118 Ill. 113 | Ill. | 1886
delivered the opinion of the Court:
The Chicago West Division Bailway Company, under the terms of its charter, was authorized to construct, maintain and operate a single or double track railway along such streets in the west division of the city of Chicago as the common council shall, from time to time, authorize, upon such terms and conditions, and with such rights and privileges, as the council has, or may, by contract, prescribe. On the 2d day of August, 1880, a petition was signed by a majority of owners of land, representing more than one-half of the frontage on Ogden avenue, between Western avenue and the city limits, and presented to the common council, in which the common council was requested to grant the Chicago West Division Bailway Company permission to lay its tracks upon Ogden avenue, from Western avenue to Crawford avenue. No conditions were prescribed in this petition, but it contained the request that the common council would also pass such ordinance, or issue such order, as may be legally authorized, to compel the railway company to lay its tracks and run its cars upon the extended line, without unnecessary delay, after permission is given to occupy the streets. On the 7th day of August, 1881, the common council passed an ordinance, section 1 of which authorized the railroad company to extend its line of road from its present" terminus, at or near Western avenue, to the western limits of Chicago. Section 2 is as follows: “Said permission and consent to extend shall be conditional upon the acceptance by said Chicago West Division Bailway Company, of this ordinance, within ten days after its passage, and approval by the mayor, and their agreement to comply with all its conditions; and upon the further conditions that said tracks shall be laid and in actual operation from Western avenue to the western line of Douglas Park on or before the 1st day of June, 1881, and from the western line of Douglas Park to Lawndale, as soon as the same can be constructed, operated and kept in repair without actual loss.” On the 23d of February following, the railroad company filed in the office of the city clerk its written acceptance of the ordinance. The road has been constructed, and is in operation, from Western avenue to Douglas Park, and the question presented by this record is, whether the railway company can be compelled by mandamus to construct and operate a line of road from Douglas Park to Lawndale.
In the answer to the petition, the railway company, among other things, denied that the extension of its line from Douglas Park to Lawndale ever could have been or could then be constructed, operated and kept in repair without actual loss. To the answer the petitioner demurred. The court overruled the demurrer, and as the petitioner abided by the demurrer, the writ was dismissed.
Whether a railway company can be compelled to construct and operate a line of railroad, by mandamus, may w'ell be doubted, but we do not find it necessary to decide that question, as the decision of the case may properly be placed upon other grounds. It is not claimed that the charter, under which the railway company derived its corporate powers, of itself imposed the obligation to construct this particular line of road, but the obligation, if any exists, arises from the ordinance adopted by the city of Chicago, and the acceptance of its provisions by the railway company. This being the case, an examination of the terms and conditions of the ordinance, and its acceptance, seems to be necessary to determine, the rights, the duties and obligations of the parties.
As said before, the first section of the ordinance authorized the railway company to construct and operate a line of road on Ogden avenue, from Western avenue to the western limits of the city. The second section imposed the conditions: 'The first requires the acceptance of the ordinance by the railway company within a specified time. Second, that the tracks shall be laid and the road in operation from Western avenue to the western line of Douglas Park on or before the 1st day of June, 1881; and third, from the western line of Douglas Park to Lawndale, as soon as the road can be constructed, operated and kept in repair without actual loss. These, alone, were the conditions imposed by the city of Chicago upon the railway company when it accepted the ordinance and agreed to be bound by its terms and conditions, and it is plain that other and additional conditions could not be imposed without its consent. Under the ordinance which was accepted by the railway company, it was not bound to construct and operate a line of road from Douglas Park to Lawndale until it could be built, operated and kept in repair without actual loss. In the answer, which is admitted to be true by the 'demurrer, it is clearly alleged that the road can mot be constructed and kept in repair without loss. With this conceded fact in the record, i-t seems too plain for argument that no obligation rests on the railway company to construct and operate this part of the road.
But it is set up in the petition, that on the 4th day of August, 1884, the city of Chicago passed an ordinance requiring the railway company, within sixty days after being notified of the action of the city, to extend its line of road to Lawndale. This evidence can have no bearing on the question involved. In the original ordinance, no right, to alter or change the terms upon which the railway company accepted the terms of the ordinance, was reserved, and in the absence of such reservation we are aware of no principle upon which the city, without the consent of the railway company, can impose upon it other and additional obligations. When the common council gave the railway company permission to occupy the streets of the •city, it then had the right to impose such conditions in regard io the time within which the line of road should be completed, as in its judgment the public interest of the city required, but after it had acted and its terms had been accepted, it would be manifestly unjust and unwise to allow the common council arbitrarily to impose other and different terms. Doubtless the common council, notwithstanding the grant to the railway ■company of the right to use the streets, retained full power ■and authority over the streets to improve them, and use them for all purposes for which they were dedicated to public use. But that reserved power conferred no right on the common •council to compel, by ordinance, the construction and operation of a street railway.
The petitioner, however, concedes, in the argument, that he is bound by the ordinance which was accepted by the railway company, in so far as it conforms to the consent of a majority •of the land owners, but he insists that section 2 of the ordinance, which provides for the building of the road to Lawn-dale as soon as the same can be constructed and operated without loss, is void. This position is founded on a misconception of what we conceive to be a fair and reasonable construction to be placed upon the written consent submitted by ihe land owners to the common council, upon which that body acted when it passed the ordinance. The petition is addressed to the mayor and common council, and after reciting that petitioners are a majority by frontage of those owning property on the q>roposed line, proceeds: “Being desirous of having the West Division City Bailway Company extend its line from its present terminus to or beyond Douglas Park, * * * ■petition * * * your body to grant permission to said company to lay their tracks upon Ogden avenue, from Western avenue to Crawford avenue. And your petitioners would further * * * request your * * * body to pass such ordinance or issue such order as you may be legally authorized to do, to compel said company to lay its tracks and run its cars upon- said extended line without unnecessary delay, after you have authorized it so to do. ” This is the document which led to the passage of the ordinance, section 2 of which it is said is void, as not being authorized by it. It is true, that the property owners might have inserted such conditions in their assent as they thought proper, and the common council might have been powerless to grant the railway company permission to occupy the streets except upon the conditions specified by the property owners in their consent, but the paper does not seem to contain conditions. The grant of the right was not requested upon any condition. The latter part of the paper expresses a request that the railway company might be required to lay its tracks and run its cars without unnecessary delay, but consent is not given on this condition or even any other condition. Under the consent, as expressed in the writing, the common council possessed the power to act as in their judgment the best interests of the public required. This they did by the passage of the ordinance, and it is not for the courts to say that the ordinance, as framed, passed, and accepted by the railway company, was wise or unwise. It is enough that the common council were authorized to pass the ordinance. Their discretionary power as to its terms and conditions is not a subject of review.
Other matters, not however of controlling importance, have been discussed, but it will not be necessary to follow the argument in detail. We perceive no ground upon which the petition can be sustained.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.