were within the exclusive jurisdiction of the illinois commerce commission now presumably this came out a motion to dismiss presumably the or its ruling with respect to the exclusive jurisdiction of the i c c was relying upon two supreme court cases in one nine hundred thirty four one thousand nine hundred fifty four supreme court cases involving the city of chicago and railroads within the city of chicago those cases essentially hell that when the legislature passed the one nine hundred fourteen public utilities act it took away the municipal powers of municipalities to regulate railroad and railroad crossing and and not enforceable however that's not the situation we have here and the trial court's decision relying on those cases i've presumptively and it's ruling that the exclusive jurisdiction of the issues raised in the complaint along with the i c c isn't here for several reasons first of all the nine hundred fourteen public utilities act as it is the courts that is held in those two supreme court cases took away the municipal powers to regulate railroad crossings because the municipal powers were somewhat coercive they were regulatory in nature in this case in this case not an exercise of of any police power whatsoever this was an arm's length transaction between two parties first of all we have to look at this is a nine hundred twenty five contract between bell rive and the railroad public utilities act was passed more than ten years ago so certainly the railroad when it came to bell rive knew about the regulatory nature of the public commission which is a regulatory agency we have today basically it took away a body called the public utilities commission but today we have the i c c so in nineteen twenty five l rise and the southern illinois and kentucky railroad are meeting the railroad has to know that for over ten years that the regulatory authority of municipalities was gone moreover we have to assume that the parties intended here to enter into a valid and binding contract certainly they were not exercising some sort of act of futility most important most importantly here the nine hundred twenty five contract is not a regulatory effort by bell ride it was a voluntary arm's length agreement between two part you see bell right had at least two things that where after nine hundred fourteen about and a railroad comes the bell ride there's no trains in there and set and then the one thing to one of the two things that the railroad needed was it needed permission from bell rive to build the railroad through town is a statutory requirement that railroads were going to have to get permission to build through town and that was that was true and in one thousand twenty five it's true today we cited it sixteen and i'll  s five slash nineteen so paragraph five so they needed permission to build and the railroad wanted to build up basically a north south line through bell live and it wanted city the village rather to vacate its streets and alleys at places where the railroad tracks would cross so bell ride granted permission it says in the one hundred twenty five contract we grant permission and it vacated those streets and alleys where the tracks would cross and in exchange for that consideration the railroad agreed to build and maintain three of that bridge that created any kind of jurisdiction of the i c c that that the bridge was demolished first by the railroad and then they went in after the fact and asked for permission but the jurisdiction the own permission of the railroad to build the three bridges so to maintain those bridges just like they were when they were built that the railroad is obligated to go in and ask regulatory authority to do that let me damages and injunction and alternatively research into the contract commerce commission has no jurisdiction over any of those counts or any of those relief whatsoever its jurisdiction is solely commission has limited powers and so there was no way that count three for example rescission should have been dismissed unless the court assumed that the nine hundred twenty five contract was void and i say that for this reason rescission assumes that there is a valid contract in existence so if there was a valid contract in existence the court hundred twenty five contract between the parties what was void as exclusively within the jurisdiction of commerce commission so that there was no contract so we believe that the that the court misread the two chicago cases now if the contract this is a very important point here if the contract is void as within the jurisdiction because it's all the issues are within the jurisdiction of commerce commission well then that means th arrives permission for the railroad to go through the the whole one hundred twenty five contract is void the rives permission for the railroad to build through the statutory permission it was required to build through town never occurred and the actions of bell right in vacating the streets and alleys where the river of crossings cross is also void see the railroad wants to have its cake needed to in this case it wants to  bridges at its cost and also enjoy the benefits that contractual benefits of the permission to go through town and a vacation of the streets and alleys it's either all of one or none of the other but it can't be a little bit of both i mean that they can't have it both ways so if and we believe that our county does state ballot cause of action we will ask the court reversed and remanded to give us our hearing in it before the court but the firms that decision which we vigorously ask you to reverse remand but if you were to affirm it we ask that you you know clarify that the nine hundred twenty five ordinance was void and was void of an issue oh because the relationship of the parties from here on out and we need to know who has the right of way across those streets and alleys and whether or not there was actual permission granted to the reverend to bill through we don't think that that's the case the reason the route the critical reason is that this contract is contingent upon the the railroad getting regulatory authority build and maintain those bridges and do so it is a cost that there's supreme court cases that the two sprint portugal supreme court cases the thirty four and fifty four cases did not conditioned upon outside regulatory approval so when when i'm in a contract when a promise or makes a promise and that's a promise is conditioned upon some outside occurrence there's a duty of good faith and fair dealing to try to fulfill that condition in that promise in order to complete the contract here the railroad could go to it and it has the obligation in our opinion to go there on my commerce commission and say here's our nine hundred twenty five contract we have agreed to build and maintain three bridges in bell arrive at our cost and with they've done the engineering it's attached to the complaint here's the engineer and we ask your they built the bridges in the first place but if the contract is void from the beginning then you know all bets are off with respect to that to the to the vacation of the streets and alleys and the permission that was given to them to go in there before i can't recall your honor several years but it is in the record there is an order binding when it when do railroad demolished it before it got permission from the congress from now a that that order does not preclude the rebuilding of a bridge it to fulfil the terms of the contract just because the wooden bridge was and it unsaid right now we allege that the bridges are in an unsafe and and not passable condition of but in order to fulfill the terms of the contract the railroad needs to maintain a safe and passable bridge and if that means putting another bridge in that's part of their contractual obligation certainly they are using the streets and alleys that were vacated by bell rive many years ago their trains are going up and down the track as well this was a continuing duty of the railroad bridges for the obvious public safety reason is that when you we sliced that the village into the conditions upon which the village gave permission for the railroad either in the first place was so that the the public could traverse back and forth and east and west sides with you know as part of the deal the railroad in one nine hundred twenty five just as today they had the power of eminent domain they did not have to go through bell rock they did not ever right to go through hell right they needed all right statutory permission and they got it and they built it and now they have to fulfill their part of the deal and that those merger agreements between large companies that require federal or regulatory approval are contingent upon obtaining outside approval it doesn't mean that the contracts are aid so the obligation on the one party is to go to the f c c or the d o j and present the proposed merger and obtain regulatory approval stand that's the obligation that the railroad undertook here they undertook the obligation if everybody knew this was ten years after the fact eleven years after the fact when the contract was entered into it was a voluntary deal by a railroad that  obviously knew or at least as imputed to know the law that railroad crossings are going to require a bridges that river crossings are in require commerce commission approval but the contract is just because the commerce commission needs to approve the transaction and needs to approve they safety and engineering specs over six could require the it could the court could have ordered the railroad to seek i c c approval to to build and maintain those three bridges as part of its contractual obligation with bell rock  and we believe that that's that's the case the original can't get it can't get the benefits of the contract without also the burdens this is a post nine hundred fourteen contract was approached by the river road because the railroad wanted to build its tracks through bell rock and the rail roko to be exercised eminent domain powers which they had then and they have today to go around or take another route they did not have to go there this nature and not enforceable thereafter so that the contingency that we maintain that they contingency here is that they've got to go get regulatory approval another example would be of ninety nine year lease with the landlord that name says you know maybe i'll maintain the building and you get so many years into the contract and it needs a new rule book or needs a new electrical or whatever and you've got to get a contacted those two arguments were together because the final order of july sixteenth two thousand eight closing the test recrossing rights further evidence obvious evidence that the only commerce commission has jurisdiction over these exclusive jurisdiction over the issues raised in players complaint and in fact has previously exercised that jurisdiction over the tenth street bridge without objection by the point plaintiff prematurely asked this court to rule on issues pri is exclusive and plenary says it by statute s as to what assets are exclusive and shell extent of all intrastate interstate real carrier operations within the state the supreme court says is exclusive rule the town of three hundred people doesn't need three bridges that issue a highly privileged in a town of three hundred people when we're trying to decrease crossings and dangerous intersections in the state of illinois not increase them but he doesn't want to go thirty four and then secondly we have two basic pronouncements that deal with this again in supreme court opinions directly on point says when the public utilities act heman force on january first one hundred fourteen the power of city the power of the city or great separations ceased to exist and thereafter it could neither passed new nor enforce existing ordinances with reference to matters within the exclusive jurisdiction of commission and the nine hundred fifty fo don't have this controversy because james more than a crossing what there are two things one one as it relates damages the cost portion clearly covers who's going to pay for this is within the police only legislature redirected the police power over crossings to the only commerce commission they did that for safety reasons and in fact that the the wants to make this two thousand and eight president causing something over money it's specifically says it was about safety it specifically says that it's a dangerous process so the police powers delegated to the l a commerce commission did in the city of chicago cases those same things happen in fact the city of chicago at least they did it the right way there they went to the only commerce commission first and what happened was they had one hundred percent agreement and when they didn't get a hundred percent over a real process we can decide the really good idea to build a bridge over that when there's interstate commerce right through it has my cars and on and off there's a government body to decide whether that's safe or revised and so it's not like a long term  it's there is governing body that governs everything and even when there's a stipulation between even if there is a stipulation is a contract between the the bell right and the only conversation it's dealt with and the that austin down the street here in mt vernon is going to somehow bypass all this when if it rejected again and again and again and it is is wrong and money would be much better spent ha somehow pleading the judge to believe got him around or somehow pleading damages got him around or somehow put in something else got around every single time and these two cases frankly deal with ninety nine point nine percent of it every single time these arm houses and they don't cut off if you can simply go around the block and get to the highway and get across now as a practical matter the only commerce commission way considers that made it through in here about today we're here about him trying to say we are obligated to build three bridges in perpetuity when the only commerce commission is now in charge of this when the police powers the safety of the state  is not race to the cat against the only commerce commission there's a legion of cases on it the commerce commission can make a decision are ready for nature and the later on can change its mind so the decision that it made in two thousand and eight with respect to the tenth street bridge does not forever authority over the railroad crossings that's what the statutory authority is that's what the case law holds with respect to the allocation of costs the nine hundred thirty four case does it preempt the regulatory authority you know out of the preet nine hundred fourteen cases and that and it does say that afterwards the in the statute provides that the commerce commission can assess cost for the building of railroad crossings not just bridges but it can assess those costs it has that authority no question about but this is a contract this is not infringing on the commerce commission's authority this is a contract that the river road made here they said we'll pay for those costs they have an obligation under contract to go before the commerce commission and say we'll pay now if for some reason the commerce commission assessed costs against belgrade all right a it's like a contract of indemnity the river road has promised that they will pay for that that's part of the consideration for the deal that they got for the vacation of the streets and alleys and statutory permission to run their line through the village a bel right now he made a comment that a little town of three hundred doesn't want to go to that it would be better off going to the i c c to to seek this relief well the problem is they contractually obligated themselves to do that they the railroad built the bridges they heat up presumptively got permission from the i c c to build those bridges it's as i said this is like a condition where you have to go out and get regulatory approval in order to do something they're duty bound good faith unfairly to go to the commerce commission and offer to pay for building the three bridges they'd claim that the town of three people doesn't meet three bridges but they could track we are obligated to try to get permission to build those three bridges that's the deal that was made in exchange for the pay cation of the streets and alleys and going through town that the commerce commission can't pay void for all purposes and those streets and alleys were never break aided the city still has the rights of way to go right across those those streets and alleys i mean that sort of bring some chaos but what we need a ruling from this court or that old a circuit court with respect to the rights of the parties under this contract because they involve land rights they involve rights of way rights from here on out