State of Illinois ex rel. Hunt v. Illinois Cent. R. Co.

• Decision Date: 23 February 1888
• Citation: 33 F. 721
• Parties: STATE OF ILLINOIS ex rel. HUNT, Atty. Gen., v. ILLINOIS CENT. R. CO.
• Court: U.S. District Court — Northern District of Illinois

33 F. 721

STATE OF ILLINOIS ex rel. HUNT, Atty. Gen., v. ILLINOIS CENT. R. CO.

United States Circuit Court, N.D. Illinois.

February 23, 1888

The attorney general of Illinois, having first obtained leave filed, May 9, 1887, in the criminal court of Cook county, an information in the nature of a quo warranto, in the name and on behalf of the people of Illinois, against the Illinois Central Railroad Company. The information sets forth that the Illinois Central Railroad Company was incorporated by an act of the general assembly of Illinois, approved February, 1851 and for more than 12 months last past has used and exercised and still uses and exercises, without any warrant, charter or grant therefore, the following privileges, powers, and franchises, to-wit: It assumes to own the submerged lands as the same existed April 16, 1869, constituting the bed of Lake Michigan, and lying east of the tracks and breakwater of the Illinois Central Railroad Company, for the distance of one mile, and between the south line of the south pier extended eastwardly and a line extended eastward from the south line of lot 21, south of and near the round-house and machine-shops of said company in the South division of the city of Chicago, county of Cook, comprising 1,000 acres, more or less, which tract or parcel of land is not owned, possessed, or used for any of the uses or purposes for which said company was incorporated, and is not owned, used, or held in pursuance of the provisions of said act, and that said company has assumed to exercise, and does usurp and unlawfully exercise, possessory rights and rights of ownership over said submerged lands, has filled portions of the same with earth and other materials, and has constructed, and is constructing, docks, piers, wharves, and breakwater in and upon such lands. The information charges that the company, during the same period, has usurped and has unlawfully exercised other powers, liberties, privileges, and franchises, not granted to it, to-wit: That of constructing, maintaining, operating, and using, and leasing for hire, docks, wharves, and piers, in and upon, and in connection with, the submerged lands constituting the bed of Lake Michigan, and extending to the navigable waters thereof, which said docks, wharves, and piers are not necessary to the constructing, owning, and operating of said railroad, and still usurps and unlawfully exercises said powers, privileges, liberties, and franchises, and during said time has unlawfully claimed, and still unlawfully claims, the right to maintain, operate, lease for hire, and use said docks, wharves, and piers, and to collect tolls and charges for the use thereof by vessels, and from any and all persons using the same for the purpose of receiving freight from, or in delivering freight to, vessels upon the waters of Lake Michigan. The prayer of the information is that the company answer by what warrant it claims to have, use, and enjoy said powers, liberties, privileges, and franchises.

On the 16th of May, 1887,-- at which time it was required to appear and answer,-- the railroad company filed its petition and bond for the removal of the cause into this court. The petition for removal states that the matter in dispute exceeds the sum of $2,000, exclusive of costs; that this proceeding involves as well the legal title and ownership of the lands described in the information, as the right to use and occupy the same for the purposes therein mentioned; and that the suit really and substantially involves a controversy between the state of Illinois and the company, arising under the constitution of the United States. It asserts title in the company to the premises in controversy, and the right to use and occupy them as in the information alleged, through an act of the general assembly of the state of Illinois, passed April 16, 1869, entitled 'An act in relation to a portion of the submerged lands and Lake Park grounds lying on the adjacent to the shore of Lake Michigan, on the eastern frontage of the city of Chicago,' the third, seventh, and eighth sections of which are as follows:

'Sec. 3. The right of the Illinois Central Railroad Company, under the grant from the state in its charter, which said grant constitutes a part of the consideration for which the said company pays to the state at least seven per cent. of its gross earnings, and under and by virtue of its appropriation, occupancy, use, and control, and the riparian ownership incident to such grant, appropriation, occupancy, use, and control in and to the lands, submerged or otherwise, lying east of the said line running parallel with the 400 feet east of the west line of Michigan avenue, in fractional sections ten (10) and fifteen, (15,) township and range as aforesaid, is hereby confirmed, and all the right and title of the state of Illinois in and to the submerged lands constituting the bed of Lake Michigan, and lying east of the tracks and breakwater of the Illinois Central Railroad Company, for the distance of one mile, and between the south line of the south pier extended eastwardly, and a line extended eastward from the south line of lot twenty-one, south of and near to the round-house and machine-shops of said company, in the South division of the said city of Chicago, are hereby granted, in fee, to the said Illinois Central Railroad Company, its successors and assigns: provided, however, that the fee to said lands shall be held by said company in perpetuity, and that the said company shall not have power to grant, sell, or convey the fee to the same; and that all gross receipts from use, profits, leases, or otherwise of said lands, or the improvements thereon, or that may hereafter be made thereon, shall form a part of the gross proceeds, receipts, and income of the said Illinois Central Railroad Company, upon which said company shall forever pay into the state treasury, semi-annually, the per centum provided for in its charter, in accordance with the requirements of said charter. And provided, also, that nothing herein contained shall authorize obstructions to the Chicago harbor, or impair the public right of navigation; nor shall this act be construed to exempt the Illinois Central Railroad Company, its lessees or assigns, from any act of the general assembly which may be hereafter passed, regulating the rates of wharfage and dockage to be charged in said harbor. And provided, further, that any of the lands hereby granted to the Illinois Central Railroad Company, and the improvements now, or which may hereafter be, on the same, which shall hereafter be leased by said Illinois Central Railroad Company to any person or corporation, or which may hereafter be occupied by any person or corporation other than said Illinois Central Railroad Company, shall not, during the continuance of such leasehold estate, or of such occupancy, be exempt from municipal or other taxation.'

'Sec. 7. The grants to the Illinois Central Railroad Company contained in this act are hereby declared to be upon the express condition that said Illinois Central Railroad Company shall perpetually pay into the treasury of the state of Illinois the per centum on the gross or total proceeds, receipts, or income derived from said road and branches stipulated in its charter, and also the per centum on the gross receipts of said company reserved in this act.

'Sec. 8. This act shall be a public act, and in force from and after its passage. ' Laws Ill. 1869, p. 245.

The petition further alleges that the company formally accepted the act, causing due and proper notice thereof to be made a matter of record in the office of the secretary of state of the state of Illinois; and, relying upon said act, more particularly the third, seventh, and eighth sections thereof, after the passage thereof formally took possession of considerable portions of the submerged lands described therein, and thereafter expended upon the same about the sum of $500,000; that after such acceptance, and after it had formally taken possession of said lands, an act was passed by the general assembly of Illinois, approved April 15, 1873, (Laws Ill. 1873-74, p. 119,) in terms providing that the act of April 16, 1869, 'be, and the same is hereby, repealed;' but which repealing act, it will insist at the hearing of the cause, was an attempt to impair and annul the contract between it and the state, resulting from the act of April 16, 1869, and the acceptance thereof, and is therefore repugnant to the first clause of section 10, art. 1, Const. U.S., providing that no state shall pass any law impairing the obligation of contracts; that it will also insist, at the hearing, that the act of April 15, 1873, is void, as an attempt to deprive it of property and vested rights and interests, without due process of law, and is therefore in violation of the first section of the fourteenth amendment of the constitution of the United States, providing that no state shall deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. The petition states that these questions are material; must be determined at the trial of this suit; and that said suit is one arising under the constitution of the United States within the meaning of the act of congress approved March 3, 1887, relating to the jurisdiction of the circuit courts of the United States, and regulating the removal of causes from state courts.

On the 31st of May, 1887, after the transcript of the record from the state court had been filed in this court by the state, the attorney general placed on file the following paper:

'And now comes the people of the state of Illinois, by George Hunt, attorney general of said

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