Village of Atwood v. Cincinnati, I.&W.R. Co.

• Decision Date: 24 April 1925
• Docket Number: No. 15984.,15984.
• Court: Illinois Supreme Court
• Parties: VILLAGE OF ATWOOD v. CINCINNATI, I. & W. R. CO.

316 Ill. 425

147 N.E. 449

VILLAGE OF ATWOOD

v.CINCINNATI, I. & W. R. CO.

No. 15984.

Supreme Court of Illinois.

April 24, 1925.

Suit by the Village of Atwood against the Cincinnati, Indianapolis & Western Railroad Company. Judgment on demurrer for defendant, and plaintiff appeals.

Affirmed.

Farmer, J., dissenting.

Appeal from Circuit Court, Piatt County; George A. Sentel, judge.

William K. Whitfield, W. Thomas Coleman, and Jesse L. Deck, all of Decatur, for appellant.

George B. Gillespie, George M. Gillespie, and Thomas E. Gillespie, all of Springfield (F. J. Goebel, of Indianapolis, Ind., of counsel), for appellee.

DE YOUNG, J.

The president and board of trustees of the village of Atwood on February 13, 1922, passed an ordinance requiring the Cincinnati, Indianapolis & Western Railroad Company, within 60 days after notice of the passage and publication of the ordinance, to station and maintain a flagman at the intersection of County Line street with the railroad from 8 o'clock in the morning until 6 o'clock in the afternoon of each day. The ordinance declared that such a flagman was necessary for the safety of the general public, and subjected the railroad company, for its refusal or neglect to comply, to a fine of not less than $10 for each day's default. The railroad company refused to provide the flagman, and the village brought suit in the circuit court of Piatt county to recover the penalties prescribed. The defendant interposed a demurrer to the declaration, assigning as causes therefor that the village authorities had no power or authority to pass the ordinance, and that the power to provide for the safety of the public at the intersections of streets with steam railroads is vested solely in the Commerce Commission. The court sustained the demurrer and rendered judgment in favor of the defendant. The village prosecutes this appeal, since the validity of a municipal ordinance is involved, and the trial judge has certified that in his opinion the public interest requires that the appeal be taken directly to this court.

The sole question presented for determination is whether the president and board of trustees of the village of Atwood had the power to pass the ordinance. Subsection 27 of section 1 of article 5 of ‘An act to provide for the incorporation of cities and villages,’ approved April 10, 1872, in force July 1, 1872 (Cahill's Stat. 1921, p. 447), expressly confers upon cities and villages organized under the act the power ‘to require railroad companies to keep flagmen at railroad crossings of streets, and provide protection against injury to persons and property in the use of such railroads.’ This provision became a part of the act at the time of its passage, and since has remained unchanged. Appellee does not deny this grant of power, but insists that it was the purpose of the General Assembly, by the passage of ‘An act to provide for the regulation of public utilities,’ approved June 30, 1913, in force January 1, 1914 (Laws 1913, p. 459), to vest in the Public Utilities Commission, and by its successor, ‘An act concerning public utilities,’ approved June 29, 1921, in force July 1, 1921 (Laws 1921, p. 702), to vest in the Illinois Commerce Commission, complete and exclusive power to regulate and control all public utilities in the state, and that such purpose is manifested by the terms and provisions of the two acts. A consideration of the scope and pertinent provisions of the later act is therefore necessary.

The act, among other things, creates the Commerce Commission, and vests it with general supervision of all public utilities, including power to establish their systems of accounting, to supervise, regulate, restrict, and control the issuance of their stocks and bonds, to regulate their rates and services, and to hold investigations, inquiries, and hearings concerning any matters within the provisions of the cat or any other act relating to public utilities, make findings and enter its orders thereon. More specifically, section 9 (Laws 1921, p. 708) requires every public utility to comply with every order or regulation made by the commission. Section 32 (Laws 1921, p. 719) requires every such utility to furnish and maintain such instrumentalities, equipment and facilities as shall promote the safety, health, comfort, and convenience of its patrons, employees, and the public, and as shall be in all respects adequate and efficient. The forty-ninth section (Laws 1921, p. 728) provides that, whenever the commission, after a hearing upon its own motion or upon complaint, shall find that the equipment, appliances, facilities, or practices of any public utility are unsafe, improper, or inadequate, the commission shall determine, and by its order, rule, or regulation fix, the safe, proper, or adequate equipment, appliances, facilities, or methods to be observed, furnished, constructed, enforced, or employed. By section 50 (Laws 1921, p. 728), whenever the commission, after a hearing upon its own motion or upon complaint, shall find that additions, extensions, repairs, or improvements to or changes in the existing plant, equipment, apparatus, facilities, or other physical property of any public utility ought reasonably to be made, to promote the security or convenience of its employees or the public, the commission shall make and serve an order directing that such additions, extensions, repairs, improvements, or changes be made. Section 57 (Laws 1921, p. 733) provides:

‘The commission shall have power, after a hearing and upon its own motion, or upon complaint, by general or special orders, rules or regulations, or otherwise, to require every public utility to maintain and operate its plant, equipment or other property in such manner as to promote and safeguard the health and safety of its employees, passengers, customers, and the public, and to this end to prescribe, among other things, the installation, use, maintenance and operation of appropriate safety or other devices or appliances including interlocking and other protective devices at grade crossings or junctions and block or other systems of signaling, to establish uniform or other standards of equipment, and to require the performance of any other act which the health or safety of its employees, passengers, customers or the public may demand.’

By section 58 (Laws 1921, p. 734) the commission is given power, after a hearing, when in its opinion the public safety requires it, to alter or abolish any existing or future grade crossing or to require a separation of grades at such crossings, and to prescribe, after a hearing of the parties, the terms upon which such separation shall be made and the proportion in which the expense of the alteration or abolition of such crossings or the separation of such grades shall be divided between the railroad or street railroad companies affected, or between such companies and the state, county, municipality, or other public authority in interest. Section 64 (Laws 1921, p. 738) authorizes the making of complaints by the commission upon its own motion, or by any person or corporation, Chamber of Commerce, Board of Trade, or any industrial, commercial, mercantile, agricultural, or manufacturing society, or any body politic or municipal corporation. Section 65 (Laws 1921, p. 740) provides for the issuance of process to enforce the attendance of necessary witnesses, for hearings, the taking of evidence, the entry of orders and for appeals. Section 76 (Laws 1921, p. 747) subjects any public utility which violates or fails to comply with any provision of the act, or any order, decision, rule, regulation, direction, or requirement of the commission, to a fine of not less than $500 nor more than $2,000 for each and every offense. Sections 81 to 86, inclusive (Laws 1921, pp. 748-753), which constitute article 6 of the act, concern local utilities, and permit a city which adopts the article, to regulate and control such public utilities, ‘except railroads constituting or used as a part of a trunk line railroad system,’ in the manner there prescribed.

It will be observed that every public utility is required by section 32, among other things, to provide and maintain such instrumentalities, equipment, and facilities as shall promote the safety, not only of its patrons and employees, but also of the public. The act expressly provides for hearings by the commission concerning matters relating to public utilities, and the making of rules, regulations, decisions, or orders as the result of such hearings. Public utilities are required by section 9 to obey such rules, regulations, decisions, or orders, and the seventy-sixth section prescribes several penalties for failure to comply. The commission has the power, after a hearing, to determine safe, proper, and adequate appliances and facilities, and by its order to require them to be furnished, constructed, or employed. If after a hearing it shall find that additions or improvements to or changes in any existing facilities or other physical property of any public utility ought reasonably to be made, to promote the security of the public, it may by its order direct such additions, improvements, or changes to be made. By section 57 the commission has the power, after a hearing, to require every public utility to maintain and operate its property in such...