ordinance entitled ‘An ordinance providing for a comprehensive unified local transportation system to be used mainly for the transportation of persons in the city of Chicago and in the adjacent and suburban territory comprised within the metropolitan area of the city of Chicago, and granting a terminable permit for the establishment, maintenance and operation of such system, and for the use therefor of streets, alleys, subways, public ways and public grounds in said city, reserving to the city or its permittee the right to purchase such system.’ This ordinance will be referred to herein as the ‘Comprehensive Traction Ordinance.’ The ordinance was submitted to and approved by the voters of the city on July 1, 1930, pursuant to one of the statutes of 1929, hereinafter referred to as the Terminable Permit Act. Laws 1929, p. 271, Smith-Hurd Rev. St. 1931, c. 131 1/4, p. 2845, § 17 et seq. The information charged that the ordinance was passed pursuant to the so-called enabling legislation adopted by the General Assembly and approved June 19, 1929, consisting of the Terminable Permit Act; also an act referred to as the Subway Act, entitled ‘An Act to authorize cities, villages and incorporated towns to construct or otherwise acquire subways and tunnels and to operate or lease the same and to provide the means for such construction, acquisition or operation’ (Laws 1929, p. 268, Smith-Hurd Rev. St. 1931, c. 24, p. 459, § 569a et seq.); also an act referred to as the Corporation Act Amendment of 1929, entitled ‘An Act to amend an Act entitled, ‘An Act in relation to corporations for pecuniary profit,’ approved June 28, 1919, in force July 1, 1919, as subsequently amended, by amending section 2 thereof, and by adding thereto a new section to be known as section 3 1/2 of said Act' (Laws 1929, p. 289, Smith-Hurd Rev. St. 1931, c. 32, pp. 743, 744, §§ 2, 3a) and an act referred to as the Railroad Act of 1929, entitled ‘An Act to enlarge the powers of railroad companies' (Laws 1929, p. 591, Smith-Hurd Rev. St. 1931, c. 114, p. 2311, §§ 49c, 49d).

The information charged that in passing the ordinance the city exercised powers under the enabling legislation of 1929, and that each of the four acts was individually, and all were as a series of connected legislation, unconstitutional, and that the ordinance was invalid for this reason and also because certain of its provisions were invalid in themselves; that the ordinance purports to grant a permit to use the city's streets to the Chicago Local Transportation Company, a pretended corporation; that the respondents Charles F. Clarke, E. T. Cunningham, and Phelps Kelley are purporting to act as officers of said pretended corporation, but that said pretended corporation is illegal and nonexistent because it was attempted to be organized under the 1929 Corporation Act Amendment, which is alleged to be invalid; that all respondents are acting together, under the legislation of 1929, to accomplish the following, among other, ‘illegal’ objects: To effect a unification of ownership an operation of the properties of street railway companies organized under the General Corporation Act and the properties of the Chicago Rapid Transit Company, which was organized under the General Railroad Incorporation Act; to sell the properties of the railroad corporation to a corporation organized under the General Corporation Act; to obtain a perpetual permit; to obtain a donation from the city of Chicago of subwaysand to procure the city to lend its credit to the building of such subways; to create a unified local transportation system comprising both street railways and railroads within an arbitrarily created metropolitan transit area, and to procure the city of Chicago to incur indebtedness in excess of its constitutional debt limit. The information also charges that the city of Chicago, in combination with the individual respondents as officers of the pretended corporation, the Chicago Local Transportation Company, is taking steps and proceeding under the ordinance, and that the city has expended and is expending large sums of money to carry out its provisions. It concludes with the usual charge that the respondents are, and have been for several months, usurping powers not granted to them by the state of Illinois.

The city of Chicago filed its plea, and the other respondents joined in a separate plea. Both pleas admitted that respondents had committed certain acts charged in the information, but sought to justify principally on the basis of the legislation of 1929. The pleas asserted the validity of all the acts and of the comprehensive traction ordinance. Thereafter the parties entered into an agreed case pursuant to the provisions of section 103 of the Practice Act (Smith-Hurd Rev. St. 1931, c. 110, § 103). The agreed case, after setting forth the pleadings, states the facts which preceded and gave rise to the passage of the legislation of 1929 and the ordinance of 1930. These facts are important as showing the circumstances under which the legislation was enacted and also for their bearing upon the reasonableness of the classification adopted by the Legislature.

Since 1859, when the first street railway company was organized for operation in Chicago, there have been eighteen such companies in operation there. By means of foreclosure sales, leases, consolidations, and otherwise, the properties of these companies were acquired by the four street railway companies now in operation. The properties of these companies have been operated as a unit since 1913 under a ‘unification ordinance’ passed in that year, and those properties are now in the hands of receivers appointed by the District Court of the United States for the Northern District of Illinois, Eastern Division, and are being operated under the supervision of the receivers through an operating agency known as Chicago Surface Lines board of operation. The street franchises of these companies were granted by the city by ordinance in 1907, and they expired February 1, 1927. Since that time the surface street cars have been operated by virtue of temporary licenses or permits from the city, which by their terms were to expire January 31, 1932. These street car lines comprise more than 1,000 miles of single track and 4,000 street cars. During the fiscal year ending January 31, 1930, they carried almost 900,000,000 revenue passengers in the city. The number of rides furnished daily was 4,500,000, and of this number upwards of one-half of the passengers were carried within two periods aggregating five hours of each twenty-four hours. The surface lines carried more than 77 per cent. of the total number of passengers carried by all the local transportation companies in the city. A decree for the sale of all the properties and franchises of these companies has been entered by the Federal court in the receivership proceedings.

Commencing in 1892 there were four distinct systems of elevated lines operating in the city of Chicago and its suburbs. These were operated upon elevated structures. The lines of these four systems have since been consolidated and are operated electrically as a single system under the ownership and management of the Chicago Rapid Transit Company. This company's system comprises 230 miles of single track and almost 2,000 cars. In 1929 it carried almost 20,000,000 passengers, 94 per cent. of whom were carried within the city of Chicago, and such traffic represented about 17 per cent. of the total of all passenger traffic in the city. The ordinance permits or franchises for operation of the elevated lines expire at different times, but all within a comparatively short time in the future. The record shows that the future operation of these lines for the service of the public is dependent upon the adoption of some constructive program for a comprehensive unified local transportation system like the system contemplated by the comprehensive traction ordinance.

Prior to the passage of...