178 Ill. 594 | Ill. | 1899
delivered the opinion of the court:
The objection the petition is not verified by a sufficient affidavit has been obviated by an amended affidavit filed by leave of the court.
It is urged the writ is here sought to be availed of for the purpose of securing the fulfillment of the terms and conditions of a private contract, and that it is fundamental law mere contract obligations cannot be enforced by mandamus. The appellee is a quasi public corporation. The sovereign power, when granting a public franchise to corporations of that character, may declare certain acts in the nature of duties to the public shall be performed by the corporation to or upon whom the franchise is conferred, and may provide the investiture of the franchise shall be conditional upon the acceptance of the burden of performing such acts or service. It is now well settled that when there is a grant and acceptance of a public franchise involving the performance of such acts or service the corporation accepting the franchise may be compelled by the writ of mandamus to perform the duty so enjoined by the grant and consented to by the acceptance thereof. Merrell on Mandamus, secs. 27, 157, 159; Hangen v. Water Co. 28 Pac. Rep. 244; Illinois Central Railroad Co. v. State, 37 Ind. 489; City of Potwin Place v. Railroad Co. 51 Kan. 609; San Antonio S. R. W. Co. v. State, 38 S. W. Rep. 55.
But it is insisted the authority granted the respondent company by the ordinance under consideration is not a franchise but a mere licénse, and which, having been acted upon, has become irrevocable, and City of Belleville v. Citizens’ Horse Railway Co. 152 Ill. 171, is cited as in support of the contention. The General Assembly, representing the people at large, possesses full and paramount power over all highways, streets, alleys, and like public places in the State. Had the charter which gives life to the respondent company been granted upon the conditions expressed in the ordinance under consideration, and had the company accepted such charter as it did the ordinance and acted under it in like manner as under the ordinance, the enforcement of the service and duties imposed by the charter might, it is clear, have been accomplished by the aid of the writ of mandamus,- though the right obtained by the charter to enter upon the streets of the village be in such case but a license. The State does not, however, exercise directly that full paramount power which it possesses over streets, alleys, etc., but in the distribution of governmental powers the General Assembly adopted the policy of selecting the cities and villages of the State as governmental agencies and delegating to such municipalities the power to regulate and control the use of the streets, alleys, etc., within their respective limits. Such power thus delegated is exercised by the municipal authorities acting in behalf of the State for the benefit of the public.
While it is true the charter of a street railway corporation is granted under the general laws of the State, yet a charter so obtained gives but the bare power to exist. In order to enable such a corporation to carry out the sole purpose for which it has existence it must have a further exercise of sovereign power in its behalf. Some city or village clothed, by delegation, with authority to exercise sovereign power possessed by the State must grant such corporation authority to enter upon its streets and alleys and construct and operate its road there. The power possessed by the State to attach as conditions to such a grant the performance of duties owing by a quasi public corporation to the public, and directly beneficial to the public, may be exercised by a municipality in the exercise of the power by it possessed by delegation from the State to permit the use of its streets, alleys and public places by the corporation. It is clearly shown by the petition and ordinance the respondent company is operating a street railway. It was invested with corporate life and was granted corporate powers to enable it to serve the public as a public carrier of passengers. Its property is impressed with a public use, and it must exert its powers for the benefit of the public. It is not a private but a quasi public corporation, and owes it as a duty to the public to demand reasonable rates only for the transportation of passengers and to serve its patrons without unjust discrimination, and this duty may be enforced by the State acting" directly or through a governmental agency. (Rogers Park Water Co. v. Fergus, ante, p. 671, and authorities cited.) The ordinance, the acceptance thereof and the enjoyment of the benefits of its provisions by the respondent company must be regarded as establishing, so far as the respondent company is concerned, and as estopping it to deny, that the exaction of a greater sum for the transportation of passengers from its stopping places in the village of Eiver Forest to the city of Chicago than is demanded for the like service from stopping places on its line within the specified portion of the town of Cicero is an unreasonable exaction and unjust discrimination against those of the public who may desire to reach Chicago from the villag'e of River Forest by way of the cars of the respondent company. That being established, compliance with the provisions of the ordinance in the respect named becomes a duty to the public the performance whereof is within the right and power of the village, acting as the agency of the State, to secure by means of the conditions incorporated in the ordinance. The fact the ordinance required the company should formally accept it as conditioned had no effect to render the grant a mere private contract. The State, through the village as its representative, was acting, and the power which was exercised by the village was that of the sovereign. That which the ordinance required the company should do and should consent to do did not become mere contract obligations on the part of the company to perform acts beneficial to the village. The village, as a corporate entity, had no interest whatever in the acts to be performed. Compliance with the ordinance in the respect under consideration was not beneficial to the village in its corporate capacity, but was a duty to the public to be performed by the company for the benefit of the public. There is nothing in the nature of that duty rendering it impracticable to enforce the performance of it by the writ of mandamus, and in our view the writ may be invoked to secure observance by the respondent company.
Respondent, treating the duties imposed upon it as mere contract obligations, argues the undertaking's are wholly without consideration. In the absence of the ordinance the respondent company had no power or right to enter upon the streets of the village and erect poles, string wires thereon and construct and operate its road by electricity upon and along such streets. These privileges constitute ample consideration, if any could be deemed necessary. The privileges granted the respondent company by the terms of the ordinance have been and are being fully enjoyed by it. It cannot be permitted to take and retain all advantages and benefits of the ordinance, and escape performance of duties to the public upon which its rights to such advantages and benefits are predicated upon the ground the ordinance and the duties imposed by it are ultra vires both the village and the respondent company. The plea of ultra vires will not, as a general rule, prevail when it will not advance justice, but will, on the contrary, accomplish a legal wrong; and it is a general rule that undertakings, though they be ultra vires, will be enforced against quasi public corporations if said corporations retain and enjoy the benefits of concessions granted on condition such undertakings should be performed. Heims Brewing Co. v. Flannery, 137 Ill. 309; Kadish v. Garden City Building and Loan Ass. 151 id. 531; Eckman v. Chicago, Burlington and Quincy Railroad Co. 169 id. 312.
Whether mandamus will lie to require the respondent company to transport passengers beyond its own line does not arise. It appears from the petition the respondent company has perfected running arrangements with other lines of railroad, and is engaged in transporting its passengers, by means of its own cars and the cars of connecting lines, to and around the “loop” in the city of Chicago, and that it offers such service at all points in the village of River Forest, and the complaint is, it exacts a greater rate of fare for twelve continuous rides from points in the village of River Forest to and around the “loop” in the city of Chicago than is charged for a like number of rides from the designated points in the town of Cicero, contrary to its duty and obligation under the ordinance. The purpose of the petition is not to require the respondent to make arrangements with connecting carriers to carry passengers beyond its own line, for such arrangements already exist, and the respondent company is engaged in the business of furnishing transportation from the village of River Forest to and from the city of Chicago, but the design of the writ is to prevent discrimination in rates charged at points in the village and in that portion of the town of Cicero specified in the ordinance.
There is no force in the point, vigorously pressed, that if mandamus will lie it cannot be granted at the application of the relator in this petition. The village, in its corporate capacity, has no interest in the enforcement of duties owing by the company to the public. As a corporate entity the village is not affected by compliance or non-compliance with the rates of fare charged or collected by the respondent from the passengers. The writ relates to a matter affecting the public. The people are regarded as the real party, and it need not appear the relator has any legal interest in the result. It is enough he is a citizen, and is interested, as a citizen, in having the right enforced. (County of Pike v. People, 11 Ill. 202; City of Ottawa v. People, 48 id. 233; Hall v. People, 57 id. 307.) The demurrer must be and is overruled.
Counsel for respondent company ask that in case the demurrer be overruled it be allowed to raise an issue of fact, and in support say, “the company is not selling the twelve fares for one dollar, and was not at the time the petition was filed.” The facts averred are, the respondent company did, on or about March 2, 1898, offer, and has since then offered, such tickets for sale from said points in said town of Cicero, and the petition set forth a copy of such tickets sold by the company and a copy of the following notice posted by the company in the cars operated by it, viz.:
“Notice.—On and after Wednesday, March 2, 1898, tickets will be sold—twelve rides for one dollar—by conductors on the cars of this company, good for one continuous ride, from stopping points in the town of Cicero over this line of the Suburban Railroad Company and the Lake Street Elevated railroad and around the Union loop in the city of Chicago, the use of the tickets to be governed by the rules of the respective railroad companies. J. M. Roach,
President Suburban Railroad Co.”
The petition further avers the respondent refused to sell like tickets good from points in the village of River Forest. The facts which counsel say they desire to establish if an issue of fact is raised, it will be observed, do not meet the case made by the averments of the petition, but in truth amount to an admission the averments of the petition are true, but that the company had stopped selling the tickets at the time when the petition was, after leave given, filed in this court, and had not sold such tickets since the filing of the petition. The facts so stated in effect concede the averments of the petition to be true, and the entire argument of counsel for the respondent is, it has full legal right to sell the commutation tickets from points in the town of Cicero and to refuse to sell such tickets from points in the village of River Forest. It is manifest the only real issues in the case are those of law raised by the demurrer. The statute does not govern the practice in mandamus suits begun in this court. (People v. Thistlewood, 103 Ill. 139.) This court, in its discretion, may or may not allow an issue of fact to be made after the case has been submitted on demurrer to the petition. (People v. McCormick, 106 Ill. 184.) It is manifest, in the exercise of a sound discretion we should proceed to final judgment on the issue of law on which both parties have been fully heard.
The judgment of the court is, a peremptory writ of mandamus issue commanding the respondent, said Suburban Railroad Company, that at all times when it shall sell or cause to be sold said tickets of twelve rides for one dollar, good for one continuous ride from any stopping point in the town of Cicero west of the east line of Central avenue, in said town, over the lines of said Suburban Railroad Company and the said Lake Street Elevated Railroad Company to and from any point on the Union loop in the city of Chicago, said Suburban Railroad Company shall also sell, or cause to be sold on demand, passenger tickets of twelve rides for one dollar each, good from any stopping point on its said railroad line in the village of River Forest, over the lines of said Suburban Railroad Company and the said Lake Street Elevated Railroad Company to and from any point on the said Union loop in the city of Chicago, with equal facilities for the purchase of said tickets, as prayed in the petition. Writ awarded.
