, 1873-06-22
/ Decision in the Indiana Avenue Horse
Railway Case.
An Opinion that Deeply interests
Stockholders.

WILL uafe ID eaCO Case TO get general law. 1Qt
Case in point. one OF quo Warranto, VAS brough
on the 10th OF July, 1870. A charter was
granted defendant Nov. Il, 1859, authorizing
1t to use the streets OF the
City Of Chicago for the laying o
their tracks upon such terms as til
Common Council should prescribe. In 1864, th'
Company obtained authority from the Comno,
Council to Icy single track upon Indiana are
nue, on the conditions that it should be finished
within fifteen months from the passing Of th,
ordinance, and that the Company procure th'
ronsent Of two-thirds Of the proporty-owners O.
Indiana avenue. The grounds Of forfeiture
were, among others, that tho Company con
ftructed the track to Thirty-drst street only
leaving mile unconDtructed, and that they
Jailed to get the requisite consent OF the
pwnc1s- In decision delivered by Judge
Williams, about year ago, these OBJ
1ections, as grounds Of forfeiture, we1e
held to 10 valid Nov. 10, 1871, the RAILROAD
Company procured the passage Of IN ordinance
extending the time for the construction OF the
trnck two years, and confirming their rights to
tbs track already laid on the avenue, and giving
the right to Icy double track upon getting the
consent OF the requisite number Of owners. This
ordinance WAS cited BY the defendant as evidence
Of authority, and to that plea the State de-
INJURED, on the ground that under the neW Oo1-
st!tution, special privilege could not be granted
by the Legislature nor By the Common Council,
which is a mere Agent OF the State. Judge
Williams. rs will be seen by the following de-
nision, agreed with this view Of the case:
Demurrers to some Of the 1cpncauons having been
sustained, amended repcatons filed, and to the
original and amended repicaon1 tho respondent hAs
bled several 1eoInders and to a of the Tejoinders
demurrer has been fled. The first amended replica
oa get up tho falu1e Of respondents to obtain tho
consent OF the requisite number Of
1udiAna avenue before constructing ih track Tha
Eeeond amended replication Rcts uF the failure to
6tcUrn kuch conseat within ntean months from tho
passage Of the ordinance Tho third amended rept-
cation that respondent did not complete It's road
within fifteen mouths but only small part thereof is
Ee. completed. The eighth amended replication sets
up the failure Of defendant to obatn tbs consent OF tho
xtrcet-
The sizth original replication alleges the failure Of
defendant to keep its tracks in the condition pre.cb
ed bg tho ordnance but permitted them to be laid
As to obstruct travel &c. Tho first roioinder to tho
erst secand and eighth amended, and the sixth orig
taa, repcaons, takes issue upon the facts stated In
shonld be ovcs7uled The second zcoiner to etch
81 tue rcptcstlons sets tho passage OF an ordinances
IN thu 18th Of November, 1871, amending and modify
the construction OF the road Indiana arenno for
years from the passage Of the ordinance In 187 and
confirming the right Of defendant to maintain and uxe
dts existing ttacks for the tine mentioned in
the ordinance, and further granting to it
H. r3sht to construct and operate double
which vere accepted By defendant, AID duo notice
gwen to the city.
hon rets the obtaining by the defendant Of The
sent Of the requisite number Of Afer
tie expiration Of tho fifteen months before the CON-
me1cerent OF this suit.
The third rojotnder to the ei1tn replication denies
the c1istenca Of IN ordlaance compelling the respoo
dent to keep Its tracks in such condition that they
should be elevated above the that yeh-
elea could easily and freely cro:s the track, &C.
sas So to ao 81 & shn e a
94R4utste number Of propertJ-holders Oh Eighteenth
kreet, af:er the laying down of the track.
seats the question whether the Constitution Of 1870 pro-
hoits the City Chicago from granting defendant
sessed prior to the adoption Of the Constitution. 4
fu discussion Of this question would consume moro
ss shsn d1v9 70 It. % II I'm dnd
cases. Il the Present suit ean be maintained ut Ill, 1t
must be for the TINT defendant, by ita op1s-
Ions cs connssions, has forfeited aome portion Of its
franchises. II there has been such forfeiture It
oni1 be waived By the State. Tho Common Council OF
he city csnnot wnye It. The rc3onders, therefore, do
not show waTer by the paasage OF tho ordinance Of
1871. Nor do think that the franchises Of the de-
fa1dAnt have been to auy extent forfeited any new
f it which would have the effect to restore It to its
s1don before such forfeiture
The City Of Chicago Is corporaton existing for the
purposes Of municipal government 1t Il subordinate
.h6 Le9islature which give it fts legal existence It
.a posaeas no S7e1tel R4Tes than It: pneP1 It has
6ste Constitution
When the city has passed ordinances in compliance
with existing laws and righta hare become vested IN
der such ordinances, the persons possessed Of
such right. cannot bo deprived Of them by subsequent
the part Of the Common Council Is subject to limits
tion or aooliton by the superior vii Of the state
ss sd Y he Assembly
has granted to the Common Council powers
T.. e future legislation which It could 20
~ Is n.ble '$9' to ui.tfdns M RA' 4 ~" pover ''i p5
constitutional provisions, the aRent Subordinate
60 then the superior power of The stte nheres not II
tbs whole body OF he people, but 1t has been in part
merged in ffsctona part q th.t body. II he oon
The General Assembly has c1eated body not only as
powerful isen, but it has freed the object ii s
itself Subject. / thinE It n must " Be- granted ted
that the power OF future legislat1on BY municipal
portion n,uz e: ;:es purpose be hsd .ubordinated
to tie supreme VII o. the sate whether expressed in
Laws or in its constitution
By tbs Constitution Of 1870, the General Assembly
law nv Faroa9 s ao a ~, 9y pen
corporation individual the right to lay down railroad
tracks and from granting to it special erclu-
that This limitation to future le8lsAtion upon the
superior uhe General Assembly, also Limitation
trz1y doctrine carried out ts legitimate concluson
would be fraught with tremendous consequences In
11 pa1lcuar where the charter Of the defand-
ant exists for some eighty years, would give the
Common Council Of Chicago for III that time the pow
oy ordinance to grant special franchises to the
3eadnnt throughout the city, 1t now e1ists or may
hereafter he extended during The existence Of defend
ANTS charter And YET no one doubts that the Leg1s-
taure Of the State is prohibited from Ely such e1er-
css % Of power: do not think therefore, thas the |
ordinance Of 1871 ts vahd. The demu1re7a TO the Soc
ond 7ejo1ade1 to Ill tho 1epcadons viii therefore be
sustained.
Tbs third zejosnder to the second amended replica
non Is bAo r. there as forfeiture then aftor it had
once assumed the City Of Chicago had no power to
sa7e It, The denur7er to this rejoindez Win there
fore be sustained
The demurrer to the third rejoinder to tho eighth
anended replication will be sustained L forfeiture |
oou19 not be r1tsed by tho owners Of The properly
renting en- the street.
The first rejotnder to the third amended replication
md the third rejondez to the sixth original repllca
ion good. The demurrer to thess viii he uysr, |
uled, |
MAYORS PORTRAITS.
p tie Editor Of The Chicago Tribune:
sR: Every city has, or should have, q great
ride in preserving authentic records Of its past
storv Comn, eurinp her life aA L city With |