City of Lake View v. Tate , 1888 Ill. App. LEXIS 460 ( 1889 )

Moran, J.

This was an action brought to recover a penalty against appellee, who was an engineer in the employ of the Chicago & Evanston By. Co., for running an engine and train of cars through the city of Lake View at a rate of speed forbidden by the ordinance of said city. On the trial in the Criminal Court the finding of the court was not guilty, and the city brings the appeal. The question presented, is the validity of the ordinance alleged to have been violated.

The city of Lake View extends along Lake Michigan north, for a distance of five miles from Fullerton avenue (which divides it from Chicago) to the line of the town of Evanston, and is bounded on the west by Western avenue. Ashland avenue, running north and south through Lake View, divides the territory comprising said city into two nearly equal parts. Two competing railroads run north and south through said Lake View, the C. & BT. W. west of, and C. & E. east of Ashland avenue, both roads nearly parallel with said street, which is about midway between them.

The common council of the city of Lake View by ordinance divided the territory comprising the city into two railroad districts, the boundary line between said two districts being Ashland avenue, and each district being five miles long from north to south and about one mile wide. The ordinance provides that no railroad train, locomotive or engine, or car used for the transportation of" passengers, shall be run through or within the limits of the “East Bailroad District” as described, at a greater rate of speed than ten miles per hour, and, repeals ordinances which had theretofore been in force, which were general in their provisions, and regulated the speed of trains alike upon all railroads running through the city. The effect of this legislation was to regulate the speed of the C. & E. trains down to ten miles an hour, and leave the C. & H. W. trains to run at any rate of speed the operators of said road saw fit to adopt. The evidence shows that both railroads cross the streets of Lake View on a level with the surface of such streets, and that all things considered, by the operation of the roads at an equal speed of trains, about as much inconvenience and danger will he caused by the one road as by the other, to residents of Lake View and the general public.

There can be no question as to the power of the common council of this municipality to regulate by ordinance the speed of trains upon railroads running through the territory over which it has control for the safety of the public, but such regulating ordinance must be reasonable and consistent with the laws and policy of the State, and must not be oppressive, unequal, or unjust, or partial and discriminating in its operation. Dillon on Munic. Corp., Secs. 253-61.

The question of whether the ordinance is a just and reasonable exercise of the power reposed in the council or not, is a question of law to be determined by the court, upon consideration of all the circumstances, and if the ordinance tends to create a monopoly or makes an act done by one, penal, and imposes no penalty upon another for the same act done under like circumstances, it can not be sanctioned or sustained, because it is unjust and unreasonable. Tugman v. City of Chicago, 78 Ill. 407.

On consideration of the circumstances in this record, we are of opinion that the ordinance in question is obnoxious to the objection that it attempts unjustly and oppressively to discriminate against the C. & E. road, and in favor of its competitor in business.

3STo reason—at least no reason which is in our opinion at all sufficient—appears for dividing the territory as is done by this ordinance, into two districts, and regulating the speed of trains in one of said districts only.

If the population in said district was dense, and in the other district sparse, a different question would be presented. Whatever the motive which dictated the legislation, the ordinance is one which can not receive the approval of this court, and the judgment of the Criminal Court will therefore be affirmed. T. W. & W. Ry. v. City of Jacksonville, 67 Ill. 37; Meyers v. C. R. I. & P. Ry., 57 Ia. 555; Cooley, Const. Lim., 393; Yeck Wo v. Hopkins, 118 U. S. 356.

Judgment affirmed.