139 Ill. 46 | Ill. | 1891
delivered the opinion of the Court:
It is to our minds clear that both ordinances before us in this case are but parts of a single and entire scheme. They were adopted on the same day, and the latter expressly refers to, and is by its terms dependent upon, the adoption and enforcement of the former, and it requires that the entire cost and expense of enforcing both ordinances, and all damages which may be adjudged against the city by reason of their being adopted and enforced, shall be paid by the railroad companies. Moreover, the attempt to widen Archer avenue for the limited distance and in the peculiar manner described in the first ordinance is manifestly to meet a local want in that respect, and the second ordinance conclusively shows that that local want is space for laying down additional railroad tracks, and nothing else. It is also of some significance, as confirmatory of this view, that the petition for condemnation alleges that the first ordinance contemplates the closing and filling up of Ogden slip, and that can only be upon the assumption that the second ordinance is supplemental to the first, for Ogden slip is not mentioned or referred to, directly or indirectly, in the first ordinance. The case must, then, be treated precisely the same as if both ordinances had been embodied in -one, and we shall therefore treat them as a single ordinance for widening a street in the manner proposed, and, at the same time, giving the use of all the old street, at the place where the street is widened, and a part of the new street added by the widening, exclusively to certain railroad companies for laying and operating their tracks, and also for closing and filling up a public water-way.
Archer avenue is sixty feet wide. One steam railroad track is now laid on it, and operated by the Chicago and Alton Bail-road Company. The ordinance adds, at the point under consideration, one hundred feet to the street, and takes thirty feet of that and adds it to the sixty feet, making ninety feet, andi upon this authorizes the Chicago and Alton Railroad Company to lay and operate two additional tracks, and the Chicago, Madison and Northern Railroad Company to lay and operate-four tracks,—making in all seven tracks to be laid and operated by steam engines within this ninety feet, or one track for every twelve and six-sevenths feet, and then requires that the part thus to be used shall be cut off from the remaining seventy feet of the street to be added, by a stone or brick wall twelve feet in height. The space to be occupied by the railroad tracks has also a line for street cars operated within it, but-permission is given to remove that to the seventy feet south of the wall.
We shall take no time to demonstrate that the sixty feet of old street and the thirty feet of new street thus to be occupied by seven steam railroad tracks are exclusively devoted by the ordinance to the use of railroad companies. Hemmed in by the wall on the one side and by the buildings or enclosures on private property on the other, no rational being would, at the-risk of the inevitable dangers from passing engines and cars, use this part of the street as a common highway, unless under-stress of most extraordinary circumstances. It is not material that the public are not, by the words of the ordinance, forbidden the use of this part of the street,—the effect of the grant is inevitably an exclusion of all but these railroads from its-use, and the law deals with results, and not with mere forms, in such matters.
Undoubtedly, it has been held in many cases in this court that it is a legitimate use of a street to allow a- steam railroad track to be laid and operated upon it, when there is legislative authority therefor, but it has never been held that, under legislative authority merely authorizing tracks to be laid in streets, it is competent for a municipality to. grant the exclusive use of a street to a railroad company. The leading case on this question is Moses v. P. F. and G. R. R. Co. 21 Ill. 516. It was there sought to enjoin the laying of a railroad track in, a street, and it was held that it was admissible for a common council, invested with legislative authority to that end, to authorize a railroad track to be laid in the street, because streets-are for no exclusive mode of passage of persons and property, and therefore all modes may be tolerated. The gist of the reasoning is in the following sentence from the opinion of the' court: “A street is made for the passage of persons and property, and the law can not define what exclusive means of transportation and passage shall be used." In Stack v. City of East St. Louis, 85 Ill. 377, action was brought against the-city for permitting a railroad company to obstruct a street by a necessary embankment made for its tracks in approaching a bridge, and the action was maintained upon the ground, in part, that a railroad company can not be allowed to exclude other uses of the street, and it was, among other things, said in the opinion: “It has, however, been held that a city or village may authorize the laying of railroad tracks in their streets,—that such a use is not inconsistent with the trust for which they are held .by the city. But in thus permitting them to be used, the city has no right to so obstruct the streets as to deprive the public and adjacent property holders of their use as streets. The primary object is for ordinary^passage and travel, and the public and individuals can not be rightfully deprived of such use.” To like effect, also, is C. D. and C. Co. v. Garrity, 115 Ill. 155, and Olney v. Wharf, id. 523. And so it has been held in Missouri, it is not competent for a city to authorize such use of a street, dedicated as a street, as . will destroy it as a thoroughfare for the public. Dubash v. H. and St. J. R. R. Co. 89 Mo. 86. See, also, L. C. Ry. Co. v. City of Louisville, 8 Bush, 415.
It is so familiar that we need not stop to demonstrate it, that cities, villages and towns are only empowered to lay out, open and improve streets for such public use as that persons and property within the municipality may be legitimately assessed or taxed for payment therefor, and that persons and property within a municipality can not be legitimately assessed -or taxed for the right of way, or the making or improving of a road, for a railroad company alone. This being conceded, .authority will in vain be sought for a municipality to devote a street which has been improved and maintained by municipal expense, to an exclusive use for which it has no authority to lay out, open or improve it. We do not deny that the city has power to widen streets, generally, and that when it has undertaken to do so the motives that may have actuated those in authority are not the subject of judicial investigation; but the purpose for which a thing is done is very different from the motives which may have actuated those by whom it is ■done, and is, in the present instance, a legitimate subject of judicial investigation, for the right to exercise the power of •eminent domain is in all cases limited by the purpose for which it shall be exercised,—as thus, private property may be ■condemned for public use, but it may be shown that the use in fact is not public, but private. Railroad Co. v. Wiltse, 116 Ill. 454; Sholl v. Coal Co. 118 id. 427.
Statutes conferring power to exercise the right of eminent -domain are to be construed strictly. Unless both the letter .and spirit of the statute relied upon clearly confer the claimed power, it can not be exercised. (City of Mast St. Louis v. St. John, 47 Ill. 463; Railroad Co. v. Wiltse, and Sholl v. Coal Co. supra.) It is not a question whether the person or corporation seeking to exercise it might not do so with as great safety to persons and property as any other person or corporation, or whether it would work out an equitable result to allow a particular person or corporation to exercise it in a given case. The question is purely one of legal power. That person or corporation which the statute says may exercise it for a stated purpose may exercise it for that purpose, but for no other purpose, and no other person or corporation not thus author-, ized can exercise it for that purpose. And so we held in; C. and N. W. Ry. Co. v. Galt, 133 Ill. 657, that a .railroad company, under authority to condemn property for its right of, way, can not condemn property for a street of a city; and,. obviously, if this be true the reverse must also be true,—a city, can not, under authority to condemn property for streets, condemn property for a railroad track, for the principle must be the same.
But may the city here do indirectly, by mere change in the form, that which it can not do directly ? Although the city may not condemn property for the use of the railroad company, yet inasmuch as it may allow railroad tracks to be laid in its streets, may it not first condemn property for itself and then afterwards allow the railroad tracks to be laid upon it to the extent of excluding all other uses ? But we have seen that under the power merely to authorize railroad tracks to be laid on streets, a city has no right to authorize railroad tracks to be laid upon streets so as to exclude the other public uses of the street so long as it shall remain a public street, and here it is shown that the condemnation is for the express purpose of enabling the city to give an exclusive use of a part of the •old street, and thirty feet of additional space, to the exclusive use and occupation of railroad companies. The substance is not to be lost sight of through any mere jugglery in the use of words. This proceeding is, in fact, not for the city, but for the railroad companies. Between condemning for the railroad ■companies and condemning for the city to then give to the railroad companies, there is, in legal effect, and so far as concerns this case, no difference,—they are precisely the same thing.
We also fail to find any authority in the law to condemn and fill up Ogden slip. The evidence is much less satisfactory as to what this slip is than it should have been. There is enough, however, to show that it is a navigable water-way, connected with the south branch of Chicago river, and appurtenant to appellant’s lots. A map in evidence shows its location, and it was spoken of by witnesses, without objection, as appurtenant to these lots, and as a water-way. Thus,-George M. Bogue said he had examined appellant’s lots fronting on. Ogden slip; considered it as having a dock frontage. Edward Campbell said that he was familiar with Ogden slip. “Travel has been obstructed by vessels heavily laden getting stuck there in the slip; mostly in the summer time; vessels laden with coal. The slip was used but little last summer, mostly by canal boats for the stone yard. Larger vessels have not-used the slip lately.” Edward C. Huling said that appellant’s-property had a water front, and could receive from ships. “The closing up the slip,”—i. e., Ogden slip,—“would shut off' all water front.” There are other references in the testimony of the witnesses of like character, but these we think sufficient.
The right of navigation and the right of crossing the waterway are equal. Both are to be exercised, and the rights of each are to be guarded. [Ill. P. Co. v. P. B. Ass. 38 Ill. 467.) When a franchise is granted to construct ways or streets-across a water-way, there is no implied right to destroy the-water-way, but it must be so bridged that its use will not be unnecessarily impaired. (Elliott on Roads and Streets, 32, et seq.) If it be conceded that the State may authorize the taking or destruction of a water-way, it devolves on those wheel aim that the State has done so, to show it, and since that is not done by simply showing power to lay out, open and improve streets across water-ways, no such power is here shown.. Power is given the city by the 31st clause of section 1, article 5, chapter 24, of the Revised Statutes of 1874, page 218, “to-construct and keep in repair canals and slips for the accommodation of commerce,” but we have found no power granted to the city to close them and fill them up.
We think, construing, as we do, the two ordinances as one, the condemnation adjudged is for a purpose unauthorized by law, and the court erred in admitting the ordinances in evidence, and in rendering judgment as it did.
The judgment is reversed.
Judgment reversed.
Craig and Bailey, JJ., dissenting.