State Pub. Utilities Comm'n ex rel. Quincy Ry. Co. v. City of Quincy

• Decision Date: 17 December 1919
• Docket Number: No. 12779.,12779.
• Citation: 125 N.E. 374,290 Ill. 360
• Parties: STATE PUBLIC UTILITIES COMMISSION ex rel. QUINCY RY. CO. v. CITY OF QUINCY.
• Court: Illinois Supreme Court

290 Ill. 360

125 N.E. 374

STATE PUBLIC UTILITIES COMMISSION ex rel. QUINCY RY. CO.

v.CITY OF QUINCY.

No. 12779.

Supreme Court of Illinois.

Dec. 17, 1919.

Proceeding by the State Public Utilities Commission, on the relation of the Quincy Railway Company, against the City of Quincy. From an order affirming an order of the Public Utilities Commission, establishing and making effective advanced rates for street car service by the Quincy Railway Company in the City of Quincy, the City appeals.

Affirmed.

Appeal from Circuit Court, Sangamon County; E. S. Smith, judge.

Charles L. Bartlett, John F. Garner, and John T. Inghram, all of Quincy, for appellant.

Edward J. Brundage, Atty. Gen., William E. Trautmann, of East St. Louis, Albert D. Rodenberg, of Springfield, and Matthew Mills, of Chicago, for State Public Utilities Commission.

Green & Palmer, of Urbana (Henry I. Green and M. E. Pemberton, both of Urbana, of counsel), for appellee.

PER CURIAM.

This is an appeal by the city of Quincy from the order of the Sangamon county circuit court, affirming an order of the Public Utilities Commission establishing and making effective, among other things, advanced rates for street car service by the Quincy Railway Company, in that city. The hearing before the commission involved many issues concerning the operation of public utilities in cities other than Quincy and as to companies other than appellee. With these other issues the city of Quincy was in no way concerned, and counsel have, therefore, for the purpose of this appeal, stipulated the facts upon which the appeal was taken, eliminating immaterial and impertinent questions not here involved.

Among other questions was one as to the necessity for increasing street railway fares above those provided by the city ordinance. It is conceded in the record that the findings of the Public Utilities Commission are correct that the Quincy Railway Company must charge and collect fares in excess of those prescribed by said ordinance in order to meet its increased operating expenses. During the year 1912 the Quincy Railway Company accepted a so-called franchise ordinance from said city, which fixed the rates for street railway service for a period of 20 years. The only change made by the Public Utilities Commission in the rates was to abolish the sale of six tickets for 25 cents and the sale of reduced fare tickets to school children and to establish a flat five-cent fare. The only question involved on this hearing is whether the Public Utilities Commission has authority, power, and jurisdiction to approve and authorize street railway fares in said city which are in excess of the fares prescribed in the ordinance passed in 1912, under which said city granted the Quincy Railway Company the right to operate its railroad upon the public streets of that city.

The power to fix and regulate rates as to public utilities was at common law one inherent in the state. Munn v. People, 69 Ill. 80. No express grant was necessary to vest it in the Legislature. ‘No proposition is better settled than that a state Constitution is a limitation upon the powers of the Legislature, and that the Legislature possesses every power not delegated to some other department, or expressly denied to it by the Constitution.’ Field v. People, 2 Scam. 79. This doctrine has been repeatedly approved by this court since that early decision. Cities, villages, and other municipalities and quasi municipal corporations are created under the authority of the Legislature, to better accomplish the purposes of local government. These and all other local municipalities which are authorized by the Legislature derive their existence and all their powers from the Legislature creating them. ‘There is therefore no such thing as an inherent power in any municipality which is created by legislative enactment.’ City of Chicago v. M. & M. Hotel Co., 248 Ill. 264, 93 N. E. 753.

It must be conceded that the municipality can do nothing the state cannot authorize it to do; that all the power a municipality has is created by and must emanate from the state creating it. ‘What powers, then, reside in the state? It has all power necessary for the protection of the property, health and comfort of the public, and that power has been so frequently defined by this court it is not necessary to restate it. Its power, in this respect, the state may delegate to local municipalities, and in such measure as may he deemed desirable for the best interests of the public, and the state may resume it again when deemed expedient.’ Harmon v. City of Chicago, 110 Ill. 400, 51 Am. Rep. 698.

The chief contention here, however, is whether the state still retains this power after having granted to the municipality the right to regulate and control by ordinance the operation of street railways in the city. After an ordinance has been passed by the city under this power and accepted by the railway company, can the state thereafter override or change any of the provisions of said ordinance? It is strenuously insisted by counsel for appellant that to permit this is contrary to the provisions of the federal and state Constitutions as to due process of law. In discussing this question the United States Supreme Court has recently stated:

‘It is established by repeated decisions of this court that neither of these provisions of the federal Constitution [the contract clause and due process clause] has the effect of overriding the power of the state to establish all regulations reasonably necessary to secure the health, safety, or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by express grant; and that all contract and property rights are held subject to its fair exercise.’ Chicago & Alton Railroad Co. v. Tranbarger, 238 U. S. 67, 35 Sup. Ct. 678,59 L. Ed. 1204.

The regulation of public utilities is within the exercise of the police power of the state. This power may be exercised directly by the Legislature or indirectly by conferring the power upon the municipalities created by the Legislature. ‘The power is an attribute of sovereignty and is primarily vested in the Legislature, which has the right to recall it at any time from the agency to which it has been delegated.’ City of Chicago v. O'Connell, 278 Ill. 591, 116 N. E. 210. This last case was again brought to this court on substantially the same record, where the former opinion was held binding on this court. City of Chicago v. Dempcy, 281 Ill. 257, 117 N. E. 1010. From this last judgment a writ of error was sued out of the United States Supreme Court. That court dismissed the cause for want of jurisdiction. Chicago v. Dempcy, 250 U. S. 651, 40 Sup. Ct. 53, 64 L. Ed. --. The police power of the state has never been exactly defined or circumscribed by fixed limits. It is considered as being capable of development and modification within certain limits, so that the powers of governmental control may be adequate to meet changing social, economic, and political conditions. In a general way it may be defined--

‘as comprehending the making and enforcement of all such laws, ordinances and regulationsas pertain to the comfort, safety, health, convenience, good order and welfare of the public.’ Wice v. Chicago & Northwestern Railway Co. 193 Ill. 351, 61 N. E. 1084,56 L. R. A. 268; 6 R. C. L. 189.

It is suggested that section 4 of article 11 of the Constitution of 1870 in effect forbids the changing of rates provided for by legislative authority thereafter. That section of the Constitution provides:

‘No law shall be passed by the General Assembly granting the right to construct and operate a street railroad within any city, town or incorporated village, without requiring the consent of the local authorities having the control of the street or highway proposed to be occupied by such street railroad.’

In Public Utilities Com. v. Chicago & West Towns Railway Co., 275 Ill. 555, 570, 114 N. E. 325, 330 (Ann. Cas. 1917C, 50), in considering this section of the Constitution, the court said:

‘That provision is simply a limitation of the general powers of the Legislature, and in one particular, only. It provides, in substance, that the Legislature may not grant the right to construct and operate a street railroad within a municipality without requiring the consent of the local authorities having control of the streets or highways proposed to be occupied. That section of the Constitution does not, by implication or otherwise, attempt to divest the state of its paramount authority and control of streets and highways.’

That doctrine in that case was fully approved by this court in City of Chicago v. O'Connell, supra.

We have also said:

‘All contracts, whether made by the state itself, by municipal corporations or by individuals, are subject to be interfered with or otherwise affected by subsequent statutes enacted in the bona fide exercise of the police power, and do not, by reason of the contracts clause of the federal Constitution, enjoy any immunity from such legislation.’ Hite v. Cincinnati, Indianapolis & Western Railroad Co., 284 Ill. 297, 119 N. E. 904.

The court in this last case quoted with approval from Manigault v. springs, 199 U. S. 473 on page 480, 26 Sup. Ct. 127 on page 130 (50 L. Ed. 274), the rule as there stated by that court:

‘It is the settled law of this court that the interdiction of statutes impairing the obligation of contracts does not prevent the state from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. This power, which in its various ramifications is known as the police power, is an exercise of the sovereign right of the government to protect the lives, health, morals, comfort and general welfare of the people, and is paramount to any rights under...