*1 (No. 17454. Chicago Company et al. Appellants, Motor Coach City
vs. et al. Appellees. Opinion rehearing 19, petition June filed file 1929 Leave December if, denied 1929. *2 Heard, JJ., dissenting. and Stone Condon, Ryan, Condon & G. Livingston, (James LeRoy I. Livingston, Irvin Brown, Charles J. John Sharon, Mincer, A. Frank H. Scott, Lionel Leland K. for David counsel,) NeEves, Greenberg, J. appellants. Counsel, A. Ettelson, Corporation Francis
Samuel X. Tuohy, Busch, Coughlin, (William J. J. James C. Morton R. Larrabee, C. Doty, Hornstein, Leon coun- A. I. Bangs, McCarthy, Frederick James sel,) appellees.
Mr. court: Dunn delivered the opinion Justice The circuit having court of Cook sustained county the bill demurrer to a bill for and dismissed injunction an for want of have equity, complainants appealed. its and several of Motor Coach Company sim- persons behalf of themselves and all other employees, bill the circuit rights, situated and with like filed a ilarly court of its county Chicago, mayor Cook against the enforcement of to restrain superintendent police amended, an ordinance of The bill was twice city. sustained, a demurrer bill been having second amended the court dismissed it for want of The complain- equity. *3 aof ants to this court, validity have appealed directly having ordinance and the judge involved municipal being for such required made the certificate statutory appeal. from bill that the Motor Coach Chicago appears in under is an Illinois corporation organized Company later the name Bus which was of Motor Chicago Company, for operate Motor Chicago Company, Coach changed for in the compensa- of use, persons public transportation in the of omnibuses city Chicago, propelled tion streets other of or any type kerosene or petrol power, gasoline, surface of the and ground vehicle on the ordinary running used, which at time be lawfully rails may on fixed that since business; organi- omnibus its a general do in certain streets motor busses upon it has operated zation of for that be- hire; persons Chicago transportation it motor busses on streets fore operate began Commission, and afterward its suc- Public Utilities on the Illinois Commerce cessor, Commission, applica- con- of issued to it certificates of the company tion motor busses over for the of and necessity operation venience nineteen streets boulevards, including certain designated its in of were named in the and that bill, pursuance which con- charter and such certificates of necessity main- venience it has and established and is now developed and extensive taining comprehensive sys- operating of for hire tem motor bus on transportation passengers in the boulevards, parkways city Chicago through residential and business from sections, extending Devon in the north avenue, part city, Ninety-sec- in the ond south street, distance part, approximately and is time miles, daily its on fixed busses operating schedules, routes, fixed in the certificates of designated convenience and routes which necessity, aggregate miles of which extent, miles are approximately 47.6 41.6 located boulevards are under parkways jurisdiction of the Lincoln Commissioners and the Park Park Commissioners and South. six approximately only miles the nineteen along city streets of the men- Chicago tioned in the bill; that the routes connect so as to comprise one system and the transportation, corporation is now employing motor busses in the of such routes and systems, which are on an from carrying average 145,000 to 150,000 passengers daily; on November 22, 1922, council city enacted an ordinance Chicago which all were ordinances of the revised and general codified in the form aof code known comprehensive Code “Chicago Municipal 1922,” section of which declares to be unlawful for firm or any person, corpora- tion to motor busses as common carriers on operate first street without obtained having *4 specific a to do so from the council grant authority city the in form of an ordinance the routes and fix- designating the terms and conditions under which such ing busses may and section a operated, be for a viola- provides penalty the city the that ordinance; tion of on 5, 1924, February made of the notified the that the use company in the bill of the company streets mentioned motor busses franchise, in license is unlawful the absence special was and unless ten days application that within permission, or permis- the license franchise, made to council a city in the would named, sion to its busses the streets operate the prevent the the busses and to arrest drivers of proceed the The bill streets. unlawful of such busses operation the of the or- that sections averred the enforce attempt to it and would cause irreparable injury dinance mentioned compensated, which could be damages adequately the sec- enforcing defendants from enjoined prayed code of of the Chicago municipal tions with motor busses and from the interfering operation the mentioned in the bill. streets Has the is, power for decision question as com- busses, on its of motor prohibit has a which mon carriers of passengers, necessity obtained a certificate of convenience Commis- from the Illinois Commerce for such operation affirm this deny power, appellees sion? appellants it. under the Cities general The city Chicago organized It is thor- act. has no inherent Villages powers. too well citation settled and known oughly require that in cities are creatures any authority, their and derive all from legislature powers only the ex- enacts. To authorize legislature statutes must ex- a statute be shown any power by ercise of such terms making grant pressly granting its existence. The absence of such grant necessarily imply excludes the power. granting municipal Statutes construed and a reasonable are doubt strictly corporations must be it. against existence of resolved power granted to exercising legis- The city, agent State, acts as the lature,
205 another statute agent by time its and change at may shall exercised by that the previously provide disagree- is no some other There by exercised agency. ment The appellants about these statements of law. cities pro- that the ever authorized deny legislature has as com- hibit their of motor busses mon of if it ever has done and aver that passengers, carriers so has Public act. been withdrawn Utilities which organized be exercised cities powers may under the act are enumerated in sec- Cities and Villages 1 tion article act (par. chap. 24 5 65 Revised This section of one Statutes,) amended. consists hundred one refer clauses, and many be exercised in streets, regard alleys grounds. The only two material to here are be considered clauses 7 and 9, which confer out, to es- lay “Seventh —To power: tablish, alter, or otherwise open, widen, extend, grade, pave streets, improve alleys, avenues, sidewalks, wharves, parks and public same, and vacate and for grounds, pur- or poses uses to take real thereof be- property portions longing to said devoted to village already use when such will not taking materially impair interfere with the use detri- already existing * * * mental to the public. Ninth —To regulate the the same.”
Automotive vehicles are lawful means of conveyance and have equal the streets with horses and rights upon car Meredith, riages. Elliott, v. 216 Ill. Ward (Christy v. 31; 220 id. Brown, Indiana 66; Springs Co. v. Ind. 465; 165 v. 116 McCullough, Ky. cases have 960.) Many Shinkle been decided respecting and construction validity statutes and ordinances their use regulating been has held that the highways, uniformly State, regulate exercise their police power, may speed other reasonable rules and provide restrictions as to Kingsbury, their use. v. Mass. (Commonwealth 542; Christy Elliott, supra; v. Mo. Swagerty, 517; v. State care v. Mayo, indifferent, Me. Driven 62.) men less or be a these vehicles incompetent operators may ace to and it has been safety the traveling public, held that under its the use of to regulate authority streets a enact diminish city may ordinances which may of auto and for this danger, purpose may regulate speed City mobiles and their careless management. repress, Schneider, Kluever, Ill. Chicago v. v. 317; People *6 257 Brazier supra; Mich. Commonwealth v. 673; Kingsbury, Philadelphia, v. Pa. St. 215 297. the law legislature prohibit general opera- may by
tion of automotive vehicles the upon- public highways the the and it to the cities in the may delegate State State to the respective such within prohibit operation citi.es. has therefore It has not done either in this city State. to the of automotive never had the power prohibit operation clause the It had the under vehicles on streets. power, city 9 to 1 article and Villages section Cities 5 but the use of the streets automotive vehicles by regulate not to of the streets them. by use prohibit Regulation exclusion. While is inconsistent with prohibition .is the use of of the to legislature prohibit within the power until of the motor busses, yet the public highways by State their the enactment of a law or regulating prohibiting and have are lawful vehicles and means of conveyance, horses, drawn trucks an with right by omnibuses equal high- to upon public other lawful conveyances, operate with the local ordinances prescribing compliance ways upon lawfully adopted for their use of the highways, regulations R. in which they (G. the several municipalities by operate. Stevens, Mich. G. & M. Co. v. Ry. 332.) H. Even 219 to to a citizen the deny right has no power legislature his travel highway transport property of his business or though course pleasure, ordinary in- in accordance with be may regulated right however, one undertakes, terest and convenience. Where use of the for his own public highways to make greater an omni coach, of a by stage private gain, bus, may only a truck or a motor bus, regu late the use of the vehicles on but highway may prohibit it. A can do so under only expressly municipality W. Va. Dickey, granted by parte State. Ex 576. had the that the may be conceded of power reason power, by grant the routes and streets, designate the use of the regulate might which motor busses fix the terms and conditions upon on the streets. Under permitted operate clauses of section councils the various granted 'the of Chi Villages act, of article of the Cities and State, prior other cities and villages and many cago, act of 1913, effect Public Utilities to the into going which became effective (Laws 1913, p. 459,) Jan ordinances providing enacted 1, many uary 1914, properly and from time utilities rules for the regulation were The ordinances rules. changed time amended with them by authorized the legislature compliance the courts. utilities was Section required all general supervision of the Public Utilities gave *7 and sec Commission, to the Public Utilities utilities with comply every every public utility tion required made by rule or direction, regulation order, decision, to or affect in relating in matter any way every commission required every as a public utility. business Section ing its service, maintain such and utility furnish, provide facilities as should and pro instrumentalities, equipment convenience of its and comfort health, the safety, mote should be in all and as and the public patrons, employees reasonable. efficient, Section just adequate, respects after a commission, hearing, that whenever provided practices, equipment, the rules, regulations, find that should or the of any public utility service or facilities appliances, methods manufacture, distribution, transmission, storage or employed unsafe, it were supply unjust, unreasonable, improper, or determine the inadequate insufficient, should just, reasonable, safe, proper, rules, or sufficient adequate regulations, practices, facilities, ser- equipment, appliances, vice or' methods to be en- observed, furnished, constructed, forced or and should fix the employed order, same its rule decision, or regulation. It was further that provided the commission should regulations rules and prescribe service or the performance any any furnishing commodity character furnished or by any supplied public utility. that whenever the com- provided Section 50 after should find that exten- mission, hearing, additions, sions, repairs, or improvements changes existing plant, equipment, facilities or other apparatus, physical property any public ought be made or utility reasonably new structure or structures should be erected to promote or security convenience of its or employees other way facilities, to secure service or any adequate commission should additions, order such extensions, repairs, to be made or structure or improvements changes such structures to be erected. gave commission Section 57 after a power, hearing, require every public maintain its or other operate plant, equipment prop- manner as to the health erty promote safeguard of its customers and safety employees, passengers, to this end to public, things, other prescribe, among installation, maintenance and use, appropriate or other devices or safety to establish uniform appliances, or other standards of and to equipment, per- require formance of other act which the health or of its safety employees, customers or the de- passengers, public might mand. authorized Section to be made complaint by any act or municipal corporation done or ány omitted thing to be done in violation, claimed be in violation, of the act or of order any provision or rule of the *8 as to commission. was given appear Each for or the commission make before complainant application an or to the rates investigation relating or inquiry, hearing other charges for services within such city, utilities and in case of any investigation hearing by or inquiry, re- commission, ten written notice to was days’ quired investigation before such or and the inquiry, hearing, entitled to city was to evidence present relating appear matter. for subject provided hearings, Section 65 witnesses, issue the attendance of process enforce taking of and service of evidence, entry orders, should of their own force take effect and become operative after twenty days as otherwise service, provided. except 68 and Sections for from the orders provided appeals commission, section penalty prescribed a failure to with comply of the act or with any provision order of the commission.
The of the act is language sufficiently comprehensive subject every the relations between phase every public utility supervision regulation the Public Utilities Commission. commission was in- vested with the supervision all public authorized utilities, to fix the safe, proper adequate em- equipment to direct ployed, additions, improvements changes to be made, determine the just, reasonable, safe, ade- proper, quate sufficient rules, regulations, practices, equipment, facilities, service or appliances, methods to be fur- observed, nished, constructed, enforced or and to employed fix them all its rule order, decision, or regulation, and pub- every lic was required with comply every order, decision, rule and regulation commission. These provisions covered the whole certainly field of service of every utility. left no room for They the exercise of authority other body. vesting power conferred act in the Public Utilities Commission withdrew necessarily from cities all such villages power had previ- *9 in was been authorized to exercise the This premises.
ously the Co. Railways in Northern Trust decision Co. Chicago v. in Ill. decided had been question previously 402. 318 India Cincinnati, the in same Atwood v. way Village of de and Ill. These Railroad Co. napolis Western 425. 316 Cleveland, Cin in v. City cisions were followed Witt of cinnati, 494, Ill. Railway and Co. Chicago Louis St. 324 Milwaukee Railroad Co. v. North and and Shore as in In case last City cited, id. the Chicago, 360. of 331 be no inconsistency this was that there was case, argued to consent to exclusive tween the the of grant act of its and the Public Utilities occupation because but that should be construed clause together, 24 act 1 and Villages of of article of the Cities section 5 both pro Railroad act clause of general section 19 5 consent must be obtained before vide that the of the or the streets occupy commercial railroad can cross act in there is the Public Utilities no city, provision authority commission to grant which purports give streets with or occupy city such railroad cross right 1 of that clause of section of the city; out the consent 24 amended act was Villages article Cities 5 in of the Public Utili re-enacted after passage 1919 Public act of ties and that section 81 of the Utilities limit or restrict the denied intent to expressly the use and and control grant power municipalities section 81 of the streets. This provision occupation effective act of when adopted, Public Utilities 1921, be limit this act shall construed to follows: “Nothing or powers or restrict now hereafter to cities to pass granted for the health, safety, ordinances protection or comfort, welfare, and general governing regulation, or streets, control occupation highways public prop erty city. within the this act be construed Nothing shall or restrict the to limit cities this arti powers granted nor to cle, extend of the Illinois jurisdiction Commerce over the matters this except Commission covered .article as herein in this article shall con- provided. Nothing strued to conflict with conferred act the Illinois Commerce so Commission, far as the exercise of such powers by commission is or necessary appro- to its priate authority with under utilities respect the jurisdiction of the commission.”
Clause section of article Cities and Villages provides that council in cities and president and board trustees in shall villages have following “To powers: permit, regulate prohibit locating, constructing a track of laying horse or electric railroad in any street, but alley public place; *10 such permission shall not be for a time longer than for twenty years.” Clause of section this that “the provides council or board city of trustees shall have no power grant or the of right to railroad tracks in lay any street of any city any steam, dummy, electric, cable, * * * horse or other railroad company, except upon petition of the owners of land more than representing one-half of the frontage of the or so much street, thereof as is used sought for railroad In regard purposes.” to the claim of the that city there is no inconsistency between repugnancy provisions these of the Cities and Vil- just act lages quoted and the of section of provisions the Commerce Commission the court in the case last act, “It above cited said: seems clear that the of sec- provisions tion 81 of Public Utilities act above quoted of the Cities and act provisions relate Villages just quoted to the location of the tracks over and streets and con- along sent or license to construct tracks across or the streets, upon rather than the control supervision, of regulation such railroads when constructed. Section the Public Utilities as article revised 1921, confers the Commerce 1927, p. upon Stat. (Smith’s 2130,) Commission, the Public Utilities Commission, formerly gen- eral of all be said supervision public utilities. cannot to be the intention of the that both legislature the Commerce this Commission shall have jurisdiction matter. Where the General enacts a new stat- Assembly ute upon any and it new subject from the appears it is the legislative intention to make a of the revision whole and to frame new in rela- subject or scheme plan tion thereto, is, declaration that effect, legislative whatever is embraced in the new shall prevail statute The whatever excluded therefrom shall be discarded. revision of the whole new evinces statute subject by an intention to old law on substitute its for the provisions the subject.” (Citing cases.)
The to the the commis- right given complain sion utilities within concerning services public of notice to the city, requirement any hearing utili- to the rates or relating services charges evi- ties within the city, right present appear dence and the from the right appeal hearing order that the indicated Commerce Com- entered, certainly the conduct of mission had over the utility, plenary its business and its relations to the and that no to exercise control remained in the city. include the streets public highways State
and alleys in the various municipalities well as the roads lie outside the boun- entirely daries has entire municipality. *11 control of all the delegate supervision and highways may and control it deem may of them to which any agency It commit the all proper. and control of may supervision to a and highways single agency may change agency from time to time as it fit. sees commit the super- may vision and control of the streets and in cities and alleys the of the villages boards trustees of councils and respective municipalities the and control of supervision the lie highways which the mu- beyond boundaries to another time change and it from nicipality agency, may to time established, the either within or without the agency municipalities. The title the in streets and cities alleys and whether in fee or easement villages, only, by way is held each not the the in- for benefit of municipality habitants of the but in the trust for only, municipality at with the residents of the mu- large equally which commit nicipality, may any agency State it create for that the entire may supervision purpose control of or it State, every part highways may divide and control of the supervision highways it sees fit. theBy creation of the Illinois Commerce Com- with utili- mission, comprehensive over public powers which have ties been mentioned, legislature withdrew from municipalities had power in previously exercised to the use regard streets by such utilities and conferred those Commerce Commission.
The decree of the court circuit is reversed the cause is remanded to that with directions to court, overrule demurrer to the amended bill. with remanded,
Reversed and directions. Mr. Stone, dissenting: Justice I do concur in the views expressed this opinion. In view the this matter and importance far-reaching effect of filed, that I opinion set forth necessary at some reasons length my dissent.
The correct solution main involved problem this case as I is, it, view to be based on the determination
of two First, cities, whether to the propositions: prior of the Public Utilities had passage permit deny the use of the utilities; second, if whether the so, Utilities has taken that from the cities. It be conceded, as stated in the may filed, opinion that cities are creatures possess only
214 rec This is well are statute. conferred
such powers a creature likewise is Commerce Commission ognized. as the legis such statute and only possesses of lature in the briefs appellant confers. It was argued sub on the that in the absence of and statute prior ject a carrier had a right of passengers permissive therefore, use was, the streets for and its use business, its are unlawful. The of highways streets State under control of paramount primary where limited the constitution. that control is except All (City v. Ill. Chicago Kluever, 317.) persons, of 257 edict, right absence of are vested with the legislative to the one use of the travel from streets and highways to another in with their business when place connection such use is incidental to that is an ordinary business. This use of the streets and and is character highways frequently ized as an an inherent natural No has right. person inherent or natural however, make right, his of is highways business. a use place Such generally characterized as an use. extraordinary City v. (Green of Antonio, San Lundeen, W. v. 6; (Tex.) S. 178 Hadfield Wash. 657; Orleans, v. New City LeBlanc La. 98 of 138 243; parte Dickey, (W. Ex Desser v. Va.) 781; S. E. 85 City Wichita, Kan. 820; Melconian City v. Grand Rapids, Mich. The use of the 397.) streets for purely private not be gain may given, even legislative authority, unless there be also use service. That use of motor busses for the carriage passengers is an extraordinary or different from that citizen is entitled make of the street without consent, is of a more dangerous character and not be exercised may without consent, has been this court recognized by courts of other City Kluever, States. v. supra; v. Melconian City Grand Rapids, supra; parte Dickey, Ex supra; City v. New Orleans, LeBlanc Green v. supra; City Antonio, San supra; Lundeen, v. supra; Hadfield Iams, City Gill v. W. v. Dallas, 209; S. (Tex.) Neb. 678. clear from these authorities that a *13 of of character the absence enact appellant, ment on has no inherent or natural to use subject, right the streets as a of 1 of business. section article By place 5 are cer act, city- Cities councils Villages given tain numerous enumerated in one hundred two powers clauses of that section. the ninth clause cities are By given “to the use of the power regulate same,” streets. referring the one By hundred and second clause section cities are all given rules and power pass ordinances, regulations or proper into effect the that necessary carry by act The distinction use granted. between of ordinary be highways denied, not use may extraordinary thereof which been may denied, has shown permitted in numerous of this be court, by them has opinions come well settled law in this that a under city may, of exclusive control of the to it power streets granted legislature, allow use of them which is deny any not inconsistent with the are objects for which public they held, may such and fix a regulate use reasonable com to be therefor. v. pensation paid City Chicago, Sears of 204; Clean Co. Ill. v. id. West People 470; Street 247 225 Cohn, 210; Masonic Ass’n v. id. Chicago 192 Lake, Gas v. Town id. Light 42; City Co. Municipal Bull, Chicago Trotter, v. id. 430; City Quincy v. 106 id. 337; City v. Gridley Bloomington, 47; id. Nelson v. 12 id. Godfrey, 20.
From these authorities it cannot that in be doubted condition of the the Public law to the enactment of prior act Utilities cities had a right deny permit the streets utilities. Prior to such enactment by public the business of con- had also utilities regulate on ducted the streets.
Has the to control the use of the streets been taken away by Utilities act? The of the Utili purpose ties act, as has been many times shown in the construction of the act of this opinions court, is to regulate service of utilities. The act is public sustained the ground that it is a exercise of proper police power. (City of Chicago O’Connell, v. 591; Ill. Piano Co. v. Schiller Illinois Northern Co. 288 Utility id. inter 580.) est in utilities is in the service and primarily use of street or given highway by utility. police power arises not so much out of the of these place utilities as from the character of the service and rates given charged them. their railroads, operating Steam own are nevertheless right way, within Public Utili ties because interest in the service they ren der and the benefit service. regulating The Public Utilities act is not an act to primarily regulate *14 the use of streets and There is no direct highways. pro vision of the act the Commerce Commission empowering so to do. The Public Utilities act is legisla comprehensive tion to take over the and control designed regulation utilities. public as I view filed, it, confuses the opinion of the conferred on regulate specifically the ninth 1,
cities clause of section article 5, Cities and with the on the act conferred Villages power Commerce Commission to the business of regulate public There no in act utilities. is expressly language repeal- this clause of the Cities and act. has ing Villages always been rule in this that are repeals by implication State not favored. under an arises Whether power given of the statute from words or express necessary implica- more exists, and courts are no favorable tion, of the latter to a than are repeal by implication former. The act therefore cannot to have Utilities be said clause said Cities act as repealed Villages relates to the former act utilities unless there in appear and inconsistent with provisions necessarily repugnant clause “The 8 of the Utilities act Section provides: 9. commission all utili- shall have general supervision public ties, as otherwise in this shall inquire except provided into the thereof and shall business management keep itself in informed as to the manner and method which business is conducted.” is defined as Supervision generally the act of or or overseeing, inspecting. superintending, various sections of Public Utilities act of what specify section it is to consist. Under is supervision required that the with the and orders utility public comply requests of the commission. “No util- provides: Section public ity shall the construction of new begin any plant, equip- ment, or not in substitution of property facility any existing facility plant, equipment, property extension thereof or in addition until thereto, unless and it shall have obtained from the commission a that certificate convenience and such construction. public necessity require No not public utility franchise owning any city village * * * nor any service engaged performing public a certificate of neces- convenience and possessing public from the sity Public Utilities or the Pub- State Commission lic Utilities at the time this act into effect Commission, goes shall transact business in this until it shall any have obtained a certificate from the commission that con- venience and the transaction of such busi- necessity require ness. Whenever after the commission determines hearing new construction or the transaction of busi- ness will convenience promote and is it shall have the to issue necessary thereto, *15 " * * * certificates of convenience and necessity. Unless a two exercised within from the years period thereof a con- by conferred certificate of grant authority venience and issued the commission shall be necessity by null and void. No certificate of convenience and or an shall be construed as
necessity granting monopoly exclusive or franchise.” Section privilege, immunity 55a for a provides bond and sworn statement of ability pay franchise, section that no damages. By is provided license, or or control permit right own, operate pub- lic shall be transferred or leased unless utility assigned, same shall have been the commission. “Such approved by any shall not be construed to revive or validate permission or or or to license, invalid lapsed franchise, right, permit or add to the contained enlarge privileges grant franchise, license, right, permit waive forfeiture.” deny to consent to or right municipalities this
use of the streets utilities has been by recognized since the act. court Public Utilities (People passage City Motor Bus Co. Ill. 486; Springfield v. Chicago Interstate That legisla v. Co. id. Telephone 324.) ture the Public act to did intend Utilities place is further evidenced the Commerce Commission Million Bond the act of known as the Dollar Sixty 1917, 12 of that Issue act. of 1917, 696.) Section (Laws p. maintenance of the high act that the control and provides there established shall under ways system be and remain under the and control jurisdiction that “no of Public Works and Buildings; pub Department shall be any right, lic granted company person or franchise on or in, along any highway privilege of Public Works without the consent of said Department in the act of 29, 1923, Buildings.” Likewise June the same is found with of 1923, (Laws p. 537,) provision Mil Hundred reference to the roads included One act. It is likewise of note worthy lion Dollar Bond Issue of the Road and Bridge (Smith’s that section Stat. as to a number of large 1927, p. 2349,) provides to locate or con utilities that shall not have right or wires or lines lay along struct roads or pipe place poles *16 the the aid road without consent of board county any State it where to the same. It is county proposed place of the section that the board shall re- also that required county by of the to ceive the commission so approval highway State use the roads before the consent of such board shall be- the come effective. There is no Public Utili- provision either necessary ties act which expressly implication the to cities the to repeals provisions giving power regulate the neces- use of and a certificate of convenience and streets, to be a license to a to use utility cannot be said sity the of the here the streets. The result of holding opinion filed act in conflict the is to the Utilities direct with place if the to just acts referred to. Obviously, regulate power utilities carries with to whether say power business, shall certain as a use streets or highways place Public' to the Works powers granted Department in the other exist. one and the boards do not county case filed that it is the It is held purpose, opinion to turn the control of the mat shown by complete utilities, ter of use of streets regulating public that it Commission, over to the Commerce by same, that the use of deny, is inconsistent the power permit have re be retained We city. act covers the whole held that Public Utilities peatedly it the has and that by subject utility regulation North from cities. (Chicago recalled Shore power Ill. Railroad Co. v. City Chicago, and Milwaukee Co. id. Trust Co. Chicago Railways Northern v. 360; Cincinnati, Atwood v. Indianapolis 402; Village of former Railroad Co. id. No opinion Western 425.) of this has held court, however, regulate power the use of deny utilities includes the power permit In the two are inconsistent. streets or that and Milwaukee Railroad Co. v. Chi City North Shore out that “the cago, supra, opinion especially points here involves regulate question certain railroads now in the streets of city, appellee neither consent of the of the streets nor the charter contracts of these railroads is involved.” In none of these cases cited has regu- late the use of the streets been brought into directly ques- tion. In City Chicago O’Connell, v. this court supra, a bill considered to restrain Chicago seeking *17 the Public Utilities Commission from a certain enforcing order to relating of street cars in equipment operation the In city that the case distinction between Chicago. the of the and the regulation utility to to consent power the use the streets is of arti- clearly drawn. Section 4 11 cle of the constitution act of the prohibits the construction and a street rail- permitting a way the streets of the the city without consent of city. was whether the act contravened these Utilities question constitutional and it was that the con- held provisions, on the Public the Utilities Commission ferring reg- power the ulate was in no inconsistent with the utility way power reserved to to consent to or the use of the deny cities A streets distinction in between by utility. principle at not ex- that case and the case as this does bar, point, No of the Utilities act takes away ist. provision expressly of the of the to consent to or use deny power to the streets Commerce by grants powers with of such inconsistent the exercise Commission one at has it and in no case to the bar city, by prior that been held. The filed holds the rights ever so opinion was on cities to use of streets regulate conferred and that Utilities act, withdrawn passage 1 article clause of section of Cities thereby 9 5 so far it relates to this was subject, repealed as Villages act, enacted later. By Utilities act because inconsistent with of the be said said clause same token it must re-enacted in act, been having and Villages Cities the in- in supersedes its original language, again if existed. consistent of the Utilities provisions This is an rule re- undoubted construction and statutory no quires citation to it. I am of the how- support opinion, ever, that there is no inconsistency requiring holding this court that the said clause of the Cities and Villages act was the Public repealed by Utilities act.
This case is one of very The motor great importance. bus method of in this is an transportation important one and is entitled to fair consideration at the hands of the law-makers. This has no court, however, authority as the legislate, filed to me to seems do. hold- opinion ing cannot be to motor confined bus utilities opinion but must extend to kind utilities and to all every them if streets. con- Clearly, trol the use of the streets has been taken to all away utilities street which are except within the railways provir sions then has no constitution, require for the use of the or to compensation streets what say be so may used, though required police the streets to such a construction protect Surely public. of the act should rest aon more solid foundation if repeal *18 by to be found. It is stated in the implication opinion that the fact that the Utilities act cities to permits complain to the Commerce Commission the service of ultili- regarding ties indicates that over the utilities has been plenary power to the and that no given Commerce Commission exercise control remains in the of the city. Section 64 Public Utilities act a as gives city right complain rates the service and as to that service it is rendered, clear that the can exercise no control. As I view it, instead a indicating provision complete removal of the the extent of from shows city, to the Commerce Commission to be lim- power granted ited to the of the business of the No utility. regulation as to a in the suggestion appears right complain to what are to used or the commission as whether be used clear that any may utility. seems matter was left to the where it city, has rested since first act. of the Cities and passage Villages Section 65 the act that “in matter which the concerning provides commission is authorized hold hearing upon complaint own notice shall be motion, its given application to the to such other interested utility persons the manner necessary,” pro- commission shall deem makes no vided act. express provision for a certificate notice to cities hearings applications de- of convenience and necessity an intention This indicates city. sires to in such operate that a matter so vital to on the part to remain of the streets is as the control of the use within the city.
Mr. I : concur fully foregoing Heard Justice dissenting opinion.
(No. 19590. Defendant in vs. W. H. Wat Error, L. Danford, Lunetta et al. Plaintiffs in Error. kins Opinion 19, Rehearing 11, October denied Dec. filed 1929.