The Chicago v. Haggerty

• Decision Date: 31 January 1873
• Citation: 1873 WL 8146,67 Ill. 113
• Parties: THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANYv.JOHN T. HAGGERTY.
• Court: Illinois Supreme Court

67 Ill. 113

1873 WL 8146 (Ill.)

THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY

v.JOHN T. HAGGERTY.

Supreme Court of Illinois.

January Term, 1873.

APPEAL from the Circuit Court of Adams county; the Hon. JOSEPH SIBLEY, Judge, presiding. This was an action commenced by John T. Haggerty against the Chicago, Burlington and Quincy Railroad Company, before a justice of the peace, to recover the value of a cow killed by defendant's train within the limits of the town of Camp Point.

The cause was taken by appeal to the circuit court, where a trial was had, resulting in a verdict and judgment in favor of the plaintiff for $50, from which judgment the defendant appealed to this court.

On the trial the plaintiff, after proving the killing and value of the cow, and that the killing took place within the limits of the town of Camp Point, an incorporated town, and that the train which struck the animal was running at the speed of from twelve to fifteen miles per hour, then produced and read in evidence, having first proved the due publication thereof, the following ordinance of the town:

“ORDINANCE 24.-- Regulating speed of railroad trains, etc. Whereas, the good and safety of the inhabitants of the town of Camp Point require that the rate of speed of locomotive engines and cars upon the railroads within said town be regulated and restrained, therefore,

Be it ordained by the President and Board of Trustees of the town of Camp Point: SECTION 1. That no locomotive engine, car, or trains of cars, shall be propelled, driven or run upon the track of any railroad within the limits of the town of Camp Point, at a greater rate of speed than six miles per hour.

SEC. 2. It is hereby declared that the running or driving of any locomotive engine, car, or trains of cars, upon any track of any railroad within said town, at a greater rate of speed than six miles an hour, shall be deemed and considered a nuisance, and the same is hereby prohibited.”

The third section provides a penalty of not less than $50 nor more than $100 for a violation of the ordinance. The defendant objected to the introduction of the ordinance, but the court overruled the objection and the defendant excepted.

Messrs. BROWNING & BUSHNELL, for the appellant.

Mr. J. M. CYRUS, and Messrs. WHEAT & MARCY, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

The admission in evidence of the ordinance of the town of Camp Point prohibiting the running of trains within the town at a greater rate of speed than six miles per hour, is first assigned for error.

It is contended that the ordinance is null and void, because the town had no authority to pass such an ordinance, and because the company was expressly authorized by law to fix and regulate the rate of speed of trains upon its road. There is no grant of power to this town, in express terms, to regulate the rate of speed of railway trains passing through the town, but by its charter (Pr. Laws 1857, pp. 540 and 541) the board of trustees of the town have the power to declare what shall be considered as nuisances, and to prevent and remove the same, and to regulate the police of the town, and to make such ordinances as the good of the inhabitants of the town may require. Under these powers we think the town possessed the authority so to order the use of private property within its limits as to prevent its proving dangerous to the safety of the persons and property of citizens; and we view the ordinance in question as but a police regulation for the preservation of the safety of persons...