Chicago Motor Coach Co. v. City of Chicago

The circuit court of Cook county having sustained a demurrer to a bill for an injunction and dismissed the bill for want of equity, the complainants have appealed.

The Chicago Motor Coach Company and several of its employees, in behalf of themselves and all other persons similarly situated and with like rights, filed a bill in the circuit court of Cook county against the city of Chicago, its mayor and superintendent of police to restrain the enforcement of an ordinance of the city. The bill was twice amended, and a demurrer to the second amended bill having been sustained, the court dismissed it for want of equity. The complainants have appealed directly to this court, the validity of a municipal ordinance being involved and the judge having made the statutory certificate required for such appeal.

It appears from the bill that the Chicago Motor Coach Company is an Illinois corporation organized in 1913 under the name of Chicago Motor Bus Company, which was later changed to Chicago Motor Coach Company, to operate for public use, in the transportation of persons for compensation upon streets in the city of Chicago, omnibuses propelled by gasoline, kerosene or petrol power, or any other type of vehicle running on the ordinary surface of the ground and not on fixed rails which may at any time be lawfully used, and to do a general omnibus business; that since its organization it has operated motor busses upon certain streets in Chicago for the transportation of persons for hire; that before it began to operate motor busses on the streets the State Public Utilities Commission, and afterward its successor, the Illinois Commerce Commission, on the application of the company issued to it certificates of public convenience and necessity for the operation of motor busses over certain designated boulevards, including nineteen streets which were named in the bill, and that in pursuance of its charter and such certificates of public necessity and convenience it has developed and established and is now maintaining and operating a comprehensive and extensive system of motor bus transportation of passengers for hire on the boulevards, parkways and streets in the city of Chicago through the residential and business sections, extending from Devon avenue, in the north part of the city, to Ninety-second street, in the south part, a distance of approximately 20 miles, and is daily operating its busses on fixed time schedules, on fixed routes, designated in the certificates of public convenience and necessity, which routes aggregate 47.6 miles in extent, of which approximately 41.6 miles are located in boulevards and parkways which are under the jurisdiction of the Lincoln Park Commissioners and the South Park Commissioners and only approximately six miles along the nineteen streets of the city of Chicago mentioned in the bill; that the routes connect so as to comprise one system of transportation, and the corporation is now employing 287 motor busses in the operation of such routes and systems, which are carrying on an average from 145,000 to 150,000 passengers daily; that on November 22, 1922, the city council of the city of Chicago enacted an ordinance by which all general ordinances of the city were revised and codified in the form of a comprehensive code known as the "Chicago Municipal Code of 1922," section 2761 of which declares it to be unlawful for any person, firm or corporation to operate motor busses as common carriers on any street in the city of Chicago without first having obtained a specific grant of authority to do so from the city council in the form of an ordinance designating the routes and fixing the terms and conditions under which such busses may be operated, and section 2762 provides a penalty for a violation of the ordinance; that on February 5, 1924, the city of Chicago notified the company that the use made of the streets mentioned in the bill by motor busses of the company is unlawful in the absence of special franchise, license or permission, and that unless within ten days application was made to the city council for a franchise, license or permission to operate its busses in the streets named, the city would proceed to arrest the drivers of the busses and prevent the unlawful operation of such busses on the streets. The bill averred that the attempt to enforce the sections of the ordinance mentioned would cause irreparable injury to it and damages which could not be adequately compensated, and prayed that the defendants be enjoined from enforcing sections 2761 and 2762 of the Chicago municipal code of 1922 and from interfering with the operation of the motor busses upon the streets mentioned in the bill.

The question for decision is, Has the city the power to prohibit the operation on its streets of motor busses, as common carriers of passengers, by a public utility which has obtained a certificate of public convenience and necessity for such operation from the Illinois Commerce Commission? The appellants deny this power, the appellees affirm it. The city of Chicago is organized under the general Cities and Villages act. It has no inherent powers. It is thoroughly settled and too well known to require the citation of any authority, that in this State cities are creatures of the legislature and derive all their powers only from the statutes which the legislature enacts. To authorize the exercise of any power by a city a statute must be shown expressly granting the power or making a grant in such terms as necessarily imply its existence. The absence of such grant excludes the power. Statutes granting powers to municipal corporations are strictly construed and a reasonable doubt of the existence of the power must be resolved against it. The city, in exercising the power granted to it by the legislature, acts as the agent of the State, and the legislature may at any time change its agent and by another statute provide that the power previously exercised by the city shall be exercised by some other agency. There is no disagreement about these statements of the law. The appellants deny that the legislature has ever authorized cities to prohibit the operation on their streets of motor busses as common carriers of passengers, and aver that if it ever has done so the power has been withdrawn by the Public Utilities act.

The powers which may be exercised by cities organized under the Cities and Villages act are enumerated in section I of article 5 of that act (par. 65 of chap. 24 of the Revised Statutes,) as amended. This section consists of one hundred and one clauses, many of which refer to powers to be exercised in regard to streets, alleys and public grounds. The only two material to be considered here are clauses 7 and 9, which confer power: "Seventh — To lay out, to establish, open, alter, widen, extend, grade, pave or otherwise improve streets, alleys, avenues, sidewalks, wharves, parks and public grounds, and vacate the same, and for such purposes or uses to take real property or portions thereof belonging to said city or village and already devoted to a public use when such taking will not materially impair or interfere with the use already existing and is not detrimental to the public. * * * Ninth — To regulate the use of the same."

Automotive vehicles are lawful means of conveyance and have equal rights upon the streets with horses and carriages. (Christy v. Elliott, 216 Ill. 31; Ward v. Meredith, 220 id. 66;Indiana Springs Co. v. Brown, 165 Ind. 465;Shinkle v. McCullough, 116 Ky. 960.) Many cases have been decided respecting the validity and construction of statutes and ordinances regulating their use upon public highways, and it has been uniformly held that the State, in the exercise of the police power, may regulate their speed and provide other reasonable rules and restrictions as to their use. (Commonwealth v. Kingsbury, 199 Mass. 542; Christy v. Elliott, supra; State v. Swagerty, 203 Mo. 517;State v. Mayo, 106 Me. 62.) Driven by indifferent, careless or incompetent operators these vehicles may be a menace to the safety of the traveling public, and it has been held that under its authority to regulate the use of the streets a city may enact ordinances which may diminish this danger, and for this purpose may regulate the speed of automobiles and repress their careless management. City of Chicago v. Kluever, 257 Ill. 317;People v. Schneider, 139 Mich. 673; Commonwealth v.Kingsbury, supra; Brazier v. Philadelphia, 215 Pa. St. 297.

The legislature may prohibit by general law the operation of automotive vehicles upon the public highways of the State and it may delegate to the cities in the State the power to prohibit such operation within the respective cities. It has not done either in this State. The city has therefore never had the power to prohibit the operation of automotive vehicles on the city streets. It had the power, under clause 9 of section I of article 5 of the Cities and Villages act, to regulate the use of the streets by automotive vehicles but not to prohibit the use of the streets by them. Regulation is inconsistent with prohibition or exclusion. While it is within the power of the legislature to prohibit the use of the public highways of the State by motor busses, yet until the enactment of a law prohibiting or regulating their use they are lawful vehicles and means of conveyance, and have an equal right with omnibuses drawn by horses, trucks and other lawful conveyances, to operate upon the public highways upon compliance with the local ordinances prescribing regulations for their use of the highways, lawfully adopted by the several municipalities in which they operate. (G. R. G. H. M. Ry. Co. v. Stevens,219 Mich. 332.) Even the legislature has no power to deny to a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure, though this right may be regulated in accordance with the public interest and convenience. Where one undertakes, however, to make a greater use of the public highways for his own private gain, as by the operation of a stage coach, an omnibus, a truck or a motor bus, the State may not only regulate the use of the vehicles on the highway but may prohibit it. A municipality can do so only under a power expressly granted by the State. Exparte Dickey, 76 W. Va. 576.

It may be conceded that the city of Chicago had the power, by reason of the grant of the legislature of power to regulate the use of the streets, to designate the routes and fix the terms and conditions upon which motor busses might be permitted to operate on the streets. Under the powers granted to city councils by the various clauses of section I of article 5 of the Cities and Villages act, the city of Chicago, and many other cities and villages in the State, prior to the going into effect of the Public Utilities act of 1913, (Laws of 1913, p. 459,) which became effective on January 1, 1914, properly enacted many ordinances providing rules for the regulation of public utilities and from time to time amended and changed such rules. The ordinances were authorized by the legislature and compliance with them by the public utilities was required by the courts. Section 8 of the Public Utilities act gave general supervision of all public utilities to the Public Utilities Commission, and section 9 required every public utility to comply with every order, decision, direction, rule or regulation made by the commission in every matter in any way relating to or affecting its business as a public utility. Section 32 required every public utility to furnish, provide and maintain such service, instrumentalities, equipment and facilities as should promote the safety, health, comfort and convenience of its patrons, employees and the public and as should be in all respects adequate, efficient, just and reasonable. Section 49 provided that whenever the commission, after a hearing, should find that the rules, regulations, practices, equipment, appliances, facilities or service of any public utility or the methods of manufacture, distribution, transmission, storage or supply employed by it were unjust, unreasonable, unsafe, improper, inadequate or insufficient, it should determine the just, reasonable, safe, proper, adequate or sufficient rules, regulations, practices, equipment, appliances, facilities, service or methods to be observed, furnished, constructed, enforced or employed and should fix the same by its order, decision, rule or regulation. It was further provided that the commission should prescribe rules and regulations for the performance of any service or the furnishing of any commodity of the character furnished or supplied by any public utility. Section 50 provided that whenever the commission, after a hearing, should find that additions, extensions, repairs, improvements or changes in the existing plant, equipment, apparatus, facilities or other physical property of any public utility ought reasonably to be made or that a new structure or structures should be erected to promote the security or convenience of its employees or the public or in any other way to secure adequate service or facilities, the commission should order such additions, extensions, repairs, improvements or changes to be made or such structure or structures to be erected. Section 57 gave the commission power, after a hearing, to require every public utility to maintain and operate its plant, equipment or other property in such manner as to promote and safeguard the health and safety of its employees, passengers, customers and the public, and to this end to prescribe, among other things, the installation, use, maintenance and operation of appropriate safety or other devices or appliances, to establish uniform or other standards of equipment, and to require the performance of any other act which the health or safety of its employees, passengers, customers or the public might demand. Section 64 authorized complaint to be made by any municipal corporation of any act or thing done or omitted to be done in violation, or claimed to be in violation, of any provision of the act or of any order or rule of the commission. Each city was given the power to appear as complainant or make application before the commission for an inquiry, investigation or hearing relating to the rates or other charges for services of public utilities within such city, and in case of any inquiry, investigation or hearing by the commission, ten days' written notice to the city was required before such inquiry, investigation or hearing, and the city was entitled to appear and present evidence relating to the subject matter. Section 65 provided for hearings, the issue of process to enforce the attendance of witnesses, the taking of evidence, the entry and service of orders, which should of their own force take effect and become operative twenty days after service, except as otherwise provided. Sections 68 and 69 provided for appeals from the orders of the commission, and section 76 prescribed a penalty for a failure to comply with any provision of the act or with any order of the commission.

The language of the act is sufficiently comprehensive to subject every phase of the relations between every public utility and the public to the supervision and regulation of the Public Utilities Commission. The commission was invested with the supervision of all public utilities, authorized to fix the safe, proper or adequate equipment to be employed, to direct additions, improvements or changes to be made, to determine the just, reasonable, safe, proper, adequate or sufficient rules, regulations, practices, equipment, appliances, facilities, service or methods to be observed, furnished, constructed, enforced or employed and to fix them all by its order, decision, rule or regulation, and every public utility was required to comply with every order, decision, rule and regulation of the commission. These provisions certainly covered the whole field of service of every utility. They left no room for the exercise of authority of any other body. The vesting of the power conferred by this act in the Public Utilities Commission necessarily withdrew from cities and villages all such power as they had previously been authorized to exercise in the premises. This was the decision in Northern Trust Co. v. Chicago Railways Co. 318 Ill. 402. The question had previously been decided in the same way in Village of Atwood v. Cincinnati, Indianapolis and WesternRailroad Co. 316 Ill. 425. These decisions were followed inCity of Witt v. Cleveland, Cincinnati, Chicago and St. LouisRailway Co. 324 Ill. 494, and Chicago North Shore and MilwaukeeRailroad Co. v. City of Chicago, 331 id. 360. In the case last cited, as in this case, it was argued that there was no inconsistency between the grant to the city of exclusive power to consent to the occupation of its streets and the Public Utilities act but that they should be construed together, because clause 24 of section I of article 5 of the Cities and Villages act and clause 5 of section 19 of the general Railroad act both provide that the consent of the city must be obtained before a commercial railroad can cross or occupy the streets of the city, and there is no provision in the Public Utilities act which purports to give the commission authority to grant such railroad the right to cross or occupy city streets without the consent of the city; that clause 24 of section I of article 5 of the Cities and Villages act was amended and re-enacted in 1919 after the passage of the Public Utilities act, and that section 81 of the Public Utilities act of 1921 expressly denied any intent to limit or restrict the power of municipalities to grant and control the use and occupation of the streets. This provision of section 81 of the Public Utilities act of 1921, effective when adopted, is as follows: "Nothing in this act shall be construed to limit or restrict powers now or hereafter granted to cities to pass ordinances for the protection of the public health, safety, comfort, and general welfare, or governing the regulation, control or occupation of streets, highways and public property within the city. Nothing in this act shall be construed to limit or restrict the powers granted to cities by this article, nor to extend the jurisdiction of the Illinois Commerce Commission over the matters covered by this article except as herein provided. Nothing in this article shall be construed to conflict with powers conferred by this act upon the Illinois Commerce Commission, so far as the exercise of such powers by the commission is necessary or appropriate to its authority with respect to public utilities under the jurisdiction of the commission."

Clause 24 of section I of article 5 of the Cities and Villages act provides that the city council in cities and president and board of trustees in villages shall have the following powers: "To permit, regulate or prohibit the locating, constructing or laying a track of any horse or electric railroad in any street, alley or public place; but such permission shall not be for a longer time than for twenty years." Clause go of this section provides that "the city council or board of trustees shall have no power to grant the use of or the right to lay any railroad tracks in any street of the city to any steam, dummy, electric, cable, horse or other railroad company, * * * except upon the petition of the owners of the land representing more than one-half of the frontage of the street, or so much thereof as is sought to be used for railroad purposes." In regard to the claim of the city that there is no inconsistency or repugnancy between these provisions of the Cities and Villages act just quoted and the provisions of section 81 of the Commerce Commission act, the court in the case last above cited said: "It seems clear that the provisions of section 81 of the Public Utilities act above quoted and the provisions of the Cities and Villages act just quoted relate to the location of the tracks over and along streets and consent or license to construct tracks across or upon the streets, rather than the supervision, regulation and control of the operation of such railroads when constructed. Section 8 of article I of the Public Utilities act, as revised in 1921, (Smith's Stat. 1927, p. 2130,) confers upon the Commerce Commission, formerly the Public Utilities Commission, general supervision of all public utilities. It cannot be said to be the intention of the legislature that both the city and the Commerce Commission shall have jurisdiction of this matter. Where the General Assembly enacts a new statute upon any subject and it appears from the new act that it is the legislative intention to make a revision of the whole subject and to frame a new plan or scheme in relation thereto, this is, in effect, a legislative declaration that whatever is embraced in the new statute shall prevail and whatever is excluded therefrom shall be discarded. The revision of the whole subject by the new statute evinces an intention to substitute its provisions for the old law on the subject." (Citing cases.)

The right given to the city to complain to the commission concerning the services of public utilities within the city, the requirement of notice to the city of any hearing relating to the rates or charges for services of public utilities within the city, the right to appear and present evidence upon such hearing and the right of appeal from the order entered, certainly indicated that the Commerce Commission had plenary power over the utility, the conduct of its business and its relations to the public and that no power to exercise any control remained in the city.

The public highways of the State include the streets and alleys in the various municipalities of the State as well as the public roads which lie entirely outside the boundaries of any municipality. The legislature has the entire control of all highways and may delegate the supervision and control of them to any agency which it may deem proper. It may commit the supervision and control of all highways to a single agency and may change that agency from time to time as it sees fit. It may commit the supervision and control of the streets and alleys in cities and villages to the city councils or boards of trustees of the respective municipalities and the supervision and control of the highways which lie beyond the boundaries of any municipality to another agency, and it may change from time to time the agency established, either within or without the municipalities. The title to the streets and alleys in cities and villages, whether in fee or by way of easement only, is held by each municipality not for the benefit of the inhabitants of the municipality only, but in trust for the use of the public at large equally with the residents of the municipality, and the State may commit to any agency which it may create for that purpose the entire supervision and control of every part of the highways of the State, or it may divide the supervision and control of the highways as it sees fit. By the creation of the Illinois Commerce Commission, with the comprehensive powers over public utilities which have been mentioned, the legislature withdrew from municipalities in the State the power which they had previously exercised in regard to the use of the streets by such utilities and conferred those powers on the Commerce Commission.

The decree of the circuit court is reversed and the cause is remanded to that court, with directions to overrule the demurrer to the amended bill.

Reversed and remanded, with directions.