Where notes are made by a corporation payable to the order of
its own treasurer, a citizen of the same state, as a matter of
convenience and custom, and indorsed and delivered by him to a
bona fide holder who, a citizen of a different state,
furnishes the money represented by the note directly to the
corporation, the treasurer is not in fact an assignee of the note
within the meaning of the Act of August 13, 1888, 25 Stat. 433, and
suit may be brought by such holder in the circuit court of the
United States having jurisdiction of the parties, notwithstanding
such diversity does not exist as to the treasurer first indorsing
the note.
Falk v. Moebs, 127 U. S. 597;
Holmes v. Goldsmith, 147 U. S.
160.
Where there is a proper cause of action and diverse citizenship,
jurisdiction of the federal courts exists, and the motive of the
creditor who desires to litigate in that forum is immaterial, and
does not affect the jurisdiction; nor is such jurisdiction if it
actually exists, affected by the fact that a
Page 201 U. S. 401
receivership was in view when judgments were entered.
South
Dakota v. North Carolina, 192 U. S. 286.
Where, as in this case, the attitude and claims of the
municipality cast a cloud upon the title to property consisting
largely of franchises in the hands of receivers and to be
administered under orders of the court, the receivers may, with the
authority of the court, proceed by ancillary bill to protect the
jurisdiction and right to administer the property, and to determine
the validity of claims of parties which cast a cloud upon such
franchises, and in such a case it is proper to grant an injunction
until the rights of the parties can be determined.
Whether a corporation having a limited and definite capacity to
purchase and hold real estate has exceeded those limits concerns
only the state within whose jurisdiction the property is situated;
the question cannot, unless the statute expressly or by necessary
implication authorizes it, be raised collaterally by private
persons.
Fritts v. Palmer, 132 U.
S. 282.
The generality of the title of a state statute does not
invalidate it under a provision of the constitution of the state
that private and local laws shall only embrace one subject which
shall be expressed in the title, so long as the title is
comprehensive enough to reasonably include within the general
subject or the subordinate branches thereof, the several objects
which the statute seeks to effect, and does not cover legislation
incongruous, in itself and which by no fair intendment can be
included as having any necessary and proper connection.
Montclair v. Ramsdell, 107 U. S. 147.
Although decisions of the highest court of a state are not
binding on this Court in determining whether a contract was made by
legislative action of that state which is entitled to protection
under the impairment of obligation clause of the federal
Constitution, it will consider decisions of that court on the point
in question.
One asserting private rights in public property under grants of
franchises must show that they have been conferred in plain terms,
for nothing passes by the grant except it be clearly stated or
necessarily implied. Legislative grants of franchises which are in
any way ambiguous as to whether granted for a longer or a shorter
period are to be construed strictly against the grantee.
As a rule of construction, a statute amended is to be understood
in the same sense exactly as if it had read from the beginning as
it does amended.
Although a corporation be organized under a charter for a
limited period, it may receive a grant inuring to the benefit of
its lawful successors for a period beyond its corporate life, but
the right granted must be construed with reference to the system of
which it is a part, and where that general system is for a limited
period, a single ordinance, not naming a specific term, will not be
construed as granting a franchise in perpetuity.
A declaration in the title of state statutes that they concern
horse railways, where it is apparent that these terms were intended
to indicate street railways, as distinguished from steam railways,
will not, because of a constitutional provision that the object of
the statute must be expressed in the title, prevent the city from
exercising its powers under the statute in
Page 201 U. S. 402
such manner as to authorize the use of other power such as cable
or electricity.
The repeal of a state statute authorizing every street railway
to be operated by such animal, electric or other power as the
municipal authorities may have granted would not destroy its effect
to ratify contracts in existence when it was passed.
Where a state statute requires the consent of a municipal
officer to authorize the extension of a street railway, the
abolition of that office does not authorize the extension without
any official consent, and where the consent of municipal
authorities is required for franchises relating to special
localities by a statute, and subsequently a general act limits the
time for which any such franchise can be granted in any city or
village, the consent given will be presumed, in the absence of any
period specified, not to be in perpetuity, but for the period as so
limited.
Under the law of Illinois, municipal corporations have a fee
simple in, and exclusive control over, the streets, and the
municipal authorities may do anything with, or allow any use of,
the streets not incompatible with the ends for which streets are
established, and it is a legitimate use of a street to allow a
street railroad track to be laid down in it.
Applying the foregoing principles to the construction and effect
of the various acts of the Legislature of the State of Illinois,
and of the ordinances of the municipal authorities of the City of
Chicago and adjacent towns, in regard to the franchises of the
several street railway companies owned and controlled by the
Chicago Union Traction Company, and the receivers thereof
held that
1. The Circuit Court of the United States for the Northern
District of Illinois had jurisdiction to render the judgments
against the Chicago Union Traction Company, the North Chicago
Street Railroad Company, and the West Chicago Street Railroad
Company set up in the bills afterwards filed for the appointment of
receivers.
2. The proceedings for the appointment of receivers were not
shown to be collusive and fraudulent, and the court had
jurisdiction to entertain the bills and appoint the receivers and
put them in possession of the property of the railway
companies.
3. The ancillary bills filed by the receivers were maintainable
in aid of the court's jurisdiction to settle controversies as to
the property which was to be administered and disposed of under the
orders and decree of the court.
4. The acts of 1859, 1861 and 1865 were not unconstitutional
under the Constitution of Illinois of 1848 in force when the same
were passed.
5. The Act of February 6, 1865, amending the Act of February 14,
1859, had the effect to extend the corporate lives of the Chicago
City Railway Company, the North Chicago City Railway Company and
the Chicago West Division Railway Company for the term of
ninety-nine years. It
Page 201 U. S. 403
affirmed the contracts with the city prescribing rights and
privileges in the streets of Chicago in all respects as theretofore
made, including time limitations as contained in the ordinances
previously passed. It recognized and continued in force the right
of the city and the companies to make contracts for the use of the
streets upon terms and conditions, including the time of occupancy,
as might be agreed upon between the council and the
corporations.
6. Corporate privileges can only be held to be granted as
against public rights when conferred in plain and explicit terms.
The ambiguous phrase in the act of 1865, "during the life hereof,"
did not operate to extend existing contracts for the term of
ninety-nine years or limit the right of the city to make future
contracts with the companies covering shorter periods.
7. The amending act of 1865 had reference to the North Chicago
City Railway Company, as well as the corporations specifically
named in the first sections of the acts of 1859 and 1861.
8. The ordinances of May 23, 1859, granting rights and
privileges in certain streets to the Chicago City Railway Company
and the North Chicago City Railway Company, respectively, are
radically different. The grant to the former company for the south
and west divisions of the city is during all the term specified in
the act of February 14, 1859, which act expressly ratified the
ordinance of 1858, granting the right to use the streets therein
named for the term of twenty-five years and until the city shall
purchase and pay for the same as set forth in said ordinance. On
the north side, the term granted is for twenty-five years "and no
longer." The privileges conferred upon the Chicago City Railway
Company and its grantee were confirmed, as made, by the act of
1865, with the effect to continue the right of the companies to
occupy the streets named in the ordinances of 1858, May 23, 1859,
and similar ordinances, for the term of twenty-five years and until
the city shall elect to purchase and pay for the property of said
railway companies. On the north side, no such right exists to
remain in the use of the streets until purchase by the city.
9. Whatever rights existed in the streets were not lost to the
companies by the acceptance of the ordinances granting a change
from animal to cable or electric power in the operation of the
railways.
10. The grants in the Town of Jefferson, having been made after
the acceptance of the Cities and Villages Act, are limited to the
term of twenty years.
11. The grants by the supervisor of Lake View are not in
perpetuity, as the Lake View road was but an extension of the North
Side system, which was expressly limited in the duration of its
grants to the term of twenty-five years. No intention will be
presumed to make an extension of this part beyond the life of the
grant to the main lines of the North Side road.
12. The grants by the trustees of Lake View will not extend
beyond the life of the corporation making them, and upon the
annexation of the Town of Lake View to Chicago, the further right
to use the streets must be derived
Page 201 U. S. 404
from grants by the council of that city under power conferred by
the Cities and Villages Act.
The decree is reversed and cause remanded for further
proceedings in accordance with the views herein expressed.
These are appeals from the decree of the Circuit Court of the
United States for the Northern District of Illinois. The origin of
the cases dates from April 22, 1903, when the Guaranty Trust
Company of New York, a corporation and citizen of that state, filed
three suits in the Circuit Court of the United States for the
Northern District of Illinois against the Chicago Union Traction
Company, the North Chicago Street Railroad Company, and the West
Chicago Street Railroad Company, corporations and citizens of the
State of Illinois. On the day the declaration was filed, the
general issue was joined, the jury waived, and, upon trial,
judgment was rendered against the respective defendants for
$318,690.66, $565,052.66, and $270,440. Executions having been
awarded and returned "no property found," bills were filed by the
Guaranty Trust Company, and receivers appointed for the property of
each and all of those companies. Under the order of the court of
July 18, 1903, the receivers filed two ancillary bills, one against
the City of Chicago, the Chicago West Division Railway Company, the
Chicago Union Traction Company, and the West Chicago Street
Railroad Company; the other against the City of Chicago, the
Chicago Union Traction Company, the North Chicago Street Railroad
Company, and the North Chicago City Railway Company. They were
afterwards amended by leave of the court. These bills state, among
other things (having reference now to the west side case), that, as
receivers, and under the order of the court, the complainants were
in possession of the system of street railroads; that the property
included the rights, privileges, and franchises originally granted
to the Chicago West Division Railway Company by the State of
Illinois; that, on October 20, 1887, the Chicago West Division
Railway Company leased the property to the West Chicago Street
Railroad Company for the full term of nine
Page 201 U. S. 405
hundred and ninety-nine years; that, on June 1, 1889, that
company transferred and conveyed to the Chicago Union Traction
Company all its property, franchises, and rights, which were taken
possession of by that company and were possessed and enjoyed by it
with the consent of the city council until the appointment of
complainants as receivers; that, since the appointment they have
been directed by the court to make expenditures of about $580,000
in procuring new equipment; for that purpose, it was necessary to
issue receiver's certificates to borrow money, which they alleged
they were unable to do because of the hostile acts of the City of
Chicago, its mayor, its council committees and representatives,
which amounted to an impairment of the contract rights and
franchises secured to the complainants and granted by the acts of
the General Assembly of Illinois, passed February 14, 1859, and
February 6, 1865. They received a notice from the superintendent of
streets, dated July 16, 1903, addressed to them as receivers and
stating that all permits issued to the Chicago Union Traction
Company to do work and make repairs upon the streets, alleys, or
public places in the City of Chicago were to be revoked on July 30,
1903. The bill sets out a large number of ordinances of the city
and acts of the State of Illinois, under which acts, it was
alleged, privileges and franchises were granted on fifty-six of the
streets of the city for the period of ninety-nine years from
February 14, 1859.
It is averred that the city denies any contract right with the
complainants under and by virtue of the said laws and ordinances,
and, for the purpose of coercing the railroad companies to
surrender their franchises, received from the state, asserts and
claims that the act of 1865 is unconstitutional and void; that, if
valid, it only operates to the extent of such lines as were
authorized and consented to before its passage; that, if valid, the
railroads could only operate their lines by animal power; that, by
force of the ordinance of July 30, 1883, the right to operate lines
constructed prior thereto was absolutely limited to July 30, 1903,
and that thereafter the railroad company
Page 201 U. S. 406
would be a trespasser upon the streets of the city; that, by
messages and official declarations of the mayor and council of the
defendant city, it was given out that, unless the railroad company
would surrender its franchises and rights to occupy the streets of
the city, the city would oust the railroad company therefrom and
pass an ordinance granting the right to operate street railways
upon the streets now occupied by the railroad company to other
persons or corporations. That, unless an injunction is granted, the
city will, after July 30, 1903, proceed, by declaration of
forfeiture or otherwise, to interfere with and prevent the
occupation and enjoyment of the fifty-six railway routes described
in the bill. That, as to the street railroads where ordinances
provided for possession until the city shall purchase the lines,
the city has never made an offer to purchase, and seeks to force a
surrender of the franchises and privileges and to compel the
railroad company to accept a twenty years' license at an oppressive
and ruinous annual rental. That if the claim and contentions of the
city are sustained, the entire system of the railroad company will
be destroyed and its charter rights illegally confiscated.
The prayer for relief is that the Chicago West Division Railway
Company be decreed to be vested by the State of Illinois with the
franchises and right to own, maintain, and operate fifty-six street
railway routes, described in the bill, until 1960, and until such
time thereafter as the city shall purchase the lines and pay for
them in cash at their then appraised value, according to the terms
of the ordinance contract; that it be decreed that the claim of the
City of Chicago that the rights of the companies will expire on
July 30, 1903, impairs the obligation of the charter subsisting
between the State of Illinois and the said companies, and
constitutes an unlawful taking of the rights and property of the
company without compensation, and an unlawful interference with the
property in the custody of the court; that the charter rights of
the companies to maintain, operate, and enjoy the lines described
in the bill until the
Page 201 U. S. 407
year 1960, and thereafter until the city purchases the same, be
established and quieted as against the hostile claims of the city,
and that such claims be declared and decreed unconstitutional,
contrary to law, and exist as clouds upon the title of the company,
and for a perpetual injunction against the city from asserting the
claims aforesaid, or interfering with the possession, occupation,
and enjoyment of the railroad's property, except in the proper
exercise of its police power, until the lawful determination of the
charter rights.
The bill in the North Chicago case is substantially the same. It
avers that the property vested in the receivers in the north
division of the city is about 100 miles of street railroad and the
franchises and privileges thereunto belonging; that, on May 24,
1886, the North Chicago City Railway Company leased to the North
Chicago Street Railroad Company for the term of nine hundred and
ninety-nine years all its property, franchises, and rights except
the right to exist as a corporation. That on June 1, 1899, the
North Chicago Street Railroad Company leased and conveyed the
property, for the full life of the lessor corporation, to the
Chicago Union Traction Company; that the traction company entered
into possession of the property and continued to use the same until
the appointment of the receivers named therein.
The city answered and set up, among other things, that the suits
wherein the receivers were appointed were collusive and in
pursuance of a scheme concocted by the West Chicago Street Railroad
Company, the North Chicago Street Railroad Company, the Chicago
Union Traction Company, and the Guaranty & Trust Company of New
York for the purpose of conferring jurisdiction upon the circuit
court of the United States on the ground of diverse citizenship;
that the Guaranty Trust Company was not a
bona fide owner
of the judgment upon which the suits were brought, and that the
evidences of indebtedness upon which that company brought suit and
obtained judgment as a colorable basis for the allowance of
creditor's bills and appointment of receivers were not in fact
owned by the Guaranty
Page 201 U. S. 408
Trust Company, but were owned by divers persons and corporations
of the State of Illinois.
The city denies that the city council passed any ordinance or
resolutions that constitute an impairment of the contract rights of
the complainants, granted under the acts of the General Assembly of
the State of Illinois, February 14, 1859, and February 6, 1865, or
the ordinances of the city, and denies that it has ever threatened
interference with any lawful rights, franchises, or privileges held
by the complainants. It admits that its superintendent of streets
sent a written notice to the complainants, as alleged in the bill,
but without authority from the defendant, and that, on July 21,
1903, the same was rescinded and recalled.
The answer then sets up the claims of the city concerning the
legislative acts and ordinances pleaded in the bill, admits the
passage or attempted passage thereof, but denies that the same has
resulted in investing the railroad companies with a franchise from
the state to maintain and operate the system of railroads for
ninety-nine years, and avers that the rights under certain of the
ordinances set up in the bill expire on July 30, 1903. Defendant
denies that it unlawfully or oppressively injured the lawful rights
of the company; admits that it has contended and now contends that
the alleged act of 1865 is unconstitutional and void as construed
by the company; that the said act, when properly construed, did not
operate to extend the duration of time beyond that fixed in various
ordinances respectively relating to said lines; that the said
companies have no right to operate street railway lines by other
than animal power, and that the time for operation of certain of
the lines existing under ordinances passed prior to July 30, 1883,
expired on July 30, 1903, by reason of the time limits prescribed
in said ordinances, as extended by the ordinance of July 30, 1883,
and by reason of the limitation in the power of the city by the
city and village law of the State of Illinois, passed July 1, 1872.
It avers that it has never claimed or asserted that the time for
the operation of lines constructed
Page 201 U. S. 409
under ordinances passed prior to July 30, 1883, absolutely
ceased and determined, but, on the contrary, has recognized and
conceded the existence of the purchase clause contained in certain
of said ordinances as affecting the time limitations therein, and
has endeavored to procure proper fiscal legislation by the General
Assembly of the state, which would enable the city to avail itself
of said ordinance provisions with reference to purchase, and has
frequently proposed and desired negotiations with the companies to
provide new ordinances for the purchase by the defendant of the
tangible property of said companies. The answer denies the
allegations of the bills as to unlawful threats and compulsions,
but admits that it does intend to enforce its rights in its streets
against the unlawful claims of the companies, and admits that,
unless restrained by injunction, it will proceed by every proper
and lawful method to enforce its rights in its streets as set up in
the answer, and to procure necessary street railway facilities for
the citizens of Chicago and to prevent the companies from unlawful
usurpation of rights in the streets or from continuing to occupy
the same after the right so to do has ceased and determined. It
admits that, as early as 1883, a serious difference as to the
nature and extent of the legal and contract rights of the street
railway companies in certain of the streets of the city arose
between the companies and defendant. It sets up the messages of the
mayor and copies of the various resolutions of the council with
regard to opening negotiations with the companies for the
ascertainment of their rights and those of the city.
The case having been tried, the circuit court rendered a decree
holding that the legislative acts of 1859, 1861, and 1865
constituted a grant to the companies to use the streets of the city
to be designated by the council, but that the franchise to use the
streets was a grant from the state; that the acts of 1859, 1861, as
amended in 1865, extended the franchises of the companies for
ninety-nine years, the extended life of the corporation; that the
Constitution of Illinois of 1870 prohibited the further creation of
corporations by special laws, and decreed
Page 201 U. S. 410
that the General Assembly should not grant the right to
construct any street railways in the city without acquiring the
consent of the local authorities then having control over the
streets; that the Cities and Villages Act of 1872 empowered cities
organized under that act to permit, regulate, or prohibit the
locating, laying, or constructing of tracks of horse railroads in
any street, alley, or public place, but such permission was limited
to a period not to exceed twenty years; that the acts of 1859,
1861, as amended in 1865, did not constitute a grant by the
legislature of streets which were authorized to be used and
occupied by the city after it adopted and elected to be governed by
the City and Village Act, and that, after date of May 3, 1875, as
to such streets, the street railway companies' rights were
regulated by the city ordinances affecting the same; that the act
of 1859, under the tenth section of which the North Chicago City
Railway Company was incorporated, amended by the act of February
21, 1865, extended the life of the corporation for ninety-nine
years, and held that said amendment applied not only to the Chicago
City Railway Company, but as well to the rights conferred by the
act of 1859 on the North Chicago City Railway Company. The case is
reported in 132 F. 848.
Pertinent parts of the ordinance of August 16, 1858, the Acts of
February 14, 1859, February 21, 1861, and February 6, 1865, are
given in the margin.{1}
Page 201 U. S. 447
MR. JUSTICE DAY delivered the opinion of the Court.
The jurisdiction of the circuit court to render the original
judgments against the companies and to maintain the ancillary bill
is challenged at the outset. These objections require notice before
considering the controversy upon its merits. It is insisted that
the circuit court had no jurisdiction to render the judgments at
law because of the provisions of the Act of August 13, 1888, 25
Stat. 433, 434, providing that no circuit court shall have
cognizance of any suit to recover the contents of any promissory
note in favor of any assignee or subsequent holder if such
instrument be payable to bearer, unless such suit might have been
prosecuted in such court to recover, if an assignment or transfer
had not been made. As the notes were made payable to the order of
"Markham B. Orde, Treas.," and there is no allegation that Orde was
not a citizen of the State of Illinois, of which state the
defendant companies were corporations and citizens, it is insisted
that the jurisdiction must fail, under the provisions of the
statute just referred to. Assuming, without deciding, that this
question
Page 201 U. S. 448
could be raised by way of defense to the ancillary bill, we
think the objection must fail, for, under the allegations of the
declaration, the money was furnished directly to the defendants by
the Guaranty Trust Company, and that company was the first taker of
the notes. In
Falk v. Moebs, 127 U.
S. 597, it was held that notes made in this form,
payable to the treasurer, indorsed before delivery by him, are the
notes of the company. And when it appears that the indorser is not
in fact an assignee of the paper, suit may be brought in a federal
court by a holder having the requisite diverse citizenship,
notwithstanding the indorser might have been a citizen of the same
state with the defendant.
Holmes v. Goldsmith,
147 U. S. 150.
It is further argued that the entire proceedings were fraudulent
and collusive; that no money was in fact loaned, and that they were
the result of a conspiracy between corporations of Illinois, to
obtain the jurisdiction of the federal court, and its decision on
the controverted rights of the parties under the statutes of the
state. We have examined the supplemental records submitted since
the argument in this Court, on this branch of the case, and think
the charges of bad faith and conspiracy are not sustained. We have
no doubt that the money was loaned by the Guaranty Trust Company to
these corporations, and that the original judgments were
bona
fide. As to the conspiracy to get the case into the federal
court, with a view to the decision of the rights of the parties
therein, we are not aware of any principle which prevents parties
having the requisite citizenship and a justiciable demand from
seeking the federal courts for redress, if such be their choice of
a forum in which to have contested rights litigated. Having a
proper cause of action and the requisite diversity of citizenship
confers jurisdiction upon the federal courts, and in such cases the
motive of the creditor in seeking federal jurisdiction is
immaterial.
South Dakota v. North Carolina, 192 U.
S. 286,
192 U. S. 310;
Dickerman v. Northern Trust Co., 176 U.
S. 181,
176 U. S. 190;
Lehigh Mining and
Manufacturing Company
Page 201 U. S. 449
v. Kelly, 160 U. S. 327,
160 U. S. 336;
Crawford v. Neal, 144 U. S. 585;
Cheever v.
Wilson, 9 Wall. 108,
76 U. S. 123;
Smith v.
Kernochen, 7 How. 198,
48 U. S.
216.
It is true that the judgments were taken and the receivers
appointed on the same day, and it is quite likely that the
receiverships were in view when the judgments were taken, and that
preparations had been made in that direction, but we perceive in
this no legal objection to the jurisdiction of the court. It is
further insisted by the counsel for the city that the ancillary
bills cannot be sustained upon their merits. But we think a case
was made out by the allegations of the bills, especially when
considered with reference to the admissions of the answer, which
showed that the extent and character of the property rights of the
corporations whose rights and franchises were the subjects of the
receivership were in direct and serious controversy between the
company and the receiver, on the one hand, and the city, on the
other. While it may be that there would have been no interference
on the part of the city with the property while it was in the hands
of the court's receivers, still the record shows that the city
strenuously contested the asserted rights of the corporations to
the franchise to use the streets of the city for ninety-nine years,
the term claimed to have been granted to them by the Act of
February, 1865. It was the claim of the city that as to many of the
ordinances granting rights in a number of the streets, the right to
the use and occupancy of them would expire July 30, 1903. The city
had asserted in a number of ways its purpose to treat the rights of
the companies and whatever franchises they had as terminated at
that date. It declares its purpose to resume possession of the
streets and resort to all legal means to protect its rights against
what were deemed the unfounded claims of the companies as to the
extended franchises. Without going into further detail upon this
branch of the case, we think that the attitude and claims of the
city cast a cloud upon the title to this property which was in the
hands of the receivers to be administered
Page 201 U. S. 450
under the orders of the court, and that, in such case, the
receivers may, with the authority of the court, proceed by
ancillary bill to protect the jurisdiction and right to administer
the property, and to determine the validity of the claims of the
parties which cast a cloud upon the franchises and rights claimed
by the companies and the receivers, and that in such case it was
proper to grant an injunction until the rights of the parties could
be determined.
Detroit v. Detroit Citizens' Street Railway
Co., 184 U. S. 368;
In re Tyler, 149 U. S. 164;
Rouse v. Letcher, 156 U. S. 47;
White v. Ewing, 159 U. S. 36. We
think, then, that the Court had jurisdiction of the case made in
the ancillary bills.
A further preliminary question is made in the contention that
the leases under which the various transfers were made, and which
are supposed to have vested title in the Chicago Union Traction
Company, are void for want of corporate power in the companies to
make or receive the same. We do not think the City of Chicago is in
a position to raise that question. The corporations have undertaken
to transfer the rights of the lessor companies, and the lessees
have gone into possession thereof, and the same are now in
possession of the receivers under authority of the court. All of
the companies are parties to the suit, and the rights and
franchises of all are, by order of the court, vested in the
receivers. They hold the title to all these rights to be sold at
judicial sale, or otherwise dealt with, as the court may direct. In
this view we cannot see that it is material to inquire into the
validity of the intermediate transfers between the companies. No
contract is undertaken to be enforced with the City of Chicago
which depends upon the validity of these transfers. The city has no
power to invalidate them, and the state has not attempted to
inquire into their validity by a proceeding in
quo
warranto. In such case, we think, the principle laid down in
Fritts v. Palmer, 132 U. S. 282,
132 U. S. 293,
is controlling:
"The question whether a corporation having capacity to purchase
and hold real estate for certain defined purposes or in certain
quantities
Page 201 U. S. 451
has taken title to real estate for purposes not authorized by
law, or in excess of the quantity permitted by its charter,
concerns only the state within whose limits the property is
situated. It cannot be raised collaterally by private persons
unless there is something in the statute, expressly or by necessary
implication, authorizing them to do so."
Passing now to the merits of the case, we will first notice the
objection that the acts of 1859, 1861, and 1865 are
unconstitutional. The Illinois Constitution of 1848 contained the
provision that no private or local law shall embrace more than one
subject, and that shall be expressed in the title. The acts are
attacked upon the ground that they are violations of this
requirement. But we do not think that these objections are tenable.
The title of the Act of February 14, 1859, is "An Act to Promote
the Construction of Horse Railways in the City of Chicago;" the
title of the Act of February 21, 1861, is "An Act to Authorize the
Extension of Horse Railways in the City of Chicago;" the title of
the Act of February 6, 1895, is "An Act Concerning Horse Railways
in the City of Chicago." In
People v. People's Gas Light
Company, 205 Ill. 482, the Illinois cases were reviewed and
the conclusion reached that the purpose of the constitutional
provision is accomplished if the title is comprehensive enough as
reasonably to include within the general subject or the subordinate
branches thereof, the several objects which the statute seeks to
effect. And it was held that generality of the title is no
objection to a law so long as it is not made to cover legislation
incongruous in itself, and which by no fair intendment can be
included as having necessary or proper connection. In the case of
Montclair v. Ramsdell, 107 U. S. 147, a
statute of New Jersey was before this Court which was claimed to be
unconstitutional because it embraced more than one subject, not
expressed in its title. The provision of the New Jersey
Constitution was
"To avoid improper influences which may result from intermixing,
in one and the same act, such things as have no proper relation to
each other, every law shall embrace but one object,
Page 201 U. S. 452
and that shall be expressed in the title."
The
Montclair case held: 1. That this provision does
not require the title of an act to set forth a detailed statement
or an index or abstract of its contents; nor does it prevent
uniting in the same act numerous provisions having one general
object, fairly indicated by its title. 2. That the powers, however
varied and extended, which a township may exercise, constitute but
one object, which is fairly expressed in a title showing nothing
more than the legislative purpose to establish such township. In
the late case of
Detroit v. Detroit Citizens' Street Railway
Company, 184 U. S. 368, the
Court had occasion to deal with a similar provision in the
Constitution of Michigan. In it, the language of Judge Cooley in
People ex Rel. Secretary of State v. State Insurance
Company, 19 Mich. 392, was quoted with approval:
"We must give the constitutional provision a reasonable
construction and effect. The Constitution requires no law to
embrace more than one object, which shall be expressed in its
title. Now the object may be very comprehensive and still be
without objection, and the one before us is of that character. But
it is by no means essential that every end and means necessary or
convenient for the accomplishment of the general object should be
either referred to or necessarily indicated by the title. All that
can reasonably be required is that the title shall not be made to
cover legislation incongruous in itself, and which by no fair
intendment can be considered as having a necessary or proper
connection."
Applying this principle, we do not think that any of the
subjects treated were so far foreign to the title of the several
acts as to be open to this constitutional objection.
See
also upon this subject:
Ackley School District v.
Hall, 113 U. S. 141;
Jonesboro City v. Cairo, 110 U. S. 192,
110 U. S. 198;
Otoe County v. Baldwin, 111 U. S. 1;
Mahomet v. Quackenbush, 117 U. S. 508;
Carter County v. Sinton, 120 U. S. 517.
Without taking time to analyze the acts in this connection, we
pass to what we deem more important features of the case.
The principal controversy in this case turns upon the
construction
Page 201 U. S. 453
of the act of 1865, amending the act of 1859. On the part of the
companies, it is insisted that this act means to give an
irrevocable grant from the state of the right to use the streets of
the City of Chicago for street railway purposes for a term of
ninety-nine years from the passage of the law; that the only right
conferred upon the city is one of designation of the streets to be
occupied and the regulation by agreement with the companies of what
are termed the "administrative" features of the occupancy. It is
insisted that this broad right is derived from the public act of
the state legislature, which, upon its acceptance, has become an
inviolable contract between the state and the companies. Upon the
part of the city, it is contended that there has been no grant to
the railways to occupy the streets of the city except with the
authorization of the city council and upon such terms and
conditions, including the term of occupancy, as that body may see
fit to fix by contract with the companies; that the only legitimate
effect of the act of 1865, other than the extension of the
corporate life of the companies, has been to continue the control
of the city over the streets, and to reaffirm the contracts
theretofore made between the city and the companies. The theory
that the franchise to use the streets was derived solely from the
state, subject only to the right of the city to designate the
streets to be occupied, and to regulate the "administrative"
features of the use was adopted by the learned circuit court in
construing the act in controversy. It is therefore important to
consider the nature of the franchises, licenses, rights, and
privileges dealt with in the act of 1865, to ascertain, as near as
may be, in what sense its terms were used and with what meaning
they are incorporated into the act. In order to construe this act
and determine, if possible, its true meaning and the extent of the
powers and rights intended to be granted or confirmed, reference
may appropriately be had to prior legislation upon the subject, for
the act of 1865 is amendatory, and can only be understood if a
correct apprehension is first had of the powers previously granted,
and the extent and nature of the rights and
Page 201 U. S. 454
privileges conferred and the sources from which they severally
came. Whether the city charter, granted while the Constitution of
1848 was in force, gave the city the right to grant to railway
companies the privilege of using the streets for street railway
purposes is a question much discussed in the briefs and the
arguments at bar. The city, by the charter of 1851, and the
amendment of 1863, had general power to control the use and
occupation of the streets of the city and to regulate the use of
horse railways therein and the laying of tracks thereon. It is
insisted for the city that, independent of the acts under
consideration in this case, the general powers conferred in the
city charter, as construed by the Supreme Court of Illinois, were
broad enough to empower it to grant the use of the streets for
street railway purposes.
See Quincy v. Bull, 106 Ill. 337,
349, and cases cited in the opinion. On the part of the companies,
it is contended that this right could only come from the state, and
that the effect of the act in question was to confer the right upon
the companies as a charter right granted by the sovereign
power.
It is said to have been the settled understanding of all
concerned, and in accordance with the then-existing policy of the
state, that the act of 1859 was a franchise directly granted by the
state, giving the full right to use the streets of the city for the
term of the corporate life of the companies, subject only to the
designating power of the city as to streets to be used. In this
connection, it may be observed that the Supreme Court of Illinois,
in
Chicago Union Traction Company v. Chicago, 199 Ill.
484, 525, distinctly stated that the act of 1859 recognized the
power of the common council to pass the ordinance of August 16,
1858. "There," it is said in the opinion,
"was no other action of the common council, taken before the
passage of the act of February 14, 1859, except the ordinance of
August 16, 1858. By the use of the words, 'with such rights and
privileges as the said common council has prescribed,' the
legislature could not have referred to any other action of the
common council than the passage of the ordinance
Page 201 U. S. 455
of August 16, 1858. It thereby recognized the power of the
common council to pass that ordinance, and the appellant here
introduces it and relies upon it. The legislature, by thereby
affirming and recognizing the passage of the ordinance of August
16, 1858, also recognized the power of the common council to pass
that ordinance under clause nine of section four of chapter four,
of the charter of 1851."
In the act of 1859, the legislature did not assume to fix
independently the term for the use of the streets, but affirmed
that which the common council had authorized the corporators to do,
and gave authority to confer future rights by agreement with the
corporations. In the first grants after the passage of the Act of
February 14, 1859, those of May 23, 1859, to the Chicago City
Railway Company and the North Chicago City Railway Company, as we
shall have occasion to show later, so far from acting upon the
theory that the state had granted to the corporations the full
right to use the streets for the corporate life of the companies,
and needed no permission from the city council other than such as
designated the streets and regulated administrative features, the
council made and the companies accepted the ordinances which, on
the north side, were for the term of twenty-five years and no
longer, and on the south and west sides for the term named in the
act of 1859, which had affirmed the grant from the council in the
ordinance of 1858. The south and west side ordinance, as its
recitals show, was not only passed in pursuance of the Act of
February 14, 1859, but also by virtue of the power and authority
otherwise vested in the common council by its charter.
Union
Traction Co. v. Chicago, supra. Thereafter and frequently
until the passage of the act of 1865, the council made and the
companies accepted specific ordinances fixing the time of
occupancy, as had been done in the original ordinances of May 23,
1859. And neither before nor after the passage of the act of 1865
was the ninety-nine year term recognized or acted upon in
ordinances granting the use of the streets.
Under the ordinance of 1858, the council undertook to
authorize
Page 201 U. S. 456
the persons named to lay and operate a horse railway in certain
streets of the city. This right, by the terms of the ordinance, was
granted for the period of twenty-five years, and until the common
council, in the manner designated, should elect to purchase and pay
for the property of the railway companies. If this ordinance had
been without legislative authority previous to the Act of February
14, 1859, that act constituted the persons named in the ordinance
of 1858, with one other, and their successors, a body politic and
corporate under the name of the Chicago City Railway Company, for
the term of twenty-five years, with all the powers incident to such
corporations. The corporation was authorized to construct,
maintain, and operate a single or double track railway in the City
of Chicago, within the present or future limits of the south or
west divisions of the city. But the grant did not stop there. It
was immediately qualified and limited by the authority given to the
common council of the city, for it provided that this right to
maintain and operate street railways was upon streets, etc.,
"as the common council of said city have authorized said
corporators, or any of them, or shall authorize said corporation so
to do in such manner and upon such terms and condition, and with
such rights and privileges, as the common council has or may, by
contract with said parties, or any or either of them,
prescribe."
The corporation was given the right of eminent domain. Then, as
to the action of the city, already taken under the ordinance of
1858, by section 7, all of the rights and privileges granted or
intended so to be to the incorporators and their associates by the
ordinances and amendments thereto passed by the council were
approved and vested in the corporation. By section 10 of the act,
the North Chicago City Railway Company was incorporated. Is this
act consistent with the theory that the full franchise of occupying
and using the streets, without regard to authority from the city,
except in designating streets, was vested by the state in the
companies incorporated? This act conferred upon the railway
companies, it is true, the right to use and occupy
Page 201 U. S. 457
the streets of the city, but this right was upon the terms
prescribed in the law. Conceding the plenary power of the
legislature over the subject at that time, and that franchises,
broadly speaking, are rights and privileges conferred by the state,
and are derived from a grant of the sovereign power, nevertheless
the state, while exercising its authority, might give to the city
such measure of right and control in the manner as it saw fit.
Dillon on Munic. Corps., 3d ed., § 705;
Railroad Co. v.
Richmond, 96 U. S. 521. The
city is the corporate body directly interested in the use and
control of the streets. By the charter of 1851, exclusive control
over the streets was given to the council. That it was the
intention of the legislature to give effect to the right of
municipal control in the act under consideration is shown in its
confirmation of terms already fixed by contract between the city
and the companies. As to the future, companies were to have no
right to the use and occupancy of the streets until they should
obtain from the city council authority to that end, under contracts
to be agreed upon as to terms and conditions. A more comprehensive
plan of securing the city in the control of the use of the streets
for railway purposes could hardly be devised. The company must be
"authorized" by the city council before it can lay tracks or
operate railways in the streets. This is more than to designate
that for which authority has already been given. To authorize is to
"cloth with authority" (Webster's Dict.); "to give legal power to"
(Century Dict.). It is an additional grant of right and power which
the legislature requires the corporation to obtain as a condition
precedent to its use and occupation of the streets. This power of
the city, in the absence of language in the statute excluding the
authority and reserving its exercise to the state, necessarily
includes the right to fix the time for which the streets may be
used. This doctrine was, we think, correctly stated by Judge
Lurton, in delivering the opinion of the court of appeals in
Louisville Trust Co. v. Cincinnati, 76 F. 296, 308.
"The right of the local authority to impose terms and conditions
is
Page 201 U. S. 458
clearly conferred, and no such corporation can impose itself
upon the public streets or highways unless it enter into an
agreement touching the occupancy of such streets, or resorts to the
right of condemnation, in default of an agreement. This right to
impose terms and conditions most obviously implies the right to
agree upon the duration of such occupancy. The right to exclude
altogether, unless resort be had to condemnation, involves the
right to limit the period of the grant."
Coverdale v. Edwards, 115 Ind. 374, 381; Elliott,
Railroads, § 1081.
The act under consideration nowhere assumes to fix the duration
of the grant, nor excludes the conclusion that it is embraced in
the terms and conditions which are to be fixed by contract with the
city. If the franchise to use the streets, without regard to
municipal action, was fully conferred by the legislative act under
consideration, then the company had only to take possession of the
streets, subject to regulations as to running of cars, etc., by the
city council. On the contrary, under the terms of this act, the
city, by withholding its consent, could prevent the use of the
streets by the corporations. No way is pointed out by which this
consent could be compelled against the will of the council. That
body might, for reasons sufficient to itself, under the terms of
this act, by withholding assent, determine that it was undesirable
to have the corporations in control of the use of the streets.
While the decisions of the supreme court of the state are not
binding upon us in determining whether a contract was made which is
entitled to protection under the federal Constitution, we may
notice the case of
Chicago City Railway Company v. People ex
Rel. Story, 73 Ill. 541. That was a proceeding in
quo
warranto against the Chicago City Railway Company, asking to
declare a forfeiture of its franchise consent of two thirds of the
owners of the avenue. The grounds relied upon were that the railway
company had not obtained the consent of two-thirds of the owners of
the property fronting on the avenue within fifteen months from the
passage of the
Page 201 U. S. 459
ordinance of August 22, 1864, the time limited for construction
in the ordinance of that date. The respondent, the Chicago City
Railway Company, relied upon an ordinance passed November 13, 1871,
amendatory of the ordinance of August 22, 1864, extending the time
to complete its railway for a period of two years from the date of
the last-named ordinance. The court found that two thirds of the
property owners had consented, as provided in the ordinance of
August 22, 1864, but found that the company had neglected to
construct its road to the city limits within fifteen months from
the passage of the ordinance, as therein provided. The question
turned upon the validity of the extending ordinance of November 13,
1871, passed after the Constitution of 1870 went into effect. The
majority of the court -- Chief Justice Walker and Justices Breese
and Sheldon dissenting -- held that the common council had
authority, under the act of 1865, to extend the time for the
building of the roads on Indiana Avenue, as the time limitation was
a provision in favor of the city, which it might waive, as the
charter of the company was silent upon the time within which the
railway might be constructed, and in this connection held that the
right granted by the city to construct the railway was a license as
distinguished from a franchise derivable from the state, and
therefore not within the constitutional prohibition against the
passage of local or special laws granting to any corporation,
association, or individual the right to lay down railroad tracks,
or amending existing charters for that purpose, or granting to any
corporation, association, or individual any special or exclusive
privilege, immunity, or franchise whatever. The minority of the
court were of opinion that the Constitution of 1870 made the
extending ordinance invalid. In neither the majority nor the
dissenting opinions is there any intimation that the railway
company could occupy or use a street of the City of Chicago without
the permission of the city. In discussing how far the charter
authorized the company to act without the consent of the city, Mr.
Justice Sheldon, in the course of an able dissenting opinion,
concurred in by the Chief
Page 201 U. S. 460
Justice and Mr. Justice Breese, is careful to point out that the
right to occupy the streets is not complete in the grant of the
charter from the state, and is only capable of being exercised when
supplemented by the authorization of the city.
And see
77 U. S. Memphis
Railroad, 10 Wall. 38,
77 U. S. 55. In
that case, this Court held that a charter authorizing a street
railroad company to operate street railroads in all the streets of
the city "with the consent of the city" was unavailing until the
consent of the city was first had, which consent was a condition
precedent to the use of the streets.
What, then, was conferred in the franchise granted by the state?
It was the right to be a corporation for the period named, and to
acquire from the city the right to use the streets upon contract
terms and conditions to be agreed upon. The franchise conferred by
the state is of no practical value until supplemented by the
consent and authority of the council of the city. After the passage
of the act of 1859, the common council of the city, on May 23,
1859, passed an ordinance authorizing the extension and operation
of certain horse railways in the streets of the south and west
divisions of the city, and granting the use thereof to the Chicago
City Railway Company. The city purported to act under authority of
the act of 1859, and by virtue of the powers and authority
otherwise vested in the common council by law. By this ordinance,
the term of use and occupation was fixed at "during all the term in
the said act of the fourteenth of February, A.D. 1859, specified
and prescribed." On the same day, the council passed an ordinance
granting rights in certain streets to the North Chicago City
Railway Company. This ordinance contained this language:
"The rights and privileges granted to the said company by this
ordinance, or intended to be, shall continue and be in force for
the benefit of said company for the full term of twenty-five years
from the passage of this ordinance, and no longer."
On February 21, 1861, the legislature passed an act
incorporating the Chicago West Division Railway Company for the
term of twenty-five years, the corporation to possess
Page 201 U. S. 461
the powers enumerated in the second third, fifth and sixth
sections of the Act of February 14, 1859. By section 4 of the act,
the corporation was authorized to acquire from the Chicago City
Railway Company the powers, franchises, privileges, and immunities
conferred upon that company, and the consent of the directors of
said company was made a condition precedent to the exercise of the
powers conferred as to any streets of the south and west divisions
of the City of Chicago.
Before the passage of the act of 1865, a number of ordinances
were passed conferring the privilege of using streets, in most
cases with a time limit definite in character. The record discloses
that, by an agreement of July 29, 1863, the Chicago City Railway
Company had agreed to convey to the Chicago West Division Railway
Company certain rolling stock, equipment, etc., together with "all
and singular the franchises, rights, privileges, and immunities" of
the Chicago City Railway Company in the upon certain streets,
"conferred, given, or granted by or under any or all acts of the
General Assembly of the State of Illinois, and any and all
ordinances of the City of Chicago, or contracts with the common
council."
In this contract it was also provided that, if at any time it
should be adjudged that consent to the sale by the council of the
City of Chicago is or was necessary to secure to the grantee
company the rights and privileges embraced in the contract, the
grantor company would do all in its power by reasonable and proper
effort to secure such consent of the common council. By the deed of
transfer of July 30, 1863, the grantor company conveyed its rights,
privileges, and franchises in the use and occupation of certain
streets,
"to have and to hold the above bargained and granted premises
and property to the party of the second part, etc., for and during
all the time which the said party of the first part might hold,
exercise, and enjoy the same under its present charter and any and
all extensions thereof."
On December 13, 1859, the Chicago City Railway Company by
agreement gave to the North Chicago City Railway Company permission
and authority to make, construct, and use for
Page 201 U. S. 462
twenty-four years, tracks, etc., as might be necessary to extend
its railway southerly to such points in the south and west
divisions along certain streets, "as the party of the first part
[Chicago City Railway Company] has been or may be authorized to
make and have the same."
It thus clearly appears, at least up to the passage of the act
of 1865, that legislation upon the subject recognized and enforced
the right and authority of the city to fix the term during which
the streets might be occupied by street railway companies. The
legislature had confirmed the ordinance of the city fixing the term
at twenty-five years and until the city should see fit to purchase
the property of the railway company. It had required the companies
to obtain the authority of the city before using the streets, such
use to be upon terms and conditions, and with such rights and
privileges, as the city had or might thereafter prescribe by
contract with the companies. We find no intention evidenced in
legislative action thus far to prevent the municipal authorities
from exercising the important and far-reaching authority of fixing
by contract with the persons or corporations to whom franchises are
granted by the state the term during which the occupancy shall
continue. This feature of the right to use the streets, it need
hardly be said, is of most vital importance to both parties. Some
latitude of time is essential to the value and stability of the
investment to be made. An unduly long period might conclude
municipal action when changing conditions and growing population
demanded it in the public interest.
We come now to the act of 1865. Does its interpretation justify
the contention that, by its terms, the state took from the local
authorities the control which had been theretofore recognized, the
right and authority to determine upon what terms and for what
length of time the railways might occupy the streets, and without
other consideration than the building, equipment, and operation of
the roads, conferred upon the companies the right to use and occupy
for ninety-nine years to
Page 201 U. S. 463
come the streets of the city which might thereafter be
designated by the city council, and confirmed without qualification
for that term the right to use and occupy the streets covered in
contracts already made with the city? We may premise, before taking
up this act for more detailed consideration, that it is a firmly
established rule, which we shall have occasion to refer to later on
in this discussion but which must be borne in mind as we enter upon
the consideration of this act, that one who asserts private rights
in public property under grants of the character of those under
consideration must, if he would establish them, come prepared to
show that they have been conferred in plain terms, for nothing
passes by the grant except it be clearly stated or necessarily
implied. The first section of the act of 1865 was effectual to
extend the corporate life of the two companies, created by the acts
of 1859 and 1861, from twenty-five to ninety-nine years each. The
second section authorizes the construction and maintenance of
street railways in the City of Chicago upon such streets, etc.,
within the limits named, as the common council have authorized or
shall from time to time authorize, the rights, privileges, and
immunities and exemptions to be such as the common council has
prescribed, or may, by contracts with said parties, or either of
them, prescribe. In the first clause of that section, then, there
is shown no disposition to depart from the policy of the state as
indicated by the act of 1859, and the action of the companies
thereunder, which required the street railway companies, before
entering upon the occupation or use of the streets, to obtain, by
agreement with the city, its sanction and authority for the right
and privilege of so doing. Then comes the clause which, it is
contended, works a revolution of former policies and extends former
franchises and rights to the full term of ninety-nine years, and
withholds from the city the power of granting any further use of
the streets to the railway companies, except upon terms of
extending the right for the like period. While we have no right to
consider this act by segregating its clauses as though they were
separate enactments,
Page 201 U. S. 464
for the purpose of having its provisions clearly in view, we
insert this clause:
"And any and all acts or deeds of transfer of rights,
privileges, or franchises, between the corporations in said several
acts named, or any two of them, and all contracts, tracts,
stipulations, licenses, and undertakings made, entered into, or
given, and as made or amended by and between the said common
council and any one or more of the said corporations, respecting
the location, use, or exclusion of railways in or upon the streets,
or any of them, of said city, shall be deemed and held and
continued in force during the life hereof, as valid and effectual,
to all intents and purposes, as if made a part, and the same are
hereby made a part, of said several acts."
Does a fair interpretation of this clause of the act extend all
the franchises, privileges, and contracts theretofore made for the
term of ninety-nine years? This clause deals with:
1. The transfers of rights, privileges, or franchises between
the corporations.
2. Comprehensively speaking, the contracts made between the city
and the companies.
The definition of "rights and privileges," as the terms are used
in this act, is not difficult to find. It is contained in the
context of the act confirming
"such rights and privileges, immunities and exemptions, as the
common council has [prescribed], or may, by contract with said
parties, or any or either of them, prescribe."
This definition conforms to the use of the terms in prior acts
of the legislature on the subject as well as to ordinances of the
city granting the use of the streets. The rights and privileges
intended are such as have been derived from contracts with the
city. Franchises in the sense we have stated have been the grants
of the state. Licenses and all other privileges have been obtained
from the city, acting under the authority of the acts of the
legislature in the manner outlined earlier in this discussion. As
to the deeds and acts of transfer of rights, privileges, and
franchises, as well
Page 201 U. S. 465
as the contract rights secured from the city, the act declares
they
"shall be deemed and held and continued in force during the life
hereof, as valid and effectual, to all intents and purposes, as if
made a part, and the same are hereby made a part, of said several
acts."
What does this mean? It cannot operate to extend the contract
rights and privileges, obtained directly from the city before or
after the transfer by one company to the other, ninety-nine years,
for as to these the act distinctly declares that the contracts,
stipulations, licenses, and undertakings, between the council and
the companies, shall stand "as made or amended." This declaration
is in the past tense, and can have no reference, by any fair
construction, to future engagements.
The contracts, by this clause, in all their terms, including
time limits, are written into the original acts of 1859 and 1861,
as if made a part thereof. Much discussion has been had as to the
proper interpretation of the ambiguous expression "during the life
hereof." For the companies it is insisted that its meaning is to
extend all franchises and contracts, and whether the latter have
been or may thereafter be made, to the end of the ninety-nine
years, so as to give the railways the franchise to use the streets
for that period by an irrevocable grant, irrespective of any
limitations by state or municipal action subsequently undertaken.
To give this act the construction insisted on by the companies is
inconsistent with the policy of the state, declared in the act of
1859, which ratified the ordinance of 1858 and gave additional
rights in the streets only upon obtaining the consent of the city.
It practically reads out of the act the preceding clause of the
very section under consideration, which expressly recognizes the
authority of the city council to control the use of the streets by
contracts which it has made or may make in the future. To say that
contracts, the terms and conditions of which are left to agreement
with the city, could only be made upon terms of extension to
ninety-nine years is to nullify in an important particular
Page 201 U. S. 466
the powers conferred in the act. The construction contended for
requires us to ignore or entirely change the sense of terms
establishing the contracts as made, and requires an interpretation
which applies to the future what is specifically stated to be meant
for the past. It does violence to the rule contended for by counsel
for the companies -- that words are to be considered in their
ordinary signification, and every part of the statute, if
practicable, given meaning in harmony with its other provisions
upon the subject. It is urged that the words "as made or amended"
must have reference to the future, and were intended to give a
prospective operation to the act, and to read into all contracts
thereafter to be made, as well as theretofore made, a right to use
the streets without the consent of the city for the extended
period. And it is said that
brk:
this is particularly shown by the use of the words "as amended."
But this expression was used in the seventh paragraph of the act of
1859, vesting in the corporations the rights and privileges granted
by the ordinances of the common council "and the amendments
thereto." The ordinance of August 16, 1858, was itself an amendment
of prior municipal legislation. The purpose of the act of 1865 was
to continue, as made, the former contracts, with their amendments.
If it was intended to extend all past contracts and licenses for
the use of the streets to the term of ninety-nine years, and to
require the city council to enter into no new engagements for terms
and conditions which should not extend to that period, it would
have been easy to give expression to such purpose in plain words,
and not resort to language which, as stated in one of the briefs of
the learned counsel for the companies, is "unusual and more or less
figurative." If the words used have no effect to control the right
of future contract, but do extend the term of the contracts made to
ninety-nine years, then we may have the anomalous situation of some
contracts for short and some for long-terms in the same system of
railroads. It is true that we are to consider the situation as it
was when the act was passed, and not in the light of the subsequent
growth and development
Page 201 U. S. 467
of the city. But in 1865, the policy of local control of the
streets for railway purposes had been declared and acted upon. So
radical a departure as is contended for must be found in terms
plainly stated and clearly defined. It is contended that, unless
the construction insisted upon for the companies is given to the
act, no force or effect is given to the expression "during the life
hereof," and a well recognized rule is invoked that all parts of
this law must be given force and effect in interpreting its
meaning. While it is incumbent upon those claiming under a public
grant, as we have already stated, to make out the rights contended
for by terms which clearly and unequivocally convey them, and it is
enough to deny the privileges contended for if, upon considering
the act, the mind rests in doubt and uncertainty as to whether they
are intended to be conferred, we think this act can be given a
construction which shall give some meaning and effect to the words
"during the life hereof." Literally construed, the phrase would
mean for the life of the act. It has been suggested that it may
mean until the corporations, by forfeiture or otherwise, go out of
existence. But these meanings do not seem to aid the purpose
manifested in the law, and meaningless phrases are not supposed to
be used to express the legislative will. Bearing in mind that the
franchises granted came from the state, the nature and extent of
the rights included in those franchises, that the franchise to be a
corporation was extended by the first section of the act, and that
the franchise, the transfer of which was intended to be confirmed
in the clause now before us, embraced the right granted by the
state to use the streets with the authority of the city, and that
the rights and privileges were obtained from the city, let us see
if some meaning can be found consistent with the other parts of the
act and recognized rules of construction. Conceding for this
purpose the contention on behalf of the companies that the phrase
"during the life hereof" may mean for the term of ninety-nine
years, for that period the act provides that certain things "shall
be deemed and held and continued in force." What
Page 201 U. S. 468
are they? 1. "Any and all acts or deeds of transfer of rights,
privileges, or franchises between the corporations in said several
acts named or any two of them." 2. "All contracts, stipulations,
licenses, and undertakings, made, entered into, or given, and as
made or amended by and between the said common council and any one
or more of the said corporations, respecting the location, use, or
exclusion of the railways in or upon the streets or any of them of
said city." The context of the act, as we have seen, defines rights
and privileges to be such as are derived from the contracts with
the city. It recognizes, as do the ordinances previously passed, in
the use made of the same phrase, that the city is the source from
whence they came. Franchises, as we have said, came from the state.
The phrase "during the life hereof" cannot be held to extend
contract rights to ninety-nine years without doing violence to the
terms which just precede this phrase and are found in the same
sentence, confirming all contracts, stipulations, licenses, and
undertakings "as made or amended." The vital part of such contracts
is the duration of the occupancy of the streets, expressly limited
to twenty-five years, and in some cases twenty-five years and until
purchase by the city. To say that "during the life hereof," in the
sense that it means ninety-nine years, is to be the life of the
contracts permits that part of the sentence to repeal the provision
of the clause which reads them into the original act in all
respects as made or amended. Rejecting, therefore, such impossible
construction as doing violence to the very terms of the law, there
is only left of the things provided for which can be consistently
extended for ninety-nine years, the acts or deeds of transfer
between the corporations so far as they relate to franchises which
are not subject to the express limitations of the act -- that they
shall stand as made. These franchises as conveyed were necessarily
limited to twenty-five years, the then life of the companies. The
first part of this act has prolonged the corporate life to
ninety-nine years. In the sense which we have already defined the
franchise granted by the state, as
Page 201 U. S. 469
conferring the right to use and occupy the streets with
permission from the city, the act may be consistently held to
extend and validate the deeds of transfer as conveying a continued
right to such franchise for the extended period of the lives of the
corporations. This construction gives some weight and force to this
ambiguous expression, and, taking the entire act together, is more
consistent with the legislative purpose expressed than is the one
put forward, which ignores the reference to the contracts in their
original form and extends them all for ninety-nine years, while the
act declares they shall not be disturbed as made. It is not to be
understood that the interpretation herein suggested frees the
judicial mind from doubt as to the meaning of this act, any more
than its ambiguous and contradictory phrases could have impressed
upon the legislative understanding the meaning now contended for by
the companies. It is the application of the settled rule of
interpretation to such grants which invalidates the claims made for
it, rather than any clear and satisfactory interpretation which has
been suggested by counsel or arrived at by the court.
This construction is in harmony with the policy of the state, as
evidenced in its prior legislation on the subject, and, in the
earlier part of the section under consideration, it gives some
meaning to all parts of the act, and makes its provisions
consistent with each other. It preserves local control of streets
for railway purposes, which the legislature, in all of the acts
under consideration, has sought to protect. Considering the act as
a whole, it has the effect to extend the life of the corporations
to ninety-nine years and to authorize the use of the streets of
Chicago, with the consent and upon terms agreed upon with the
council, and this right may be acquired in like manner during the
extended life of the corporations for such periods as may be
contracted for. Contracts already made are affirmed as made. The
transfers between the companies are validated.
Further contracts may be entered into and amendments made
without resort to new legislation empowering the corporations,
Page 201 U. S. 470
as the right of amendment is given, reserving the right of
modification or repeal, by a majority of the aldermen elected or
act of the General Assembly, of the right to charge a higher rate
than five cents.
While it is true that if, by the act, the state had conferred a
grant of the right to use the streets for the period of ninety-nine
years, entitled to the protection of the contract clause of the
Constitution, such right could not be impaired by any subsequent
legislation, it is worthy of note, as showing the continuous
legislative policy of the state, that in the Act of March, 1867,
amending the charter of the City of Chicago, it was provided that
no grant of the right to use the streets should be given, or those
already given extended, unless by a vote of three-fourths of all
the aldermen elected, and that no grant, consent, or permission
theretofore given or made, or thereafter given, should in any case
be extended until within one year of the expiration of the grant,
consent, or permission, and in case of veto by the mayor such grant
or permission should receive the vote of three-fourths of all the
aldermen. This act shows a consistent policy of local control, and
is inconsistent with the theory of a grant already made for the use
of the streets for ninety-nine years.
In reaching the conclusions herein stated as to the proper
construction of the act of 1865, amending the act of 1859, we are
not unmindful of the fact that much can be said in favor of the
view contended for by the learned counsel for the companies. The
construction of this act, as we have said, is by no means free from
difficulty.
It is true that Governor Oglesby, in his message returning this
act with his veto, gave it a construction which would maintain the
right to use the streets for the period of ninety-nine years. While
his construction was assumed, rather than demonstrated, and the
stress of his argument was upon the impropriety and constitutional
invalidity of thus postponing the right of the city to purchase, it
may be admitted that his interpretation of the act sustains the
view contended for by
Page 201 U. S. 471
the companies. But, as we have said, the act upon its face is
ambiguous and uncertain. We must judge of it by the terms in which
it is expressed. A construction can be given it which would extend
all the contracts with the city for the term of ninety-nine years.
On the other hand, it can be maintained with at least equal force
that, notwithstanding the Governor's view, it affirmed the
contracts as made, thus distinctly recognizing the comparatively
short term of twenty-five years, for which they expressly
stipulated. It must be, therefore, uncertain whether the
legislators voted for this act upon one construction or the other.
It may be that the very ambiguity of the act was the means of
securing its passage. Legislative grants of this character should
be in such unequivocal form of expression that the legislative mind
may be distinctly impressed with their character and import, in
order that the privileges may be intelligently granted or purposely
withheld. It is matter of common knowledge that grants of this
character are usually prepared by those interested in them, and
submitted to the legislature with a view to obtain from such bodies
the most liberal grant of privileges which they are willing to
give. This is one among many reasons why they are to be strictly
construed. Pierce on Railroads 491;
New Orleans &c.
Railroad Co. v. New Orleans, 34 La.Ann. 447. "Words of
equivocal import," said Mr. Chief Justice Black in
Pennsylvania
Railroad Company v. Canal Commissioners, 21 Pa. 9, 22,
"are so easily inserted by mistake or fraud that every
consideration of justice and policy requires that they should be
treated as nugatory when they do find their way into the enactments
of the legislature."
"The just presumption,' says Cooley, in his work on
Constitutional Limitations, 7th ed. p. 565, 'in every such case is
that the state has granted in express terms all that it designed to
grant at all,' and, after quoting from the Supreme Court of
Pennsylvania to the same effect, the learned author observes: 'This
is sound doctrine, and should be vigilantly observed and
enforced."
Since the decision of the
Dartmouth College
Case, 4 Wheat.
Page 201 U. S. 472
518, this Court has had frequent occasion to apply and enforce
the doctrine that a grant of rights in public property accepted by
the beneficiary will amount to a contract entitled to protection
against impairment by action of the state or municipalities acting
under state authority. Concurrent with this principle, and to be
considered when construing an alleged grant of this character, is
the equally well established rule which requires such grants to be
made in plain terms in order to convey private rights in respect to
public property, and to prevent future control of such privileges
in the public interest. The rule as laid down with clearness by
Chief Justice Taney in the often-cited case of
Charles
River Bridge v. Warren Bridge, 11 Pet. 420, and has
been uniformly applied in many subsequent cases in this Court. In
Perrine v. Chesapeake &
Delaware Canal Company, 9 How. 172,
50 U. S. 192,
the same eminent Chief Justice, speaking for the Court, said:
"The rule of construction in cases of this description . . . is
this -- that any ambiguity in the terms of the grant must operate
against the corporation and in favor of the public, and the
corporation can claim nothing that is not clearly given by the law.
We do not mean to say that the charter is to receive a strained and
unreasonable interpretation, contrary to the obvious intention of
the grant. It must be fairly examined and considered, and
reasonably and justly expounded."
In the case of
The Binghamton
Bridge, 3 Wall. 51,
70 U. S. 75, it
was said:
"The principle is this: that all rights which are asserted
against the state must be clearly defined, and not raised by
inference or presumption, and if the charter is silent about a
power, it does not exist. If, on a fair reading of the instrument,
reasonable doubts arise as to the proper interpretation to be given
to it, those doubts are to be solved in favor of the state, and
where it is susceptible of two meanings, the one restricting and
the other extending the powers of the corporation, that
construction is to be adopted which works the least harm to the
state."
This principle has been declared axiomatic as a doctrine of this
Court.
Fertilizing Company v. Hyde Park, 97 U. S.
659
Page 201 U. S. 473
97 U. S. 666.
In
Slidell v. Grandjean, 111 U. S. 412,
111 U. S. 438,
it is declared a wise doctrine.
"It serves to defeat any purpose concealed by the skilful use of
terms to accomplish something not apparent on the face of the act,
and thus sanctions only open dealing with legislative bodies."
Among other cases affirming the principle in this Court is
Coosaw Mining Company v. South Carolina, 144 U.
S. 550, in which it was applied in adopting, of two
doubtful constructions, the one more favorable to the state. Many
of the cases are cited in a note to
Knoxville Water Company v.
Knoxville, decided at this term.
200 U. S. 200 U.S.
22. Applying the principle so frequently asserted and uniformly
maintained, we think it cannot be successfully maintained that the
act of 1865 contains a clear expression of legislative intention to
extend the franchise of these companies to use the streets of
Chicago, without reference to the assent of the city, for the
long-term of ninety-nine years, and for that time preventing other
and different legislation restricting this grant of a practically
exclusive right. So enormous a grant of privileges, including an
exclusion from some streets of any railway system, ought not to be
presumed or held to be conferred in doubtful and ambiguous words.
Grants of this character are not to be destroyed by an unreasonable
or narrow interpretation. But if ambiguity is fatal to such claim
of rights as against the public, for the stronger reason must such
grants of far-reaching and exclusive privileges as are here
asserted fail when they can only be maintained by strained
construction in their favor.
The effect of the act of 1865 was to affirm the contracts as
made between the council and the companies; these contracts must
stand as concluded unless changed by subsequent agreement between
the parties. As we have said, the principal question in the case
concerns the construction of the Act of February 14, 1859, as
amended by the Act of February 6, 1865. The learned circuit court,
holding the opinion that the right to use the streets was extended
for the prolonged term of the corporate life of the companies, also
held that the adoption of
Page 201 U. S. 474
the Cities and Villages Act by the City of Chicago, in May,
1875, which act was passed under the Constitution of Illinois,
taking effect in 1870, put an end to the right of the City of
Chicago to thereafter designate streets under the former acts, and
that contracts subsequently made were subject to the limitation of
twenty years, as provided in the Cities and Villages Act of 1872.
The court applied the principles upon which it construed the acts
in question, and gave it effects as to numerous streets which were
the subject of contracts between the city and the companies. Under
our conclusions, the decree must be reversed, and the construction
we have given the act may require a decree differing from that
rendered in the circuit court, when applied to particular streets.
But we shall not take up all these controversies in detail, and
shall leave to the circuit court a readjustment of the decree upon
the lines of this opinion. There are, however, certain matters in
the case which have been fully argued and should be determined
before the case is again considered in the circuit court. On these
features of the case we will not enter upon extended discussion,
but briefly indicate our views upon them.
It was held by the learned circuit court that the amending act
of 1865 had application to the North Chicago City Railway Company,
and had the effect to extend the corporate life of that company. We
think this is a correct view. By the tenth section of the act of
1859, all the grants, powers, privileges, immunities, and
franchises conferred upon Parmalee and others by the act for the
south and west divisions of the City of Chicago were conferred upon
certain persons by the corporate name of the North Chicago City
Railway Company, for the north division of the city, in the County
of Cook, as fully and effectually as if they had been by a separate
act incorporated, with all of said grants, powers, immunities,
privileges, and franchises. By the first section of the act of
1865, the corporate lives of the Chicago City Railway Company,
created by the first section of the act of 1859, and the Chicago
West Division Railway Company, created by the first section of
the
Page 201 U. S. 475
act of 1861, were expressly extended for ninety-nine years.
While nothing was specifically said of the North Chicago City
Railway Company in this connection, the tenth section of the act,
after this amendment, we think, should be read in connection with
the amended act, so that the act of 1859 is to be read as if it had
originally been in the amended form. In this view, the extended
life of the corporations created by the first section must be read
into the charter of the North Chicago City Railway Company, created
by the tenth section.
We believe this view is sustained by reason and authority.
Holbrook v. Nichol, 36 Ill. 161. The rule was thus stated
in
Farrell v. State, 54 N.J.L. 421:
"As a rule of construction, a statute amended is to be
understood in the same sense exactly as if it had read from the
beginning as it does amended.
People ex Rel. Parsons v. Circuit
Judge, 37 Mich. 287. In
Conrad v. Nall, 24 Mich. 275,
a section in a chapter of the Code was amended, and it was held
that it was not intended to operate independently of the other
provisions of the chapter, but that the whole chapter, in its
present form, must be read as one act."
"The rule is correctly stated in Endlich on Interpretation of
Statutes, section 294, as follows:"
"A statute which is amended is thereafter, and as to all acts
subsequently done, to be construed as if the amendment had always
been there, and the amendment itself so thoroughly becomes a part
of the original statute that it must be construed in view of the
original statute as it stands after the amendments are introduced
and the matters superseded by the amendments eliminated."
This view is strengthened by the language of the second section,
which speaks of the deeds of transfer of rights between the
corporations, in said several acts, or "any two of them."
The City of Chicago has constantly recognized the corporate
existence of this company and has made numerous agreements with it
as such corporation. In
Chicago v.
Sheldon, 9 Wall. 50, in considering a contract
between the North Chicago City Railway Company and the city as to
the extent of street improvement by way of paving, etc., which
could be required of
Page 201 U. S. 476
the company under the ordinance of May 23, 1859, granting it
rights and privileges in the streets, this Court, speaking through
Mr. Justice Nelson, concluded its opinion as follows:
"A point is made that the legislature have not conferred or
intended to confer authority upon the city to make this contract.
We need only say that full power was not only conferred, but that
the contract itself has been since ratified by this body."
The learned justice, speaking of the contract, obviously
referred to the ordinance of May 23, 1859, passed under the
authority conferred by the act of February 14, 1859, and the
ratification by the legislature under the act of February 6, 1865.
We have no doubt that this act was intended to apply to the North
Chicago City Railway Company as well as to the companies
specifically covered in the first section of the act. The ordinance
of 1858, in its tenth section, gave the right to operate the
"said railways for twenty-five years, and thereafter to parties
operating said railways the enjoyment of all privileges granted
until the common council shall elect, by order for that purpose, to
purchase the tracks, railway cars, carriages, stationhouses,
station grounds, furniture, and implements of every kind and
description used in the construction and operation of said railways
or the appurtenances in and about the same."
By section 7 of the Act of February 14, 1859, all of the rights
and privileges granted or intended so to be to Parmalee and others
by the ordinances and amendments were confirmed and vested in the
corporations. The affirmance of these rights and privileges gave
them the sanction and made them part of the legislative act.
Afterwards certain of the rights and privileges of the Chicago City
Railway Company were transferred by the deed of July 30, 1863, as
stated in said conveyance, to the Chicago West Division Railway
Company. This deed of transfer is confirmed by the act of 1865.
Later the system of railways was extended under ordinances of the
city and with the assent of village boards of trustees. It is the
contention of the receivers that, by reason of the premises, the
railway companies became entitled to operate the entire system
for
Page 201 U. S. 477
the extended period of the act of 1865 -- for ninety-nine years
-- and thereafter until the City of Chicago shall lawfully purchase
all of the said railways, property, equipment, and appurtenances,
and pay for the same in cash at its then appraised value. It is the
contention of the city that this extension of the right to purchase
by virtue of the ordinance of 1858, affirmed in the act of 1859 and
the amendment of 1865, must be confined to the streets covered by
the ordinance of 1858. That the right to use the streets under the
ordinance of 1858 was extended to all subsequently acquired rights
to use the streets under the new contracts, so that the right would
continue until purchase be made of the entire property of both
systems of railway, we cannot concede. It does violence to the
language of the ordinance of 1858, which, by its terms, is limited
to the railways therein and thereby provided for, and would be an
extension of corporate privileges by implication, in violence of
the settled rule to which we have had occasion to refer in the
principal discussion.
While not conceding the soundness of the contention that the
right of purchase is extended to all the property of the railway
companies by reason of the unity of the system, there are certain
ordinances confirmed by the act of 1865 which require special
attention. As we have seen, by the ordinance of May 23, 1859,
permission was given to lay a street railway on and along certain
streets and bridges in the south and west divisions of the City of
Chicago,
"and the same to keep, maintain, and use and to operate thereon
railway cars and carriages during all the term of the said act of
February 14, 1859, specified and prescribed, in the manner and upon
the conditions hereinafter designated."
On the same day, May 23, 1859, a grant was made to the North
Chicago City Railway Company of the right to use certain streets,
the rights and privileges granted to be in force for the benefit of
the company for the full term of twenty-five years from the passage
of the ordinance, and no longer. This difference in the grants to
the two railway companies is significant. In the ordinance of 1858,
the
Page 201 U. S. 478
grant to Parmalee and others was for the term of twenty-five
years, with the right of the parties operating the railways to
enjoy all the said privileges until the common council elect, by
order for that purpose, to purchase the tracks and other property
used in the construction and operation of said railways and
appurtenances, and pay for the same in the manner designated in the
ordinance. This grant was expressly confirmed by the act of 1859,
in section 7 thereof. Otherwise there was no specific grant in that
act fixing the time for which the railway company might operate in
the streets. As we have seen, in that law there was a distinct
affirmation of what the common council had authorized the
corporators to do, and might thereafter authorize the corporation
to do by contract. The North Chicago City Railway Company, prior to
the act of 1859, had no agreement as to streets. The reason for the
grant of different terms to the different companies, we think, is
apparent. On the west side, reference was made to the term granted
in the Act of February 14, 1859, for the purpose of giving the
Chicago City Railway Company the same term as had been granted and
confirmed therein as to the streets named in the ordinance of
August, 1858, and, in our judgment, gave to that company a grant in
the same terms -- that is, for twenty-five years and until the city
purchase in the manner designated. On the north side, there being
no such legislative confirmation of rights already undertaken to be
conferred by the council, the grant was specifically limited to a
period of twenty-five years, "and no longer."
In considering the effect of the ordinances passed by the common
council of the City of Chicago in the period from February, 1859,
to May 3, 1875, it may be well to briefly summarize the terms of
these ordinances. The will be found in the margin.{2}
Page 201 U. S. 479
After the passage of the Cities and Villages Act of 1872,
accepted by the City of Chicago in May, 1875, the following
ordinance was passed, being the so-called "compromise
ordinance:"
Page 201 U. S. 480
"July 10, 1883 (amended August 6, 1883) --"
"Extending the Term for Twenty Years from This Date. Accepted by
North Chicago City Railway Company, August 8, 1883; by the Chicago
City Railway Company and the Chicago West Division Railway Company,
August 10, 1883."
This ordinance contained this proviso:
"But nothing in this section contained, or the acceptance
hereof, shall in any manner impair, change, or alter the existing
rights, duties, and obligations of the city or of said companies,
respectively, from and after the said term of years hereinbefore
mentioned."
We thus perceive a consistent purpose running through the grants
to the north side company to adhere to the term of the original
ordinance of May 23, 1859, limiting the right to use the streets to
the period of twenty-five years, "and no longer," by reference in
subsequent ordinances to the prior ordinance. We do not regard the
exceptional character of the ordinance of October 26, 1874, amended
April 26, 1875, as overcoming, as to other ordinances, the general
purpose reflected in them. That ordinance was a grant in part to
the
Page 201 U. S. 481
North Chicago Company as the lessee of the Chicago City Company,
and was doubtless changed in terms to make it comply with the grant
of the latter company as to streets in which it operated.
As to the west side companies, we find running through the
ordinances making grants in the divisions covered by that system a
purpose to preserve the original permission of the ordinance of
August 16, 1858, which granted the use of the streets for the term
of twenty-five years and until purchase by the city. The language
used in the ordinance of May 23, 1859, granting the use of the
streets, is "during all the term in said act of the 14th of
February, A.D. 1859, specified and prescribed." This ordinance and
similar ones passed prior to the Act of February 6, 1865, were
confirmed by that act, and rights under them were reserved by the
compromise ordinance of July 10, 1883. We hold that, when streets
were occupied under the authority of these ordinances, the company
has the right to the use of the streets until the city shall
purchase under the contracts thus made.
In the west side system, the ordinance of August 17, 1864, is
silent as to the term of the grant. We do not think this indicates
any intention on the part of the city, even if it had the power
under legislative acts then in existence, to confer the right in
perpetuity to the occupancy of the streets, a point which we do not
feel called upon to decide. The other ordinances by direct terms or
references to prior ordinances have made the grants for the west
side system for the term of twenty-five years, and until purchase
by the city, in the manner stated, and we do not think there was
any intention to depart from the plan in this one ordinance
omitting specifically to name a definite time of occupancy. At this
time, there had been no extension of the life of the corporation,
and it was specifically limited to twenty-five years.
In reaching this conclusion, we are not unmindful of the
decision of this Court in
Detroit v. Detroit Citizens' Street
Railway Company, 184 U. S. 368,
184 U. S. 395,
holding that, although a corporation
Page 201 U. S. 482
be organized for a limited period by the terms of its charter,
it may receive a grant which would inure to the benefit of those
lawfully entitled to succeed to the rights of the corporation,
although for a period of years beyond the corporate life. But, in
the present case, the right granted must be construed with
reference to the system of which it was made a part, and where the
terms of the grant were limited to twenty-five years, and until
purchase, we can find no intention to grant or receive a perpetuity
simply because no term of years was named in the one ordinance
under consideration.
It is contended that whatever rights would otherwise be included
in contracts confirmed by the act of 1865, they were lost to the
companies by accepting the privileges conferred in the "power
ordinances" of June 7, 1886, and March 30, 1888. But prior to the
passage of those ordinances was the so-called "compromise
ordinance" of July 10, 1883, as amended August 6, 1883, settling
certain controversies as to license fees and street paving, and
extending the time of operation for twenty years, and further
providing: "But nothing in this section contained, or the
acceptance hereof, shall in any manner impair, change, or alter the
existing rights, duties, and obligations of the city, or of said
companies, respectively, from and after the expiration of the said
term of years hereinbefore mentioned." In the North Chicago City
Railway ordinance and the West Chicago City Railway Company
ordinance clauses are inserted to the effect that privileges as to
time after the expiration of the term of twenty years are to be
governed by ordinances theretofore passed. In view of this
reservation we are of opinion that whatever rights and privileges
the company had in the streets after the expiration of the time
limitation in the "power ordinances" were not lost by the
acceptance of privileges conferred in those ordinances.
It is contended that the railway companies had no power to
accept ordinances for the use of other than animal power in the
operation of railways, because of the titles of the various
Page 201 U. S. 483
acts which constituted the charter of the companies, limiting
them to the use of animal power, and because of the constitutional
provision, which we have referred to earlier in this opinion,
providing that no private or local law shall embrace more than one
subject, which shall be expressed in its title. We think the
intention of the legislature in this respect was not to confine the
operation of the road to animal power, but to incorporate street
railway companies, as distinguished from steam railways, and to
endow them with the rights and privileges named in the acts.
Section two of the law (act of 1865) expressly gives the power of
amendment, in providing that
"it shall be competent for the said common council, with the
written consent or concurrence of the other party or parties or
their assigns to any of said contracts, stipulations, licenses, or
undertakings, to amend, modify, or annul the same."
We think this grant of power was broad enough to authorize the
city to grant, and the railway company to accept, a changed method
of operation of the railways by applying thereto a new and more
efficient and economical power. It is true that the Supreme Court
of Illinois, in
North Chicago City Railway Company v. Lake
View, 105 Ill. 207, held that the charter of the North Chicago
City Railway Company had not authorized a steam railway, but that
court has held in later decisions that an electric railway,
incorporated under the general incorporation acts to build horse
and dummy railways, might organize a street railway company to be
operated by electricity or by any motive power other than steam,
and might appropriate private property for this purpose.
Harvey
v. Aurora & Geneva Railway Company, 174 Ill. 299. The
court has also held that the provisions of the Horse and Dummy Act
applied to electric railway companies, as did a paragraph of the
general incorporation act in regard to horse railways. We think the
Illinois cases recognize the distinction in legislation in that
state between railways intended to be operated upon the streets of
the City of Chicago and other cities for local accommodation, and
steam railways, as such are
Page 201 U. S. 484
generally understood. And the declaration inserted in the title
of the acts that they concern horse railways will not, because of
the constitutional provision, prevent the exercise of the power of
amendment conferred by law upon the city and the companies in such
manner as to authorize the use of such power as electricity and
cable. We agree with the learned circuit court that these grants as
to changed methods of operation were within the powers legally
conferred by the act of 1865. Furthermore, on June 9, 1897, the
legislature passed an act having application to companies organized
under general or special laws, which provided:
"Every such street railway may be operated by animal, cable,
electric, or any other motive power that may have been or shall
hereafter be granted to it by the public officers or authorities,
except steam locomotive engines."
It is true that this statute was repealed by the Act of March 7,
1899, but we do not perceive how this could destroy its effect to
ratify the contracts which were in existence when the act was
passed. This view renders it unnecessary to pass upon the question
whether the City of Chicago, having undertaken to authorize the use
of new power, upon the faith of which authority large sums of money
have been expended and extensive changes made, can now be heard to
say that it had no authority to grant such right.
The learned circuit court held that privileges granted under
ordinances of the Town of Jefferson were limited to twenty years.
This ruling, it is contended by the Chicago West Division Railway
Company, is erroneous, because of the act of 1859, which
provided:
"Section 5. The said corporation is hereby authorized to extend
the said several railways herein authorized to be built in the
manner aforesaid to any point or points within the County of Cook
in this state, and to enable said corporation to construct any or
all of the railways herein authorized, or their appendages, the
said corporation is hereby vested with power to take and apply
private property for the purposes and in the manner
prescribed,"
etc.
"Section 6: The said corporation is hereby authorized,
Page 201 U. S. 485
with the assent of the supervisor of any township, to lay down
and maintain its said railway or railways in, upon, over, and along
any common highway in said township, but in such manner as not to
obstruct the common travel of the public over the same."
The Town of Jefferson was one of the townships of Cook County,
adjoining the City of Chicago on the northwest. So far as the
record discloses, no effort was made to extend the lines of the
Chicago West Division Railway Company into the Town of Jefferson
until 1877. Before that year, the Town of Jefferson had adopted the
provisions of the Cities and Villages Act of 1872, in which the
power to grant the use of the streets for street railway purposes
was limited to twenty years. On January 28, 1878, the village
passed the ordinance granting to the Chicago West Division Railway
Company and its successors the right to maintain and operate a
street railway in Milwaukee Avenue and Armitage Road in said
village, the rights and privileges thereby granted to extend for
the term of eighty-one years. Under the act of 1859, the right to
lay down tracks and maintain railways over and along the common
highways in the townships in Cook County required the consent of
the supervisor in the township. This does not appear to have been
obtained, and when the authority was given by the president and
board of trustees of the village, it was subject to the limitation
already referred to. We cannot assent to the soundness of the
argument that the act of 1859, in the event of the abolition of the
office of supervisor, during the life of the corporation, would
authorize the extension to these adjoining townships of the system
of railways intended to be constructed, without official
consent.
Before the passage of the act of 1865, incorporating the Board
of Trustees of the Town of Lake View, the supervisors granted
permits to use some of the highways of Lake Township. This
authority was exercised under sections 5 and 6 of the Act of
February 14, 1859. We cannot agree that the duration of these
permits would be in perpetuity because of the fact that no time was
specifically named in them. The extension into
Page 201 U. S. 486
Lake View was part of the north side railway system, which, by
the terms of the grants from the city, were limited to twenty-five
years, and no longer. There certainly could be no intention in
granting these permits from the supervisors as extensions of the
system to make perpetual grants, when the right of user of the main
part of the line was expressly limited to twenty-five years. A fair
inference would be that, in extending this part of the system so as
to make a portion of that already granted, such grants were to be
for the same term as those already made. As to extensions in the
Town of Lake View, obtained otherwise than from the supervisors, it
appears that, on February 16, 1865, an act was passed entitled "An
Act to Incorporate a Board of Trustees for the Town of Lake View,
in Cook County," and it was provided that the supervisors,
assessors, and commissioners of highways and their successors in
office should be constituted and incorporated,
ex officio,
a board of trustees for said Town of Lake View. On March 5, 1867,
an amendatory act was passed entitled "An Act to Incorporate a
Board of Trustees for the Town of Lake View, in Cook County," which
provided (section 7) that the board of trustees should have the
control and supervision of the highways, streets, alleys, and
public parks in said town. This board afterwards passed ordinances
consenting to the laying down of tracks in the Town of Lake View on
a number of avenues and streets named in the ordinances.
The cases in the state courts are much divided as to the right
of a municipal corporation, because of its charter power of
controlling the streets, to grant the use thereof to a street
railway company. Some of the cases are collected in
Detroit
Citizens' Railway Company v. Detroit, 64 F. 628, 637.
The act of 1859, section six, required the consent of the
supervisor to the extension of the railways into townships of Cook
County outside of Chicago. When the supervisor became a member of
the township board of trustees, and that board gave its consent, we
think this satisfied the requirement of the act in that respect.
The legislature might have given the railway
Page 201 U. S. 487
company the right to extend its lines in Cook County without the
consent of any local authority. We are not concerned with the
general powers of the supervisor. When the legislature designated
him as the official whose assent should be obtained, it empowered
him to give such assent, and when given in any substantial way,
that satisfied the requirements of the act of 1859.
As we understand the decisions of the Supreme Court of Illinois,
the power to control the streets and highways by the township
trustees, given by the Act of March 5, 1867, would include the
right to authorize their use for street railway purposes. In
Chicago Municipal Gas Light & Fuel Co. v. Lake, 130
Ill. 54, the court held:
"The power to control and regulate the streets, alleys, and
other public places within the limits of the Town of Lake, and
abate any obstructions, encroachments, or nuisances thereon, was
given in its charter to the corporate authorities of the town.
Under this power, the town could lawfully permit any use of such
streets and alleys that is consistent with the public objects for
which they are held, and could make a grant of a right of way for
the purpose of laying gas pipes and mains under the surface."
In
People v. Blocki, 203 Ill. 363, 368, the same court
said, having reference to a grant of the right to lay switch tracks
in the street:
"The street at the time said permits were granted, was under the
control of the Board of Trustees of the Town of Lake, and, under
the power conferred upon that municipality by law, it was
authorized to allow the use of said street for any purpose not
incompatible with the purpose for which it was established, and to
allow a railroad track to be laid therein was not a use
incompatible with the purpose for which it was established."
In
Quincy v. Bull, 106 Ill. 337, on page 349, it was
said:
"In this state, there is vested in municipal corporations a fee
simple title to the streets. Under the power of exclusive control
over streets, it is very well settled by decisions of this court
that the municipal authorities may do anything with, or allow any
use of streets which is not incompatible
Page 201 U. S. 488
with the ends for which streets are established, and that it is
a legitimate use of a street to allow a railroad track to be laid
down in it.
Moses v. Pittsburg, Ft. Wayne & Chicago
Railroad Co., 21 Ill. 516;
Murphy v. Chicago, 29 Ill.
279;
Chicago & Northwestern Railway Co. v. People, 91
Ill. 251."
In view of these Illinois decisions construing the legislative
acts of the state, we think the learned circuit court erred in
holding that the trustees of the Town of Lake had no power to grant
the railway the use of the streets for street railway purposes.
The question remains as to the term for which the rights granted
by the trustees and the municipality of Lake View were to be held.
The ordinances making these grants required the company to perform
certain duties to the municipalities, such as the laying of
pavement, subject to the approval of the trustees. On April 16,
1887, the incorporated Town of Lake View became incorporated as the
City of Lake View under the Cities and Villages Act of 1872. On
July 15, 1889, the territory included in the City of Lake View was
annexed to the City of Chicago. We think in such case that the
terms granted would not extend beyond the life of the corporation
conferring them, where there was no attempt to confer a definite
term, assuming, without deciding, that it was within the authority
of the municipality to grant a perpetuity. Our attention has been
called to a late case decided in the Supreme Court of Illinois,
People ex Rel. v. Chicago Telephone Co., not officially
reported, in which it was held that, where trustees of villages and
towns have granted rights extending telephone privileges, not for a
definite period, that such grants could not be construed to be
perpetuities, and did not extend beyond the lives of the
corporations granting them. The court says:
"The ground of the defendant's claim that the ordinance does not
limit its charges in the annexed territory is that, before the
annexation, the minor municipalities had granted to it the right to
occupy the streets therein for its business, without any limits as
to time. If the grants had been for terms of
Page 201 U. S. 489
years under legislative authority authorizing them, and the term
had extended beyond the existence of the corporations granting the
privileges, there might be ground for saying that the grants were
binding upon the city, because they had become binding contracts,
under which the defendants had vested contract rights for such
term; but they were not for definite periods, and the grants were
in consideration of furnishing something to the town or village,
such as telephone service to the town or village hall or the
village authorities, free or for some reduced rate. Such grants
cannot be construed to be perpetual, and, at most, cannot extend
beyond the lives of the corporations granting them. Upon
annexation, there ceased to be any town or village authorities
entitled to the benefits of the contract or authorized to demand or
receive them, and it could not have been understood that the grant
could continue, discharged of the obligation annexed to it. . . .
The ordinances of the city extended over the annexed territory
immediately upon annexation,
Illinois Central R. Co. v.
Chicago, 176 U. S. 646, and the
limitations of the ordinance applied to the annexed territory."
This seems to us a reasonable view, and, being the construction
of the highest court of the State of Illinois, we are willing to
accept it. Furthermore, these grants in Lake View were mere
extensions of the old system, which, as we have seen, was limited
in its rights to use the streets received from the city to the term
of twenty-five years, extended twenty years by the compromise
ordinance. In the absence of express language conferring a longer
term, we do not think it was intended to extend the grant beyond
the period already permitted to the system by grants from the
city.
As we have said, we do not deem it necessary to take up all the
questions which were raised and determined by the circuit court in
considering the case and settling the decree in that court. Upon
further proceedings, the judgment of this Court is only to be held
conclusive upon matters specifically stated in this opinion.
Page 201 U. S. 490
The decree is reversed and the cause remanded to the Circuit
Court for further proceedings in accordance with the views herein
expressed.
"
Ordinance of August 16, 1858"
"An Ordinance Authorizing the Construction and Operation of
Certain Horse Railways in the Streets of the City of Chicago.
[Passed August 16, 1858.]"
"
Be it ordained by the common council of the City of
Chicago:"
"SECTION 1. That there is hereby granted to Henry Fuller,
Franklin Parmalee, and Liberty Bigelow, and such other persons as
may hereafter become associated with them, and to their executors,
administrators, and assignees, permission and authority and consent
of the common council to lay a single or double track for a
railway, with all necessary and convenient tracks for turn-outs,
side tracks, and switches, in and along the course of certain
streets of the City of Chicago hereinafter mentioned, and to
operate railway cars and carriages thereon in the manner, and for
the time, and upon the conditions hereinafter prescribed; provided,
that said tracks shall not be laid within twelve feet of the
sidewalks upon any of the streets."
"SEC. 2. That said parties are hereby authorized to lay a single
or double track for a railway in and along the course of the
following streets in said city, and extending the same as follows:
commencing on State Street at the south side of Lake Street; thence
south to the present city limits. Also, commencing on State Street
at the junction of Ringgold Place; thence on Ringgold Place to
Cottage Grove Avenue, thence on Cottage Grove Avenue to the present
limits of the City of Chicago. Also, commencing on State Street at
the junction of the Archer Road; thence along the said Archer Road
to the present limits of the city. Also, commencing on State Street
at the intersection of Madison Street, and extending west along
said Madison Street to the present city limits."
"SEC. 3. The cars to be used upon said tracks shall be operated
with animal power only, and said railways shall not connect with
any other railroad on which other power is used, and no railway car
or carriage used upon any other railroad in this state shall be
used or passed upon said tracks."
"SEC. 4. The said tracks and railways shall be used for no other
purpose than to transport passengers and their ordinary baggage,
and the cars or carriages used for that purpose shall be of the
best style and class in use on such railways. The common council
shall have power at all times to make such regulations as to the
rate of speed and time of running said cars or carriages as the
public safety and convenience may require."
"SEC. 5. The tracks of said railways shall not be elevated above
the surface of the street; shall be laid with modern improved
rails, and shall be so laid that carriages and other vehicles can
easily and freely cross said tracks at any and all points, and in
any and all directions, without obstruction."
"SEC. 6. The rate of fare for any distance shall not exceed five
cents, except when cars or carriages shall be chartered for a
specific purpose."
"SEC. 7. The said parties, their associates and successors,
shall pay one-third of the cost of grading, paving, macadamizing,
filling, or planking on the streets or parts of streets on which
they shall construct their said railways, and in the respects last
mentioned shall keep such portion of their respective streets as
shall be occupied by their said railways, or either of them, in
good repair and condition during the whole time that the privileges
hereby granted to the said parties shall extend, in accordance with
whatever orders may be passed in that behalf by the common council
of the said City of Chicago, and said parties shall be liable for
all legal or consequential damages which may be sustained by any
person by reason of the carelessness, neglect, or misconduct of any
agent or servant of said parties, in the course of their employment
in the construction or the use of the said tracks or railways, and
said parties shall moreover pay to the property owners on any
street so used by them as aforesaid for their said railways, which
has, since the first day of January, A.D. 1858, been paved,
macadamized, or planked, and at any time between said date last
mentioned and the time of going into the occupation of either of
said respective streets with the said railway by said parties,
their associates or successors, may be paved, macadamized, or
planked, one third of the reasonable cost and expense thereof so
paid by said property owners, respectively."
"SEC. 8. The rights and privileges granted to said parties by
virtue of this ordinance shall be forfeited to the City of Chicago
unless the construction of one of said railways shall be commenced
on or before the first day of November, A.D. 1858, and unless the
said railway commencing on the south side of Lake Street and
extending to Ringgold Place shall be fully completed and ready for
use on or before the fifteenth day of October, A.D. 1859, and the
Madison Street railway, commencing at the intersection of State
Street, and running on said Madison Street to the city limits,
completed and ready for use on or before the fifteenth day of
October, A.D. 1860, and said railway from Ringgold Place to Cottage
Grove Avenue, and along the same to the city limits, by the 1st day
of January, A.D. 1861, and all the remaining railways hereinbefore
mentioned, on or before the first day of January, A.D. 1863, the
said railways, together with all improvements made upon the same,
shall be forfeited to said City of Chicago unless the common
council of said city shall grant to said parties a further
extension of time; provided, that, if said parties are delayed by
the order or injunction of any court, the time of such delay shall
be excluded, and the same time, in addition to the periods above
prescribed, shall be allowed for the completion of said railways as
that during which they may be so delayed."
"SEC. 9. If the said parties, their associates or successors,
shall hereafter become incorporated, the rights and privileges
granted to them by virtue of this ordinance shall extend to such
corporation for the time and upon the conditions herein prescribed,
and when such act of incorporation shall have been obtained, such
corporation shall have all the rights and privileges hereby granted
as the successors of said parties, without further action of the
common council."
"SEC. 10. The right to operate said railways shall extend to the
full time of twenty-five years from the passage hereof, and at the
expiration of said time the parties operating said railways shall
be entitled to enjoy all of said privileges until the common
council shall elect, by order for that purpose, to purchase said
tracks of said railways, cars, carriages, stationhouses, station
grounds, depot grounds, furniture, and implements of every kind and
description, used in the construction or operation of said
railways, or any of the appurtenances in and about the same, and
pay for the same in the manner hereinafter mentioned."
"SEC. 11. Such order shall fix the time when said City of
Chicago will take such railways and other property before
mentioned, which shall not be less than six months after the
passage of said order, and at the time of taking said railways and
other property before mentioned the City of Chicago shall pay to
the parties operating the same a sum of money, to be ascertained by
three commissioners, to be appointed for that purpose, as follows:
one to be chosen from the disinterested freeholders of Cook County
by the said common council, one in like manner by the said parties,
their associates and successors, and the two persons so chosen to
choose the third from said freeholders."
"SEC. 12. All rights heretofore vested in the board of water
commissioners and sewerage commissioners, or other corporations,
are not to be impaired or affected by this ordinance, but the
rights and privileges hereby granted are subject thereto."
"SEC. 13. The said Henry Fuller, Franklin Parmalee, and Liberty
Bigelow shall enter into a good and sufficient bond with the City
of Chicago, in the penal sum of $25,000, for the faithful
performance of all the terms and conditions herein contained in
this ordinance, and that said railways herein mentioned shall be
completed at the times and manner herein stated, unless delayed by
the order or injunction of some court having jurisdiction of such
matters from so completing the same, and, until such bond shall be
so executed by said parties, this ordinance shall have no force or
effect whatever."
"SEC. 14. All ordinances or parts of ordinances heretofore
passed respecting the subject matter of this ordinance (except to
which this is an amendment), or in conflict with this ordinance or
that to which the same is an amendment, are hereby repealed."
"
Act of February 14, 1859"
"Act to Promote the Construction of Horse Railways in the City
of Chicago."
"SECTION 1.
Be it enacted by the people of the State of
Illinois, represented in the General Assembly, That Franklin
Parmalee, Liberty Bigelow, Henry Fuller, and David A. Gage and
their successors be and they are hereby created and constituted a
body corporate and politic by the name of the Chicago City Railway
Company for the term of twenty-five years, with all the powers and
authority incident to corporations for the purposes hereinafter
mentioned."
"SEC. 2. The said corporation is hereby authorized and empowered
to construct, maintain, and operate a single or double track
railway, with all necessary and convenient tracks for turn-outs,
side tracks, and appendages in the City of Chicago, and in, on,
over, and along such street or streets, highway or highways, bridge
or bridges, river or rivers, within the present or future limits of
the south or west divisions of the City of Chicago as the common
council of said city have authorized said corporators, or any of
them, or shall authorize said corporation so to do, in such manner
and upon such terms and conditions, and with such rights and
privileges, as the said common council has or may have contracted
with said parties, or any or either of them prescribed, but said
corporation shall not be liable for the loss of any baggage carried
on said railways kept in and under the care of its owner, his
servant or agent."
"SEC. 3. [As to capital stock.]"
"SEC. 4. [As to directors, etc.]"
"SEC. 5. The said corporation is hereby authorized to extend the
said several railways herein authorized to be built in the manner
aforesaid to any point or points within the County of Cook in this
state and to enable said corporation to construct any or all the
railways therein authorized or their appendages, the said
corporation is hereby vested with power to take and apply private
property for the purposes and in the manner prescribed by an act
entitled 'An Act to Amend the Law Condemning Right of Way for
Purposes of Internal Improvement,' approved June 22 1852, and the
several acts amendatory thereof, and may exercise all the powers
conferred upon railroad corporations by the twenty-fifth and
twenty-sixth sections of 'An Act to Provide for a General System of
Railroad Incorporations,' approved November 5, 1849, ascertaining
and making recompense for all damages sustained agreeably to the
provisions of the act hereinbefore first mentioned."
"SEC. 6. The said corporation is hereby authorized, with the
assent of the supervisor of any township, to lay down and maintain
the said railway or railways in, upon, over, and along any common
highway in said township, but in such manner as not to obstruct the
common travel of the public over the same. In all cases where
vehicles shall meet the cars or carriages of said railway, either
in the city or country, said vehicles shall give way to the cars or
carriages on the railway."
"SEC. 7. All of the rights and privileges granted, or intended
so to be, to said Franklin Parmalee, Liberty Bigelow, Henry Fuller,
and their associates in and by the ordinances of the common council
and the amendments thereto, are hereby in all things affirmed, and
shall pass to and become vested in the corporation hereby
created."
"SEC. 8. Nothing herein contained shall authorize the
construction of more than an single track, with the necessary
turn-outs, which shall only be at street crossings upon state
street between Madison and Twelfth Streets, except by the consent
of the owners of two thirds of the property, in lineal measurement,
lying upon said state street between Madison and Twelfth Streets
aforesaid, nor shall anything herein contained be construed to
authorize the company hereby incorporated to permit the cars of any
other railroad company whatever, propelled by steam, to be run
along or upon the railway of the company hereby incorporated."
"SEC. 9. The said company hereby incorporated shall, within two
years from the passage of this act, erect, maintain, and operate
two railways, one from Lake Street to the southern boundary of the
city and one from the south branch of the Chicago River, on Madison
Street, to the western boundary of said city, and upon failure to
do so this act and all the privileges and franchises hereby
conferred shall cease and determine."
"SEC. 10. All the grants, powers, privileges, immunities, and
franchises conferred upon, and all duties and obligations required
of, Franklin Parmalee, Liberty Bigelow, Henry Fuller, and David A.
Gage by this act for the south and west divisions of the City of
Chicago and the County of Cook, are hereby conferred upon and
required of William B. Ogden, John B. Turner, Chas. v. Dyer, James
H. Rees, and Valentine C. Turner by the name of 'The North Chicago
City Railway Company' for the north division of said city, and said
County of Cook, as fully and effectually to all intents and
purposes as if they had been by a separate act incorporated with
all of said grants, powers, privileges, immunities, and franchises
conferred upon them and all of said duties and obligations imposed
upon them, and the said last-named corporation may take, hold,
mortgage, and convey real estate."
"SEC. 11. This act shall be deemed a public act, and noticed by
all courts as such without pleading, and shall take effect from its
passage."
"
Act of February 21, 1861."
"An Act to Authorize the Extension of Horse Railways in the City
of Chicago."
"SECTION 1.
Be it enacted by the people of the State of
Illinois represented in the General Assembly, That Edward P.
Ward, William K. McAllister, Samuel B. Walker, James L. Wilson,
Charles B. Brown, Nathaniel P. Wilder, and their successors, be and
they are hereby created and constituted a body corporate and
politic by the name of 'The Chicago West Division Railway Company'
for the term of twenty-five years, with all the powers and
authority pertaining to corporations for like purposes."
"SEC. 2. The said corporation shall possess all the powers
conferred by, and be subject to all the provisions contained in,
the second, third, fifth and sixth sections of an act entitled 'An
Act to Promote the Construction of Horse Railways in the City of
Chicago,' approved February 14, 1859: Provided, that nothing herein
contained shall be so construed as to in any manner invalidate or
injuriously affect any of the rights of either of the corporations
created by said act, or to authorize the corporation hereby created
to construct or use any railway track in the north division of
Chicago, except by the written consent of the North Chicago City
Railway Company: And, further, provided, the consent of the owners
of two-thirds of the property, by lineal measure, fronting upon the
streets through which said railways shall pass, shall be
obtained."
"SEC. 3. [As to witnesses, etc.]"
"SEC. 4. The corporation hereby created is authorized to
purchase, hold, and convey real or personal estate; to mortgage or
lease its franchises and property; to acquire, unite, and exercise
any of the powers, franchises, privileges, or immunities conferred
upon the Chicago City Railway Company by the act aforesaid, or any
ordinance of the common council of said city, upon such terms and
conditions as may, by contract between the said railway
corporations, be prescribed, and the consent of the board of
directors of the said Chicago City Railway Company, manifested in
writing, shall be a condition precedent to the corporation hereby
created exercising the powers, or any of them, conferred upon it by
the second section of the act aforesaid, as to any street of said
south and west divisions of Chicago, in which the said Chicago City
Railway Company has acquired the right of laying down its track:
Provided, that, upon obtaining such contract or consent as
aforesaid, this corporation shall thereupon and thereby become
entitled, as to the streets last-above mentioned, and no others, to
use the same according to the provisions of said contract and
ordinances aforesaid, anything herein contained to the contrary
notwithstanding."
"SEC. 5. [As to obstructing cars, etc.]"
"
Act of February 6, 1865"
"An Act Concerning Horse Railways in the City of Chicago."
"SECTION 1.
Be it enacted by the people of the State of
Illinois, represented in the General Assembly, That the first
section of an act of said General Assembly, entitled 'An Act to
Promote the Construction of Horse Railways in the City of Chicago,'
approved February 14, 1859, and the first section of a certain
other act of said General Assembly, entitled 'An Act to Authorize
the Extension of Horse Railways in the City of Chicago,' approved
February 21, 1861, be, and the same are hereby, so amended as that
all the words in said respective sections after the word 'company'
therein, respectively, shall be and read as follows,
viz.,
for ninety-nine years, with all the powers and authority
hereinafter expressed, or pertaining to corporations for the
purposes hereafter mentioned."
"SEC. 2. That the second section of the act first above referred
to by its title, and which section is included in and made a part
of the act secondly above referred to by the title thereof, be and
the same is hereby, as to both of said acts, so amended as to read
as follows,
viz., the said corporation is hereby
authorized and empowered to construct, maintain, and operate, a
single or double track railway, with all necessary and convenient
tracks for turnouts, side tracks, and appendages, in the City of
Chicago, and in, on, over, and along such street or streets,
highway or highways, bridge or bridges, river or rivers, within the
present or future limits of the south and west divisions of the
City of Chicago as the common council of said city have authorized
said corporators, or any of them, or shall from time to time
authorize said corporations, or either of them, so to do in such
manner, and upon such terms and conditions, and with such rights
and privileges, immunities and exemptions, as the said common
council has, or may, by contract with said parties, or any or
either of them, prescribe, and any and all acts or deeds of
transfer of rights, privileges, or franchises, between the
corporations in said several acts named, or any two of them, and
all contracts, stipulations, licenses, and undertakings, made,
entered into, or given, and as made or amended by and between the
said common council and any one or more of the said corporations,
respecting the location, use, or exclusion of railways in or upon
the streets, or any of them, of said city, shall be deemed and held
and continued in force during the life hereof as valid and
effectual, to all intents and purposes, as if made a part, and the
same are hereby made a part, of said several acts; provided, that
it shall be competent for the said common council, with the written
consent or concurrence of the other party or parties, or their
assigns to any of said contracts, stipulations, licenses, or
undertakings, to amend, modify, or annul the same. But said
corporations shall not, or any or either of them, be liable for the
loss of any property or thing carried on said railways, kept in and
under the care of its owner, his servant or agent; provided that
any contract hereafter made by the common council of the City of
Chicago with either of the corporations referred to in this act,
for a higher rate of fare than five cents, shall be subject to
modification or repeal at any regular meeting of said common
council, by a majority vote of all the aldermen elected, or by the
General Assembly of the State of Illinois."
"SEC. 3. [As to the Chicago & Evanston Railroad.]"
"SEC. 4. Each of said corporations shall be authorized to
purchase, hold, and convey, real or personal estate, necessary for
the use of such corporation, and to manufacture materials,
machinery, and rolling stock for the use of such corporation."
"SEC. 5. This act shall be deemed a public act, and noticed by
all courts as such, without pleading, and shall take effect from
its passage."
On the west side we find the following:
May 23, 1859 --
"'A grant during all the term in the said Act of February 14,
1859, specified and prescribed.' Streets are designated and the
time for completion of the railways thereon is limited, for some at
three months, others at five, one year and eighteen months, and
still others 'as soon as practicable.'"
February 13, 1860 --
"Amendatory of the above last-mentioned ordinance. Extends the
time for completion to ten years for some, and five years for
others. Certain lines mentioned must be completed in two
years."
November 18, 1861--
"Exempting certain streets and substituting others. Ordinance of
May 23, 1859, in force except as amended, and time for completion
of certain railways named is extended to five years."
November 16, 1863 --
"Excluding railways from certain streets named."
March 14, 1864 --
"Releasing one street and substituting another."
March 28, 1864 --
"Authority to remove from one street to another."
March 28, 1864 --
"Authorizing temporary tracks while a bridge is being
constructed."
July 11, 1864 --
"Amending ordinances of March 28, 1864, repealing the temporary
use of certain streets."
August 17, 1864 --
"Creating new lines, extending others, and regulating the use
thereof. Times for completion fixed at ninety days and fifteen
months. No time or duration stated by reference or directly."
November 13, 1871 --
"Extension of tracks on certain streets named."
March 8, 1875 --
"Authorizing the construction and operation of a new line. To be
completed by October 1, 1876, and the term to extend to October 1,
1894, and thereafter until purchased by the city."
April 19, 1875 --
"Amending last-mentioned ordinance as to certain uses and legal
claims arising from the operation of the lines."
On the north side we find the following:
May 23, 1859 --
"Term 'twenty-five years and no longer.' Times for completion
fixed at January, 1860, and July, 1862, different for some than
others."
January 18, 1864 --
"Term 'subject to all the rules and limitations and
restrictions' prescribed in the ordinance of May 23, 1859.
Authorizes connection of tracks."
August 11, 1864 --
"Term 'subject to all the restrictions and conditions, the
rights and privileges, mentioned' in ordinance of May 23, 1859.
Time for completion fixed at sixty days, unless restricted,
etc."
May 8, 1871 --
"Same term. Time for completion fixed at June 1, 1872, for the
street railway named."
November 20, 1871 --
"Term 'subject to all rules and limitations and restrictions'
prescribed in ordinance of May 23, 1859. Rights and privileges
granted shall continue for a term of __ years."
October 26, 1874 --
"Term until October 1, 1894, and thereafter until purchased by
the city. To be completed July 1, 1875. As lessee of Chicago City
Railway Company as to certain portion."
April 26, 1875 --
"Amending the last-mentioned ordinance, and otherwise similar to
it as to terms and conditions."
MR. JUSTICE McKENNA, with whom concur MR. JUSTICE BREWER and MR.
JUSTICE BROWN, dissenting:
This case as to questions common to all the railways depends
mainly upon the acts of 1859 and 1865 -- incidentally, upon the act
of 1861. The latter act may be omitted from special consideration,
as it depends upon the others. Private Laws of Illinois 1861, p.
340. It incorporated the Chicago West Division Railway Company, and
gave to that company all the powers conferred upon the other
companies by the second, third, fourth, and sixth sections of the
act of 1859.
It will be observed of the acts of 1859 and 1865 that they
created corporations respectively for the period of twenty-five and
ninety-nine years, and empowered them to construct, maintain, and
operate a single and double track railway in Chicago.
The acts, as was remarked by the circuit court, fall into three
divisions: (1) The granting part -- the authority of the companies
to construct railways; (2) the identifying part -- the designation
of the streets by the common council; (3) the terms and conditions
of the occupation of the streets by the companies and the manner in
which the terms and conditions shall be prescribed.
The meaning of the third division is one of the chief
controversies in the case -- in other words, the extent of the
authority of the common council -- whether it was virtually an
authority to grant rights in the streets or authority to regulate
the rights conferred by the legislature, or, as it is aptly
expressed by the circuit court, whether it was an authority to fix,
by stipulation with the companies, that which relates "to the
physical side of the occupancy of the streets or the administrative
side of the operation of the lines."
Page 201 U. S. 491
It will be convenient in the discussion to exhibit the acts of
1859 and 1865, showing wherein the latter amends the former,
omitting the provision extending the corporate lives of the
companies from twenty-five years to ninety-nine years, about which
there is no dispute. The words in italics are the amendments made
by the act of 1865:
"The said corporation is hereby authorized and empowered to
construct, maintain, and operate a single or double track railway,
with all necessary and convenient tracks for turn-outs, side
tracks, and appendages, in the City of Chicago, and in, on, over,
and along such street or streets, highway or highways, bridge or
bridges, river or rivers, within the present or future limits of
the south
and [or] west divisions of the City of Chicago,
as the common council of said city have authorized said
corporators, or any of them, or shall
from time to time
authorize said corporations,
or either of them, so to do,
in such manner, and upon such terms and conditions, and with such
rights and privileges,
immunities and exemptions as the
said common council has or may, by contract with said parties, or
any or either of them, prescribe,
and any and all acts or deeds
of transfer of rights, privileges, or franchises between the
corporations in said several acts named, or any two of them, and
all contracts, stipulations, licenses, and undertakings made,
entered into, or given, and as made or amended by and between the
said common council and any one or more of the said corporations,
respecting the location, use, or exclusion of railways in or upon
the streets, or any of them, of said city shall be deemed and held
and continued in force during the life hereof as valid and
effectual, to all intents and purposes, as if made a part, and the
same are hereby made a part, of said several acts: Provided that it
shall be competent for the said common council, with the written
consent or concurrence of the other party or parties, or their
assigns, to any of said contracts, stipulations, licenses, or
undertakings, to amend, modify, or annul the same."
It is obvious, as far as words can accomplish it and as directly
as words can accomplish it, the companies were granted
Page 201 U. S. 492
the right "to construct, maintain, and operate" railways upon
the streets of the city. And no other power could have granted such
right.
Chicago City Ry. Co. v. People, 73 Ill. 541.
That such grant must come from the state is, of course, not
denied, but it is urged that the grant of rights passed to the
railway companies through the agency of the city, the city
receiving a delegation of the state's power. This is based upon the
words of the city's charter, and the authority given in the acts of
1859 and 1865 to designate the "terms and conditions" upon which
the streets might be occupied.
The view I take of the acts makes it comparatively unimportant
to consider the city's charter. There seemed to be a necessity for
the acts, and they were complete in themselves, independent of
other grants of power, except what were continued or confirmed by
them. If the charter was adequate to invest in the city plenary
power over the streets, we may wonder at the enactment of those
statutes and many years of misapprehension of them and concern
about them. Counsel for the companies assert, and the assertion
does not seem to be denied, that an injunction was issued by the
Circuit Court of Cook County, restraining the laying of tracks
under the ordinance of 1858. The extent of the power of the city,
however, I shall presently consider more at length, and will now
pass to those parts of the act which the city insists conferred
authority on the common council.
The stress of the argument is on the words "terms and
conditions," in the third division. The city contends, and the
court decides, reversing the decree of the circuit court, that the
authority of the city to prescribe terms and conditions of the
occupation of the streets included the authority to fix the time of
occupation. I dissent from that interpretation for several reasons.
It is opposed to the context in which the words "terms and
conditions" are used. It is opposed to their primary and natural
meaning. It would be a careless employment of them, and disregard
or destroy distinctions
Page 201 U. S. 493
necessary to be observed. As was said by the circuit court,
ordinarily, in legal phraseology, those terms are not employed
"to convey power over or relating to the time or period through
which the tenure dealt with is intended to run, but conveys power
over, or relates to the means, the methods, and the incidents
connected with the exercise of such tenure."
Citing
Hurd v. Whitsett, 4 Colo. 77;
Chicago
Terminal R. Co. v. Chicago, 203 Ill. 576. Of course,
directness and simplicity of methods are not always used, but some
argument can be based on their omission, and it is natural to
believe that, had it been intended to give the power contended for
to the city, words would not have been employed which would have to
be turned from their first and legal signification to express it,
and which could be claimed to be in opposition to other parts of
the act, and made dependent, besides, upon contracts with the
companies, which could only be amended by consent of the companies.
The power would have been more directly conferred by a delegation
of the whole matter to the city, and would have been absolute, not
limited or embarrassed or opposed by conditions unnecessary to
it.
The act of 1859 was certainly a direct grant from the state to
the companies for the time of their charter life, and the necessity
or the advisability of conferring authority upon the city of limit
the time of occupancy of the streets could not have entered into
the head of anybody. No conditions existed which suggested the
necessity or prudence of giving such authority. The time of
occupancy expressed in the ordinance of 1858, the time of the life
of corporations prescribed in the act of 1859, and the time for
which the franchises conferred by that act could be exercised all
coincided. It could not have occurred to anyone that twenty-five
years, the term fixed in all the instruments, was injuriously long
and demanded authority somewhere to limit its excess. To these
considerations as proof that the words "terms and conditions" were
not intended to give authority to prescribe a time
Page 201 U. S. 494
of occupancy of the streets may be added that of contemporary
practice.
By an ordinance passed in 1859, the time of occupation was
expressed to be "during all the term in the said act of the
fourteenth of February, A.D. 1859, specified and prescribed." This,
as said by counsel for the companies,
"is a distinct recognition of the fact that the term for the
enjoyment of the franchise was to be found in the statute, and was
not among the elements of the contract which the ordinance might
prescribe."
With the act of 1865, there came a change -- differences from
the act of 1859 of conspicuous and striking import. These
differences were too full of meaning not to be considered
enlargements of the act of 1859, and they were not misunderstood.
The lives of the corporations were extended to ninety-nine years.
There is no dispute about this, and it would seem necessarily that
the other provisions were on account of and completed the purpose
of the extension. And the extension had some valuable purpose. It
was certainly not for the purpose only of extending the time of the
abstract beings with nothing to do -- no functions to exercise, no
rights, no obligations -- and the latter might, we can conceive, be
as necessary for the public to enforce as the former for the
companies to exercise.
Union Traction Co. v. Chicago, 199
Ill. 484. It would be a strange confusion and confounding of
purposes to make the existence of a corporation more important than
that which it was created to do. Necessarily, life and functions
went together, the term of the rights and obligations of the
corporations coinciding with the term of their life.
This coincidence of the life and the rights of the corporations
being kept in mind, we can easily resolve whatever ambiguities are
in the statute of 1865. It will give to every word a use and
meaning, and keep distinct the power which was exercised by the
legislature and the powers to be exercised by the common council.
Let me, at the expense of repetition, enter into some detail. The
act of 1865, amending the act of
Page 201 U. S. 495
1859, enlarged the life of the corporations from twenty-five
years to ninety-nine years, and in section 2 empowered the
companies to "construct, maintain, and operate" a single or double
track of railway in the streets of Chicago. These words necessarily
imported a continuing power. Time was of the very essence of the
right. It is true that there was no designation of time, but the
life of the corporations, but this was sufficient, in the absence
of qualification, and there was no qualification -- certainly none
in explicit words. Streets were not designated by name, but, in a
certain sense, all streets were subject to whatever right was
given, though it could be exercised in none without the designation
of the common council. This is sought to be made very dominant --
determinative, indeed, of the power of the city -- making the city
in effect the source of the rights of the companies, not merely the
regulator of the manner of exercising those rights.
Upon what reasoning is the conclusion based? Before considering
the question, however, let me refer to the statement in the opinion
that
"the council made, and the companies accepted, specific
ordinances fixing the time of occupancy, as had been done in the
original ordinances of May 23, 1859. And neither before nor after
the passage of the act of 1865 was the ninety-nine-year term
recognized or acted upon in ordinances granting the use of the
streets."
I am uncertain as to the conclusion deduced from the statement.
It needs some explanation. Standing alone, it may produce an
erroneous impression. If the companies accepted the ordinances,
conceding the power of the city, without protest or reservation of
their rights under the act of 1865 to longer terms of occupancy,
there could be no controversy over the interpretation of the act of
1865. Other considerations would supervene and demand attention.
Counsel for the city contended for an estoppel against the
companies, and because the court has not responded to that
contention, but discusses and bases its opinion upon the meaning of
the act, I also have discussed its meaning as necessary to the case
and determinative of it;
Page 201 U. S. 496
and I recur to the question, upon what reasoning is the plenary
power of the city supported?
First, let me quote the language of the act of 1865, separated
from the parts which I think are not relevant to the present part
of the discussion:
"The said corporation is authorized and empowered to construct,
maintain, and operate a single or double track railway . . . in the
City of Chicago, and in, on, over, and along such street or streets
. . . as the common council of said city have authorized said
corporators, or any of them, or shall from time to time authorize
said corporations, or either of them, so to do, in such manner and
upon such terms and conditions . . . as the said common council has
(prescribed)
* or may by contract with said
parties, or any or either of them, prescribe, . . . and any and all
acts or deeds of transfer of rights, privileges, or franchises
between the corporations in said several acts named, or any two of
them, and all contracts, stipulations, licenses, undertakings made,
entered into, or given, and as made or amended by and between the
said common council and any one or more of the said corporations,
respecting the location, use, or exclusion of railways in or upon
the streets, or any of them, of said city,
shall be deemed and
held and continued in force during the life hereof, as valid and
effectual to all intents and purposes as if made a part of said
several acts. . . ."
(Italics mine.)
The language is orderly and, to me, unmistakable in its
relations and meaning. What element is omitted necessary to the
clear expression of a definite purpose? Not one. We have already
seen that the rights given would have been, if there had been no
other expression of time, coincident with the life of the
corporations, but time was not left to implication, however clear
the implication might have been. It was expressed. It is true it is
not said that the rights, contracts, etc., shall be "held and
continued in force" for ninety-nine years. If it
Page 201 U. S. 497
had, there certainly would be no ambiguity. It would suit with
the other words, and complete their meaning without change of a
single syllable. Why then is there any ambiguity, if we substitute
an equivalent for the phrase "for ninety-nine years?" If "during
the life hereof" is not the equivalent for "ninety-nine years" --
that is, the life of the corporations -- what does it mean?
There are various answers offered, some accepting that meaning,
others disputing it. One counsel for the city submits rather
tentatively that the words "during the life hereof" may be words of
limitation, and that "the grants by the common council thus
ratified by the act should continue for their full term,"
unless
"the corporate existence of one or more of the corporations be
terminated by dissolution or forfeiture within the period for which
its privileges in the streets were granted."
It is said,
"Thus construed, the act means precisely and exactly what it
says -- that is, during the life,
i.e., during the
corporate lives of the several companies, the contracts made with
them by the common council are as valid and effectual as if made
part of the act. . . ."
Other counsel for the city leave a choice of interpretations.
They say "the expression
during the life hereof'" is vague and
ambiguous. It may be capable of three interpretations: as meaning
the life of the act, or the life of the deeds, licenses, and
contracts, or the lives of the railway corporations, respectively.
They incline rather to the second, and say that "during the life
hereof" means the life of the section or the matters mentioned in
the section, and "hereof" should be changed to "thereof." The court
accepts neither of the interpretations, but gives its authority to
another. It was apparent that the interpretations advanced by
counsel were too restricted, and ignored too much the words of the
act. It was apparent that the clause referred to the lives of the
corporations (ninety-nine years), continued something for those
lives, and the court selects as the things so continued
"the acts or deeds of transfer between the corporation so far
as
Page 201 U. S. 498
they relate to franchises which are not subject to the express
limitations of the act -- that they shall stand as made."
The construction, however, is not confidently asserted. It seems
to be adopted in submission to the rule of strict construction. A
word, therefore, as to that rule.
I concede the rule to be that nothing passes by a grant of
franchises, such as those conferred by the acts under review,
unless it be clearly stated or necessarily implied; but I do not
think the statutes under review call for an application of the
rule. Whatever is ambiguous in the acts yields a definite and
consistent purpose and meaning by the application of the simple
rules of interpretation. In such case, there is no place for the
rule of strict construction. Our reports abound in cases where,
against bold and able controversy, public grants have been
sustained, and where division in the court has marked with emphasis
the strength of the doubts which existed. And we have taken care to
warn against a misunderstanding of the rule in a case of
significant import. It will be conceded, I think, that the power of
taxation is the highest attribute of sovereignty, one the most
necessary to it, and against the limitation of which all
intendments proclaim.
The Delaware Railroad
Tax, 18 Wall. 206. Limitations of this power have
been sustained in favor of private individuals, arising from
statutes of disputable meaning. In
Citizens' Bank v.
Parker, 192 U. S. 73,
interpreting the charter of the bank, it was held that the bank was
exempt from the license tax, and we there said that the rule of
strict construction is to be used to solve ambiguities, not to
create them. There was a dissent that pressed the rule against the
reasoning and conclusions of the Court.
Returning, then, to the argument of the Court, not required by
any rule to find ambiguity in the statutes, but required by every
rule to solve if found, what is that argument? Its first premise is
the assumption that it was the policy of the state to vest in the
city the control of the streets. Some control, yes; but how much?
Was it a policy of unlimited or qualified
Page 201 U. S. 499
control; the grant of rights in them or the regulation of
rights? Or, to use a technical term, the grant of franchises or the
grant of power of administration over their exercise? The answer is
found in the case of
Chicago City R. Co. v. People,
supra.
The case was based on the act of 1859, and the right derived
from it as distinguished from the rights derived from an ordinance
of the city. It was said:
"It is a misconception of the law to suppose the railway company
derives its power to construct a railroad from any ordinance of the
city. All its authority is from the state, and is conferred by its
charter. The city has delegated to it the power to say in what
manner and upon what conditions the company may exercise the
franchises conferred by the state, but nothing more."
The reason given was that the ordinance emanated from a source
not "competent to grant a franchise." That power the legislature
alone possessed. The date of the ordinance was November 13, 1871.
It is manifest therefore, that the policy of the State of Illinois
up to 1871, and necessarily in 1859 and 1865, was not to give its
municipal corporations the authority to grant a right in the
streets, but only empowered them to regulate the right. And it was
necessary to decide the kind and the extent of authority that was
vested in the city. It was urged that the ordinance passed on
purported to grant "special privileges" or "franchises," and was
therefore void under the Constitution of 1870. The court replied
that the ordinance did not grant a franchise, and that by no
construction could the Constitution be said to be a
"limitation upon the municipal corporation to designate certain
streets and fix the conditions upon which a railway company,
organized under a special charter previously granted, or under a
general law since the adoption of the Constitution might lay its
track."
(P. 548.)
This view acquired emphasis from the dissenting opinion, which
took issue with the court, and virtually made the city the source
of the rights of the railway, and not the state, and,
Page 201 U. S. 500
describing what the court said as to the power of the city,
observed:
"These special privileges of the rights of the railway upon
particular streets are said to be conferred, not by the city, by
its ordinance, but by the state, by the company's charter, and the
city only regulates the use."
(Italics mine.)
The case was decided in 1874, and the principle it declared is
the exact contention of the railways today, and, to the strength of
the reasoning of the court, may be added the consideration that the
property acquired and the investments made under the sanction of
the decision for thirty-two years now claims its protection against
impairment. Such considerations should prevail over ambiguity,
could ambiguity ever have been asserted to exist. It received its
solution, and should never again be brought forward to cloud the
meaning of the statute.
The distinction between the plenary and the limited control over
the streets by the city is substantial in the controversy between
it and the railway companies. Manifestly the power to grant a
franchise is not the same as the power to designate streets on
which the franchise can be exercised. Of course the streets must be
designated before the franchise can be exercised, and therefore the
power to designate may be magnified and confounded with the other
power. It is so magnified, and the inability of the railroads to
compel any action upon the part of the city is urged and dwelt on
by counsel. The argument is that, as the city could have refused to
designate any street, it had the right to exact anything of the
railroads. In other words, the defects in the remedies of the
railway companies enlarged the power of the city and changed the
nature of the grant to the companies. Or it may be put this way --
the power given to the city as a subordinate instrumentality of the
state may be employed to defeat the purpose of the state. This
cannot be done.
Appeal of City of Pittsburgh, 115 Pa. 4;
Atlantic City Water Works Co. v. Consumers Water Co., 44
N.J.Eq. 427;
Galveston &c. R. Co. v. Galveston, 90
Tex, 399;
Homestead
Page 201 U. S. 501
Street Railway v. Homestead Electric Railway, 166 Pa.
162, 171-172. And I may observe that there are some duties the
performance of which cannot be immediately coerced. It need not be
pointed out that the agencies of government are kept, in a great
measure, to cooperation by sense of duty and propriety, and if they
should, disregarding that sense, exercise the mere physical power
possessed to refuse to act, disorder, temporary at least, would
result. It is besides a strange contention to me that a
municipality of a state, because of its ability, physical, it may
be, more than legal, to refuse to exercise powers conferred upon it
can assume or assert other powers. Let us not overlook that a
municipality must have warrant, express or necessarily implied, for
what it does. It too is within the rule of strict construction.
Dillon on Municipal Corporations, section 91.
In the grant of franchises from the state and their regulation
merely by the city there was no inconsistency, and this division of
functions was not only natural of itself, but comported with the
policy of the state, as explained in
Chicago City Ry. Co. v.
People, supra. The decision cannot, it seems to me, be
explained away. It was nearer in time to the enactment of the
statutes than we are today, and it is the conditions of that time
we should try to realize. This is not as easy as it seems to be.
Whatever we may profess, it is not easy to realize the conditions,
thoughts, and purposes of another time. In 1859, nothing indicated
the necessity of giving the city the power now contended for. In
1859, there could be no foresight of the development of street
railways. Then they were just beginning to be thought of as a means
of transportation, and the city was as eager to procure them as
capitalists to construct them. It is said that time is the wisest
thing on earth, and taking to ourselves its wisdom, in 1906, we are
sure we would have seen in an enterprise just starting, and yet
tentative, the growth it might attain and the measures that would
be necessary to restrain and control it. But if there was anyone
capable of such prophecy, the act of 1859 did
Page 201 U. S. 502
not challenge its exercise. There was nothing in it excessive,
as I have already pointed out; nothing to invoke a jealous care. I
dwell on this because the provisions of the act of 1859 were
carried into the act of 1865, and certainly were not intended to
give a greater power to the city than when used in the act of 1859.
In other words, a provision which could have had no purpose in the
act of 1859 to give power to the city to fix the time of the
occupation of the streets could not, by mere repetition in the act
of 1865, have such purpose.
The situation in 1859 was exceedingly simple. Certain persons
had been given the power by an ordinance of the city to construct a
street railway. The right under the ordinance was questioned --
maybe it had been adjudged illegal -- and the act of 1859 was
passed. It explicitly gave, in my opinion, the right to construct
and operate railways in the streets, and gave authority to the city
only to regulate the exercise of the right. But granting that some
of its words are ambiguous -- granting that the words "terms and
conditions" can be interpreted to authorize a limitation of time --
such interpretation is not the only one of which they are
susceptible. We should therefore consider whether that
interpretation can be adhered to in view of the other provisions of
the act of 1865.
First, I may lay down as a fundamental rule that we must seek
the meaning of the act from its words, and that we should so
exercise interpretation "as to bring a sense out of the words used,
and not to bring a sense into them."
McCluskey v.
Cromwell, 11 N.Y. 593, 602. And with the consequences of the
act we should not concern ourselves. This Court has said that a
plain meaning of a provision of a statute, not contradicted by
another provision, must prevail, even against a charge of absurdity
and injustice, unless they by so monstrous that all mankind would,
without hesitation, unite in rejecting the meaning.
Sturges v.
Crowninshield, 4 Wheat. 122,
17 U. S. 202.
With these rules in mind, and by referring to section 2 of the act
of 1865, it will be observed that its parts are providently
arranged and its words are clear -- so clear that conjecture must
be put
Page 201 U. S. 503
to work and speculation must be indulged in to resist their
manifest meaning.
The section makes provision for certain things, to-wit, (1) the
acts or deeds of transfer of rights, privileges, or franchises
between the corporations; (2) contracts, stipulations, licenses,
and undertakings made and entered into "and as made or amended"
between the corporations and the common council "respecting the
location, use, or exclusion of the railways in or upon the
streets." And what is done with these things? The answer is in the
following provision:
"Shall be deemed and held and continued in force during the life
hereof as valid and effectual, to all intents and purposes, as if
made a part, and the same are hereby made a part, of said several
acts."
Can a distinction be made between the things provided for? Which
of those things shall "be deemed and held and continued in force
during the life" of the corporations? I say life of the
corporations as that, it is decided, is the meaning of the
phrase.
Considering the language of the provision, there can be but one
answer. It permits no exception of any of the things, nor a
distinction between them. A distinction is, however, asserted, and
the provision is confined to the instruments transferring
"franchises," as distinguished from the instruments transferring
"rights and privileges," and is denied all application to the
"contracts, stipulations, licenses, and undertakings" between the
companies and the city. In what way is this done, and with what
consequences?
It will be observed that the provision does not simply confirm
or ratify either the acts or deeds of transfer or the contracts; it
does more. It continues them in force and makes them valid and
effectual for the life of the act, the conceded equivalent of the
life of the corporations. The provision is not, therefore, that the
contracts and privileges obtained from the city shall "stand as
made," but shall be continued in force during the life of the
corporations -- a distinctly different purpose -- one which the
words of the act sustain and at the same time exclude the other. It
was not a provision for simple ratification
Page 201 U. S. 504
which would carry, by necessary force, the time limits of the
contracts, but one which adopts another measure of time -- the life
of the corporations. And a provision was necessary to make the new
measure of time applicable to the contracts. It was afforded, and
again the necessity is demonstrated of adhering to the words of the
act, unless we may regard it a mistake in the act for any of its
words to have a purpose.
Plainly, therefore, the phrase "during the life hereof" cannot
be limited to the acts or deeds of transfer of franchises. To do so
is not only to distinguish between the instruments of transfer of
franchises and the instruments of transfer of rights and
privileges, but is to detach the phrase and its correlated words
from its immediate objects, the "contracts, stipulations, licenses,
and undertakings" entered into by the common council and the
companies, and to leave those objects without provision -- without
connection with anything, coherence, or purpose. Against this all
the rules of interpretation protest, and the rules of construction
cannot be invoked to justify a greater liberty. The purpose of
construction, it is true, is to arrive at conclusions beyond the
absolute sense of the text. Leiber, Heremeneutics 53. But the
integrity of the text cannot be disregarded. I do not overlook the
fact that the court sees an inconsistency between the parts of
section 2 and attempts to reconcile them. But in what way? As it
seems to me, by magnifying the obscure in one part of the section
and making it prevail over the manifestly clear in another part. By
making the words "terms and conditions" -- doubtful necessarily,
and which, as I think, can only by an extreme indulgence be given
the meaning put upon them -- dominate everything else, even to the
breaking of the section into unrelated and meaningless parts. To my
mind, a strange situation is presented. The legislature of the
state had in its mind, we are told, a simple purpose -- the purpose
to create corporations and to give them power to acquire rights
from the city, and how did they express the purpose -- simply,
directly, and obviously? No, but in such way that the words
Page 201 U. S. 505
it employed confused or opposed the purpose. And the legislature
was dealing with important rights, some to be confined to
twenty-five years, others to be extended to ninety-nine years, and
we are asked to believe that it bunched those rights
indiscriminately, and trusted to a searching construction to sort
them afterwards and take them out of the meaning of words which
included them all.
There is another consideration of potent weight. The
construction of the Court was not the contemporary construction of
the act of 1865. It was not the construction proclaimed by the
governor, justifying his veto of the act. He pointed out that the
necessary effect of extending the lives of the corporations was to
extend their rights in the streets of the city, and that he had
received petitions signed by a large number of the citizens of
Chicago, protesting against the measure as one which had been
passed without their assent or that of the corporate authorities,
and that it extended the franchise for ninety-nine years in advance
of the term already vested in the corporation. And he also pointed
out that the right given to the city to purchase the railway
property at the end of twenty-five years, secured to it by the
ordinance of August 16, 1858, was also extended to ninety-nine
years. And, upon a fair construction, the governor said, "the act
seems hardly susceptible of any other meaning," and he had heard,
he further said, "none other claimed for it." The governor also
considered the clause which continued in force the acts or deeds of
transfer, and, so far as his words indicate, he perceived no
difference between the instruments of transfer.
Seldom has a statute enacted at a distant time received so clear
and influential proclamation of its meaning and effect as is
afforded of the act of 1865 by the governor's message. It seems
now, forty years removed from the enactment of the law, that the
governor, who was close to its enactment, and the citizens of
Chicago, who protested against it, were mistaken in its meaning.
And the governor was part of the lawmaking power. It was his duty,
therefore, to study the statute and
Page 201 U. S. 506
to try to know its purpose, not only from its text, but from
external circumstances. His misunderstanding needs to be accounted
for. The misunderstanding of the protesting citizens of Chicago
needs to be accounted for. Explanation cannot be found by asserting
ambiguities in the act. There is not a syllable of evidence to
indicate that any were perceived or regarded of consequence. The
governor was confident in his views. Of one of the effects of the
act, and one which could not result unless his construction was
correct, he said he had heard no other claimed for it than that
which he entertained and expressed. There was no doubt with him
therefore -- no disguise of the measure by its advocates. We are,
however, now asked to believe that the legislature alone either saw
or was persuaded of the real merits of the measure, and passed it
over a groundless veto and ignorant opposition, with consciousness
that it would be construed to have the meaning now given it.
I am unable to so believe, and am constrained to dissent from
the judgment.
* In
Chicago Union Traction Co. v. Chicago, 199 Ill.
484, 524, it is said: "The word
prescribed,' to which the word
`has' applies, was accidentally omitted."