220 Ill. 444 | Ill. | 1906
delivered the opinion of the court:
Most of the brief and argument of counsel for appellant is devoted to the proposition that where the consent of a city to lay tracks in its streets is given upon condition, and there is a failure to comply with the condition, all rights under the consent are forfeited. This position, as we understand, is not controverted by counsel for the appellee. Had the railway company failed to comply with the conditions of the ordinance as to the time in which it should construct its tracks, without justifiable excuse, we think the law too well settled to call for the citation of authorities, that all its rights and privileges would have ceased. But as we understand the case, the decision of it must turn upon the proper construction to be placed upon section 2 of the ordinance set forth in the preceding statement, as to the effect of an injunction restraining the company from laying its tracks in one or more of the streets named in the ordinance. In other words, did the injunction restraining the laying of the tracks in Seventieth street justify the railway company in delaying the construction of its road upon all the other streets, including Torrence avenue? We agree with counsel for appellant that all grants by the public, such as are given by the city of Chicago in its ordinance, are to be construed most strongly against the grantee, and also that the grant is a mere license or permission to the railway company to lay down, maintain and operate its railroad in the streets upon the conditions named in the ordinance. After all, we must Come back to the question whether, under section 2 of the ordinance, the injunction set up in the petition operated to extend the time within which the tracks might be laid in other streets.
The position of counsel for the relator is, that the ordinance grants a privilege to the railway company to construct street railways upon a system of streets, one connected with another, so as to constitute connected lines of travel, and therefore an injunction which prevented the construction of a part of the entire system necessarily operated to extend the time within which the other tracks might be laid,—that is, that the time covered by the injunction preventing the laying of the tracks in Seventieth street should not be reckoned as a part of the time limited in the ordinance as to any of the streets. On the contrary, the contention of counsel for the appellant is, that the ordinance divides the so-called system into two divisions; that it requires the railway company to construct a single track railway on Torrence avenue within two years and a double track railway within five years, and provides that on all and singular the other portions of the route in the ordinance described it shall, within two years from and after the passage of the ordinance, lay down, complete and have in operation a double track street railway,— that is, that the conditions named in the ordinance as to the time within which the work shall be done do not apply alike to Torrence avenue and the other streets specifically named with it, and “all and singular the other portions of the route in this ordinance described.”
Appellee was the public official of the city of Chicago charged, by the terms of the ordinance, with the duty of issuing a permit before the work could be commenced. Before he issued this permit it was his duty to ascertain that the relator was entitled to it. In the performance of this duty he represented the public, and as we before said, a grant similar to the one at bar is to be most strongly construed against the grantee and in favor of the public. In the first instance the relator had no rights in the streets of the city. They belonged to the public and were to be used as streets, for public purposes. The city council had authority, under certain limitations, to grant relator the right to lay its tracks in such streets as it might designate. This it did by ordinance which imposed certain restrictions. The ordinance, as passed, was accepted in writing by the relator and became binding upon both parties. The railroad company, in seeking a writ of mandamus against the public to enforce its rights under the ordinance, must clearly allege and show that it is entitled to the writ. The face of the petition shows that the time specified in the ordinance for the construction of the track on Torrence avenue had expired. It was the duty of the railroad company, before it was entitled to a permit from the appellant and before it was entitled to a writ of mandamus, to allege such a state of facts as excused the delay in not building within the time specified. This it sought to do by alleging that the territory covered by the ordinance constituted a single system, and as it had been delayed by an injunction from a court of competent jurisdiction as to Seventieth street, that this excused the delay as to Torrence avenue. Attached to the petition is a map of the entire territory covered by the ordinance.
The ordinance granted permission to lay tracks in about thirty-five miles of streets, extending on the south side to the city limits and connecting with other lines operating in the State of Indiana. Seventieth street, upon which relator was restrained from building its tracks, is situated at the north end of the territory covered by the ordinance, and is thirty-seven squares, or not less than four miles, from Torrence avenue, which is at the extreme south and west ends of the system. The territory included in the injunction is but a few blocks in extent and exceedingly small as compared with the whole. The line upon Seventieth street is upon a cross-street connecting north and south main lines of railway. These north and south lines could apparently be built without any damage on account of the Seventieth street line not having been built. We do not see any valid reason why the injunction as to Seventieth street should in any way have interfered with the work on Torrence avenue. It might possibly have interfered with some main lines running north and south' which it connected; but no claim is made as to them. If the injunction as to Seventieth street had the effect of tying up all the lines or preventing the building of any of the rest of them, there would have been some reason for saying that the relator should be entitled to the relief sought. The ordinance is to be interpreted according to the language used and in the light of all the facts and circumstances surrounding the case. If the construction contended for by the relator was correct, then if the injunction had been issued restraining the building of a single foot of the track covered by the ordinance it would apply to the whole grant of thirty-five miles and excused the relator from building any portion of it until the injunction was dissolved, and it would make no difference that the portion covered by the injunction was at the extreme south of the line and all the rest of the road could be built and operated without any delay or inconvenience. This certainly was not the intention of the city council and is not the fair interpretation to be given to the language used in the second paragraph of the ordinance, unless such a state of facts had been alleged as would show that the part covered by the injunction was connected with the rest of the territory in such a way as to make it undesirable or inconvenient to build one without the other. If such a state of facts existed, it was the duty of the relator to allege such facts in the petition as would enable the court to see that the relator came clearly within the provisions of the ordinance and was entitled to the permit which the appellant refused to grant. In the absence of such allegations we are of the opinion that the petition was not sufficient, upon its face, to entitle the relator to the writ, and for this reason the court improperly sustained the demurrer.
The judgment of the superior court and of the Appellate Court will be reversed and the cause remanded for further proceedings in accordance with the views as above expressed.
Reversed and remanded.