*1 TERM,'1905. Syllabus. U. n only from from ex- try know its not its text but purpose, ternal ac- circumstances. His needs be misunderstanding counted for.' The of the citizens misunderstanding protesting to be cannot be Explanation needs accounted fo.r. in a syl- found the act. There is not asserting ambiguities lable of evidence to indicate that or re- any perceived were Governor was confident his garded consequence.. Of of the effects of the and could act, views. one one which result, not correct, unless his construction was he said he had it heard no claimed for than that which he entertained other doubt, therefore, with him, There was no no expressed. are, advocates. We however, measure its disguise now asked alone saw or to believe either legislature was real measure, passed merits it persuaded over a with conscious- veto ignorant opposition, groundless now ness that would be construed to have the meaning am constrained to dis- I am unable to so believe and given it! from sent the judgment. STREET RAILROAD COMPANY
WEST CHICAGO rel. CITY ILLINOIS ex OF THE PEOPLE STATE OF OF CHICAGO. ILLINOIS.
ERROR TO THE COURT OF THE STATE OF SUPREME Argued January 10, 11, April 9, No. 241. 1906. Decided rests-partly judgment grounds on of local Although the of the state court law, opinion may expressly although refer general States, necessary operation judg- if United Constitution up claim, right specially a constitutional set rejects-a based ment case, cannot, prayed view of the answer, relief process or due clauses consistently with contract granted jurisdiction to review under Rev. Stat. Constitution,-this, has § court paramount, public and the owner of right navigable a stream the In so far as only use it consistent with bed can under the- soil flows, navigable through a stream municipality, which right; and a itself navigation thereof nor bind grant to obstruct cannot obstruction, and this rule is not affected anof permit the continuance CHICAGO RAILROAD a. CHICAGO. Argument for Plaintiff Error. person claiming right by the continue such an fact that obstruc- tion is the owner in fee of bed of the stream. *2 municipal giving permission company, A a ordinance to street railroad to a.navigable stream, a pro- construct tunnel under the law the State viding railways interrupt shall not constructed so as to the navi- water, State, any gation of in. the does not amount to a contract under Constitution, the contract clause of the so that the could not subse- quently require company the to lower the so as not to interfere nor, navigation; any with the demands of increased the absence of effect, provision containing implied would it be construed as an municipality expense covenant that the would bear the of such altera- subsequent required by tions ordinances. municipality duty A is under of protecting naviga- the the unobstructed- jurisdiction; navigable ‘exempted tion of rivfersunder its cannot be and it by making agreements regard therefrom thereto. may through forms, interfere,, Courts look and behind mere whenever n necessary, protection private rights against for the an illegal; arbitrary , governmental power. exercise of right' company The of a railroad navigable maintain tunnel under a a subject paramount public right is navigation, and where has been municipal it constructed under ordinance and state law that interrupt navigation, not duty it shall the obstructing of not navi- the gation one; and,,if a. continuing the increased demands of require deeper time channel originally- than when tunnel was constructed, power it is municipality within compel railroad'company at the latter’s expense own to either remove the tunnel lower, in; commerce, and,.as to conform with the necessities of this action, case, Congress, rule established act and such unconstitutional, municipality is not and does not amount either to taking property compensation, for use without depriving Q. company property process C., of its without due of law. B. & Drainage Commission, R. R. Co. v. 200 U. S. followed. The facts are stated the opinion.
Mr. John P. Wilson, with whom Mr. Charles S. Babcock was brief, on the plaintiff error:-
This court has jurisdiction. The seeks to judgment enforce an ordinance by the passed city council of Chicago. Whether ordinance subsequent impairs obligation contract between the and the- company city depends upon construction to such given contract. The Supreme Court of Illinois entered its judgment requiring company comply with the ordinance it is which, alleged, impairs the obligation TERM, 1905. S.
Argument for Plaintiff in Error. 201 IT. and the. city. judg- company contract between of the contract between construction ment is upon based which is denied the company. and the company, construction the company’s If court should uphold this ordinance, enforced then the subsequent the contract, contract. This of such pre the obligation judgment, impairs determina independent involving sents a Federal question effect legal court of true construction tion this ' which and the the contract between v. Dennis, R. R. Co. Vicksburg was constructed. the tunnel 639; 151 U. Education, v. Board S. 667; Bryan U. S. 406; Wilson v. Standefer, Tallahassee, Co. City Light v. 244; Palmes, R. v. 109 U. L. & N. R. Co. U. S. v. The University Nebraska, R . Co. R. *3 S. 66. &c. R. R. v. 177 U. 321; Texas, S. Houston People, 99 U. a law within the city An council is by ordinance passed clause of the Federal Constitution. of the meaning impairment Gas, 148. Paul Co. v. St. 181 U. S. Light Paul, St. when and as was tunnel constructed company’s The railroad the railroad by and was fee private property-owned lawful was owner in of the bed The fee... company. company at where the tunnel was constructed.' the river the point Chi E. R. R. 49 v. & McCartney C. Laflin, Illinois, 172; v. cago 624. 611; Illinois, v. 152 Chicago Ingen, 112 Van Co., wholly below bed of the tunnel was .the The constructed and at a sufficient allow the free depth naviga- river Chicago size in use on the by river vessels the largest tion of said of the of the tunnel and time below completion lawful hav- by any authority as established of said river depth jurisdiction. ing made under which contract
At the date of the. under its charter Chicago constructed the tunnel was full the river and to authorize the power had over jurisdiction- Rev. Stat. 111.c. art. Un- 24, of the tunnel. 5. construction jurisdiction Chicago assumed over the til the United States September 13, 1900, Congress, the State act of .river RAILROAD CHICAGO v. CHICAGO. 509 ' Argument S. lor Plaintiff Error. 201 U. authority the' river. Wilson plenary
Illinois had over Philadelphia, 2 Creek Marsh Gilman Co., Peters, 245; v. Blackbird v. 713; Turck, Pound v. 95 S. Trans 459; Wall. U. 3 Co, v. 99 U. 635; S. portation Chicago, Corrigan Transportation 125 Sanitary District, 611; Co. v. Fed. Escanaba Chi Rep. v. Miller 678; Mayor S. v. New U. S. cago, York, 107 U. 109 U. 385; Co., v. 113 S. Mobile Bridge 205; County Cardwell 691; v. 102 U. S. Prosser v. North Pac. R. Kimball, Co., R. U. Iron Co. v. 59; Bridge Hatch, S. Willamette
The tunnel was as lawful as it had been con though directly itself under its McCar structed charter powers. .-the t R. ney Co., v. & Evanston The Illinois, 611. R. tunnel is through carrying passengers commerce as the carrying passengers same the river. grade freight U. v. S. Transportation Co, ' the company The ordinance to lower the requiring tunnel, it under was agreement city; constructed void and as it of that in vio- inoperative impaired obligation contract, lation of Art. of the Constitution"of the United I, States. § lawful com property being from could not be taken pany purpose com river without improving to the company. made Yates v. pensation being Milwaukee , 497; 10 Wall. Co. United U. Bridge States, 105 S. Uni 470; 312; ted States v. Navigation Co., Wheeler, Scranton v. 179 U. United States v. Lynch, U. S. Chicago v. *4 Van Lapin, Illinois, 172; Illinois, 49 v. 152 Chicago Ingen, 624. The enforcement of the of the state court would judgment of the constitute taking company’s property. The tunnel, is either to mandate remove the or to lower it, the of the A expense removal of the tunnel at company. the ex- of the pense would take the company away tunnel from and also take from company it the cost of its removal. .The of tunnel would from the company take lowering money in such In either case expended lowering. private prop- it for of company erty use, taken from namely, TERM, 1905. 510 S.U. Argument Error. 201 Plaintiff in n in of the of the improvement 'the interest v. 105 Bridge States, 470, Co. United U. S. river. Chicago railroad com- requiring The enforcement the ordinance tünnel at cost would deprive lower its its own pany n company B.C., dúe of law. process its without property Q.& R. R. 166 Chicago, v. U. S. 235.
There
no
reservation,
implied,
was
the con
express
tunnel
tract under which the
was constructed that
the com
or remove
tunnel in
an
would lower
case
became
pany
the ordinance was
When
navigation.
passed
obstruction
constructed,
which
tunnel was
of Illinois
under
State
river. Escanaba Co. v.
had
over
plenary
Chicago
power
This
included the
to con
Chicago,
out the therefore the comj, was nor had "the obligation neither to do the pany and the' work mandate the court. required .ordinance Act of 1899; River and Harbor River and Harbor Act § v. Cummings Law, v. Illinois, 569; Sanitary District, Lussem *5 CHICAGO RAILROAD CHICAGO.. 511 Argument U. for S. Defendants in Error. (cid:127) James Hamilton Lewis Mr. Granville Mr. W. Browning defendants error:. writ of error should be dismissed for want of jurisdiction.
.The
Court of Illinois
The
decides
Supreme
question
fact,
finally
Illinois
law,
under the
settled
Court
Appellate
is an obstruction
that this tunnel
the Chicago
where
river at the
situated. West
point
St. R. R. Co. v.
18.
People,
The
When the decision of the highest
court
a State is
before
this court
writ
brought
of error,
conclusions of fact found
state court will not be
Power
reviewed. Telluride
Co. v. Rio Grande &c. Ry., 175
639;
v. Hart,
U. S.
Plaintiff’s nor its disputed, nor franchise, maintain a tunnel under the river which will not inter-' fere navigation. of the title of question the riparian is one of local owner law. Whitaker v. McBride, 197 U. S. 51 Plaintiff’s tunnel is now an unlawful structure. Plaintiff claims that without the ordinance of has the right it bed of maintain its the river because owns both TERM, Argument for Defendants in Error. *6 a
sides
the river at that
constitute
lawful struc
point.
of
To
from the
ture
this
river there must be
navigable
grant
.a
Sta.te,
this
or,
case,
city,
State,
the agent
jurisdiction
since the United States
has
over
Government
taken
also must
its consent. Cum
river, the Government
give
v.
U. S.
Atlee v. Packet
21 Wall.
mings
410;
Co.,
188
389.
Chicago,
But
the ordinance of
whether
rests on’
plaintiff's right
river,
on the
of both banks of the
when
1888
rests
ownership
by the
of
an obstruction
timnel,
commerce,
becomes
growth
it
an unlaw-
nuisance;
it must be abated as a
is
navigation,
Any
ful structure.
structure
the bed of a
stream
navigable
maintained
subject
right
is erected and
paramount
Q.
B.
The
212
C.,
Illinois,
&
Co. v.
Ry.
People,
navigation.
Boom
176 U.
103;
Bellingham
Co.,
United States v.
S.
subject
Plaintiff's title is
permanent
naviga-
is subject
and the maintenance
the tunnel
to the same
tion,
is
The title to the soil under the bed of the river
in the
right.
at all
title, subject
but it is
times to
plaintiff
qúalified
easement
navigation.
Any structure
under the
must be at
put
plaintiff’s
river bed
risk,
and must
removed or lowered whenever
;
v. West
R.
551
People
Co.,
Illinois,
The
R.
203
requires
Q.
v.
B.
Co.
212
Ry.
People,
Illinois, 103; Chicago
&
v. The
C.,
Fed.
Illinois, 172;
49
Stockton v. B. &
Y.
32
Ry.,
N.
Laflin,
Breslet,
488;
Light
Braxon v.
64
Hawkins Point
9;
Illinois,
Rep.
Illinois,
R.
v.
Case,
87;
Fed.
Illinois Central
R.
Rep.
House
39
v.
57
163; C.,
179
S.
S.
458;
Wheeler,
146
Scranton
U.
U.
412;
v. Attorney General,
Price,
Parmenter
10
809;
Rep.
Fed.
2
Johnson,
Y.
General v.
61; Attorney
154 N.
Mayor,
v.
Sage
v.
lowered.
1872 the
Villages Act
to construct
has the
tunnels
the-
thereof,
use
power
regulate
alter or
widen,
and to
the channel
change
of water
deepen,
It has
jurisdiction
courses.
all waters within or bordering
extent of
beyond
the same
three miles
limits
upon
if
city.
authority
While the
Congress
paramount,
there
opinion,
power
were difference
is cumulative and
&
Ry.
Lake Shore Mich. S.
v. Ohio,
concurrent.
Cummings Plaintiff is not entitled to The decisions compensation. the state Court this case this Supreme are conclusive on *7 and on this In are court. these decisions point are.binding found a of a construction of the owner on riparian- rights n navigable entirely within State, stream a construction Act, the Horse and Dummy construction plaintiff’s contract. Neither of these is a Federal question, wherever such matters are state this courts, court'fol construed lows the construction,of the state court. West. St.. Chicago R. 214 Co. v. The The Illinois, 9; v. West People, People R. Q. 551; R. 203 & Chicago Co., Illinois, C., Ry. St. R. B. Co. v. 103; The Co. v. People, Transportation U. S. 635; Gibson v. United States, 276; United Boom Bay 211; States v. 176 U. Scranton Bellingham Co., S. v. U. S. Fed. Wheeler, 159; C.,57 803; S. Rep. Bridge Co. v. 470; United 105 U. v. States, S. State The Wheeling Co., Bridge 518; 13 How. States 592; United v. Moline, 82 Fed. Rep. Point House Light Case, 39 Fed. 77; Hawkins Stockton v. Rep. B. & Ry., N. Y. 32 Fed. Rep. State 45 Connect Sargent, icut, 358; Gas Co. v. Drainage Commissioners New Orleans O.,H. 197 U.
Mr." Harlan Justice delivered the of thé court. opinion This case some presents questions and con- jurisdiction duties,of’ stitutionality out the relative arising rights and the West Com- Chicago Chicago Street Railroad vol. coi—33 TERM,
Opinion of the Court. pany of a tunnel respect maintained under company river, the South Branch of at or near Van Chicago Burén street in that city. in the Circuit Court of judgment Cook County, Illinois,
was in favor of the railroad but it company, was reversed First Appellate Court, District, the.former court di- being rected to to-the give the relief Upon appeal asked. Court of Illinois a Supremé judgment was rendered in favor city. The contention of the is that the judgment review cannot be consistently either with the con- sustained tract clause the Constitution the United States or with .of the due of law process enjoined by the Fourteenth Amendment.
The case presented by the record is as will be substantially now stated.
On or about 2, 1888, the April Council of City. Chicago form adopted due the following ordinance : “Whereas, the board of directors of the West Street Railroad Company, the second day of April', 1888, by and at the request Mayor of Chicago, adopted resolution: following Resolved, That the West Street Railroad Company, consideration of passage ap proval by the Mayor of the three ordinances passed by the City Council of- on the thirtieth day of March, one to the West Division granting Railway Company *8 its motive change power from horse to cable or electric power; one granting Chicago Passenger Railway Com pany to make right the same and change; one granting the West Street Railroad Chicago Company right to con struct its tracks on Jefferson street between Madison and Wash streets, and to use ington horse, cable or electric power thereon, hereby and with the agrees at its own expense construct a tunnel 'under the river and acquire necessary of way therefor right on a route to be located by;said between company Madison Twelfth and streets, ¿venue with the east terminus at Fifth or west thereof,, and CHICAGO RAILROAD CHICAGO. Opinion of the Court.- TJ. the western terminus Halsted street or east thereof; pro however, that vided, this shall company have the from construct said said tunnel any street intervening and or streets said river within said but limits, such location and construction shall be such as not interfere to. or
capacity, usefulness said said grade streets; to be used this street railroad and company the con tracks, struction thereof shall be within three.years commenced and be within four after completed years Council City said shall to said railroad grant permission company to make said im unless provements, prevented by strikes,- or and injunctions the time said construction is so interfered with added shall be four years, said all work to be done-in a maimer satisfactory to the Commissioner of Public and Works, the tracks through tunnel,shall be connected with the street railroad tracks ordained, this Now, controlled company. be it therefore, Council: City That in said agreement resolution con be and the is hereby tained same accepted by on behalf of as a. consideration from said company for by-the and approval Mayor of passage the ordinances in said resolution specified, authority is hereby said granted to make the company improvements therein mentioned.-” When this ordinance was passed there was in force what is known -as the Horse and Dummy Act,, passed 1874, which any “That provided: which has been or shall in- under the corporated laws of this general State, for the purpose or constructing, maintaining any dummy horse or operating or tramway, may enter upon any appropriate property necessary for the construction, maintenance and'oper-b ation side, of its road, and all necessary tracks and siding, ap- purtenances, may,, subject to the provisions contained this act, locate and construct' its road any or over upon street, alley, road or across or highway, over waters this State, in such manner as not to unnecessarily obstruct use of such street, alley, road highway, nav- interrupt igation waters.” *9 TERM,
Opinion of the Court. R. 214 Illinois, In Co. The People, West Street R. to this act, "Court said: 9, 19, Supreme referring was to charter or- “This act an addition its under the and act, provisions ganized general incorporation existed under some form ever since; have conferring powers, is. street railroad as the defendant upon companies organized It the defendant the to construct its railroad either gave which tunnel, over or across the included river, -the only contained in it. could subject condition Defendant of its hold real estate for the transaction business maintain- railroad, and a street and the-statute fixed the ing operating for conditions under which it use its estate building real might ” the tunnel. The tunnel was completed by company March, and has been and is a ever since used now used as being the river its for When constructed passageway cars. (as time) as at the water in South well Branch present river over tunnel near Van Burén street varied from to depth seventeen three-tenths eighteen-and feet.
On the third River day March, 1899, passed Congress and Harbor of which was one di- Act, among provisions of War cause to and Secretary surveys be made recting certain and cost rivers harbors to be estimated improving and as follows: reported Congress, “Improving Chicago Illinois: survey river in- and estimate cost channel .a feet from stock on twenty-one deep yards, .mouth and to the North Branch avenue, Belmont Branch, South and may wharves, so far as docks existing permitted exclusive of bridges piers removing constructing .cost tunnels; twenty-one aforesaid lowering depth hereby feet as for the adopted depth improve- project third, ment in lieu of that fixed act of by June eighteen the,work that all remov- ninety-six; Provided, hundred tunnels ing bridges piers reconstructing lowering and. necessary permit channel said practicable depth CHICAGO RAILROAD CHICAGO. *10 Opinion of the Court.- the city or caused to- be done, done, be obtained shall be ” 30 Stat. of to the United without expense States. Chicago, 1121, the
After the of that act were taken to steps dredge passage with river so as to its channel in accordance deepen Chicago the the act of it is and, alleged, of provisions Congress, work “has the and authority supervi- been proceeding sion of of the United for the States, purpose the Government of and sufficiently a channel the uses deep pur- providing ” of and as poses commerce aforesaid. navigation
For of act of the order purpose obeying Congress, .obtain a free unobstructed of navigation Chicago river for of interstate and commerce, domestic, the benefit day March, Council on the nineteenth City 1900, of Chicago, “ act of duly ordinance: Con- passed Whereas, by following that in ánd survey of March it is esti- gress 3,,1899, provided .mate of cost for a channel feet in the twenty-one improve- deep, ment of mouth to y^rds river from its the stock Chicago Branch, the South and to Belmont avenue on the North Branch, the aforesaid feet as depth twenty-one adopted project for such io is'in said act further depth improvement; whereas, that all the work of ánd provided removing reconstructing a necessary permit tunnels bridges piers lowering obtained, channel said to be shall be practicable depth doxle or caused to be done without ex- to the United pense States; whereas, tunnel under' the South Branch of the river Van street was Burén Chicago constructed the West Railroad Company Street. Chicago under a certain ordinance April Chicago, passed whereas, channel river, Chicago depth at least feet is twenty-one now made necessary by the require- ip ments of and by the increase the draft of navigation vessels engaged Lakes; whereas, trade of the said the-shipping tunnel is an obstruction to said proposed improvement river and to the and as such thereof, ob- must struction be lowered so it in there-may above TERM,
Opinion of the Court. said of at least twenty-one river feet depth or be water,, removed be it Now, therefore, ordained altogether: City Council the city ChicagoThat West Chicago Street Railroad be and it is Company hereby and directed .ordered within months after three the date of the of this ordi- passage at the sole cost and of said nance, expense West Street Railroad and without cost, Company loss or damage, expense of any kind, whatsoever to the proceed Chicago, to lower the tunnel under the South Branch of thé at or-near Van Burén street,, same tunnel heretofore being *11 constructed the said West Street Railroad Chicago Company under an dated agreement April 2, 1888, between the said West Street Railroad and the Chicago Company city Chicago, an ordinance City the Council of passed the' of Chicago, 2, 1888, April of said authorizing tunnel construction accordance with of said provisions so as to agreement, pro- the. a vide for' clear above said depth tunnel of at least twenty-one feet of water at all times. Said work shall be by the- performed said West Street Railroad under the Company super- vision direction and subject to the of the Com- approval missioner of Public Works of the and shall be on or completed before March 1, 1901.” In execution of the provisions of that ordinance the city caused notice to to the railroad company, demanding given (cid:127) with its compliance provisions. The did not heed that notice. action was present thereupon instituted the people on the relation of Illinois, Chicago, against relief asked was company. specific the issuing The^
of a writ of the railroad directing mandamus without company, cost, loss or kind to expense whatsoever damage, city, to lower its under the South Branch of proceed tunnel river at or Van Burén street, near so as to provide for twenty-one clear above it at depth a. least feet water at all times; for its entire width and or wholly remove length, “ so the same shall cease an to be to the free obstruction (cid:127) CHICAGO RAILROAD CHICAGO. Court; Opinion of of said thereof,' the South Branch and to said work perform under the supervision direction^ ” Commissioner Public Works of the city of Chicago. The Circuit Court found the issues for defendant, and . denied for a application the. mandamus. error to the Upon Appellate Court, First District, of the Circuit judgment Court was reversed and the cause remanded with directions “ to¡ issue writ of mandamus commanding railroad com- until, pany remove tunnel, said writ not to be executed street and La Washington Salle street are tunnels both removed or lowered to á sufficient to be no depth longer .obstruction to navigation.” ' Upon appeal Court of Supreme Illinois a final judg- ment was entered there writ of man- awarding peremptory damus as prayed West petition. ChicagoStreet R.R. Co. v. People,
(cid:127) As explanatory reference -tunnels Washington La Salle it may streets be here and. stated that those tunnels city, and were belonged located bétween the Van Burén street, owned by thé railroad company, and the ' ,at mouth of the river the Lake. -Of until course, the city’s tunnels are lowered removed, lowering removal tunnel on Van Burén street would not be of material aid to *12 navigation.
We come now to consider the questions on record arising the and discussed at the- bar.
1. The-contention of the city that the writ of error should be dismissed for want of jurisdiction this court cannot be sustained. It is true that the of the judgment state court rests of or partly upon local grounds law. general But, by its nec- essary the operation although opinion state court does — not expressly refer to the of Constitution the United States— the judgment rejects the claim of the set specially company, up in its answer, that the relief asked by city cannot, the in any view of case, the be with granted consistently, either the con- tract clause of the Constitution with the or clause prohibiting TERM, 1905. "201 U.S.
Opinion,
of the Court.'
his
of
without due
anyone
the
from depriving
State
property
well taken,
If that
be
a
position
judgment
law.
process
then
of local
law would be
merely upon
general
based
grounds
case,
the
the
raised cover
whole
error;
questions
Federal
for,
could
parties
are of
a nature that' the
rights
As the judg-
not be
without
them.
finally
deciding
determined
claims
ment, by
necessary
company’s
denied the
operation,
court has
States,
on
of the United
this
based
Constitution
the
by.
are
whether those claims
sustained
jurisdiction
inquire
fully
on
are
stated
this question
that instrument. Our views
Com-
Quincy
Drainage
&
R. R. Co. v.
in Chicago, Burlington
that it fee of bed the' is But that’ fact not vital where tunnel was constructed. is it was the state discussion; in the present ádjudged as will doctrines, presently court—in with settled harmony ap- “ to land a is title pear navigable —that ” “in land; same as the to the that a navigable title shore ' of the soil stream the and the bwner public right paramount, a can it in only enjoy under the bed such stream use and be, far must so as is consistent which right, unobstructed;” that “the title is abso- free to the upland lute and while the title the lands over which paramount, is subordinate water flows navigable public right and that “the could if it not, would, navigation;” grant river, to obstruct the itself bind which has obstruction permit become an anything 214 Illinois, 9, 20, continued.”
3. We next consider Federal strictly questions the first tunnel raised Its is that the was company. contention city, constructed under valid contract with the evidenced the, 1888, the ordinance mere order to remove contract, lower impaired obligation violation of Constitution. careful no scrutiny we find
Upon ordinance *13 n. CHICAGO. .CHICAGO RAILROAD Opinion of the Court. 201 TJ. S. so restricted the of the -city which' power
clause provision railroad to lower or re- company that it could require in the interests, tunnel when as involved move the river, unobstructed demanded navigation consideration certain company, done. and to it undertook to city, privileges granted rights and it is true tunnel; construct that when constructed the did not interfere nor would it now ob- navigation; if only struct boats and vessels of the size ca- navigation, in use when the tunnel pacity was constructed were engaged river. But commerce such boats and are in- vessels sufficient to meet the needs of present commerce at Chicago. since, The business of that has enormously increased of the ordinance of 1888, and, passage admittedly, the tunnel is now an obstruction to free on the navigation boats vessels size. The railroad large may company have when believed, ordinance of 1888 was passed, that the tun- nel would never or obstruct interrupt navigation. Neverthe- less, ordinance did not expressly by necessary implica- tion bind the -forbear the exercise of any it had power the channel deepen of the river and thereby navi- improve As the could not gation. legally adopt ordinance in- consistent with a statute of the we must State, read into the ordinance- of 1888 that part act of 1874 which, as con- strued the Supreipe Court of Illinois, made it a condition right of street railroad cross its cars through a tunnel under river that its road and tunnel should ¿snot be so located and unnecessarily constructed to interrupt from navigation.. Apart any question toas the power of the city to bargain away surrender its authority to improve protect it against obstruction, the railroad com- must be pany held to have accepted the ordinance and con- structed the tunnél subject to the requirement that navigation should not be it. interrupted by As the present tuxrnel is an obstruction to the use of the river by many boats and vessels employed commerce on Lakes, as, by the ordinance *14 TERM, .522 201 ü. S. of Opinion the Court. it if could law- in did not city stipulate the question, —even it would not exert whatever pow- have fully stipulated —that it order to the free of Chicago ers had in protect do the re- necessary so, proper river whenever became order to lower or remove that the execution of the sult must be of any contract tunnel would' not the impair the obligation in the If, of United States. by Constitution protected that it would meet had 1888, ordinance stipulated of made by alteration of tunnel its direc- expense But the presented. a different would have been tion, question a stipulation, such ordinance cannot be construed as containing of this court no such consistently with the settled doctrines and in is, There our can mere stipulation implication. arise from city, by that no whatever holding judgment, ground of a under the contract the ordinance came obligation 1888/ in that be to meet the cost of the.tunnel any changes might ¿ould be safely the river navi- lawfully order that required vessels. gated large in the case:
4. This us to the principal question brings United States, consistently the Constitution Whether, to lower or remove the the railroad can be required (if a tunnel cross- and it continues use question tunnel .to in. cars) and maintain, with its to construct ing Chicago conform to provisions its own such a tunnel as will expense, the ordinance March recprd, It is on this that water over depth indisputable, many tunnel is not sufficient to accommodate boats present in commerce between commonly employed now vessels towns on It is -to be the Lakes. and other cities boats and in order also as indisputable taken river with Branch the South may navigate vessels Van Bmen street water over the safety, depth ordinance as as that specified must be at'least great may properly record we assume also—as Í900. We the, arbitrary an exer- reasonable, do—that ordinance “ keep city to construct tion of the power conferred RAILROAD CHICAGO. CHICAGO Opinion of the Court. U. tunnels and to the use regulate in repair bridges, viaducts'and. “ ” cover, wall, and to alter widen, dock, thereof, deepen, ” channel of watercourses. We must, addition, change that the record, this assume means adopted upon real and substantial connection with the direct, have a ' intended to free the navi- object accomplished, namely, Branch the South river from obstruc- gation which tion use of that river of the size prevents vessels *15 demanded The vast business at by transacted Chicago. n already the observed, As contention of the in company is, if that even the tunnel an éffect, present be obstruction to the river the the navigation vessels, large lowering removal of the tunnel the company’s would against will, taking be for use without in private property vio- compensation, of the constitutional lation of due guarantee process law.
This it result, supposed neces- company, follows from the fact that sarily present was con- structed the assent city, when constructed was for sufficient purposes by vessels, of navigation whatever then in commerce size, on the engaged river. But not all that must these facts are be considered in this discussion. cannot be from They considered other apart matters of a vital That character, namely: was of. duty pro- the free the river and its tecting navigation duty branches —a from the of which it could not be discharge any exempted by it make with the railroad might agreement company; that the granted present tunnel under the construct subject condition, necessarily river implied by the stat- when ute of 1874 force the ordinance of 1888 was adopted, the tunnel should not interrupt if navigation; assent of the such a condition was important, must be held to have such assent given the ordi- accepting nance of into 1888, as which, already must be read indicated, requirement the statute of 1874 that should navigation not be unnecessarily interrupted; and that the provision in TERM, 1905.
524 U. 201 Opinion of theíCourt. interruption navigation forbidding any that statute at only of navigation to the needs had reference the river sub- but its needs constructed, time tunnel was reason- city, upon found and declared as period sequent would, course, subject which declaration able grounds; that the system our condition, government, vital interfere, forms, mere behind courts'may through look rights against necessary, protection-of-private whenever arbitrary power. of governmental exercise illegal, im may we suggest to these considerations In addition owner of the as the of the company, that the one rights portant subject were bed, on either side of the of land fee waters of over' the paramount right Illinois Cen 66; 57, Harbor 18 Wall. Com’rs, Weber v. river. Shively Bowlby, v. 387, 458; v. 146 U. S. Illinois, tral Co. R. R. 276; United 1, 30; States, Gibson v. U. S. Q. v. Ry. Co. C., People, B. & 163; v. Wheeler, Scranton v. 488; Bressler, People Illinois, 103; Brazen v. 61; State N. Y. Mayor, v. 396; 28 N. Y. Vanderbilt, Sage (N. Dibble, C.), v. 4 Jones 71 N. Car. State Parrott, *16 Par Wisconsin, Ry. Co., v. Northwestern &c. Diedrich Wilcox, Price, 412; Williams v. Attorney General, meter Q. B. The Brooke, prin Colchesterv. & El. 8 Ad. "The by privilege thus declared a text-writer: leading is ciple which use all waters are of such capable upon of-navigation trespass natural condition and are accessible in their without lands, right. is a common paramount private ing upon a public At law the right navigating . . common stream across passage is to paramount right stream a Waters, means of Gould on bridge/’ §§ and main- have the railroad to If, then, right company the para- subject under the river is tain a tunnel maintain if right navigation; right mount subject in the-river is a becáuse qualified one, in- the act that tunnel should specific condition of 1874 no if tunnel is present obstruction to terrupt navigation; RAILROAD v. WEST CHICAGO CHICAGO. Opinion of the Court. this récord we upon as take it to
navigation, be; must and if as the State and city, representing public, may rightfully insist that such obstruction shall not rémain in longer way .necessarily of free it follows that the navigation; railway com- with, pany duty comply the demand made upon remove, at its own the obstruction expense, which itself has and maintains. If .created the obstruction cannot be re- moved the' tunnel to except lowering the required depth (if maintained) is to a tunnel one that will not providing then the cost interrupt navigation, attendant upon work must be company. city asks met. more nothing than shall do what is company necessary to free from an obstruction for which it is responsible, (if it intends not to abandon its to maintain a tunnel street) at near Van Burén that it shall itself a new provide tunnel with necessary of water depth 'above it. The case differs somewhat from & Chicago, Burlington Quincy Ry. Co. v. Drainage Commissioners, 561, just decided. In that case we held it to be the of the duty railway company, cost, its own to remove the timbers, and bridge, culvert, stones which it Roy creek, in Rob and which placed prevented the execution devised by the Drainage Commissioners. plan But Commissioners demanded that more be done; for, the. their that earth plan contemplated outside of the railroad and culvert be removed, in bridge that the channel be order widened and But in enlarged, deepened. improvernpnt railway (cid:127)the had no interest. It was not responsible for the inadequacy original channel Rob Roy creek system for the drainage adopted, the Commissioners. Its only and the duty, only burden imposed it, was upon to- re- at its move, own cost, it in placed by creek, obstructions and which stood way proposed system drainage. *17 In the case before us the demands public to be done nothing by the railroad company except'to remove the obstruction .
which itself and maintains in the placed under the con- river dition that in- any thereby should not at time be TERM,
526 Opinion of Court. removal such obstruction is all is The .of
terrupted. needed, So that whatever cost attends navigation. protect must be the obstruction borne the railroad the removal of condition under which the company placed company. met has company, public being cannot demands it. This be deemed a upon taking no further denial,of use or a public equal pro of private property but is Constitution, laws within meaning tection of exercise of a power result the lawful only governmental from' This the authorities cited common appears for the good. R. R. Co. v. Quincy Drainage Com’rs, & Burlington in Chicago, has state court well said that decided.1 The supra, just in a lawful way character of stream navigable maintain the law, of private' within the not, taking meaning of the owner the soil under any property right property subject free river, ownership being v. West R. R. People unobstructed navigation. Street all, What the 551, city asks, Co., 203 in the the railroad exercise asks, required, is that use of its property, respect public of its in the rights authority, reasonable by competent as declared upon needs is not or unreasonable arbitrary' to exist. This grounds, sense, take or not, It legal appropriate demand. does benefit, for- but insists only property company’s so as to its property interrupt shall not.use that the company navigation. will5'be found in question
Further discussion general Chicago, 99 U. 1 635, 642; Kansas, Mugler S. v. Transportation Co. v. Bristol, 556, 623, 669;, Railroad Co. v. 151 U. N. Y. & E. N. 123 S.U. Chicago, Burlington Quincy R. v. 166 R. Co. U. S. 561; 276; 269, 271, Wheeler, States, U. S. Scranton v. 166 252; v. United Gibson Light Drainage Commission, v. 141, 164; Gas Co. New Orleans U. S. 179 738; States, Rep. Fed. United v. 453; United 46 States v. Mills U. S. 197 States, 217; Ohio & v. United Lynch, Miss. U. S. Bedford Illinois, 140, McClelland., Kankakee & R. R. Seneca R. Co. v. R. Carthage Frederick, Illinois, 288; Village N. Y. Horan, Co. v. Law, 313, 268; Sedgwick’s & Stat. Const. 320 *18 ¶. RAILROAD CHICAGO CHICAGO. n . Opinion of U. S. the Court. .201 & R. Chicago, Burlington Quincy. R. Co. v. Com’rs, Drainage decided. We all jüst need said in the supra, repeat opinion in case this that question.
Another matter ticé. The requires no railroad company con-. city tends that had no to or authorize power require in the bed of river without changes approval Secretary of War. River and Harbor Act of 10;§ 1899/ Stat. 1151. The same act contains directions for the improve- ment- of all river. Chicago Construing provisions together, think it we clear when in declared Congress River and “ Act of under the' 1899, Harbor heading Improving Chicago Illinois,” riverin that “all the 'work p. 1156, and removing and piers tunnels reconstructing bridges lowering necessary to permit channel” navigable prescribed “project” with.the of twenty-one feet in depth river should be Chicago done by city, without to the United expense States, it meant to give to any the assent of United States work done city towards the end which the Government had accomplishing in “ court said that view. The state has properly power, under-its to charter, channel, and as a deepen preliminary to this tunnel to so, require' lowered or doing removed, be. act of so far as the Congress permits proceed, low- ” of the tunnel is concerned. ering
As action taken showing by the is Chicago accordance with the will of may wé Congress, refer the act 27, to. Congress April certain tunnels relating river, particular tunnel here including question. That act “That provides: the tunnels under the in the State Illinois at La street, Salle Washington street, and near Van Burén street, in said State áre, each of them hereby, declared' to as be, now constructed, an unreasonable obstruction to the free nav- of said igation river, and each of said tunnels is hereby declared be a nuisance. And it shall be the duty the Secretary of War to notice to the or give persons corpora- tions said tunnels, owning controlling any of them, so to TERM, 1905. 201 U.
Opinion of the Court. tunnels free, render over said as to alter the same ;and notice he shall easy, unobstructed, giving the Chief of recommended by Engineers specify changes any- that said tunnels, to made in order that are needed not thereafter be obstruction navigation, shall them, *19 in a reasonable time which to in each case and shall prescribe If of such time such at the expiration make said changes. of War shall forth- Secretary the made, have-not been changes notify Attorney the-United States District theNorth- with to, situated, in which said tunnels are Illinois, ern District prescribed criminal hereinafter end that the proceedings the If or cor- or may person persons, corporation be taken. the said any shall, or controlling tunnelá porations, owning effect, as required, notice to that hereinbefore receiving after and within the time Secretary War, prescribed from the or to make or refuse to remove the same him, fail changes of War, or Secretary in the notice person specified or shall be deemed corporations, persons, corporation guilty thereof shall be misdemeanor, conviction punished on. dollars; every, ten thousand and each and a fine not exceeding or or person corporations, month such persons, corporation or alteration in default in the removal respect shall remain and subject shall be deemed a new offense of such .tunnel so corporation corporations, offending persons, person That case aris- herein peiialty prescribed: Provided> of this act an writ of error appeal the provisions ing or from Circuit from District Court Court taken bemay States or Court either United Supreme direct to the reason, For not ex- some 33 Stat. defendants.” to this act in , allusion was made record, no -in the plained nor it alluded to in Court of the Supreme opinion em- court, That seems act, of counsel. in the briefs opinion, this expressed and strengthens phasizes vieyys reached. the conclusions support and tends Conformity and in stated, we have reasons For the & R. Chicago, Burlington Quincy R. announced principles v. CLEVELAND CLEVELAND ELECTRIC RY. Syllabus. Drainage Co. Com’rs, judgment Supreme Court affirmed. must be
It is so ordered. Mb. Justice Holmes concurs judgment, upon authority & R. Burlington Quincy R. Co. v. Drain- age 200 U. Commissioners, S. 561.
The Chief Justice, Mr. Justice Brewer, Mr. Justice dissent. White McKenna, Mr. Justice CLEVELAND v. CLEVELAND ELECTRIC RAILWAY
COMPANY. APPEAL FROM THE CIRCUIT COURT THE UNITED STATES FOR OF
THE NORTHERN OF DISTRICT OHIO. *20 Argued February 27, 28, No. April 9, 1906. 1906. Decided construing municipal- dealing In important ordinances matters such railway may reasonably presumed as extensions of street franchises it escaped provision misunderstood; and, that no attention or was while a might .ordinance, occur supposed one will not be mistake that.the dealing subject. mistake occurred four ordinances with the same granting an railway corpo- Ordinances extension to a consolidated street ration, possessing expiring times, franchises at different on conditions great corporation involving expense resulting in substan- single tial benefits to the as transfers for fares and relat- ing system granted, to the entire as well as the providing extensions right granted' existing grants terminate with the the- then specified main line at a date later than that of termination of some franchises, amount, acceptance by on the and com- pliance conditions, with the protection to a contract within the of the impairment clause extending Constitution the Various franchises date; to that period, years, being in this case of an unrea- four sonable one in accruing public. view the substantial benefits Co., City Cleveland Railway v. Cleveland S.' as TJ. followed power pass diminishing council of Cleveland to ordinances rate railways of fare street view of the contract's contained-in passed regard railways. ordinances to street heretofore cci—34 tol,