dissenting:
The case being considered is of such importance, in dissenting from the judgment to be rendered it seems proper that I should state my reasons, in part, at least, for so doing. As respects some of the questions involved, I concur with the majority of the court, but perhaps for reasons other than those assigned in the principal opinion. I shall only remark upon what I regard as the controlling questions in the case. That my views may be better understood, I wish first to make a statement of the matters at issue, as they appear to me from the pleadings and the evidence.
The bill is an information in chancery, brought by the Attorney General of the State for and in the name and behalf of the People, by the authority of the People of the State, and also in their proprietary right as owners of the soil of the Chicago river, against the Chicago and Evanston Railroad Company and the Chicago and Lake Superior Railroad Company, and was to enjoin and restrain such corporations, or either of them, from in any manner building, erecting, constructing or working upon any railroad track, embankment, superstructure or railroad not already built in any of the streets of the city of Chicago, and from building, erecting or constructing any bridge over or across the north branch of the Chicago river. It is alleged the Chicago and Evanston Railroad Company was incorporated under a special act of the legislature, passed in 1861, and the charter is set out at length, so that it fully appears what power the corporation could properly exercise, if it is still an existing corporation, under that act and the amendatory act of 1865. It is also alleged the Chicago and Lake Superior Railroad Company was incorporated October 6, 1883, under the general laws of the State, and its powers as a corporation are, of course, derived from the general law in relation to the incorporation of railroad companies.
Among the grounds upon which relief is demanded, are, first, that the charter of the Chicago and Evanston Bailroad Company of 1861, as amended by the act of 1865, was repealed or annulled by section 2, article 2, of the constitution of 1870, for the reason, it is alleged, such corporation was not, previous to the adoption of the constitution, organized, nor was it in operation within ten days after it went into force, on the 8th day of August, 1870; second, that the Chicago river is a navigable river, and that the title to the soil and bed of the river is in the People of the State of Illinois, and that the corporations named as defendants, purpose, under powers claimed to be derived from their charter, and the general Incorporation law, and certain ordinances of the city of Chicago, to construct a bridge over .the north branch of the Chicago river, near Kinzie street, and that it is unlawful for such corporations, or either of them, to construct such bridge without first having obtained authority so to do from Congress, or from the legislature of the State of Illinois; and third, that the Chicago and Evanston Bailroad Company has no authority of law to construct any railroad for general business within the limits of the city of Chicago, and to operate the same with steam power. All other allegations are in support of these general propositions. So far as other matters contained in the bill may be deemed important to an understanding of my views, they will be stated.
It is not claimed the Chicago and Evanston Bailroad Company has any authority from the State to construct and operate its railroad within the limits of the city, or to construct a bridge across the Chicago river, other' than that which is contained in its original charter of 1861, and the amendatory act of 1865. If it has any other authority, it is derived solely from city ordinances the validity of which is challenged by appropriate allegations contained in the bill. As has been seen, the Chicago and Lake Superior Bailroad Company was organized under the general law in relation ■to incorporating railroad companies. Railroad companies organized under that law have express authority to bridge all streams it may be necessary to cross in constructing their respective roads, whether navigable or not. No railroad company, however, can construct its line of road along-or across any street within the limits of an incorporated city or village without first having obtained the consent of the municipal authorities of such city or village. The only authority it is insisted the Chicago and Lake Superior Railroad Company has now or ever had for entering and operating its line of road within the limits of the city, is contained in the ordinance of December 24, 1883.. So, too, the authority of the Chicago and Evanston road to construct and operate its road within the limits of the city on .the route now proposed, if any exists, is contained in the same ordinance. The only license from the city to either corporation to construct a .bridge over the Chicago river at the point indicated, is given by the same ordinance of 1883. The authority or validity of that ordinance is challenged by the bill for two reasons : First, the city has no authority to authorize either corporation to construct a bridge over the Chicago river,—such authority, it is said, could only come from Congress or the-State; and second, the municipality of Chicago has no power, under its charter, to permit either corporation to construct or operate any line of railroad on Canal street or Hawthorne avenue, •except upon the petition of a majority of the owners of land abutting on such streets. No consent was ever given by the property owners on such streets, to either corporation, to construct its road on either street, and it is alleged the ordinance in that respect is null and void. The admission in the record in regard to this allegation of the bill is, “that no petition of the property owners of lands representing more .than one-half of the frontage of Hawthorne avenue or of Canal street, or of so much thereof as is sought to be used for railroad purposes, under and by virtue of said ordinance of December 24, 1883, was ever had or procured, but defendants disclaim any right or intention of using Canal street lengthwise, under said ordinance of December 24, 1883.” No permission had previously been given, by any ordinance of the city, to any company, to construct any railroad for general business, and operate the same either in Hawthorne avenue or in Canal street. It seems some track had previously been laid in Hawthorne avenue, either by the Chicago and Pacific Eailroad Company or the Chicago and Evanston Eailroad Company, or by both, 'and which the Chicago and Lake Superior and the Evanston companies were authorized to use by the ordinance of 1883. That track in Hawthorne avenue seems to have been laid under an ordinance passed in 1872. Steam was authorized by that ordinance as a motive power in propelling cars, but both companies that had the right to use such track in Hawthorne avenue were restricted to moving only passenger cars over it. The ordinance of 18.72 was afterwards repealed by the city council, in 1876. It is said by the defence, that repealing ordinance was declared by the United States Circuit or District Court to be invalid or void, and for that reason it should not now be regarded as ever having had any force. It matters little whether it was or not. The Chicago and Evanston Eailroad Company, only, answered the bill. It denied all the charges of want of authority to construct and operate its road within the limits of the city, or to construct a bridge over the Chicago river in connection with its road,- and asserted its right and power to construct and operate its railroad under its original and amended charters, and under the ordinances of 1872 and 1883. Its answer was not under oath, that having been waived, and to which a replication was filed. The Chicago and Lake Superior company made no answer to the bill, but filed a demurrer thereto, which was sustained. Upon the final hearing, upon bill, answer and proof, the court dismissed the bill-
The charters of the defendant corporations, and the franchises they may therefore exercise, are so different, it will be most convenient for me to consider them separately, in some respects. It is seen that by section 12 of the ordinance of December 24; 1883, all the rights, privileges and powers by that ordinance granted to the Chicago and Evanston Railroad Company, were in like manner, and subject to the same restrictions, granted to the Chicago and Lake Superior Railroad Company. A new ordinance containing the same identical provisions, applicable to .the latter company alone, would have had no greater force. Every license or privilege granted to the Evanston company is available for the benefit of the Chicago and Lake Superior Railroad Company, in as full a measure as if the former company never had any existence; and if it should be found to have no right to exercise the privileges conferred, by the ordinance, that fact would "not militate against the right to exercise the privileges conferred on the Lake Superior company by the ordinance. Regarding every section of the ordinance as specifically applicable to the Lake Superior company, as may be done, what privileges may it exercise ? It is granted a license or privilege to construct, maintain and operate, with steam power, a railroad, with one or more tracks, and such switches, sidings and turnouts as the company may deem necessary, along and upon a route definitely described. By the first section, permission was given to connect with tracks then in Hawthorne avenue. That, of course, would be equivalent to giving that company the right to acquire the use of such track, and the privilege to construct for its own use such other tracks, switches, sidings and turn-outs as it might deem necessary. By the second section permission was given, in the construction of another part of its road, after crossing the Chicago river and West Kinzie street, to ¡connect with “tracks now laid in Canal street.” By the fourth section this company was authorized to use and operate all railroad tracks by the ordinance authorized to be laid, or before that time authorized to be laid, iiq Hawthorne avenue, for all general business incident to railroads, by freight, passenger and other cars, by steam or other power. It was, however, provided, the company should not run over such tracks, trains of more than thirty cars, and that all regular trains should be run at least ten minutes apart, and not oftener. What is all this but a license to a railroad company recently organized under the general law, with a franchise to construct a railroad from Chicago to Lake Superior, for the transaction of a general freight and passenger business, in cars to be propelled by steam or other power, within the limits of the city, and along and in certain streets ? Plainly, that is what this ordinance means, and no reasoning can justify any other construction. So far as the municipal government by this ordinance attempted to grant to this company the privilege to construct and operate its road lengthwise in any street in the city except upon a petition of the owners of the land representing more than one-half the frontage of such streets, it is void. (Rev. Stat. 1874, chap. 24, art. 5, sec. 1, div. 90; Railroad Co. v. Dunbar, 100 Ill. 110.) The ordinance in that, respect is void for want of power in the common council to enact it. A fair construction of the ordinance is, this company may, in the construction of its road, occupy lengthwise a portion of Hawthorne avenue and Canal street. It is averred in the bill it is the intention of the company to do so, and the demurrer admits the allegation of the bill, so far as it appears. That being so, I am of opinion it was clearly error in the court to sustain the demurrer to the bill, and the decree as to the Chicago and Lake Superior Bailroad Company ought for that reason be reversed.
Passing now to consider matters that alone affect the Chicago and Evanston Bailroad Company, the first question that presents itself is, whether its charter of 1861, as amended by the act of 1865, since the adoption of the constitution of 1870 has any validity or effect. Section 2, article 11, of that instrument, . declares: “All existing charters or grants of special or exclusive privileges under which organization shall not have taken place, or which shall not have been in operation within ten days from the time this constitution takes effect, shall thereafter have no validity or effect whatever. ” It appears the company was in fact organized soon after the passage of its original charter, in 1861, and an organization has been maintained ever since, by the election of the usual officers for such corporations. It seems no work had in fact been done towards the actual construction of its track prior to that date. But that was perhaps not essential. The corporatioñ was in fact'organized, in a certain sense. It had done, prior to that date, corporate acts, some of them important, and others of little moment; but, all considered, they make it apparent it was a corporation for some purposes. This much may be fairly conceded. But it must be remembered, that so far .as any organization was perfected, it was for the purpose of constructing a railroad exclusively for carrying passengers between Chicago and Evanston, with the right to use only animal power within the limits of the city of Chicago, as will more fully appear further on in the discussion, and not a railroad for general business, both freights and passengers, using steam as a motive power. If the latter is the character of the corporation, then it was-not organized as such a corporation prior to the adoption of the present constitution of the State, and certainly no one can claim it was in operation as a corporation for the construction of a railroad for general business, within ten days after that instrument took effect. The utmost any one insists upon is, that in 1870, when the constitution took effect, the company was organized to construct a horse railroad within the city of Chicago. If the corporation can be construed to be one for the construction of a railroad for general business both in freights'and passengers, then it can not be insisted, with any show of reason, it was in operation for such purpose within ten days after the taking effect of the constitution, and hence the charter could have “no validity or effect whatever. ”
But a point is made that ought, in my judgment, to warrant relief against the' proposed action of the Evanston company under the ordinance of 1S83. It is, that, conceding the charter of the Chicago and Evanston Railroad Company is" still in existence, and has force notwithstanding the adoption of the constitution of 1870, its road, since its acceptance of the ordinance of 1864, is and can be nothing more than a street railway within the limits of the city of Chicago, to be operated by animal power,—and the company can "not lawfully operate such cars by steam, as is proposed to be done under the recent ordinance. By its original charter the company was authorized to operate its cars with animal or steam power, at its option. -It also had authority, under that act, to connect with the North Chicago Horse Railway Company, or any other company, and make running arrangements with such companies.. It is recited in the preamble to the ordinance of August 17,1864, the Chicago and Evanston Railroad Company, under its charter of 1861, was authorized to locate, construct and operate a railroad, with horse power or locomotive cars, from Chicago to Evanston; that the company, in pursuance of such leave, commenced the location of their road, and desired to locate upon a route described: it was therefore ordained that permission be given the company to lay a single or double track railway on a certain route, and to keep, maintain, use and operate thereon railway cars and carriages, in the manner and upon the conditions set forth and required by the various ordinances passed and now in force in relation to the Chicago City Railway Company and the Chicago West Division Railway Company, except as the same were by that ordinance modified. The railways to which reference is made in section 1 of the ordinance, were both street or horse railways, for the exclusive purpose of carrying passengers, and upon which animal power was used to move cars. Notwithstanding this fact was well known, the mayor of the city hesitated, and refused to approve the ordinance, on account of certain doubts which he entertained in relation to the proper construction of such ordinance, and on account of certain objections; and for the purpose of removing such doubts and objections, the board of directors of the company, by resolution, declared “that it was the intention, and is the proper construction of said ordinance, that the Chicago and Evanston Railroad Company should operate the ears and carriages used upon their railway tracks within the limits of the eity°of Chicago, with animal power only, and that said railway company should not connect with any other railroad on which any other power was used;” and also further declared, by a resolution of the same series, “that the said ordinance, subject to the aforesaid construction of the same, ” was accepted by the company. On the presentation of a certified copy of these resolutions,, with others adopted at the same time, the mayor approved the ordinance. In the act of I860, entitled “An act concerning horse railways in the city of Chicago, ” this ordinance is referred to, in section 3, as an ordinance of the common council of the city of Chicago, entitled “A11 ordinance concerning the maintenance and operation of the Chicago and Evanston railroad in the limits of Chicago, ” as having been passed on the 17th day of August, 1864, and it was by that act confirmed, and it was declared, “it shall be deemed and held to confer on the Chicago and Evanston Railroad Company power and authority to construct and operate their road in the streets and over the bridge, as therein mentioned,, until the same is altered, changed or amended by the common council, with the consent of the company. ”
It is conceded that section 8 of the act of 1865, concerning horse railways in the crty of Chicago, is an amendment to the original charter of the Chicago and Evanston' Railroad Company, as passed in 1861; and I am inclined to adopt as correct the suggestion of counsel for defendants: “It might he said that thereby this ordinance became a part of the charter of the railroad corporation. As the ordinance had been accepted by the railroad company, it was a legislative approval of such acceptance. ” It is expressly referred to in the act of the legislature by its title, and is confirmed, and it is declared it shall be deemed to confer authority upon the company to construct and operate its road as in the ordinance mentioned. How was it to be operated ? It was as other street railways were to be operated, and the company conceded, by a resolution, that was animal power alone, and that it could not connect with any other railroad that used any other power. By the passage of the amendatory act of 1865, the Chicago and Evanston railroad became a street railway within the limits of the city of Chicago, precisely as were the Chicago City railway and the Chicago West Division railway, and could only be operated by animal power. Had the company laid its track and put its road in operation under the amendatory act of 1865 and the ordinance of 1864, no one would contend it would have been anything but the usual street railway, to be operated by animal power, and to be used exclusively for carrying passengers. It is too evident to need illustration, that under that act of the legislature and that ordinance of the city, which became a part of the charter of the company by being incorporated in the act of 1865, it had no lawful authority to construct any other kind of a railroad. To all intents and purposes it was then merely a street railway within the limits of the city of Chicago, and nothing else,' whatever it was between that city and Evanston. Since then there has been no legislative amendment to the charter of the railroad company. Nor can there be any amendment by special law, under the present constitution of the State. It remains precisely as it was after the passage of the act of 1865. That amendment was inconsistent with the original charter of 1861, in that it restricted the motive power within the corporate limits of the city of Chicago to animal power. So far as the two acts were or are repugnant, the latter act operated, by implication, as a repeal of the former.
The railroad that is proposed to be constructed, under the ordinance of 1883, by the Chicago and Evanston Railroad Company, is not what is known as a street railroad, which is limited to carrying passengers, usually, within the limits of the city, but the proposed road is one for the transaction of a general business, both freights and passengers, using steam as a motive power. The company is authorized to run over the tracks, within the limits of t^ie city of Chicago, trains consisting of not more than thirty cars, and the only restriction as to the number of trains that may be run, is, that regular trains shall be run at least ten minutes apart, and not oftener. Obviously a corporation exercising or proposing to exercise such extraordinary powers, must have a franchise emanating from some source capable of granting it. Whence has the Chicago and Evanston Railroad Company such^a franchise ? Surely it did not emanate from the State. The grant from the State was to construct, maintain and operate what is known as a street railway, for carrying passengers, and using only animal power. It is not claimed-by any one that a municipal government can grant a corporate franchise. All franchises, as is well known, emanate from the sovereign power, and in the American States emanate from the government, and owe their existence to a grant, or exist by prescription, as at common law, which presupposes a grant. A municipal body, it is understood, possesses no power to grant a franchise, in the technical sense that term is used in the law. Nor is it claimed the city of Chicago, under powers derived from the general Incorporation act, under which it is organized, can re-create a street railway company, and endow it with additional franchises to do a general railroad business, both.freights and passengers, in cars moved by steam, over the same track. A horse railway in the street of a populous city, carrying only passengers, and an ordinary steam railway transacting the customary business of such a road, are distinct and essentially different corporations. The franchises possessed by such corporations are not the same.'
It is admitted that on the passage of the act of 1865, and its acceptance, within the city of Chicago the Evanston company was to be regarded as a horse railroad, as distinct from a steam railroad. How has it been changed from a horse railroad to a steam railroad ? No source of power is suggested for this particular railway company to transact the general railroad business within the city of Chicago, using steam as a motive power, other than city ordinances. What-authority is there in the municipal government to enact or ordain these ordinances, under which the company proposes „to construct, maintain and operate its railroad within the limits of .the city? The only semblance of power is section 3 of the act of 1865, entitled “An act concerning horse railways in the city of Chicago,” and even that seems so slight as hardly sufficient to sustain any plausible argument in support of the validity of the ordinances. That section declares the ordinance passed August 17, 1864, “shall be deemed and held to confer on the Chicago and Evanston Eailroad Company power and authority to construct and operate their road in the streets and over the bridge-mentioned therein, until the same is altered, changed or amended by the common council, with the consent of the company; and such ordinances may, from time to time, be changed, altered or amended, and such other provisions be made, as to the common council may seem proper, and be agreed to by said company.” The railroad authorized to be constructed and operated wiijhin the city of Chicago by the ordinance of 1864, was simply a street railway for passengers, and it was confined to the use of animal power in moving its cars. Can. it be contended, with any show of reason, the provision in- section 3, “such ordinance may, from time to time, be changed, altered or amended, ” and “other provisions made,” confers power on the city council, ten years hence, to change the horse railroad so incorporated, into a steam railroad, and endow it with franchises as such ' corporations usually possess ? If such extraordinary powers exist in this provision, the subject is not expressed in the title of the act, and the omission, under the constitution of the State, would be fatal, and it would be inoperative. The title of the act is, “An act concerning horse railways in the city of Chicago. ” No subject in relation to railways for the carrying of freights and passengers in the manner usually done by steam railways, is embraced in that title. The words used will bear no such construction. It is therefore apparent, if, in the body of the act, .any subject in relation to steam railways is embraced, it is without authority of law. But aside from this view, it is not thought the provision contained in section 3 is broad enough to give the city council power to authorize-what is conceded to have been a “horse railway” under the act of 1865, to become a “steam railroad” for the transaction of all business done in freight and passenger cars. The power given is, “such ordinance may, from time to time, be changed, altered or amended. ” Changing such ordinance has reference to making other provisions than as therein mentioned, for the running and management of a horse railroad. No other kind of a railroad was mentioned. Power to make changes in this ordinance for the running of a horse railroad in the city certainly does not, by any fair or reasonable construction, include power to create a steam railway doing a general railroad business, both passengers and freights, over the same route or elsewhere in the city.
It is said that at the time of the passage of the ordinance of 1883, there was no restriction whatever upon the Evanston road as to the use of steam,—that these restrictions that previously existed, ceased by the ordinance of 1872. If it is true that after the passage of. that ordinance little or nothing of the ordinance of 1864 remained, how does that affect the act of the legislature of 1865? That act made the Evanston road a horse or street railway within the limits of the city of Chicago, and certainly the city council had no authority to convert it into a railway for all purposes. All railroad franchises come from the State, and how could the common council, under power to amend an ordinance in relation to a horse railroad, create a railway for all purposes within the limits of the city, over the same route, or elsewhere within its jurisdiction? Such a proposition, if insisted upon, would certainly have very little in its support. But aside from this view, there is great force in the suggestion of counsel the ordinance of 1883 does not purport to be an amendment, change or alteration of the ordinance of 1864, or, indeed, of any other ordinance. If valid, it confers new and independent power upon the railroad company without any sort of reference to the former ordinances, and it is in no sense an amendment to any former ordinance or ordinances. It might be conceded the. provisions of the ordinance of 1872 constituted an alteration or change in the ordinance of 1864, so far as it related to the use of steam by the railroad company, and yet that would fall very far short of sustaining the position taken, the company may use steam on a railway for all purposes, over the route described in the ordinance of 1883. Prior to the passage of the act of 1872, it is conceded that within the limits of the city of Chicago the Evanston road was nothing more than a street railway, to be operated by animal power. That ordinance did not purport to change the character of the railroad to be constructed in Hawthorne avenue, from a street railway into a railway for all purposes. The utmost it can be claimed it did, was to allow the use of steam instead of animal power. The track in Hawthorne avenue was restricted or limited to the use of passenger cars only, and the ordinance of 1872 simply authorized, so far as the track in that street is concerned, the use of steam instead of animal power in moving its passenger cars. It seems clear, first, the Chicago and Evanston Railroad Company has no authority from the State, under the act of 1865 or any subsequent act, to construct, maintain and operate any railroad other than what is commonly known as a street railway, within the limits of the city of Chicago; and second, so far as the ordinances of 1872 and 1883, or either of them, purport to endow the railroad company with franchises to construct, maintain and operate a railroad for all purposes, by steam, they are not within any power conferred on the city council by-the act of 1865 or the- general law under which the city is now organized, and to that extent they ought to be regarded as inoperative.
The question made as to the authority of either corporation to construct a railroad bridge over the Chicago river at the point indicated in the ordinance of 1883, needs only a brief discussion. The Chicago and Lake Superior Railroad Company is incorporated under the act of 1872, in relation to incorporation of railroad companies. Section 19 of that act expressly authorized any company organized under its provisions, to cross any stream, and to erect a bridge for laying rails, and running cars thereon. So far as .any license from the city to bridge the Chicago river is necessary, it is fully given by the ordinance of December 24, 1883. The company then has a franchise from the State, and a license from the municipal corporation within which the river is, to construct the bridge in question, and that would seem to be all the law requires, in any view. Congress has never assumed exclusive control over the Chicago river. The State has been permitted to control it. It seems to be conceded by a uniform line of decisions, that legislation in respect to local matters, affecting only certain localities, will be left to the State, and that duty may be, and is often, devolved by the State on local municipal governments. It is well known that in some instances the State and general government may exercise concurrent jurisdiction, and until the general government sees proper to act, State legislation is warranted. Concurrent jurisdiction exists, no doubt, in the Federal government and in the State, touching the control of the Chicago river, located, as it is, wholly within the jurisdiction of the State, and until Congress shall assume to act, the State has competent jurisdiction to legislate concerning it. (Harmon v. City of Chicago, 110 Ill. 400; Escanaba Co. v. City of Chicago, 107 U. S. 678.) As the Chicago and Lake Superior company has authority both from the State and municipal government' to construct a bridge over the Chicago river, its right to do so would seem to be complete; but that authority must be a barren right until the company shall in some lawful way obtain the right to construct its track to and from the river bank. Until that is done, a bridge at the point in question would be of no practical utility. It would, in some degree, at least, no matter how well constructed, be an impediment to the navigation of the river, and its existence ought not to be permitted until demanded by public convenience for railroad travel and overland commerce.
Without discussing the question at length, I am of opinion the Chicago and Evanston Railroad Company has no authority, under its charter or otherwise, to construct a bridge over "the Chicago river at the point in controversy. I do not find .that the State has conferred upon it any such right, and the city council of Chicago possesses no power to grant such a franchise, under the general law or otherwise.
In my judgment the decree should be reversed, and relief granted, substantially, at least, as asked in the bill.