The Attorney Gen. v. the Chicago

• Decision Date: 13 November 1884
• Citation: 1884 WL 10025,112 Ill. 520
• Parties: THE ATTORNEY GENERALv.THE CHICAGO AND EVANSTON RAILROAD COMPANY.
• Court: Illinois Supreme Court

112 Ill. 520

1884 WL 10025 (Ill.)

THE ATTORNEY GENERAL

v.THE CHICAGO AND EVANSTON RAILROAD COMPANY.

Supreme Court of Illinois.

Filed at Mt. Vernon Nov. 13, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Criminal Court of Cook county; the Hon. GEORGE GARDNER, Judge, presiding.

This was a petition for leave to file an information in the nature of a quo warranto, against the Chicago and Evanston Railroad Company, in the circuit court of Cook county. The petition states: That the Chicago and Evanston Railroad Company was incorporated by a special act of the General Assembly, entitled “An act to incorporate the Chicago and Evanston Railroad Company,” approved February 16, 1861, for the purpose of constructing and operating a railroad from the city of Chicago to any point in the town of Evanston, (which act is found in the Private and Local Laws of Illinois for the year 1861, at page 487, to which reference is hereby made;) that shortly after the passage of the act, the incorporators named accepted the same, opened books of subscription to the capital stock, and elected officers; that the capital stock was subscribed, but no payments have been made on account of such subscriptions, and no moneys were expended by the company in furtherance of the objects of its incorporation until several years after the present constitution of the State went into effect, which was August 8, 1870; that by section 2, of article 11, of said constitution, it was enacted as follows: “All existing charters or grants of special or exclusive privileges, under which organization shall not have taken place, or which shall not have been in operation within ten days from the time this constitution takes effect, shall thereafter have no validity or effect whatever;” that said company was not in operation within ten days after the time the constitution took effect, to-wit, August 8, 1870, by reason whereof the special act of incorporation, and all rights therein granted, ceased to have any validity or effect, by reason of such failure to operate said company within the period fixed by section 2, of article 11; that August 17, 1864, an ordinance was passed by the council of the city of Chicago, entitled “An ordinance concerning the maintenance and operation of the Chicago and Evanston railroad in the limits of the city of Chicago,” (which ordinance is found in the published volume of the laws and ordinances of the city, known as “Tuley's Laws and Ordinances,” at page 230, to which reference is made;) that for the purpose of procuring the approval of the mayor thereto, so that it might become a law, the Chicago and Evanston company contracted with the city that the company should operate the cars and carriages used upon their tracks within the limits of the city, with animal power only, and that the said railway should not connect with any other railroad on which any other power is used, which contract was evidenced by certain resolutions adopted by the directors of the company, April 25, 1864, (which are published in said “Tuley's Laws and Ordinances,” at page 233, to which reference is made,) and thereupon, after the passage of said resolutions, the mayor, in consideration thereof, approved the ordinance; that February 6, 1865, an act was passed by the General Assembly, entitled “An act concerning horse railways in the city of Chicago,” (which was published in volume 1 of the Private and Local Laws of Illinois for the year 1865, at page 597, to which reference is made,) by section 3 of which act it was declared that the ordinance of August 17, 1864, hereinbefore referred to, was confirmed, and the same was declared to confer upon said company power to construct and operate their road in the streets and over the bridge therein mentioned, until it should be altered, changed or amended by the council, with the consent of the company; that by virtue of the act of incorporation, the ordinance of August 17, 1864, the resolutions and stipulations of the company concerning the same, and the act of the General Assembly of February 1, 1865, as set forth, the Chicago and Evanston company were empowered to construct and operate only a horse railway within the limits of the city, and by virtue of said several acts, resolutions and ordinances, the company was not invested with any power to operate a railroad within the city by other than animal power; that if the company and its franchises are still in existence, notwithstanding the limitation contained in section 2, of article 11, of the constitution, and the failure of the company to construct and operate its road within ten days after the constitution took effect, nevertheless, that the company has no present power to construct or operate any railway within the city to be operated by any other than animal power; that on June 12, 1872, an ordinance was passed by the council, entitled “An ordinance concerning the Chicago and Pacific Railroad Company, and the Chicago and Evanston Railroad Company,” (which may be found in the published volume of the laws and ordinances of the city, known as the ““Municipal Code of Chicago,” page 598, to which reference is made,) by section 7 of which ordinance it was provided that the privileges therein were granted upon the express condition that the Chicago and Pacific company should permit the Chicago and Evanston company to use the tracks authorized to be laid, jointly with the Chicago and Pacific company,--but by section 1 it was provided that the tracks thereby authorized in Hawthorne avenue should be constructed and maintained for passenger cars only; that if the Chicago and Evanston company was then in existence, which is expressly denied, and if the council could then lawfully grant to the Chicago and Pacific company the privilege of operating their cars over the tracks authorized by the ordinance, with steam power, as by section 2 is attempted, but which is denied, nevertheless, that by virtue of section 1 of the ordinance, the companies were limited to the use of the tracks in Hawthorne avenue for passenger cars only, and could not lawfully construct or operate their tracks within said street for the use of cars for any other purpose than conveying passengers; that by section 7 of said ordinance it was provided that the same should be void unless the tracks were constructed within two years from its passage, and that none of the tracks were laid by either company until on or about the last day of the period, when the companies did construct a certain track for a short distance along Jones and Southport avenues, which track was abandoned and never used; that said track was the first ever laid within the city, or elsewhere, by the Chicago and Evanston company, and after the laying of such track, in 1874, and its abandonment, said company did nothing further by way of constructing or operating its railroad prior to the fall of 1882, since which time it has constructed a small portion of its line northwardly from Hawthorne avenue, but that it has never completed the construction of its line as authorized by its charter or the ordinance of 1864, and has never operated its line, either in whole or in part, either by steam or animal power; that December 27, 1876, an ordinance was passed by the council, entitled “An ordinance repealing all ordinances heretofore passed granting any rights and privileges to the Chicago and Evanston Railroad Company,” (which ordinance will be found in the published volume of the proceedings of the council for the municipal year 1876 and 1877, at page 300, to which reference is made,) by virtue of which all the rights theretofore granted by the city to the company were wholly repealed; that December 24, 1883, an ordinance was passed by the council of the city of Chicago, over the veto of the mayor, entitled “An ordinance concerning the Chicago and Evanston Railroad Company, and the Chicago and Lake Superior Railroad Company,” (which ordinance may be found in the published proceedings of the council for the municipal year 1883 and 1884, beginning at page 306, to which reference is made,) which ordinance was formally accepted by a resolution of the company, shortly after its passage; that even if the company is still in existence as a corporation, which is denied, nevertheless, the council had no power to confer upon the company the privileges in said ordinance attempted to be conferred, and especially that the council had no power to authorize the company to construct and operate its road upon the route in said ordinance described, the same being another and different route from that located by the ordinance of 1864; that the council had no power to authorize the company to construct a bridge across the north branch of the Chicago river, as by section 2 of the ordinance is attempted to be conferred; that the council had no power to authorize the company to use and operate the tracks in said ordinance authorized to be laid in Canal street, or the tracks in and by said ordinance authorized to be laid in Hawthorne avenue, for the reason that no petition of the property owners representing more than one-half the frontage on said streets, respectively, or so much thereof as is authorized by said ordinance to be used for railroad purposes, had ever been obtained for such use; that the council had no power to authorize said company to construct or operate any tracks within the city, to be operated by any other than animal power; that notwithstanding the premises, the Chicago and Evanston company still claims and asserts that it is a valid corporation, entitled to exercise all the rights and franchises granted by its act of incorporation and the ordinances hereinbefore set forth, and especially the right of constructing and operating a railroad to be operated by steam power, from a point within the city of Chicago to a point within the town of Evanston; that it likewise claims the right to, and threatens that it will, construct and operate the line of...