concurring.
Appellant seeks to recover by usurping the province of the State, in questioning the right of appellee, an acting corporation, to operate its cars by steam-driven cable. I am of opinion that this can not be done in a private action.
Mr. Presiding Justice Sears.I do not concur in the assertion that the decisions in Jones v. Ry. Co., 3 L. R. (Q. B.) 733, and Thompson v. Penn. Co., 22 Vroom, 42, are lacking in reason or authority to sustain them. I am of opinion that the only ground upon which the sustaining of the demurrer in this case can be justified, is because it appears from allegations in each count of the declaration that the appellee company, in the doing of the acts complained of, “ was operating its trains under and by virtue of an ordinance of the city of Chicago.”
The question of whether the act thus said to have been done under color of right, was in fact in abuse of its franchise, can not be raised collaterally and in this proceeding.