199 Ill. 484 | Ill. | 1902
delivered the opinion of the court:
There is no conflict between the parties as to the facts in the three cases here under consideration. The proof shows, that appellant refused to give a passenger on its North Clark street car line a transfer ticket, entitling such passenger to a ride, without additional fare, upon its Madison street line. The proof also shows that the appellant refused to give to a passenger on its Madison street car line a transfer ticket, entitling such passenger to a ride, without additional fare, upon its North Clark street car line. The proof also shows, that the appellant refused to give to a passenger on its VanBuren street car line a transfer ticket, entitling such passenger to a ride, without additional fare, upon its Halsted street car line. Under the facts, therefore, appellant was guilty of a violation of section 1723 of the Revised Code of Chicago, as the same is set forth in the statement preceding this opinion.
The only questions, which arise upon the record, and which are presented for our consideration, are questions of law, growing out of the giving and refusal of the propositions of law, submitted by the parties, and set forth in the statement preceding this opinion.
Counsel for appellant make three points in their brief in support of their contention that the judgments, entered by the criminal court of Cook county in these three cases, are erroneous. These three points are as follows: First, that the charters of appellant’s constituent companies constitute contracts as to rates of fare, and that section 1723 of the municipal code of Chicago impairs these contracts, and is, therefore, in violation of the guaranties of the constitutions of the United States, and of the State of Illinois; second, that the city of Chicago has no power under the statutes of Illinois, and has not been authorized by the legislature of Illinois, to regulate fares charged by street railroad companies, or to require such companies to furnish transfer tickets; and third, that said section 1723, passed in 1890 and re-enacted in 1897, and applicable to conditions then existing, has no application to transfers between the north and west side systems of appellant.
First—The second point, thus made by appellant, will be considered first. Has the common council of the city of Chicago the power to prescribe a reasonable maximum rate of fare to be charged for carrying a person from one point to another within the limits of the city of Chicago by a person, firm or corporation engaged in the business of carrying passengers for hire on street railways?
The ordinance of June 26, 1890, re-enacted on April 8, 1897, of which sections 1723 and 1725 are parts, is an ordinance which prescribes the maximum rate of fare to be charged. It provides that the rate of fare to be charged by any person, firm, company or corporation owning, leasing, running or operating street cars or other vehicles for the conveyance of passengers on any street railroad within the limits, of the city of Chicago for any distance within the city limits shall not exceed five cents for each passenger over twelve years of age, and half fare for each passenger over seven and under twelve years of age for one continuous trip, except when such street cars or other vehicles shall be chartered for a specific purpose.' (Council .Proceedings of 1890, 1891, p. 434). In order to determine whether or not the city of Chicago has the power to prescribe the reasonable maximum rate of fare to be charged by street railway companies, it will be necessary to examine the provisions of the present and former charters of the city.
'Appellant’s contention, that no power whatsoever over street railway companies, has ever been granted by the legislature to the city of Chicago, will be found to be incorrect upon an examination ofdhe city charters of 1851, 1863 and 1872.
On February 14,1851, the legislature passed an act, entitled “An act to reduce the law incorporating the city of Chicago and the several acts amendatory thereof, into one act, and to amend the same.” Section 4 of chapter 4 of this act of 1851 provides as follows:
“Sec. 4. The common council * * * shall likewise have power within the jurisdiction of the city by ordinance: * * * Ninth—To license, regulate and suppress hackmen, draymen, carters, porters, omnibus drivers, cabmen, packers, carmen, and all others who may pursue like occupations with or without vehicles, under other cognomens, and prescribe their compensation. * * * Sixty-second—The common council shall have power to make, publish, ordain, amend and repeal all such ordinances or by-laws and police regulations, not contrary to the constitution of the State, for the good government and order of the city and the trade and commerce thereof, as may be necessary or expedient to carry into effect the powers vested in the common council, or any officer of said city, by this act; and enforce observance of all rules, Ordinances, by-laws and police and other regulations made in pursuance of this act, by penalties not exceeding §100.00 for any offense against the same.” (Private Laws of Ill. 1851, pp. 142, 143, 148).
On February 13, 1863, the legislature passed an act, entitled “An act to reduce the charter of the city of Chicago, and the several acts amendatory thereof, into one act, and to revise the same.” Section 8 of chapter 4 of this act of 1863 provides as follows:
“Sec. 8. The common council * * * shall likewise have power within the jurisdiction of the city by ordinance: * * * Ninth—To license, regulate and suppress hackmen, draymen, carters, porters, omnibus drivers, cabmen, carmen and all others, whether in the permanent employment of any individual, firm or corporation, or otherwise, who may pursue like occupations, with or without vehicles, and prescribe their compensation. * * * Forty-ninth— * * * Also to regulate the running of horse railway cars, the laying down of tracks for the same, the transportation of passengers thereon, and the kind of rail to be used. * * * Sixty-fourth,” which gives general power to amend and repeal ordinances and make such ordinances as may be necessary, the clause being almost identical with the corresponding clause in the act of 1851 as above set forth. (Private Laws of Ill. 1863, pp. 40, 56, 57, 60, 62).
On April 10, 1872, the legislature passed au act entitled “An act to provide for the incorporation of cities and villages.” Section 1 of article 5 of this act of 1872 provides as follows:
“Sec. 1. The city council in cities, and president and the board of trustees in villages, shall have the following* powers: * * * Forty-second—To license, tax and regulate hackmen, draymen, omnibus drivers, carters, cab-men, porters, expressmen, and all others pursuing like occupations, and to prescribe their compensation. * * * Ninetieth—The city council or board of trustees shall have no power to grant the use of or the right to lay down any railroad tracks in any street of the city to any steam or horse railroad company, except upon the petition of the owners of the land representing more than one-half of the frontage of the street, or so much thereof as is sought to be used for railroad purposes. * * * Ninety-sixth—To pass all ordinances, rules, and make all regulations proper or necessary to carry into effect the powers granted to cities or villages, with such fines or penalties as the city council or board of trustees shall deem proper: Provided, uo fine or penalty shall exceed 1200.00 and no imprisonment shall exceed six months for one offense.” (1 Starr & Curt. Ann. Stat.—2d ed.— pp. 689-715). Said clause ninetieth was amended in 1887 so as to include dummy, electric, cable, or other railroad companies, whether incorporated by this State under general or special law. (Sess. Laws of Ill. 1887, p. 108).
The city of Chicago has adopted, as its charter, the City and Village act of 1872 above referred to. It will be noticed, that the forty-second clause of section 1 of article 5 of the act of 1872 is substantially the same as the ninth clause of section 4 of chapter 4 of the act of 1851, and the ninth clause of section 8 of chapter 4 of the act of 1863, so far as is material to the questions here involved. Under the act of 1872 the common council of the city of Chicago has power to regulate hackmen, omnibus drivers, cabmen, “and all others pursuing like occupations, and to prescribe.their compensation.” Street railway companies come within the purview and meaning of the words, “all others pursuing like occupations,” as used in connection with hackmen, omnibus drivers and cabmen. The occupation of hackmen, omnibus drivers and cabmen is the carrying of passengers for hire. All of the last named vehicles are drawn by horses. The acts of 1859 and 1861, under which appellant claims its rights herein, were acts to promote the construction of horse railways, and to authorize the extension of horse railways in the city of Chicago. The ordinances of 1858 and of 1859, under which also the appellant claims, its rights, are ordinances authorizing the construction, extension and operation of horse railways in the streets of Chicago. The railways, referred to in these acts and ordinances, were nothing more than carriages drawn by horses, with the exception that such carriages moved upon fixed iron rails, in a regular track, with wheels, while the other vehicles mentioned go with wheels upon the ordinary street way. The occupation of the appellant is the carrying of passengers for hire, and, therefore, its occupation is like the occupation of hackmen, omnibus drivers and cabmen. By the application of the maxim ejusdem generis, which is only an illustration or specific application of the broader maxim noscitur a sociis, the rule is deduced that, “when general words follow an enumeration of particular cases, such words apply only to cases of the same kind as those expressly mentioned, or, stated in different language, the word ‘other,’ following an enumeration of particulars, embraces enumerated particulars of like nature only, unless a broader sehse is obviously intended.” (County of Union v. Ussery, 147 Ill. 204; Misch v. Russell, 136 id. 22; First Nat. Bank of Joliet v. Adam, 138 id. 483; Ritchie v. People, 155 id. 98). Here, the general words, to-wit, “all others pursuing like occupations,” follow an enumeration of particular cases, to-wit, hackmen, omnibus drivers and cabmen, and, consequently, such general words apply to cases of the same kind as those expressly mentioned.
That this is the correct view of the meaning of the forty-second clause of the present charter and the clauses of a like nature in the charters of 1851 and 1863, is shown by the purport of decisions upon the subject. In Frankford, etc. Railway Co. v. City of Philadelphia, 58 Pa. St. 119, an act of the Pennsylvania legislature provided “that the select and common councils of the city of Philadelphia shall have authority (by ordinance or ordinances) to provide for the proper regulation of omnibuses, or vehicles in the nature thereof; and to this end it shall be lawful for the said councils, etc., to provide for the issuing" of licenses to such, and so many persons, as may apply to keep and use omnibuses or vehicles in the nature thereof; and to charge a reasonable annual or other sum therefor.” In construing this act, the lower court in Pennsylvania, speaking through Mr. Justice Sharswood, said: “Now, surely no one can doubt that a passenger railway car is a vehicle in the nature of an omnibus, if it is not itself an omnibus running on a railroad.” When the case was taken by appeal to the Supreme Court of Pennsylvania, the judgment of the lower court was affirmed, and the opinion affirming it was delivered by Mr. Justice Strong, afterwards a member of the Supreme Court of the United States, in which he says, in reference to this act: “It plainly authorizes regulation by the issue of licenses. And we are of opinion that it applies to passenger railway cars. They are omnibuses, or if not, they are vehicles in the nature' of omnibuses. They are open to all, intended for all. The change of form from that of anything, known when the act of assembly was passed, is not a change of the nature of the vehicle. In one city,, at least, of Europe, large vehicles intended for indiscriminate public use, run sometimes upon a railway track, and at other times upon a common pavement. Nobody can doubt they are omnibuses. The form of the wheels, or the character of the roadway, over which a vehicle runs, does not determine its nature so much as do the uses to which it is put, and for which it was designed.”
In Allerton v. City of Chicago, 6 Fed. Rep. 555, this very clause 42 of section 1 of article 5 of the act of 1872 was given the same construction, which is here put upon it. In the latter case it was held, in an opinion by the late Judge Drummond, that the general law of Illinois for the incorporation of cities and villages in the State, which provided that the city council in cities should have authority to license hackmen, draymen, omnibus drivers, cabmen, expressmen, and all others pursuing like occupations, and to prescribe their compensation, included street railways within its meaning. The case of Frankford, etc. Railway Co. v. City of Philadelphia, supra, was there referred to as an authority upon this subject, and it was there said by Drummond, C. J.: “But it is claimed it does not include the street'railway, because it is not pursuing an occupation like any of those named. Omnibuses may be licensed. They may pass over even the same streets as those occupied by the horse railways, and they may carry passengers in the same manner. The only distinction, which can be called substantial between the two classes of occupation, is that one carriage goes upon iron rails, in a regular track, with wheels, and the other carriage goes with wheels upon the ordinary street way. The Supreme Court of Pennsylvania has held that these street railway carriages are of a like nature as omnibuses, and there can be no doubt, I think, of the right of the city to .demand a license from all omnibus drivers, and to include every omnibus which may belong to a particular company or corporation, and to require the payment of a license for such omnibus that may be so owned and used.”
In Farwell v. City of Chicago, 71 Ill. 269, speaking of an ordinance adopted under and in pursuance of said clause 42 of the act of 1872, this court said: “The spirit of the ordinance is, to bring the class of carriers therein named under the police regulations of the city. . It is designed to operate upon those, who hold themselves out as common carriers in the city for hire, and to so regulate them as to prevent extortion, imposition and wrong to strangers and others compelled to employ them, in having their property or persons carried from one part of the city to another. This is a rightful exercise of the police power.” It has often been held that a street railway company is a common carrier of passengers for hire. (North Chicago Street Railroad Co. v. Williams, 140 Ill. 275; North Chicago Street Railroad Co. v. Wrixon, 51 Ill. App. 307; North Chicago Street Railroad Co. v. Cook, 145 Ill. 551). In Chicago, Burlington and Quincy Railroad Co. v. West Chicago Street Railroad Co. 156 Ill. 255, it was held that the construction of a street railroad is merely a mode of facilitating existing travel, and of modifying or changing the existing" public use; that there is thereby added an additional mode of conveyance to those already in use upon the street; that the street car carries along the street such passengers as would otherwise be obliged to pass over it on foot or in other vehicles, and that thereby the ordinary street railway merely furthers the original uses of the street by relieving the pressure of local travel. It necessarily follows, that those, whose business it is to propel street railway cars along the iron tracks laid in the public streets of a city, are engaged in the business of carrying passengers for hire, and that their occupation is of a like nature with the occupation of hackmen, omnibus drivers and cabmen, whose business also is the carriage of passengers for hire. The general doctrine is that the legislature has power to regulate the charges of common carriers. (Munn v. Illinois, 94 U. S. 113; Chicago, etc. Railroad Co. v. Iowa, id. 155; Ruggles v. People, 91 Ill. 256; Ruggies v. Illinois, 108 U. S. 526). The legislature, having such power, can confer it upon the common council of the city. In other words, the municipality may exercise the power by delegation from the State. (Rogers Park Water Co. v. Fergus, 178 Ill. 571; City of Danville v. Danville Water Co. 180 id. 235; Dean v. Chicago General Railway Co. 64 Ill. App. 155; Chicago Packing Co. v. City of Chicago, 88 Ill. 225).
Therefore, when the legislature -gave to the city of Chicago, under its charters above referred to, the power to regulate, and prescribe the compensation of, street railway companies as carriers of passengers, it gave the city power to pass sections 1723 and 1725 set forth in the statement preceding this opinion. The grant of the power to regulate the occupation, and prescribe the compensation of those pursuing it, is accompanied by a grant of power to pass all such ordinances, rules and regulations as may be proper or necessary to carry into effect the power so granted.
The appellant introduced in evidence, and relies upon, the ordinance of August 16, 1858, set forth in the statement preceding this opinion. Section 6 of that ordinance provides that “the rate of fare for any distance shall not exceed five cents except when cars or carriages shall be chartered for a specific purpose.” That ordinance was passed before the legislature passed the act of February 14, 1859. At the time of the passage of the ordinance of August 16, 1858, there was no law or statute in Illinois, conferring upon the common council of any city the power to make a contract with any person, firm or corporation, engaged in the business of carrying passengers for hire, obligating the city never to change the rates once fixed, or to make a contract with any such person, firm or corporation in relation to a maximum rate of fare to be charged. Hence, the common council could not have passed section 6 of the ordinance of 1858 in pursuance of any act of the legislature, granting the power to make such contract. The only act of the legislature then existing, which conferred upon the common council the power to pass section 6 of the ordinance of 1858, was the act of February 14; 1851. If the common council of the city had no power, under clause 9 of section 4 of chapter 4 of said act of 1851, to pass said section 6, then it was without any such power at all, as there was no other source, from which the same could be derived, except the act of 1851.
The act of February 14, 1859, by the second section thereof, granted to the Chicago City Railway Company the power to construct, maintain and operate a single or double track railway within the then present or future limits of the south or west divisions of 'the city of Chicago, as the common council of said city had authorized the corporators therein named, or any of them, or should 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, by contract with said parties, or any or either of them, prescribe.” The last clause is elliptical, and the word, “prescribed,” to which the word “has” applies, was accidentally omitted. If the word thus omitted be supplied, the clause should read as follows: “With such rights and privileges as the said common council has prescribed, or may, by contract with said parties, or any or either of them, prescribe.” The words, “by contract with said parties or any or either of them,” qualify the words “may prescribe.” That is to say, the right to contract was a right to be exercised in the future. The words, “with such rights and privileges as the said common council has prescribed,” refer to the past. There 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 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 9 of section 4 of chapter 4 of the charter of 1851.
Again, in the ordinance of May 23, 1859, the language shows that the common council, which passed that ordinance, relied upon its power to do so under said clause 9 of the charter of 1851. Section 1 of the ordinance of May 23, 1859, recites that, under and by virtue of the act of the legislature approved February 14, 1859, “and by virtue of the powers and authority in the said common council otherwise by law vested,” the council thereby granted permission to the Chicago City railway to lay a single or double track for a railway, etc. In other words, the ordinance of May 23, 1859, was not only passed in pursuance of the act of February 14, 1859, but also by virtue of the power and authority vested by law in the common council otherwise than by the act of February 14, 1859. Necessarily, the power, referred to in section 1 of the ordinance as otherwise by law vested in the council, was the power so vested by virtue of clause 9 of section 4 of chapter 4 of the charter of 1851. Section 7 of the ordinance of May 23,. 1859, provided that “the rate of fare for any distance shall not exceed five cents except when cars or carriages shall be chartered for specific purposes.” Also, the ordinance, passed on May 23, 1859, authorizing the construction and operation of horse railways in the north division of the city of Chicago, provides, in section 6 thereof, that “the rates of fare for any distance within the city limits shall not exceed five cents for each passenger, except when cars or carriages shall be chartered for a specific purpose.” The fixing of a maximum rate of five cents for each fare for any distance can as well be attributed to an exercise of the power to prescribe compensation under the charter of 1851, as to any power to make a contract upon the subject, embodied in the act of February 14, 1859.
If the common council had the power to fix the maximum rate of fare for any distance at five cents, as was done by said section 1723, it also had the power to provide for transfer tickets in the manner and at the places and within the time named in said section 1723. The requirement as to transfer tickets, transferring the passengers from one line to another of the same company, is a mere incident to the power to fix the maximum rate of fare. The charter of the city gave its common council power to prescribe the compensation of persons, pursuing the occupation of operating street railways. The compensation referred to can be none other than the fare to be charged for carrying passengers. The power to fix the rate of fare must necessarily include the power to fix the rate for carrying a passenger over two lines operated by one company, as well as the power to fix the rate for carrying a passenger over one line operated by such company, the question being not as to the reasonableness of the charge, but as to the power to regulate or fix the charg'e.
Our conclusion upon this branch of the case, therefore, is, that, as a question of power simply, the common council of the city of Chicago was authorized to pass the ordinance of June 26, 1890, subsequently re-enacted on April 8, 1897, and designated herein as sections 1723 and 1725.
Second—It is furthermore insisted by the appellant, that section 1723 of the municipal code of Chicago, if enforced against appellant, will impair its alleged contract rights, and that, therefore, the section is in violation of the guaranties of the constitutions of the United States and of the State of Illinois.
The party, insisting that its contract rights are violated by these sections 1723 and 1725, is the appellant, the Chicago Union Traction Company, organized in May, 1899. It is not claimed, nor could it be, that there was, or is, any contract made directly between the State, or the city council of Chicago as the subordinate agency of the State, and the Chicago Union Traction Company, appellant herein. The contention of the appellant is, that contracts were made in 1859 and 1861 with the North Chicago City Railway Company and the Chicago West Division Railway Company, and that those contracts have passed by assignment to the appellant, the Chicago Union Traction Company. It is claimed by the appellant that in 1886, or thereabouts, the North Chicago City Railway Company executed a lease of all its property and privileges to a new corporation then organized, called the “North Chicago Street Railroad Company,” and that the Chicago West Division Railway Company in 1889, or thereabouts, executed a lease of its property, privileges and franchises to a new corporation then organized, called the “West Chicago Street Railroad Company.” No such leases as these have been introduced in evidence or are in this record. What their terms are it is impossible for us to know, so far as the present record shows. The charters, or certificates of organization of the North Chicago Street Railroad Company and the West Chicago Street Railroad Company are not in the record, and were not introduced upon the hearing below. As, however, those corporations were organized in 1886 and 1889, they must have been organized under the general Incorporation act of this State, passed in 1872. Since the adoption of the constitution of 1870, no corporation could be formed in this'State under a special charter. Section 1 of article 11 of the constitution of .1870 provides that “no corporation shall be created by special laws, or its charter extended, changed or amended, except those for charitable, educational, penal or reformatory purposes, which are to be and remain under the patronage and control of the State, but the General Assembly shall provide, by general laws, for the organization of all corporations hereafter to be created.” Counsel for appellant seek to avoid the difficulty, arising from the absence of these leases from the record, by saying that their existence is admitted by counsel for appellee. There seems to be an admission, on the part of the appellee, that the Chicago West Division Railway Company and the North Chicago City Railway Company leased their railway properties, respectively, to the West Chicago Street Railroad Company and the North Chicago Street Railroad Company, but there is no admission, so far as we are able to discover, that there was any transfer or assignment of the contracts, claimed to exist in favor of the present appellant.
What are those contracts? The ordinances of 1858 and 1859, in relation both to the West Division Railway Company and the North Chicago City Railway Company, provided that the rate of fare for any distance, or any distance within the city limits, should not exceed five cents, or five cents for each passenger. It is claimed, on the part of appellant, that these ordinances, taken in connection with the acts of the legislature of 1859 and 1861, referred to in the statement preceding this opinion, constituted contracts between the city and said railway companies, to the effect that the companies had a right to charge as much as five cents for one fare, and that the city had no right thereafter to reduce the fare to any figure below five cents. In other words, the contention of appellant is that the words, “the rate of fare shall not exceed five cents,” constitute a contract, binding the municipality not to reduce fares below that rate. Section 1723 does not in terms fix a rate of fare less than five cents. On the contrary, it provides, just as the earlier ordinances, upon which appellant relies as constituting its contract, provided, that the rate of fare to be charged shall not exceed five cents for each passenger, etc. But the contention is, that the requirement of a transfer ticket from one line to another line, operated by the same company, necessarily reduces the fare below five cents, appellant claiming the right to charge five cents over one of its lines and an additional five cents over another of its lines.
We pause not at this point to determine the correctness of this statement of the contracts, the only object at this stage of the discussion being to state what such contracts are claimed to be, with a view of determining whether they have been transferred or assigned to the present appellant. In order to show that such contracts, if they existed, are the property of the present appellant, it is not sufficient merely to show assignments or leases from the Chicago West Division Railway Company to the West Chicago Street Railroad Company, and from the North Chicago City Railway Company to the North Chicago Street Railroad Company. The West Chicago Street Railroad Company and the North Chicago Street Railroad Company are not here insisting upon any contracts, or complaining of the violation of any contracts. It devolves upon appellant to show that there were assignments, or-leases amounting to assignments, from the West Chicago Street Railroad Company and the North Chicago Street Railroad Company to the present appellant, the Chicago Union Traction Company. There is in the record no lease from the North Chicago Street Railroad Company to the present appellant, but there has been introduced in evidence, and appears in the record, a lease purporting to have been made on June 1, 1899, from the West Chicago Street Railroad Company to the present appellant. In one aspect of these cases, the failure of the testimony in the respect thus indicated would necessarily lead to an affirmance of the judgment entered by the court below.
But if it be conceded, as is contended for by the appellant, that the leases were made by the original companies to the companies organized in 1886 and 1889, and by both of these latter companies to the appellant in 1899, did the contracts, if there were contracts in relation to the maximum rate of fare, pass, or have they passed to the present appellant, so as to become the property of the latter?
It is a matter of serious doubt whether the Chicago West Division Railway Company became vested with the right to charge a full fare of five cents for a ride upon any one of its cars in the west division of the city alone. If it did not have such right, then it could not have transferred it, by lease or any other sort of assignment, to the West Chicago Street Railroad Company, nor, by consequence, could the latter have transferred it to the appellant. The ordinance of August 16, 1858, granted to the parties, therein named, the right to operate railway cars in the south and west divisions of the city, and upon streets lying in both of those divisions. When, therefore, section 6 provided that the rate of fare for any distance shall not exceed five cents, the meaning was that it should not exceed five cents for a ride upon streets in the south and west divisions of the city, and from one division to the other. Section 2 of the act of February 14, 1859, authorized the construction and operation of railway cars over such streets within the present or future limits of the south or west division of the city, as the common council had authorized, or should thereafter authorize, in such manner and upon such terms and conditions, with such rights and privileges as the common council had theretofore prescribed, or might by contract with said parties, or any or either of them, prescribe. By the terms of said section 2 the railway was to be constructed and operated within the present or future limits of the south and west divisions, and not of one of these divisions only; and the terms, theretofore prescribed by ordinance, were that the rate of fare should not exceed five cents for any distance within the south or west division of the city. Section 10 of the act of 1859 refers to the grants therein conferred, and the duties therein required, as being for the south and west divisions of the city of Chicago. So, also, the ordinance of May 23,1859, granted authority to lay tracks in and along the course of the streets and bridges of the south and west divisions of the city, and hence, of course,, section 7 of that act, providing that the rate of fare for any distance shall not exceed five cents, referred to any distance within the south and west divisions of the city. Section 2 of the act of 1861 conferred upon the Chicago West Division Railway Company the powers, theretofore granted to the Chicago City Railway Company, and subjected the Chicago West Division Railway Company to all the provisions, contained in the second, third, fifth and sixth sections of the act of 1859. If thereby the Chicago West Division Railway Company acquired the right to charge a maximum rate of five cents for any distance, it acquired the right to make the charge in the same way, in which the Chicago City Railway Company was possessed of that right; that is to say, the right to charge a fare of five cents for a ride in the west and south divisions of the city, or from one point in one of said divisions to a point in the other of said divisions. It is true, that an agreement was made in 1863 between the Chicago City Railway Company and the Chicago West Division Railway Company, whereby the former company agreed to sell and convey to the latter all of its property, rights and privileges, and that, by deed executed on the next day, it did sell and convey to the Chicago West Division Railway Company all its property, rights and privileges. But the Chicago City Railway Company did not have at that time the right or privilege to charge a fare of five cents for a ride on the west side, and another fare of five cents for a ride on the south side, but it had only a right to charge five cents for a ride in both the west and south divisions of the city. There is nothing in the agreement or the deed, executed between the Chicago City Railway Company and the Chicago West Division Railway Company, which provides that the one should charge a full fare of five cents for a ride on the south side, and the other should charge a full fare of five cents for a ride on the west side. Nothing in the agreement or the deed specified what proportion of five cents for a full ride from one division to the other should be charged by each company after the separation between the two. Originally the Chicago City Railway Company had a right to lay its tracks and operate its' cars in the west division, as well as in the south division, and to charge a fare of five cents for a ride anywhere in the two divisions. It is left uncertain, by the acts of the legislature and by the agreements between the parties, as to how each company, after its separation from the other, should charge for the conveyance of passengers, and at what rate such charge should be made.
But, conceding that the effect of the acts of the legislature and of the ordinances, and of the agreements between the two corporations, was that each should charge five cents for a ride in the division in which it operated its cars, the question still remains whether the contract to make such charge passed by assignment or lease. Counsel for appellant contend that, by section 4 of the act of 1861, the Chicago West Division Railway Company had the power to lease its franchises and property; and this contention is correct. But, was the right conferred upon the original companies by the provision, that the rate of fare for any distance shall not exceed five cents, such a franchise or such property as could be transferred by lease? From some of the authorities it would seem to be true that the right, conferred by this provision, or these provisions, in regard to the rate of fare, was not a franchise, but a mere exemption.
If the provision, that the rate of fare for any distance should not exceed five cents, conferred upon each, of the original railway companies a mere exemption, it could not be transferred to another company by lease, or assignment, or otherwise. In St. Louis and San Francisco Raihoay Co. v. Gill, 156 U. S. 652, it appeared that, by an act of April 4, 1887, the legislature of Arkansas prescribed a maximum rate of three cents per mile for each passenger carried by the railroads of that State; that the St. Louis, Arkansas and Texas Railway Company, organized under the laws of Arkansas, had the right under the laws of the latter State, in force in April, 1880, when it was organized, to charge passenger rates not in excess of five cents per mile, so long as its profits did not exceed fifteen per cent per annum on the capital actually paid in, and that it subsequently leased its railroad to the St. Louis and San Francisco Railway Company; and the question was, whether the St. Louis and San Francisco Railway Company, as assignee of the St. Louis, Arkansas and Texas Railway Company, and owner of its road, franchises and privileges, had succeeded to the right to charge passenger rates not in excess of five cents per mile; and in deciding the case, the court, speaking by Mr. Justice Shiras, said: “It has been frequently decided by this court that a special statutory exemption, or privilege, such as immunity from taxation or a right to fix and determine rates of fare, does not accompany the property in its transfer to a purchaser, in the absence of express direction to that effect in the statute. (Morgan v. Louisiana, 93 U. S. 217; Wilson v. Gaines, 103 id. 417; Chesapeake and Ohio Railway Co. v. Miller, 114 id. 176.) We find here no such express statutory direction, nor is there any equivalent implication by necessary construction.” (See also Covington and Louisville Turnpike Road Co. v. Sandford, 164 U. S. 578; Picard v. Tennessee, etc. Railway Co. 130 id. 639). In the Sandford case, supra, the court, speaking by Mr.. Justice Harlan, said: “When a corporation succeeds to the rights, powers, and capacities of another corporation, it does not thereby or necessarily become entitled to an exemption from taxation. An exemption or immunity from taxation so vitally affects the exercise of powers essential to the proper conduct of public affairs, and to the support of government, that immunity or exemption from taxation is never sustained, unless it has been given in language clearly and unmistakably evincing a purpose to grant such immunity or exemption. All doubts upon the question must be resolved in favor of the public.” In the Picard case, supra, it was held that legislative immunity from taxation is a personal privilege, not transferable, and not to be extended beyond the immediate grantee, unless otherwise so declared in express terms. In the Gill case, supra, the right to fix and determine rates of fare was placed in the same category of exemptions, or privileges, as immunity from taxation. In Morgan v. Louisiana, 93 U. S. 223, it was held that immunity from taxation granted to a railroad company is not one of its franchises.
In the case at bar, there was no statutory direction, authorizing the transfer of the privilege here under consideration to a purchaser or lessee. The authority, given to the Chicago West Division Railway Company to lease its franchises and property, did not confer the authority to lease or transfer the exemption or privilege here under consideration. If the right conferred by section 4 of the act of 1861 to acquire, unite and exercise the powers, franchises, privileges or immunities conferred upon the Chicago City Railway Company, authorized the Chicago West Division Railway Company to acquire and become the owner of the privilege or exemption in question, it does not necessarily follow that it was thereby authorized to transfer or assign the same to the West Chicago Street Railroad Company, or any other person or corporation. So far as the North Chicago City Railway Company is concerned, there is nothing to show that the latter company ever attempted to transfer such privilege or exemption, granted to it by the act of 1859 and by the ordinance of May 23, 1859, to the North Chicago Street Railroad Company, or to the appellant, or to any other corporation. The grant is personal to the grantee, unless apt words are used showing that the grant is transferable by the grantee, and any doubt as to transferability must be solved against the same. (St. Louis, etc. Railroad Co. v. Gill, supra; Morgan v. Louisiana, supra; Yazoo, etc. Railroad Co. v. Thomas, 132 U. S. 174; W. & W. R. R. Co. v. Alsbrook, 146 id. 279; Delaware Railroad Tax, 18 Wall. 206.)
In Detroit v. Detroit Citizens' Street Railway Co. 184 U. S. 392, the question as to the transferability of such an exemption or privilege, as is here under consideration, did not arise. In that case it is said, in the statement of the case, that “the defendant, by its answer, makes no issue as to the validity of such assignments, or the ownership by complainant of all of the interests of the former companies in the contracts and ordinances set forth in the bill.” In the Detroit case, also, the city council of the city of Detroit was clothed by the legislature of Michigan with the power to contract with the street railroad company in regard to rates. Section 20 of the Street Railroad act, referred to in that case, provided that the rates of toll or fare, which any street railway company may charge for the transportation of passengers or persons over their road, shall be established by agreement between said company and the corporate authorities of the city or village where the road is located, etc.
In the case at bar, it is true that the act of 1859 confers the right to construct and operate a railway in such manner and upon such terms and conditions, with such rights and privileges, as the said common, council “may by contract with said parties,, or any or either of them, prescribe.” This language, standing by itself, would seem, under the doctrine of the Detroit case, to confer the power upon the common council to contract with a street railway company in regard to rates. But section 2 of the act of 1859 also grants the right to construct and operate railways “in such manner and upon such terms and conditions, with such rights and privileges, as the said common council has prescribed.” By this reference to the ordinance of August 16, 1858, passed under the charter power of the city, conferred by the act of 1851 as already stated, the legislature evidently regarded the fixing of the rate of fare over these street railways as an exercise of a governmental function of a legislative character by the city authorities under a delegated power from the legislature, as well as a subject for agreement between the parties. The ordinances, passed by the common council and insisted upon as embodying contracts, may have been passed, not in pursuance of the authority to contract in regard to rates, but in pursuance of the exercise, of the legislative power delegated to the city authorities by the legislature.
Let it be admitted, however, that we are wrong in the views heretofore expressed, and that, in view of the language contained in the acts of 1859 and 1861 and in the ordinances of 1858 and 1859, contracts were executed between the city and the Chicago West Division railway and the North Chicago City railway, as is claimed by the appellant. It will not be contended that the railway companies, which were parties to the contracts originally, or their assignees, if they were properly assigned, could not waive any provision of the contract, or consent to its change or modification. In the Detroit case, supra, the Supreme Court of the United States said, in reference to the contract there under consideration: “It is a contract, which gives the company the right to charge a rate of fare up to the sum of five cents for a single passenger, and leaves no power with the city to reduce it without the consent of the company.” It could be reduced, therefore, with the consent of the company. The question then is, whether there has been any consent on the part of the alleged assignees of the contracts in question to changes or modifications thereof.
If the West Division Railway Company leased its property and privileges in such a way, as to include the right to charge a rate of fare up to the sum of five cents for a single passenger, to the West Chicago Street Railroad Company, it made such lease to a corporation, organized under the general Incorporation act of this State; and if the North Chicago City Railway Company leased its property, privileges and franchises in such a way, as to include the right to charge a rate of fare up to the sum of five cents for a single passenger, to the North Chicago Street Railroad Company, such lease was made to a corporation organized under the general Incorporation act of this State. If the North Chicago Street Railroad Company executed a lease of its property and privileges so as to include the contract in question, to the appellant, it leased it to a corporation organized under the general Incorporation act of this State. The lease of the West Chicago Street Railroad Company to the appellant is in the record in this case. By making such leases to the Chicago Union Traction Company, did the West Chicago Street Railroad Company and the North Chicago Street Railroad Company consent to a modification and change of the contracts, which gave them the right to charge a rate of fare up to the sum of five cents for a single passenger?
As has already been stated, the object, for which the appellant was formed, was “to construct, own, purchase, acquire and lease street railroads in the city of Chicago, etc., * * * and to operate the said railroads owned and leased by it, with animal, cable, electric or other power, except steam locomotive.” One of the purposes, announced in its statement, for which the appellant was organized, was to lease street railroads. The business then, which it was to pursue, was not only the business of constructing, owning, purchasing and acquiring street railroads, but was the business of leasing street railroads. Inasmuch as appellant was organized under the general Incorporation act of this State, it was obliged to conduct its business in accordance with the provisions of that act. Section 1 of the general Incorporation act of this State provides “that corporations may be formed in the manner provided by this act for any lawful purpose except banking, insurance, real estate brokerage, the operation of railroads and the business of loaning money: Provided, that horse and dummy railroads, and organizations for the purchase and sale of real estate for burial purposes only, may be organized and conducted under the provisions of this act.” (1 Starr & Curt. Ann. Stat. ■—2d ed.—p. 988). That is to say, horse railroads “may be organized and conducted under the provisions of this act.” As appellant was organized under said act, its railroad must be conducted under the provisions of the act. It is the fundamental requirement of its charter, by which the State gave to it its existence, that its railroads should be conducted under the provisions of the general Incorporation act. Before the adoption of the constitution of 1870 great evils grew up in this State by reason of the granting of private charters to corporations. When the constitution was adopted, the people of the State determined to adopt a different policy, and to compel corporations, created by the State, to remain and be subject to the control of the people, speaking through their law-making power. Accordingly, in section 9 of the general Incorporation act it was provided as follows: “The General Assembly shall, at all times, have power to prescribe such regulations and provisions as it may deem advisable, which regulations and provisions shall be binding on any and all corporations formed under the provisions of this act: And, provided, further, that this act shall not be held to revive or extend any private charter or law heretofore granted or passed concerning any corporation.” (1 Starr & Curt. Ann. Stat.— 2d ed.—p. 1006). When, therefore, appellant was organized and consented that its railroads should be conducted under the provisions of the Incorporation act, it accepted its organization subject to the provision embodied in section 9. In the matter of operating roads leased by it, it was obliged to operate them under such regulations and provisions as the General Assembly might deem advisable. Such regulations and provisions were binding upon it, and it could not conduct its business except in subjection to such regulations and provisions. One of these regulations and provisions was that the common council of the city of Chicago had a right under its charter, as above referred to, to regulate the rates of fare to be charged by it, and to prescribe the compensation, to which it was entitled for the carriage of passengers. Unquestionably, if the appellant, after its organization, had constructed its road, it would be oblig'ed to operate that road subject to the requirements of section 9 above quoted; that is to say, subject to the power of the common council to regulate the rates of fare to be charged by it. When, in the statement of the purposes of its organization, it recites that it is formed for the purpose of leasing street railroads and operating leased railroads, it is just as much subject to regulation by the common council, as though it was operating a road constructed by itself.
In City of Danville v. Danville Water Co. 178 Ill. 299, this court said (p. 306): “The charter of a corporation, formed under the general Incorporation act, does not consist of its articles of association alone, but of such articles taken in connection with the law, under which the organization takes place. The provisions of the law enter into and form a part of the charter. (People ex rel. v. Chicago Gas Trust Co: 130 Ill. 268). Therefore, the provisions of the general Incorporation act must be regarded as entering into and forming a part of, the charter of the defendant in error.” Then, after quoting section 9 of the general Incorporation act, as above set forth, the court proceeds as follows: “By organizing under the general Incorporation act, the defendant in error agreed to submit itself to and to be bound by such regulations and provisions as the legislature should deem it advisable to make. The object of its creation was to furnish water to the city of Danville and the inhabitants thereof. The right of the legislature to regulate and provide for the rates, at which such water should be supplied, was a right reserved by section 9. The language of section 9 is different from, and broader in its scope than, the language contained in many charters, which reserve to the State the power to repeal, alter, amend or modify the charter itself. We apprehend, therefore, that the decisions, restricting the power of the State as to charters which are given subject to the right of the State to repeal, alter, amend or modify them, do not apply to such broad language as is used in section 9. By the terms of section 9, it is something more than the mere right to change the charter of the corporation, which is reserved to the legislature. The authority is thereby reserved to provide the regulations and provisions, under which the corporation may proceed in the transaction of its business.” These views were endorsed by the Supreme Court of the United States in the case of Freeport Water Co. v. Freeport City, 180 U. S. 596, as we understand that decision. In the latter case, the Supreme Court of the United States said in reference to this section 9: “The statute reserves to the General Assembly the power to prescribe in the government of corporations ‘such regulations and provisions as it may deem advisable. ’ The language is very comprehensive. Regarding it alone, it is difficult to conceive what objects of legislation are not covered by it. The Supreme Court of the State has construed it to be of greater import than the usual reservation of the power to alter and amend the charters of corporations. The plaintiff, however, contends that it was not intended by the terms, ‘regulations and provisions, ’ ‘to interfere with the internal business management of the corporation itself, ’ but to regulate ‘those classes of acts which control the relation existing between stockholders as individuals and the corporation as an. entirety, and the relations between corporations and third persons; that is, the manner of carrying on their business or exercising-the powers of a corporation.’ We think the construction is too narrow. The statute made no distinction between the internal and the external business of corporations,— between their relations to stockholders and their relations to third persons. Such are but special exertions of the power which the legislature possesses.”
When the West Chicago Street Railroad Company made the lease to the appellant, was appellant to operate the railroad, so leased to it, in accordance with the provisions of its own charter, or in accordance with the provisions of the contract as to the rate of fare, said to have been made by the lessor companies with the city of Chicago? If the appellant was obliged to operate the leased railways in accordance with the provisions of its own charter, then section 1723 was a valid ordinance, and appellant was bound to obey its requirements, as it was passed under a power delegated to the city by the legislature as heretofore stated. Even if such contracts as are here insisted upon were held and owned by the lessor companies, appellant could not operate the leased roads in accordance with the provisions of those contracts, because it was expressly forbidden to do so by its charter, and by the very terms of its,original organization. In Hays v. Ottawa, Oswego and Fox River Valley Railroad Co. 61 Ill. 422, we said that persons contracting with a corporation “must be presumed to act with full knowledge of its powers, and cannot complain when its acts are in accordance with the law of its creation.” The West Chicago Street Railroad Company and the North Chicago Street Railroad Company, when they made these leases—if any was made by the latter company—to the appellant, were obliged to take notice of the provisions and requirements of the appellant’s charter. .They themselves were organized under the general Incorporation act, and certainly were informed of the provisions of the act, under which they themselves had their own existence. In addition to this, the lease of the West Chicago Street Railroad Company to the appellant which is in the record, shows that the appellant had full knowledge of the provisions of the- appellee’s charter. Let it be granted that these lessor companies had contracts, which gave them the right to charge a rate of fare up to the sum of five cents for a single passenger, so that the city had no power to reduce the rate without their consent; it is at the same time true that the appellant was obliged under its charter to charge such rate of fare in the operation of the roads leased by it, as the common council, under its power granted by the legislature, should by ordinance prescribe. The lessor companies, by making the leases in question, abandoned their duty to the public. ■ They gave up the operation of their roads, and entrusted this function to the appellant. The lease of the West Chicago Street Railroad Compan}»' to the appellant, as set forth in the statement preceding this opinion, provides that the appellant is to become the absolute owner of the lessor company’s railroad property and privileges, so as to leave nothing in such lessor company, except the mere right to exist as a corporation. The general rule is, that a railroad company is a quasi public corporation and under peculiar obligations to the public, and that, consequently, it cannot make any contract, which will disable it from performing its public functions. (19 Am. & Eng. Ency. of Law,—1st ed.—pp. 895, 896, and cases in notes). The lessor companies, by thus submitting their roads to the operation of the appellant, impliedly agreed that the appellant should operate them under its own charter, and in accordance with the provisions of its own charter.
It is true, as a general rule, that, where one railroad company leases its property to another, the lessee must conform to the requirements of the charter of the lessor, and be governed by such charter, in operating the road. But this can only be true where the lessee company, in operating the road in accordance with the charter of the lessor, is not violating its own charter. The cases, announcing this rule, are cases where the lessee road had full power under its charter to operate the road of the lessor in accordance with the terms of the latter’s charter, and without conflict with the lessee’s charter. In St. Louis, Vandalia and Terre Haute Railroad Co. v. Terre Haute and Indianapolis Railroad Co. 145 U. S. 393, it was held that the statute of Illinois of February 12, 1855, empowering all railroad corporations incorporated under the laws of the State to make contracts and arrangements with each other, and with railroad corporations of other States, for leasing or running their roads, authorizes a railroad corporation of Illinois to make a lease of its road to a railroad corporation of another State, but confers no power upon a railroad corporation of another State to take such lease if not authorized to do so by the laws of its own State; and it was there said by Mr. Justice Gray, delivering the opinion of the court: “This was, in substance and effect, a lease of the railroad and franchise for a term of almost a thousand years, and was a contract which neither corporation had the lawful power to enter into, unless expressly authorized by the State which created it, and which, if beyond the scope of the lawful powers of either corporation, was unlawful and wholly void, could not be ratified or validated by either or both, and would support no action or suit by either against the other.” The same principle announced in that case is applicable here. The act of February 12, 1855, conferred no power on appellant to take a lease, and operate a leased railroad under the terms of the lessor’s charter, if it was not authorized to do so by its own charter. The act of 1855 has reference to the making of contracts and arrangements between railroad companies, already existing and in operation, for the leasing or running of their roads. For instance, one railroad company, whose construction has been completed and whose road is in operation, may make a contract or arrangement with another road for leasing or running that other road. There are some cases, which hold that a railroad, already constructed and required by law to charge a certain rate of fare, may lease and operate another road, and charge the rate of fare prescribed by the charter of the lessor company rather than that prescribed by its own charter. But these cases proceed upon the theory that the lessee road obeys its own charter in operating the part of the road constructed by itself, and operates the road, leased by it in connection with its own road, in accordance with the charter of the lessor road. In the case at bar, however, the appellant, so far as this record shows, never constructed or owned any railroad. The president of appellant testifies that appellant was organized for the express purpose of buying out the north and west side railroads. It does not operate a road, constructed by itself in part, in connection with another road leased by it for the purpose of' aiding and helping the operation of its own road. Appellant is a corporation, whose business is the leasing of railroads, and not the operation of a road leased in connection with another road constructed by it. The record shows that it operates no other roads except those leased by it. In its business of leasing, and operating leased railroads, it must comply with its own charter, that is to say, it must submit to reasonable regulations by the common council as to its rate of fare.
Section 9 of the Incorporation act, as above quoted, contains a proviso that the act shall not be held to extend any private charter. If appellant, organized under that act for the purpose of operating" leased roads, can operate them in accordance with the charter of the lessor roads it is extending the private charter of the lessor roads, because these lessor roads claim that their contracts were transferred and assigned to them by original roads which were organized under special charters. It is contrary to the provisions of our Incorporation act that private charters should thus be extended through the machinery of that act. Indeed, it is questionable whether appellant was properly organized for the purpose of leasing other railroads and terminating the performance of their duties to the public. Corporations, organized under the general Incorporation act, may be formed in the manner provided by that act for lawful purposes only. If, however, the leasing of other roads exclusively was a lawful purpose of appellant’s organization, it certainly was obliged to operate such roads in accordance with the provisions of its own charter, and not in violation thereof.
By the terms of the lease of June 1, 1899, executed by the West Chicago Street Railroad Company to the Chicago Union Traction Company, it is provided that the traction company “shall maintain and effectually operate said railways to the extent that it shall have the lawful right so to do.” Thus, by the very terms of the lease in question, the lessor only requires appellant as lessee to operate the leased railways to the extent that appellant shall have the lawful right so to do. ■ Appellant would not have the lawful right to operate these roads in accordance with the contract claimed, rather than in accordance with the provisions of its own charter. When the West Chicago Street Railroad Company authorized the appellant to operate the roads to the extent that it should have the lawful right so to do, it waived its right to insist upon the terms of the contract in question, and submitted itself to such terms as were proper under the charter of the appellant, to whom the lease was made.
For the reasons hereinbefore stated, we are of the opinion that, if there were any such contracts as are claimed by appellant, through assignment to it from the companies already mentioned, the enforcement of section 1723 is not a violation of those contracts. The lessor companies must be held to have waived the terms of the contracts when they executed the leases in question to appellant, and appellant is estopped from insisting upon the operation of the roads in strict accordance with the terms of such contracts, because it would thereby be violating the express requirements of its own charter.
Something has been said by counsel for appellant in the argument in regard to the constitutionality of the act of 1865, referred to in the statement preceding this opinion; but as the validity of th^t act is not necessarily involved in the decision of this case, we decline to pass upon it.
Third—If we understand the third point made by the appellant, it is that the ordinance of 1890, re-enacted in 1897, and known as sections 1723 and 1725, applied only to railroads existing at the time of its passage, and therefore could have no application to the appellant, having come into existence afterwards in 1899. We think that section 1723 is clearly prospective in its character. It refers to the “rate of fare to be charged.” The words ■“to be charged” refer to the future, to what is to be charged hereafter. The subsequent part of section 1723, which relates to transfer tickets, refers specially to any line of street railway which “does now or shall hereafter, within the limits of the city of Chicago, join, connect with, cross, intersect or come within a distance of two hundred feet of any other line,” etc. These words are certainly prospective in their meaning. The terms of the sections clearly apply to persons or corporations subsequently coming into existence. In Illinois Central Railroad Co. v. Chicago, 176 U. S. 653, it was held, in an opinion delivered by Mr. Justice Brown, that, under a section of a city charter providing that a railroad corporation should not locate its track within any city without the consent of the common council, such restriction was not limited to the city as bounded at the date of the charter, but applied also to the territory subsequently included within the city limits. In DeLima v. Bidwell, 182 U. S. 197, it was held by the same learned justice that a statute, prohibiting the sale of liquors to minors, applies not only to minors alive on the day the statute was passed, but to after-born minors.
Fourth—There is no evidence in the record tending to show that section 1723 is an unreasonable ordinance. What the earnings of the Union Traction Company are, or have been since its organization, or what the earnings of the West Chicago Street Railroad Company and of the North Chicago Street Railroad Company are, or have been, the testimony in the case does not show. If there was a reduction in the rate of fare, which appellant was entitled to charge, by the requirement as to the giving of transfers, as set out in section 1723, it was incumbent upon the appellant to prove that such reduction has so diminished its profits as to make the requirement unreasonable. It is possible that a reduction of rates might increase the amount of business and earnings of the appellant, instead of decreasing the same. The charge of a lower rate will often increase the number of passengers traveling upon the railroad to such an extent as to make the profits equal, if not superior, to those earned when a higher rate of fare is charged. (Chicago and Grand Trunk Railway Co. v. Wellman, 143 U. S. 343). In the latter case, the Supreme Court of the United States, speaking through Mr. Justice Brewer, said: “The legislature has power to fix rates and the extent of judicial interference is protection against unreasonable rates.” It is only where rates are made so unreasonable, as to make the enforcement of the law establishing them equivalent to taking property for public use without just compensation, that the Federal courts hold that the corporation has been deprived of its property without due process of law, and has been denied the equal protection of the laws. There being an entire absence of testimony as to the earnings or profits of the appellant, there is nothing in the three cases here under consideration to justify us in holding that there has been any infringement of this provision of the constitution.
The judgments of the criminal court of Cook county in the three cases here considered are affirmed.
Judgment affirmed.