delivered the opinion of the Court:
That large and important property interests, as well as the public convenience, are involved in this litigation, is apparent. Elaborate and interesting arguments have been made, presenting the ease, in all its phases, fully and exhaustively. We shall, however, avoid the consideration of all questions having no direct bearing on the decision we are about to announce. After all, in the view we have taken, the case is controlled by elementary principles that admit of but little discussion.
The information filed by the acting Attorney General is in the nature of qtio warranto, is general, and charges the Chicago City Railway Company with the using and usurping franchises without warrant, grant, charter or authority of law. Respondent pleaded the acts of incorporation, the several ordinances of the city of Chicago authorizing the construction of a railway on certain streets, all licenses obtained, and allege “ the company has at all times complied with and fulfilled all and singular the requirements and conditions of all acts, ordi nances, resolutions and papers above mentioned or set forth.” Replications filed confined the issues to matters concerning the franchises on Indiana avenue, and it is only sought to have declared a forfeiture of the franchises of the railway company on' that avenue from Twenty-second street to the southern limits of the city.
Shortly stated, the undisputed facts appearing in the pleas, necessary to an understanding of the issues formed, are: In 1859, the Chicago City Railway Company was incorporated, under an act of the General Assembly. By the second section, the corporation is authorized and empowered to construct, maintain and operate a single or double track railway, with all necessary and convenient tracks for turnouts, side tracks and appendages, in the city of Chicago, and in, on or over and along such street or streets, highway or highways, bridge or bridges, river or rivers, within the present or future limits of the south or west divisions of the city, as the common council have authorized the corporators, or any of them, or shall authorize the corporation so to do, in such manner and upon such terms and conditions, and with such rights and privileges, as the common council has or may contract with the parties, or any or either of them, prescribed.
The duration of the corporation, by the original charter, was limited to twenty-five years, but by an amendment, passed in 1865, it was extended to ninety-nine years. Under this latter act, it was competent for the common council, with the written consent or concurrence of the other party or parties, or their assigns, to any of the contracts, stipulations, licenses or undertakings. to amend, modify or annul the same.
An ordinance, passed August 22, 1864, conferred upon the railway company authority, in consideration of the acceptance of its provisions, to construct, operate and maintain a single track railway, with all necessary turnouts, side tracks and switches, in, upon, and along Indiana avenue, from Twentvsecond street to the limits of the city, provided the consent of the owners of two-thirds of the property, by lineal measure, fronting on that street, should be first obtained. Under its charter by permission given in the ordinance, the company did construct its railway on Indiana avenue, from twenty-second street south to Thirty-first street, completing the work in September, 1865, but had not extended it further south in the direction of the city limits when this proceeding was commenced.
Two replications, stating the grounds of forfeiture, were filed to repondent’s pleas: First, the railway company did not obtain the consent of the owners of two-thirds of the property, lineal measure, fronting on Indiana avenue; and, second, the railway company did wilfully, wrongfully and unlawfully neglect and refuse to construct its road on Indiana avenue, from Twenty-second street to the city limits, within fifteen months from the passage of the ordinance of August 22, 1864.
Respondent traversed the averments of both replications, and for further rejoinder set up an ordinance, passed November 13, 1811, amendatory of the ordinance of August 22,1864, by which the time for the completion of the railway to the city limits was extended for a period of two years from the date of the ordinance; and in case the company should be delayed, by injunction or order of court, the period of such delay should be added to such extended time, and the right and authority of the company to maintain and use its tracks then existing on Indiana avenue were confirmed for the time provided in the ordinance. Upon the trial of the issues of fact formed upon the first replication, the court, although ruling the onus probandi was uj>on respondent, found that consent of owners of two-thirds of the property fronting on the avenue had been obtained within fifteen months of the passage of the ordinance of August 22, 1864, and prior to laying down the track to Thirty-first street, but found the company had neglected and refused to construct its railway to the city limits within fifteen months from the passage of the ordinance, and pronounced judgment of ouster for that cause. To reverse that judgment the railway company brings the case to this court on appeal. Both parties have assigned errors.
While the people have assigned for error, the finding of the court that the consent of the owners of two-thirds of the property fronting on Indiana avenue had been given to laying the track on that street, was against the weight of the evidence, the railway company insists the court ruled incorrectly the burden of proof as to that fact rested upon it.
The doctrine of the cases on this subject seems to be, in proceedings by information in the nature of quo warranto, the people are not bound to show anything. The onus probandi generally lies on the defendant, who must prove his title as pleaded, or such part of it as is traversed by the replication. It has been so held by this court. Clark v. The People, 15 Ill. 217; The People v. Ridgley, 21 Ill. 65.
Whether any exception to this general rule obtains in cases where the act charged to work a forfeiture implies a violation of a public law, or would impute to the party crime that might subject him to punishment, on the ground of the presumption in favor of the defendant’s innocence, is a question upon which it is not necessary, at this time, to express an opinion. We are satisfied the finding of the court on the question of fact submitted, was warranted by the weight of the evidence. By the ordinance, the railway company was first to obtain the consent of owners of two-thirds of the property fronting on the avenue to laying its track. How the consent was to he expressed, or whether it should be verbal or .in writing, the ordinance was silent. All written evidence of consent in possession of the company had been destroyed by fire in 1871. Consent could have been expressed orally, or it may be inferred from the acquiescence of owners of property affected. The ordinance under which the track was laid was published, and a canvass made to obtain the consent of the property owners along the line. After the lapse of so great a period, slight evidence will be sufficient to establish the fact of consent on the part of owners of property. It was known to the public the terms upon which it was lawful for the company to construct its road upon that street. If this litigation was between private citizens, in view of the facts proven we should not hesitate to say, owners of property on that street would be estopped to deny the requisite consent was given. But, regarding the burden of proof as resting upon the railway company to establish the fact of consent, it can only be expected to make such proof as the nature of the case is susceptible of, even against the demand of the people. As we have seen, all written evidence has long since been destroyed. Consent, in some instances, may have been given orally, and all means of proving it now lost or forgotten. The longer delay that intervened, the more difficulty would be experienced in proving, by any positive testimony, the requisite consent of owners of property. Under the circumstances proven, and in view of the difficulties occasioned by the destruction of evidence, we regard the finding of the court, the consent of owners of property to laying the track in 1865 was first obtained, is sustained by the testimony. Were it a question of first impression with us, we should, no doubt, reach the same conclusion.
Treating the provision of the ordinance of August 22,1864, that the road should be completed to the city limits within fifteen months, as a condition upon which the license was granted, the non-performance of which would work a forfeiture, ■ we will next consider the legal effect of the amendatory ordinance of ¡November 13, 1871, extending the time for the completion of the road, and affirming the rights of the company. Under the act of I860, the common council had authority “to amend, modify or annul ” the contract created by the ordinance of August 22, 1864. with the consent of the railway company. The limitation in respect to the time in which the road should be finished, was a provision in favor of the city to secure the public interests, and the law is, a party may waive the benefit of a statute where it contravenes no matter of public policy. This right the city had, independently of any enabling act. It was the sole judge whether the public exigency required an extension of time, or any other modification of the contract. Had the State, in granting the charter, imposed this limitation upon the railway company, no other power could waive the forfeiture arising from the non-performance of the condition. But that is not this case. Here, the grant made by the city was in the nature of a license to the railway company to construct its road upon a certain street within a fixed period, and we are unable to perceive any reason why it could not, for satisfactory reasons, waive a strict performance. The authorities cited by counsel for appellee, are cases where the conditions were imposed by the act of incorporation conferring the franchises. In such case the uniform rule is, the State alone can waive a forfeiture of a corporate franchise consequent upon a failure to comply with the conditions upon which it was granted. Had the condition inserted by the city in the ordinance been contained in the charter of the company, the cases cited would be in point, and conclusive as to the law. But in the case at bar the grant in the ordinance is not a franchise, but a mere license, a permission to construct a railway in a certain street within a limited period. A franchise, according to the definition given by Blackstone, is a royal privilege, or branch of the king’s prerogative, subsisting in the hands of the subject, and, being derived from the crown, must arise from the king’s grant. 2 Blackstone, 17. Corporate franchises in the American States emanate from the government, or the sovereign power, owe their existence to a grant, or, as at common law, to prescription, which presupposes a grant, and are vested in individuals or a body politic.
The grant or license given by the ordinance comes within no definition of a franchise. Besides, a municipal body, it is understood, possesses no power to confer a franchise. Davis v. The Mayor, 4 Kernan, 506.
Being a mere license, under the franchises conferred by the State to the railway company, to construct its road within a given period, upon ground over which the city had exclusive control, it could waive a strict performance of the condition as to time. The license granted by the ordinance is no more a franchise than would be a grant of the right of way by a private citizen to the company to construct its road over his lands, and it is as competent for the city as for a private owner to extend the time of performance, or to amend, modify or annul the contract by mutual agreement.
But it is said, the ordinance of November 13,1871, purports to grant “special privileges” or “franchises,” and is void under the constitution. As we have before seen, there is no authority for the assumption the license to the railway company to construct its road on Indiana avenue is a franchise. Herein consists the vice of the whole argument on this branch of the case. At most it was but a mere license, and comes within no definition of a franchise, nor does it emanate from any source competent to grant a franchise. ■ But more than this, it does not purport to grant any special privileges to the railway company that would exclude a like grant to any other company that possessed competent authority to construct a railway upon that street.
Article 4, section 22, of the constitution of 1870, cited, is a limitation upon the power of the General Assembly to grant any corporation, association or individual the right to lay down railroad tracks or amend existing charters for that purpose; but by no construction can it be said to be a limitation upon a municipal corporation to designate certain streets and fix the conditions upon which a railway company, organized under a special charter, previously granted, or under a general law since the adoption of the constitution, might lay its track. It is a misconception of the law to suppose the railway company derives its power to construct a railroad from any ordinance of the city. All its authority is from the State, and is conferred by its charter. The city has delegated to it the power to say in what manner and upon what conditions the company may exercise the- franchises conferred by the State, but nothing more. The authority of the city in this regard is not affected by the provisions of the constitution which inhibit the granting by the General Assembly of any special or exclusive privilege, immunity or franchise. "Whether it is in the power of the State to revoke that authority, is a question that does not arise for decision, and upon which we refrain from expressing any opinion. It is sufficient it has not been done by any provision of the constitution, nor by any general law enacted by the legislature. Accordingly, we are of opinion the ordinance of November 13, 1871, amendatory of the former ordinance, is valid, and a waiver of the condition as to the completion of the road to the city limits within the period fixed by the first ordinance. Courts proceed with great caution in proceedings which have for their object the forfeiture of corporate franchises. It is not every non-performance of the condition in the act of incorporation, or every misuser, that will forfeit the grant. A substantial performance according to the intent of the charter is all that is required. The People v. Kingston and Middletown Railroad Co. 23 Wendell, 193; The People v. Bristol Turnpike Co. ib. 222.
It is not insisted there has been any non-compliance with the conditions of the charter of the railway company, or any misuser, that would forfeit its franchises. The non-performance insisted upon is, as to the condition of the ordinance imposing a limitation as to the time in which the railroad on Indiana avenue should be constructed to the city limits. There was a part performance. The city reserved the right, in case the public interests required any of the lines to be constructed, to compel the completion of the same within ninety days. It laid no such injunction upon the railway company. On the contrary, it extended the time for the performance, and by an ordinance, curative in its character, confirmed the rights of the company on Indiana avenue during the time provided in the ordinance.
For the reasons indicated, the demurrer to the second rejoinder setting up the ordinance of ¡November 13,1871, should have been overruled, and judgment should have gone for the respondent. Accordingly, the judgment will be reversed and the cause remanded.
Judgment o'eversed.