The Metro. City Ry. Co. v. the City of Chicago.

• Decision Date: 20 November 1880
• Citation: 96 Ill. 620,1880 WL 10154
• Parties: THE METROPOLITAN CITY RAILWAY COMPANYv.THE CITY OF CHICAGO.
• Court: Illinois Supreme Court

96 Ill. 620

1880 WL 10154 (Ill.)

THE METROPOLITAN CITY RAILWAY COMPANY

v.THE CITY OF CHICAGO.

Supreme Court of Illinois.

Filed at Ottawa Nov. 20, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Circuit Court of Cook County; the Hon. W. H. BARNUM, Judge, presiding.

Messrs. LAWRENCE, CAMPBELL & LAWRENCE, and Mr. D. L. HOUGH, for the appellant:

That a court of equity has no jurisdiction to enjoin a nuisance until the question is settled by a trial by jury or at law, see Dunning v. City of Aurora, 40 Ill. 82; Murphy v. City of Chicago, 29 Id. 286 ; City of Jacksonville v. Jacksonville Railway Company, 67 Id. 542; Village of Watertown v. Cowan, 4 Paige, 410; C. & V. R. R. Co. v. People, 92 Id. 194.

As to the presumption that an ordinance was passed in conformity to its charter, see City of Covington v. Ludlow, 1 Metc. (Ky.) 298; City of Lexington v. Headley, 5 Bush, 508; McCormick v. Bay City, 23 Mich. 463; Larrison v. Railroad Company, 77 Id. 18.

The ordinance granting the right to lay the tracks on the streets was adopted and approved before the city adopted, by a vote, the general incorporation law of 1872, which required the petition of the owners of abutting land, representing more than one-half of the frontage, and hence was properly adopted without such petition.

Again, the act entitled “Horse and Dummy Railroads,” passed on March 19, 1874, being subsequent to the act in relation to the incorporation of cities, etc., and relating solely to the establishment and operating of horse and dummy railroads, and presenting for the first time in our legislation, a complete enactment designed to regulate that whole subject, must, of course, be considered as repealing any provisions of the city act of 1872 inconsistent with those found in the horse and dummy act. Culver v. Third National Bank, 64 Ill. 534.

It is contended that the ordinance is void, because the license runs for twenty-five years, when by the terms of the horse and dummy act it must be limited to twenty years. When a power is given, its exercise will be good as to the extent conferred, and only void as to the excess. 1 Sug. on Powers, (3d. Am. ed.), 75; State v. Allen, 43 Ill. 460; Commonwealth v. Weiher, 3 Metc. 448; 4 Kent's Com. 346.

Mr. C. BECKWITH, and Mr. JOSEPH F. BONFIELD, for the appellee:

1. The complete title and control of the public streets is in the city as trustee for the public. The power and duty to prevent illegal encroachments and obstructions is vested by law in the municipal corporation. Moses v. Railroad Co. 21 Ill. 522; Chicago v. Rumsey, 87 Id. 348; Northern Trausportation Co. v. Chicago, 99 U. S. 635.

2. A court of equity has jurisdiction to remove clouds upon and quiet the title of a municipal corporation to public grounds, streets and highways, to restrain encroachments therein, and acts sought to be performed under an invalid ordinance. City of Jacksonville v. Jacksonville R. R. Co. 67 Ill. 540; Trustees of Watertown v. Cowan, 4 Paige, 510; Attorney General v. Wilson, 1 Craig & Phillips, 1; Attorney General v. Johnson, Wilson's Ch. R. (2,) 87; Attorney General v. Terry, L. R., 9 Ch. App. 423; Attorney General v. Cohoes, 6 Paige, 133; United States v. Duluth, 1 Dillon, 469; Attorney General v. Mayor, etc. 1 Molloy, 103; Attorney General v. London, 8 Beav. 270; Attorney General v. Richards, 2 Anstruther, 603; Attorney General v. Forbes, 2 Mylne & Craig, 123; City of Georgetown v. Alexandria Canal Company, 12 Peters, 93; People v. City of St. Louis, 5 Gilm. 351. 3. The requisition of the statute, requiring ten days' notice of the time and place of presenting the petition of the appellant, for the consent by the city to the use of the streets for horse railroad purposes, is jurisdictional; the city council could acquire no jurisdiction over the subject matter of the petition until such notice was published and presented to the council, sitting as a legislative body. People v. Hatch, 33 Ill. 156; People v. Starne, 35 Id. 121; Wharton on Evidence, Vol. 2, sec. 824. and note, and sec. 1310; Clerk v. Wardwell, 55 Me. 61; Barnett v. Wolfe, 70 Id. 76; Haywood v. Collins, 60 Id. 341; Chestnut v. Marsh, 12 Id. 173; Turley v. Logan, 17 Id. 151; Ryan v. Lynch, 68 Id. 160.

4. If the journal of the city council fails to show that the notice of publication, being a jurisdictional fact required by the horse and dummy act, was presented to the council, that record is conclusive evidence that no such notice was presented to that body. A fact which should be a matter of record can not be proven by parol.

The city council “shall keep a journal of its own proceedings.” City Charter, sec. 40, art. 3, Cothran's Rev. Stat. p. 221.

The clerk shall attend all meetings of the city council, “and keep a full record of its proceedings in the journal.” City Charter, sec. 81, art. 6, Cothran's Rev. Stat. p. 237; People v. Hatch, 33 Ill. 156; Barnett v. Wolfe, 70 Id. 76; Sherwin v. Bugbee, 17 Vt. 339, and cases cited under last preceding point.

5. Before any legal consent could be granted by the passage of a valid ordinance, at least ten days' public notice of the time and place of presenting the petition of the company was necessary to be given, by publication in some newspaper published in the county, and the failure to give such notice invalidates such ordinance. Without such notice, it was an act ultra vires the city council. Roberts v. Easton, 19 Ohio State, 78; Swift v. City of Williamsburg, 24 Barb. 427; Jeffries v. Swampscott, 105 Mass. 535; Wilson v. Lyman, 119 Mass. 174; Wamisit Power Company v. Allen, 120 Mass. 352; Lewiston v. Cumberland County Commissioners, 30 Maine, 19; 2 Dillon Mun. Cor. secs. 471, 643; People v. Jackson Connty, 92 Ill. 441.

6. The city council has no power to grant the right to lay down railroad tracks on the streets of the city, except upon a petition of the owners of the land abutting, representing more than one-half the frontage of such streets, or so much thereof as is sought to be used for such purpose. Constitution, art. 11, sec. 4, Cothran's Rev. Stat. p. 28; City Charter, art. 5, sec. 62, clanses 24 and 90; Roberts v. Easton, 19 Ohio State, 78, and cases cited under last preceding point.

7. The provision of the city charter requiring the consent of owners of abutting land representing more than one-half the frontage of such portion of the public streets as is used for horse railway purposes, was not repealed by implication by force of the provisions of the horse and dummy act. Town of Ottawa v. County of LaSalle, 12 Ill. 339; Bruce v. Schuyler, 4 Gilm. 265; Potter's Dwarris, and notes 4 and 5, 154; Dingman v. People, 51 Ill. 277; Bacon's Ab. title Stat. D.; Bowen v. Lease, 5 Hill, 221; Kinney v. Mallory, 3 Ala. 626; Harding v. Railroad Co, 65 Ill. 90.

8. Although the ordinance was passed by the city council before the adoption of the present city charter, it was not accepted, and no bond was filed by appellant until after the new charter went into effect. Until the bond was filed, the ordinance was a mere proposition. The ordinance having been accepted, and the bond filed, after the adoption of the act for the incorporation of cities and villages, whatever rights were then acquired were subject to aud limited by the provisions of the new charter. State v. Dawson, 16 Ind. 40; Stone v. Wisconsin, 4 Otto, 181; Aspinwall v. Daviess, 22 How. 364; Rice v. Radiman, 10 Mich. 125.

9. The conditions imposed by the third section of the horse and dummy act, and upon which the authority to occupy the streets of the city for horse railway purposes are contingent, are conditions precedent and mandatory. They affect the rights of third persons, and of the public, and must be so construed. Cowgill v. Long, 15 Ill. 202; Supervisors of Magara v. The People, 7 Hill, 511; Wheeler v. Chicago, 24 Ill. 107; Kam v. Footh, 70 Id. 590; Mix v. The People, 72 Id. 244; Fowler v. Perkins, 77 Id. 271; Ross v. The People, 78 Id. 375.

10. The ordinance is void, for the further reason that said section three of the horse and dummy act also provides that no consent to the use of the streets for railway purposes shall be granted, except upon the condition that such company shall pay all damages to owners of property abutting upon such streets, such compensation to be ascertained and paid in the manner provided by law for the exercise of the right of eminent domain. The ordinance does not protect abutting owners, as required by the statute. The People v. Schemerhorn, 19 Bush, 559; Clark v. Chance, 5 Mich. 154; Andover Turnpike Company v. Gould, 6 Mass. 44; Lund v. New Bedford, 121 Mass. 286. Abutters can not enjoin the laying down of tracks. Peoria and Rock Island R. R. Company v. Schertz, 84 Ill. 135; Stetsen v. Chicago and Evanston R. R. Company, 75 Id. 74.

11. The city council had no power to authorize the construction of a street railway for the term provided by the ordinance. The period designated was about five years in excess of the statutory limitation, and until the city should elect to purchase the property of appellant used for such railway purposes. These provisions being dependent upon each other, and so mutually connected as to be inseparable without changing the clear intent of the parties--one part being void the whole must fall. Cooley on Const. Limit. 177-8-9, 216, note; Sedgwick on Stat. and Const. Law, 413 and note; Warner v. Charleston, 2 Gray, 98; Austin v. Murray, 16 Pick. 126; 1 La. Ann. 113; Hinze v. The People, 92 Ill. 407. Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a bill in chancery, brought in the circuit court of Cook county, by the city of Chicago, against the Metropolitan City Railway Company.

The bill alleges that on the 30th day of April, 1875, the common council of the city of Chicago passed an ordinance purporting to license said company to occupy, for horse railroad purposes, certain streets in the city; that the...