155 N.E. 781 | Ill. | 1926
This appeal is from the decision of the circuit court of Cook county dismissing the petition of the city of Chicago in which it asked that a writ of mandamus issue directing the Chicago City Railway Company to remove its tracks and trolley poles from their existing location in Twenty-second street between Archer avenue and Michigan avenue and re-locate them in the same street to conform to the center line of said street as and when widened.
Twenty-second street is an east and west street in the city of Chicago, 66 feet in width, with a paved roadway of 38 feet. As an aid to the lake front improvement the city council has, under the Local Improvement act, instituted proceedings for the widening of Twenty-second street west from Michigan avenue to Archer avenue by condemning a 54-foot strip of land on the south side of the street. The railway company now maintains a double track occupying a 16-foot strip in the center of the old 38-foot roadway. The new roadway is to be 88 feet wide, and if the street car tracks were to remain in their present location the north line of the 16-foot strip would be nine feet from the north curb and the south line of the strip would be 63 feet from the south curb. The traffic on Twenty-second street at the point in question is heavy, and when the street has been improved as planned it will be a part of one of the main arteries of travel south from the principal business district and traffic on it will be greatly increased. The improvement cannot be completed according to plans and specifications *620 unless the tracks of the railway company be located on a strip in the middle of the street. All these facts are admitted by the pleadings, and it is also admitted that the public improvement will promote the public welfare, comfort and convenience.
The concrete case arising on the record in this case is this: The city of Chicago, a municipal corporation charged with the duty of providing and maintaining safe and adequate streets for the public welfare and convenience, has adopted a reasonable and suitable plan to accomplish that object. That plan cannot be carried out unless the railway tracks and trolley poles erected in what will be the north half of the street as and when widened are removed. Their removal will render it necessary for the railway company to reconstruct them in the middle of the widened street if it continues to operate its road. The re-location will cost about $300,000.
Appellee contended in the circuit court that an order requiring it to re-locate its tracks at its own expense would deprive it of its property without due process of law, would take and damage its property for public use without compensation, and would impair the obligation of its contract ordinances with appellant, contrary to the constitution of this State and the constitution of the United States, and its contentions were sustained. These questions are certified to this court in accordance with section 104 Of the Practice act.
A street railway acquires no interest or estate in the soil by laying its rails on the streets under an ordinance permitting it. The grant made by the city is merely a license to the railway company to construct and operate its road upon certain streets, (City of Sullivan v. Central Illinois PublicService Co.
The ordinance of 1907 which authorizes the railway company to construct, maintain and operate its system of street railways in the streets of the city of Chicago provides that "the exact location of tracks in the streets shall be subject to the approval of the commissioner of public works." The tracks in question were located in Twenty-second street with the approval of the commissioner, and appellee seems to contend that the city is thereby estopped to require it to re-locate its tracks at its own expense. This provision in the ordinance did not change the relation of the parties. Without the provision the city had the right to direct the location of the tracks in the streets so as to protect the public in its use of the streets. The ordinance specifically provides that nothing contained in it shall be construed to deprive the city of its right to exercise the police power which it had at the time the ordinance was passed, but this provision was merely declaratory of the law as it already existed. There is nothing in the ordinance to indicate that the city has surrendered any of its power and authority to control and improve its streets, and if there were it would be void. The power of the city to protect the public in the use of its streets cannot be abrogated by *623
ordinance or relinquished by contract. New Orleans Gas LightCo. v. Drainage Com.
This case has been tried and is presented to us on the theory that these railway tracks in Twenty-second street must be re-located in the middle of the street as and when widened and that the proper notice has been given the railway company by the city to re-locate these tracks. The company, however, insists that, granting the city has the power to compel the re-location and removal of its tracks to the new location, it can do so only by exercise of the power of eminent domain. This argument is based upon the contention that the right to occupy the street with its tracks at the place where they are located and constructed is a property right, of which it cannot be deprived without compensation. What we have already said disposes of these contentions. The contract under which the company constructed its street railroad was granted and accepted subject to the right of the city to regulate the use of the public streets. (Hammond, Whiting and East ChicagoRailway Co. v. Zeigler, — Ind. —,
Every legal question presented on this record is well settled. A review of the authorities shows that they are in harmony in holding that a municipality cannot surrender its power to control and regulate its streets, and that it is not liable to companies having a right by ordinance to place their appliances in the streets for expenses incurred in readjusting their appliances to meet conditions created by the municipality in making public improvements to promote the public convenience and necessity, when made in a reasonable manner. It is also uniformly held that the municipality, in causing such expenses, does not infringe the constitutional provision against the taking of property without compensation and the impairment of contracts, nor does it constitute a denial of due process of law. It is conceded by the railway company that the widening of Twenty-second street is necessary to handle the traffic at this point, that the improvement will promote the public safety and convenience, and that it is being carried out in a reasonable manner. We have given to the elaborate brief filed by the railway company the consideration which the consequences of our decision to the company and to the public demand, but we fail to find in the authorities cited support for its contention. *625
The court erred in its rulings on the questions of law submitted and certified and in overruling the demurrer of appellant to appellee's amended answer. The judgment is therefore reversed and the cause remanded to the circuit court of Cook county for further proceedings.
Reversed and remanded.
Mr. JUSTICE DUNCAN, dissenting.