West Chicago Street Railroad Company v. People of the State of Illinois City of Chicago

• Decision Date: 09 April 1906
• Docket Number: No. 241,241
• Citation: 26 S.Ct. 518,201 U.S. 506,50 L.Ed. 845
• Parties: WEST CHICAGO STREET RAILROAD COMPANY, Plff. in Err. , v. PEOPLE OF THE STATE OF ILLINOIS ex rel. CITY OF CHICAGO
• Court: U.S. Supreme Court

201 U.S. 506

26 S.Ct. 518

50 L.Ed. 845

WEST CHICAGO STREET RAILROAD COMPANY, Plff. in Err.,

v PEOPLE OF THE STATE OF ILLINOIS ex rel. CITY OF CHICAGO.

No. 241.

Argued January 10, 11, 1906.

Decided April 9, 1906.

Messrs. John P. Wilson and Charles S. Babcock for plaintiff in error.

[Argument of Counsel from pages 507-511 intentionally omitted] Messrs. James Hamilton Lewis and Granville W. Browning for defendant in error.

[Argument of Counsel from pages 511-513 intentionally omitted] Mr. Justic

e Harlan delivered the opinion of the court:

This case presents some questions of jurisdiction and constitutionality arising out of the relative rights and duties of the city of Chicago and the West Chicago Street Railroad Com- pany in respect of a tunnel maintained by that company under the south branch of Chicago river at or near Van Buren street, in that city.

The judgment in the circuit court of Cook county, Illinois, was in favor of the railroad company, but it was reversed in the appellate court, first district, the former court being directed to give to the city the relief asked. Upon appeal to the supreme court of Illinois a judgment was rendered in favor of the city.

The contention of the company is that the judgment under review cannot be sustained consistently either with the contract clause of the Constitution of the United States or with the due process of law enjoined by the 14th Amendment.

The case presented by the record is substantially as will be now stated.

On or about April 2d, 1888, the city council of Chicago adopted in due form the following ordinance:

'Whereas, the board of directors of the West Chicago Street Railroad Company, on the second day of April, 1888, by and at the request of the mayor of the city of Chicago, adopted the following resolution: Resolved, That the West Chicago Street Railroad Company, in consideration of the passage and approval by the mayor of the three ordinances passed by the city council of Chicago on the 30th day of March, 1888,—one granting to the West Division Railway Company the right to change its motive power from horse to cable or electric power; one granting to the Chicago Passenger Railway Company the right to make the same change; and one granting to the West Chicago Street Railroad Company the right to construct its tracks on Jefferson street, between Madison and Washington streets, and to use horse, cable, or electric power thereon,—hereby agrees, by and with the city of Chicago, at its own expense to construct a tunnel under the Chicago river, and acquire the necessary right of way therefor on a route to be located by said company between Madison and Twelfth streets, with the east terminus at Fifth avenue or west thereof, and the western terminus at Halsted street or east thereof; provided, however, that this company shall have the right from said city to construct said tunnel under any intervening street or streets and said river within said limits, but such location and construction shall be such as not to interfere with the capacity, usefulness, or grade of said streets; said tunnel to be used by this company for street railroad tracks, and the construction thereof shall be commenced within three years, and be completed within four years, after the said city council shall grant permission to said railroad company to make said improvements, unless prevented by injunctions or strikes, and the time said construction is so interfered with shall be added to said four years, all work to be done in a manner satisfactory to the commissioner of public works, and the tracks through the tunnel shall be connected with the street railroad tracks controlled by this company. Now, therefore, be it ordained by the city council: That the agreement in said resolution contained be and the same is hereby accepted by and on behalf of the city of Chicago as a consideration from said company for the passage and approval by the mayor of the ordinances in said resolution specified, and authority is hereby granted said company to make the improvements therein mentioned.'

When this ordinance was passed there was in force what is known as the horse and dummy act, passed in 1874, which provided: 'That any company which has been or shall be incorporated under the general laws of this state, for the purpose of constructing, maintaining, or operating any horse or dummy railroad or tramway, may enter upon and appropriate any property necessary for the construction, maintenance, and operation of its road, and all necessary siding, side tracks, and appurtenances, and may, subject to the provisions contained in this act, locate and construct its road upon or over any street, alley, road, or highway, or across or over any waters in this state, in such manner as not to unnecessarily obstruct the public use of such street, alley, road, or highway, or interrupt the navigation of such waters.'

In 214 Ill. 9, 19, 73 N. E. 393, 396, the supreme court of Illinois, referring to this act, said: 'This act was an addition to the charter of any company organized under the general incorporation act, and its provisions have existed under some form ever since, conferring powers upon street railroad companies organized as the defendant is. It gave the defendant the right to construct its railroad either over or across the Chicago river, which included the tunnel, subject to the condition contained in it. Defendant could only hold real estate for the transaction of its business of maintaining and operating a street railroad, and the statute fixed the conditions under which it might use its real estate for building the tunnel.'

The tunnel was completed by the railroad company in March, 1894, and has ever since been used and is now being used as a passageway under the river for its cars. When constructed (as well as at the present time) the water in the south branch of the Chicago river over the tunnel, near Van Buren street, varied in depth from 17 to 18 3-10 feet.

On the 3d day of March, 1899, Congress passed a river and harbor act, among the provisions of which was one directing the Secretary of War to cause surveys to be made and the cost of improving certain rivers and harbors to be estimated and reported to Congress, as follows: 'Improving Chicago river in Illinois: Survey and estimate of cost for a channel twenty-one feet deep from its mouth to the stock yards, on the south branch, and to Belmont avenue, on the north branch, so far as may be permitted by existing docks and wharves, exclusive of cost of removing or constructing bridges or piers or lowering tunnels; and the aforesaid depth of twenty-one feet is hereby adopted as the project depth for the improvement in lieu of that fixed by the act of June third, eighteen hundred and ninety-six [29 Stat. at L. 202, chap. 314]; Provided, That all the work of removing and reconstructing bridges and piers and lowering tunnels necessary to permit a practicable channel with said depth to be obtained shall be done, or caused to be done, by the city of Chicago, without expense to the United States.' 30 Stat. at L. 1156, chap. 425.

After the passage of that act steps were taken to dredge the Chicago river so as to deepen its channel in accordance with the provisions of the act of Congress, and, it is alleged, such work 'has been proceeding under the authority and supervision of the government of the United States, for the purpose of providing a sufficiently deep channel for the uses and purposes of commerce and navigation as aforesaid.'

For the purpose of obeying the act of Congress, and in order to obtain a free and unobstructed navigation of the Chicago river for the benefit of commerce, interstate and domestic, the city council of Chicago, on the 19th day of March, 1900, duly passed the following ordinance: 'Whereas, by act of Congress of March, 3d, 1899, it is provided that in the survey and estimate of cost for a channel 21 feet deep, in the improvement of the Chicago river from its mouth to the stock yards on the south branch, and to Belmont avenue on the north branch, the aforesaid depth of 21 feet is adopted as the project depth for such improvement; whereas, it is in said act further provided that all the work of removing and reconstructing bridges and piers and lowering tunnels necessary to permit a practicable channel with said depth to be obtained shall be done or caused to be done by the city of Chicago, without expense to the United States; whereas, the tunnel under the south branch of the Chicago river at Van Buren street was constructed by the West Chicago Street Railroad Company under a certain ordinance of the city of Chicago, passed April 2d, 1888; whereas, a channel in the Chicago river of the depth of at least 21 feet, is now made necessary by the requirements of navigation and by the increase in the draft of vessels engaged in the shipping trade of the Lakes; whereas, the said tunnel is an obstruction to said proposed improvement to the Chicago river and to the navigation thereof, and, as such obstruction, must be lowered so that there may be above it in said river a depth of at least 21 feet of water, or be removed altogether: Now, therefore, be it ordained by the city council of the city of Chicago: That the West Chicago Street Railroad Company be and it is hereby ordered and directed within three months after the date of the passage of this ordinance, at the sole cost and expense of said West Chicago Street Railroad Company, and without cost, damage, loss, or expense of any kind whatsoever to the city of Chicago, to proceed to lower the tunnel under the south branch of the Chicago river at or near Van Buren street, being the same tunnel heretofore constructed by the said West Chicago Street Railroad Company under an agreement dated April 2, 1888, between the said West Chicago Street Railroad Company and the city of Chicago, and an ordinance passed by the city council of the city of Chicago, April 2, 1888,...