dissenting:
I am unable to concur in the view of the majority of the court, as to the valid force of the ordinance of the common council of the city of Chicago, of ¡¡¡November 13th, 1871.
By its act of incorporation, approved February 14,1859, the Chicago City Bailway Company was authorized and empowered to construct and operate a single or double track railway, in, on, 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 of Chicago, as the common council of said city have authorized said corporators, or any of them, or shall authorize said corporation so to do, in such manner, and upon such terms and conditions, and with such rights and privileges, as the said common council has, or may, by contract with said parties, or any or either of them, prescribe.
By an ordinance of the common council of the city of Chicago, passed August 22,1864, the company was authorized to lay down a single track railway, on Indiana avenue, from Twenty-second street to the city limits, which were two miles south of Twenty-second street, provided the consent of the owners of two-thirds of the property, by lineal measure, fronting upon the street, should first be obtained; and the ordinance requiring that the railway should be constructed within fifteen months after the passage of the ordinance.
The company proceeded to construct a track from Twentvsecond street, one mile south to Thirty-first street, completing the same in September, 1865, and, from that time to this, has not built further south.
The information, in the nature of a quo warranto, was filed at the July term, 1870, of the Cook county circuit court, and the bill for an injunction, September 12, 1871, to restrain the construction of any railway track on Indiana avenue south of Thirty-first street.
The ordinance of Bovember 13, 1871, purported to be amendatory of that of August 22, 1864, and extended the time for the construction of the railway on Indiana avenue, for the term of two years from the passage of the ordinance of Bovember 13, 1871, (any time of delay caused by any injunction, to be deducted,) and authorized the construction of a double track railway on said avenue, from the north line of Twenty-second street to the city limits, requiring the consent of the owners of the majority of the property, by lineal measure, fronting upon said avenue, between Twenty-second street and the city limits.
I can not but think that, since the adoption of the constitution of 1870, the common council had no power to pass the ordinance of Bovember 13, 1871, so far as it gave to the company any right to lay down a railway track on Indiana avenue. Section 22, article 4 of that constitution, provides that, “ The General Assembly shall not pass local or special laws in any of the following enumerated cases, that is to sav: for granting to any corporation, association or individual the right to lay down railroad tracks, or amending existing charters for such purpose; granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise, whatever. In all other cases where a general law can be made applicable, no special law shall be enacted.”
By the terms of its charter, no right is thereby vested in the Chicago City Railway Company, to use any street in the city of Chicago for railroad purposes, except as had been previously authorized by the common council. It can only lay down its railroad track on such streets as the common council of Chicago shall authorize it to do, and in such manner, and upon such terms and conditions, and with such rights and privileges, as the common council shall prescribe.
At the time of the passage of the ordinance of November 18, IS'71, it is apparent that the City Bailway Company did not have the rights which that ordinance purports to have conferred. Had the legislature itself, at that time, granted such rights to this company, the act would have been in plain violation of the constitution, as granting by a special law to a corporation the right to lay down a railroad track, and as granting by a special law, a special privilege to a corporation. How can it be, then, that the common council of the city of Chicago can, by a special ordinance, give to a corporation the right to lay down railroad tracks, when the legislative power of the State can not, by a special law, do so? That the agent can exercise a larger power than the principal? It is a general rule of law, that the derivative authority expires with the original authority from which it proceeds.
The derivative authority can not, generally, mount higher, or exist longer, than the original authority. Story on Agency, § 481. Cities but exercise certain powers of government within a limited district, which have been delegated to them by the legislature, and the powers may be recalled at pleasure. The People v. Purdy, 2 Hill, 31; The People v. Morris, 13 Wend. 324; Town of Freeport v. Board of Supervisors, 41 Ill. 495; State Bank of Ohio v. Knoop, 16 How. 369; Dillon on Mun. Corp. sec. 30.
The power which the common council of Chicago had, prior to the adoption of the constitution of 1870, to grant the privileges attempted to be conferred by the ordinance of November 13, 1871.1 conceive to be inconsistent with the provisions of that constitution, and, therefore, abrogated thereby. In State v. Maynard, 14 Ill. 419, this court, in reference to the constitution of 1848, said: “ When the new constitution took effect, any provision of a former law, which was inconsistent with .it, became as much unconstitutional as if the law had been subsequently passed. A law can not be in force in the State, no matter when passed, which contravenes the provisions of the constitution of the State.” Numerous are the cases where this court has held that prior laws were abrogated by the present constitution, because of being inconsistent therewith. It does not consist with the constitution, that a city should, by a special ordinance, give to a corporation the privilege to lay down a railroad track in a street, when the legislature itself has been prohibited, by the constitution, to grant, by a special law, such a right, or to amend existing charters for such purpose, and to grant, by special law, to any corporation, any special or exclusive privilege or franchise whatever.
■ But it is said in argument that the provisions cited, of section 93, article 4 of the constitution, are restrictions upon the legislature, and not upon municipal bodies; that they concern laws and not ordinances. As said in Cooley’s Const. Lira. 198, “ The power of municipal corporations to make by-laws is limited in various ways. It is controlled by the constitution of the United States, and of the State. The restrictions imposed by those instruments, and which directly limit the legislative power of the State, rest equally upon all the instruments of government created by the State. If the State can not pass an ex post facto law. or law impairing the obligation of contracts, neither can any agency do so, which acts under the State with delegated authority. ”r and whatever the people, by the State constitution, have forbidden the State government from doing, it can not do indirectly through the local government.” -
It is conceived that what are restrictions upon the legislature, are alike restrictions upon their governmental agencies, municipal corporations; and that, as respects the question in hand, it is to be viewed in the same light as if the company’s charter had required the authority for the use of particular streets, to be obtained from the legislature, instead of from the common council of the city.
Had such been the case here, it is believed that it would not be contended that the General Assembly would, on November 13. 1871. have had the power, by a special law, to grant such authority to this corporation. No more, it is conceived, could the common council of Chicago do so at that time—the power to grant such authority having been conferred, as it was, upon it, instead of upon the legislature.
These special privileges of the rights of the railway upon particular streets, are said to be conferred, not by the city by its ordinance, but by the State by the company’s charter, and that the city only regulates the use. If this were so, the company, under its charter, might have constructed ité railway on Indiana avenue, and if the city failed to regulate its use, the right to maintain the franchise on that street would be complete. But the railway company only took, under its charter, a right to obtain authority from, and contract with the city, for the privilege of the use of Indiana avenue, and it could acquire the right to exercise no franchise thereon, except through such authority and contract. The right to lay down a railroad track upon that avenue was not complete by the charter. In order to the completion of the right, the authorization of the city was essential. Ifj at the time of the passage of the ordinance, such right could not have been specially granted, it is not perceived how anything in completion of the right could have been conferred by the ordinance.
It does not seem to be a sufficient answer in the case, that the ordinance of November 13, 1871, is, in effect, but the waiver of a forfeiture for not constructing the railway track within the time limited by the ordinance of August 22, 1864; and that the common council might waive such forfeiture. That might be, if the common council had at that time, November 13, 1871, possessed the power to give authority to the company to lay down the railway track. But not having such power at that time, it having been taken away by the constitution, the common council could not, by waiver of a forfeiture, accomplish the effect of giving or allowing to the railway company the authority to lay down a railroad track in a street, which privilege it would not have but for such waiver of forfeiture. It is conceived that, at that time, no authority could directly or indirectly have been got, by any action whatever of the common council, to lay down this railway track.
The ordinance of November 13, 1871, too. is more than a waiver of any forfeiture; it gives the privilege to lav down a double track from Twenty-second street to the city limits, when the previous ordinance of August 22, 1864, had only given the privilege to lay down a single track, and requires also the consent of only a majority of the abutting lot owners, instead of two-tliirds, as did the previous ordinance.
Neither does it meet the difficulty to say, that the ordinance does not give the franchise—that it is the charter which gives that. It is the ordinance which gives the special privilege to lay down a track on Indiana avenue, which gives the right of the exercise of the franchise upon that street.
The position taken by counsel for appellant, that a valuable franchise of the railway company lies in its power to contract with the city for the use of the streets, and that such a grant implies an obligation not to withdraw the power, which is protected by the Constitution of the United States, and that, therefore, it is not competent for the people of the State, by their constitution, to take away from the city the power to so contract with the company, does not seem to be one which is tenable. Wherever such power, on' the part of the city, had been already exercised, and the company had acquired authority from the city to lay down a railroad track on any street, there would be a vested interest, which would be protected. But where there had been no exercise of the power, it is not perceived that there was any vested interest in this respect. An expectation to be able to acquire in future, by contract with the city, authority from it to lay down railroad tracks in certain of its streets, is all that is seen here; and that can not, in my judgment, be regarded as a vested interest. The charter of the company gives it no right to the demand of authority from the city to use any street for its railroad, but leaves it in the discretion of the city to grant the authority in such manner, and upon such terms and conditions, and with such rights and privileges, as the common council, by contract, may prescribe. This is a political power delegated to the city for the purpose of government, and subject, like all similar powers, to be modified or withdrawn at pleasure, so far as not already acted upon and rights acquired under its exercise.
Judge Cooley, in discussing the question of vested rights, says: “And it would seem that a right can not be regarded as a vested right, unless it is something more than such a mere expectation as may be based upon an anticipated continuance of the present general laws; it must have become a title, legal or equitable, to the present or future enjoyment of property, or to a present or future enforcement of a demand, or a legal exemption from a demand made by another; * * and if, before rights become vested in particular individuals, the convenience of the State procures amendments or repeals of those laws, those individuals have no cause of complaint. The power which authorizes or purposes to give, may always revoke before an interest is perfected in the donee.”
In Aspinwall v. Commissioners of the County of Daviess, 22 How. 365, by the charter of a railroad company passed by the legislature of Indiana, county commissioners were authorized to subscribe for stock on a vote of the majority of the voters of the county in favor of the subscription. An election was held on the first Monday of March, 1849. and a majority of the votes was cast for the subscription. But, before the subscription was made, the State adopted a new constitution, which went into effect Hovember 1, 1851. One of the articles prohibited such subscriptions, unless paid for in cash, and also prohibited a county from loaning its credit.or borrowing money to pay such subscriptions. In 1852, the county commissioners of Daviess county, in pursuance of the vote of the people had in March, 1849, subscribed for stock in the railroad company and issued their bonds for the amount. One of the questions presented was, whether, by virtue of its charter, and of the said election, the railroad company acquired any such right to the subscription of the county commissioners, as would be protected by the Constitution of the United States against the new constitution of Indiana, and the court held that no such right was acquired, and that the subscription was made and the bonds issued in violation of the new constitution of Indiana.
In the case of the Covington and Lexington R. R. Co. v. Kenton County Court, 12 B. Monroe, a similar question arose, where there was in the charter of the railroad company authority given to the county to subscribe for stock in the company. A majority of the votes of the county was given in favor of the subscription. The county court then refused to make the subscription.
The proceeding was by mandamus to compel the county court to act. During the pendency of that proceeding, the provisions of the' charter conferring the authority were repealed. The court there say: “If the legislature delegate an authority, it can certainly be revoked before the power has been exercised in such a manner as to create a vested right. Individuals have this right of revocation, and it must, from its very nature, exist in the legislature, co-extensive with the right of the latter to delegate any of the powers properly belonging ■ to that department of the government.”
It was held that the right of the company under the re-, pealed provisions, if it could be properly denominated a right, was a mere right to make application to certain counties to take stock in the road, which they might reject at their discretion, and from which, therefore, the company might never derive a benefit, and which consequently was an advantage merely in anticipation, and of a character too unsubstantial and ideal to constitute a legal right, or to be the subject of legal protection.
Under the constitution of 1870, the legislature itself can not, by a special law, grant to any corporation or individual the right to lay down railroad tracks, and must prescribe, by a general law, the rules and conditions upon which horse railways may be operated in this State.
This company may be able to persuade the common council of the city to confer on it privileges not sanctioned by the statute law of the State. According to the claim which is made in this case, the common council have the right to go on for tlie whole life of the charter of this company, some eighty years, granting to it the right to lay down railroad tracks in all the remaining streets of South Chicago, in such manner, and with such rights and privileges, as the common council, by contract with the company, may prescribe; and such authority can not be taken away without impairing the vested rights of the company in the powers of the municipal corporation. It appears to be a claim that ought not to be admitted.
To allow that this company have the right, for the next eighty years, to acquire such “ special privileges ” under their special charter, pertaining to the construction and operation of its railway in the streets of the South and West Divisions of Chicago, as they may induce the common council of the city to allow them, does seem to be in repugnancy with the constitution. Conformity thereto requires that the company, for the future, should take their privileges as all others do, only under the sanction of a public and general law. Equality of privilege is the principle of the constitution of 1870.
It is true that, under this constitution, no law can be passed granting the right to operate a street railroad without inquiring the consent of the city; and a company organized under any general law which may be passed for such purpose, may, by consent of the city, obtain a similar special privilege as here; and it may be said, there would then exist the same objection as is here made, of there being a special privilege conferred by such consent. But there would be the difference, that the privilege so acquired would be to exercise only such guarded and restricted rights as may be allowed by a general law, to be passed, and not the special rights and privileges conferred by an antecedent special charter, and such as the common council may see fit to allow.