South Park Com'rs v. Chicago City Ry. Co.

• Decision Date: 20 February 1919
• Docket Number: No. 12326.,12326.
• Citation: 122 N.E. 89,286 Ill. 504
• Parties: SOUTH PARK COM'RS v. CHICAGO CITY RY. CO.
• Court: Illinois Supreme Court

286 Ill. 504

122 N.E. 89

SOUTH PARK COM'RS

v.CHICAGO CITY RY. CO.

No. 12326.

Supreme Court of Illinois.

Feb. 20, 1919.

Error to Appellate Court, First District, on Appeal from Municipal Court of Chicago; Hosea W. Wells, Judge.

Suit by the South Park Commissioners against the Chicago City Railway Company. A judgment for plaintiff for part of the amount claimed was reversed on appeal to the Appellate Court, and judgment entered for the total amount of claim, and defendant brings error. Reversed and remanded.Harry P. Weber, George W. Miller, and Arthur J. Donovan, all of Chicago, for plaintiff in error.

Roy O. West, Percy B. Eckhart, William Rothmann, and William M. Klein, all of Chicago, for defendant in error.

CARTWRIGHT, J.

The defendant in error, the South Park Commissioners, brought suit in the municipal court of Chicago against the plaintiff in error, the Chicago City Railway Company, to recover the cost of paving and restoring and repairing pavements outside of the right of way of the defendant in the street and boulevard intersections of Twenty-Second street and South Michigan avenue, Thirty-Fifth street and South Michigan avenue, Thirty-Fifth street and South Park avenue, and Forty-Seventh street and Grand boulevard. The plaintiff's claim was based on ordinances granting permission to the defendant to lay its tracks across the intersections upon condition specified in the ordinances that the defendant should do the paving in question, and which ordinances were accepted by the defendant. The affidavit of merits alleged that the defendant acquired its right to lay its tracks in the streets and across the intersections from the city council of the city of Chicago and the plaintiff had no power or authority to confer the right, and therefore there was no consideration for the supposed contract alleged to have been created by the acceptance of the ordinances. There was no controverted question of fact, and the cause was tried by the court without a jury, mainly upon a stipulation of facts. It was agreed by the stipulation that the plaintiff is a municipal corporation created by an act approved February 24, 1869, and acts amendatory thereof and supplementary thereto, and having charge of a park system; that the defendant is a street railway corporation organized under an act approved February 14, 1859, as afterward amended; that Grand boulevard, South Park avenue, and South Michigan avenue, including the intersections in question, are under the control of the plaintiff as boulevards and pleasure driveways; that Twenty-Second, Thirty-Fifth, and Forty-Seventh streets are, and since prior to 1892 have been, public streets under the control of the city of Chicago; that prior to April 15, 1907, the defendant constructed, maintained, and operated street railways across the intersections under valid city ordinances; that the plaintiff at different times passed ordinances granting to defendant the right to construct and operate the double tracks of its railway across the intersections on the condition that the defendant should do paving for which the suit was brought, and in each instance the defendant filed its written acceptance of the ordinance, and that on February 11, 1907, the city council passed an ordinance authorizing the defendant to construct, reconstruct, maintain, and operate street railways upon various streets-among them Twenty-Second, Thirty-Fifth and Forty-Seventh streets-on condition that the defendant should grade, pave, and keep in repair 16 feet in width of all streets occupied by double tracks, and the defendant has complied with such condition, and that the plaintiff, after demand upon the defendant and refusal, did the paving and made the repairs for which the suit was brought. The total cost of the paving and repairs was $4,097.08. The court found for the plaintiff as to part of the claim and rejected the balance and rendered judgment for $1,857.20. On appeal to the Appellate Court for the First District the judgment of the municipal court was reversed, and judgment was entered for the plaintiff for $4,097.08, the total amount of the claim. This court granted a writ of certiorari for a review of the judgment of the Appellate Court.

The facts not being in dispute, the questions governing the rights of the parties were whether the ordinances and their acceptance constituted contracts that the defendant would do the paving in question, whether, if they constituted contracts, there was any consideration for the promise of the defendant, and whether the defendant was estopped to make the defense interposed. The court held propositions submitted by the plaintiff answering these questions in the affirmative as to some ordinances, and held the negative as to other ordinances on propositions submitted by the defendant. The counsel for defendant in error regard the rulings of the court on the propositions as contradictory and irreconcilable, and the plaintiff in error contends that those held at the instance of the defendant in error were wrong. The Appellate Court applied the same rules to all ordinances and rendered judgment...