227 Ill. 485 | Ill. | 1907
delivered the opinion of the court:
The pleadings, with the exceptions to the answer sustained, and the proofs of the parties, properly present the questions which we regard as material in this controversy.
The authority possessed by the Aurora company under its charter and under the ordinances of the city of Aurora, as to the Fifth street line operated by that company, is authority to operate the same as a street railway only. By those ordinances street railway transportation alone is contemplated.
The chief characteristic of a street railway is, that it is built upon and passes' along streets and avenues for the convenience of those moving from place to place thereon. Its fundamental purpose is to accommodate street travel, and not travel to or from points beyond the city’s lines. (Harvey v. Aurora and Geneva Railway Co. 174 Ill. 295; In re South Beach Railroad Co. 119 N. Y. 141; Diebold v. Kentucky Traction Co. 117 Ky. 146; Zehren v. Milwaukee Electric R. & L. Co. 99 Wis. 83; Rohn Township v. Street Railway Co. 167 Pa. 84.) Commercial railroads embrace all railroads for general freight and passenger traffic between one town and another, and street railways embrace all such as are constructed and operated in the public streets for the purpose of carrying passengers with the ordinary luggage from one point to another on the street. 1 Lewis on Eminent Domain, sec. 110a.
The Joliet company is not a railroad organized for the purpose of operating a street railway in a city or town, 'but its function is that of an ordinary commercial railroad. The Aurora Street Railway Company by its charter had power to construct and operate a street railway. The only authority from the city it could claim, to operate street cars on its Fifth street line, in Aurora, was by virtue of the licenses transferred to it in the manner set forth in the foregoing statement of facts.
The Joliet company was chartered under the general Railway act, and is engaged in operating an interurban railroad between Joliet and Aurora, and it does not have authority to enter the streets of the city of Aurora without the consent of the city. It could not of its own power propel any of its cars on any of the streets of the city of Aurora without the assent of the city council of that city. The right to occupy the streets of a city with a railroad track and propel cars thereon- can only be obtained by consent of the city council, and the council may prescribe the conditions and limitations under which license to occupy its streets may be granted. The city may require the payment of compensation for the license. (Byrne v. Chicago General Railway Co. 169 Ill. 75; Wells v. Northern Trust Co. 195 id. 288; 22 Am. & Eng. Ency. of Law,—2d ed.—22.) Such licenses are a legitimate source of city revenue.
The effect of the agreement between the Aurora company and the Joliet company, if it is enforcible, is to confer on the Joliet company authority to extend the line of its road into the streets of the city, and to propel its cars, manned by its employees who are paid out of its treasury, along the streets from the city limits to the transfer station of the Aurora company, which by the contract becomes, in effect, the depot of the Joliet company. The provision of the agreement that the employees of the Joliet company were to be deemed employees of the Aurora company while in the streets of the city though to be paid by the Joliet company, had no magical effect to convert the interurban coaches into street cars, or the passengers who were making trips from other points to Aurora, or vice versa, into passengers of a street car line proceeding from point to point within the city. The authority of the city of Aurora over its streets is not abrogated or at all diminished by the provisions of the contract.
The Appellate Court declared the contract did not confer lawful authority on the Joliet company to transport freight, express, baggage and mail in its cars along the street car tracks of the city. This holding was right, because the license and charter of the Aurora company are not broad enough to authorize the Aurora company to confer power on the Joliet company to transport baggage, freight, express and mail through the streets of Aurora. We think the same reasoning ought to be given application with respect to the authority granted to the Aurora company by charter and ordinances to operate its street cars and carry passengers on the Fifth street line. That authority is not broad enough to empower the Aurora company to confer upon the Joliet company the right to transport its passenger cars and passengers over the line in question.
An ordinance granting the privilege to a street railway company to lay its tracks and operate its cars in the city is always to be strictly construed in favor of the public and against the licensee. Nothing passes by mere implication against the public, and that which is not unequivocally granted is withheld. Holyoke Water Power Co. v. Lyman, 15 Wall. 500; Coosaw Mining Co. v. South Carolina, 144 U. S. 550; Packer v. S. & E. R. R. Co. 7 Harris, 211; People ex rel. v. Newton, 112 N. Y. 396.
The license to the Aurora company cannot be assigned by it so as to invest the Joliet company with power to operate the passenger traffic of a commercial railroad or interurban railroad through the streets of the city of Aurora. The Aurora company did not, by virtue of these ordinances, obtain the right to authorize a railroad company organized to transport passengers between points outside of the city to enter the city of Aurora and transact its business in and along the streets of said city of Aurora over the lines of the street railway. The city of Aurora possesses the power and authority to determine whether interurban railroads chartered and authorized to convey passengers to the city limits shall bring their cars and passengers within the city streets and transport them on, in and along the streets to a depot in the city.
It is earnestly insisted by appellees that the contract in question is authorized by sections 44 and 45 of chapter 114, Hurd’s Revised Statutes of 1905, which provide:
“Sec. 44. All railroad companies incorporated or organized under, or which may be incorporated or organized under the authority of the laws of this State, shall have power to make such contracts and arrangements with each other, and with railroad corporations of other States, for leasing or running their roads, or any part thereof; and also to contract for and hold in fee simple or otherwise, lands or buildings in this or other States for depot purposes; and also to purchase and hold such personal property as shall be necessary and convenient for carrying into effect the object of this act.
“Sec. 45. All railroad companies incorporated or organ- . ized, or which may be incorporated or organized as aforesaid, shall have the right of connecting with each other, and with the railroads of other States, on such terms as shall be mutually agreed upon by the companies interested in such connection.”
In City of Chicago v. Evans, 24 Ill. 52, it was held that two horse railways might, under the quoted sections, unite their roads and make running arrangements with each other, but the fact is there pointed' out that the two roads were “created for the same purpose.” It also appears that both were operating in the same city, and that each had permission from the municipal authorities to operate a street railway in the streets of the city. Appellee roads were not created for the same purpose, were not operating in the same city, and but one of them had permission from the city of Aurora to engage in operating a street railway in the streets of that city. We do not think'the case just referred to determines the question of their right to enter into this contract. A street railway is not an additional burden upon the street of a city, while a commercial railroad is a further burden upon such way. (Wilder v. Aurora, DeKalb and Rockford Traction Co. 216 Ill. 493.) It follows that a street railway company may not lawfully carry the cars of a commercial railroad for the purpose of transporting therein the passengers of the latter over the lines of the street railway without the permission of the city authorities of the city in which the lines in question are located. If it were otherwise, the power to determine when, where and in what manner interurban lines should enter a city and traverse its thoroughfares with passenger traffic would be lodged, in great part, not in the city authorities, but in the street railway company in every city where a street railway company is rightfully operated.
It is said, however, that the sections of the statute just quoted entered into and became a part of the ordinances passed by the city of Aurora under which the Aurora company now operates its street railway, and consequently, by such ordinances, the city authorized the Aurora company, as the successor of those to whom the ordinances originally ran, to grant unto the Joliet company the right to propel its passenger cars, or have them propelled, over the lines of the street railway. We think this position untenable. Not infrequently private individuals own the fee in the streets. In such instances the owners are not in any way damnified by the construction of a street railway in the streets, but operating a commercial railroad in the streets is an additional servitude upon the fee. Now, following the reasoning of the appellees, if the ordinance and the statute enable the street railway company to authorize the commercial railroad company to use the lines of the street railway over which to operate its cars without the permission of the city, it would seem that the ordinance and statute so enable the street railway company to confer such right without any reference to the objections of private individuals who may own the fee of the streets, and it would seem, in that event, that such individuals would be without recourse. The law is not so. Where a corporation chartered to operate an interurban railroad desires to enter a.city of this State and propel cars in and along the streets of the city for the purpose of transporting its passengers or freight into the city it must seek and obtain a license to do so from the city, subject to such reasonable rules and regulations as the municipality may find it necessary or proper to establish.
It is unnecessary to consider other points made by appellants.-
The judgment of the Appellate Court and the decree of the circuit court are each reversed, and the cause will be remanded to the circuit court with directions to enter a decree dissolving the injunction and dismissing the bill for want of equity.
Reversed and remanded, with directions.
Farmer and Vickers, JJ., took no part in the decision of this case.
