215 Ill. 604 | Ill. | 1905
delivered the opinion of the court:
The bill in this case was filed against the city of Chicago for the purpose of having the circuit court direct the law-officers of said city what defense they shall interpose upon behalf of the city in certain suits brought in the Circuit Court of the United States against said city, involving the validity of the franchises of certain street railway companies to operate street railroads in certain of the streets of said city.
The city of Chicago has a law department, which is charged with the duty of representing said city in court in all suits at law, in equity or otherwise, which may be brought against it, and for- a court of chancery, upon a bill filed for that purpose, to undertake to determine, at the suit of a taxpayer, what defense should be interposed in suits brought against the city, would be to usurp the functions of the law department of the qity and would lead to hopeless and endless confusion. If one tax-payer may file such a bill then every tax-payer may, and if such a bill can be maintained in this case then a similar bill can be maintained in every case where there is a suit in court and the city is a defendant. The city, in its answer, denied that it admitted in the suits commenced against it in the United States Circuit Court that the said acts of 1859, 1861 and 1865, or either of them, were valid enactments or constituted a contract affecting the property rights of the city or its revenue, and averred that it does not now, and never did, intend to allow a decree to be entered against the city in said cases without a full and fair presentation of the validity of said acts, and each of them, so that the court should fully and advisedly give its judgment thereon, and so that in case any such decree should be adverse to the city the invalidity of said supposed laws may be fully presented and tried and determined by the Appellate and Supreme Courts of the United States. These averments are not denied and must be taken as true. The contention, therefore, between the appellant and the city is narrowed to this: that the appellant and the law officers of the city differ as to the most effectual manner of defending said suits on behalf of the city in the United States Circuit Court, and the appellant asks the court to decide that his theory of the defense of said suits is correct and require the law officers of the city to proceed with the defense of said actions in accordance with the view of appellant. In the litigation in the United States Circuit Court, the same as in this case and all others, the city must be represented by its law officers, and they must be permitted, without interference from the courts, by injunction or otherwise, to represent the city in such manner as in their judgment will best subserve and protect its interests. If the people of Chicago are not satisfied with the manner in which their interests are protected by the law department of that city, the law has pointed out a method whereby they may change that department; but each citizen, resident and tax-payer cannot go into a court of chancery and obtain a decree commanding said law department what sort of a defense it shall interpose in the numerous actions which may be brought against the city, every time the city is sued.
It is also clear that the bill is without equity in so far as it attempts to enjoin the city council from passing any ordinance or making any contract with reference to the use of .the streets of Chicago for street railway purposes, which recognizes in any way the validity of said acts, or- either of them. The city council, under the general Incorporation act, which is in force in the city of Chicago, has full power to pass an ordinance granting to a street railway company» the right to operate its street railroad in the streets of the city, subject to such limitations as have been imposed upon such municipalities by the legislature, and in so doing may prescribe the terms and conditions upon which such company may occupy the streets of the city with its tracks, cars, etc. The city, in passing such an ordinance, performs a legislative function, and in so doing acts as a governmental agency of the State, and the ordinance, when passed, has the force and effect of a law of the State. In People v. Suburban Railroad Co. 178 Ill. 594, on page 605, it is said: “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.” The general rule is, that a court of chancery will not enjoin the exercise by a city council of a legislative power, such as the granting of a street railway ordinance. (Stevens v. St. Mary’s Training School, 144 Ill. 336; Dickey v. Reed, 78 id. 261; State v. Superior Court of Milwaukee County, 48 L. R. A. 819.) Cases may be found where a county or city has been enjoined from wrongfully disposing of the property or funds of the municipality. Those cases, however, on examination will be found-to be cases in which the municipality controlled the property or fund in its proprietary capacity, for the benefit of the citizen, (McCord v. Pike, 121 Ill. 288; City of Mt. Carmel v. Shaw, 155 id. 37;) and not in its governmental capacity, as an agency for the State, under specific powers defined by the legislature, for the benefit of the public at large. The courts generally exercise their restraining power against the enforcement, rather than the passage, of unauthorized contracts, resolutions or ordinances by municipal corporations. Stevens v. St. Mary’s Training School, supra.
The appellant has devoted a large portion of his brief to a discussion of the constitutionality of the acts hereinbefore referred to. From the view, however, we take of the case, it is not necessary that the question of the constitutionality of those acts be now determined. If contracts were made or ordinances passed by virtue of said legislation which affect the property rights of the complainant and other tax-payers of the city, and the street railway companies attempt to occupy the streets of the city by reason thereof, it will then be time enough to pass upon the question whether or not the city has the power to make such contracts or pass such ordinances under and by virtue of said legislation. In Stevens v. St. Mary’s Training School, supra, on page 351, the court, after an exhaustive review of the authorities, said: “The weight of authority and the tendency of the more recent decisions are' in favor of the position that the restraining power of the courts should be directed against the enforcement, rather than the passage, of unauthorized orders and resolutions, or ordinances, by municipal corporations.”
Finding no reversible error in this record the decree of the circuit court will be affirmed.
„ Decree ainrmea.
