, 1875-06-20
The Supreme Court Reyerses the Judg"
ment Of Custer Of the Lower
Court.
It Holds that the Ananaatory Ordinance
Was Legal
Dissenting Opinion Of Three Of tn
Judges.
Under The New Constitution the Ordinance HAS
Illegal.

South Side EtreetRailwAy Company to continue
operating the track On Indiana avenue south OF
Twenty street to the city inlts. The
lower Court held that the privilege had been
forfeited by reason OF failure to lay the track
within the tins required by the charter OF the
road. but the uppar Court overrules this Tor
reasons given below. The opinion, which is as
follows, is written by Mr. Justice Scott:
That large and important property lnterests as VEL
ss tie public convenience are Involved IN th1a
on I. apparent @ ,eSs sHn The ID III s
phases fully and e1haustiye1y. We hhau, however,
s;od the consideration Of all questions having no d.
After all i the view we have taken, the case IL con-
tro'led by elementary principles that admit o1 nus 1T
tie discussion.
THE INFORMATION
filed by tho acting IN IN the nature ot
quo warrauto is general and charges the Chicago City
Railway Company with the using aad usurping 81 o.
1r4nehiaes without warrant, grant charter or authority
tion the seyeral ordinances of tho City Of Chicago
authorizing the construction Of railway on certan
streets, all Aconees obtained, and alegs Ihn Com,
and eueular The requirements and conditions Of au
acts ordinances resolutions and papers above men
toned or not forth" Repltcauons fled counned the
avenue and it is oy sought to naya declared for
teure Of the franchises Of the Railway Company on
that avenue from street to tho
limits ef the CITY.
Shortly stated,
THE uSD!sPUrED FACTS
appearing In the pleas necessary to an understanding
Of the issues formed arc: In 1863 the chicago
City Railway Company was Incorporated under
au Get Of the General Assembly By the
SECOND section the corporation "a authorized and en-
or double track railway With III necessary and con
renient tracks for turnouts. sdezacks aud append.
ages, in the City OF Chicago and IN, on OF oves and
along such street streets, highway or highways,
bridge or bridges river or rivers within the presant
future limits Of the South OF West Divisions Of the
city the Common Council have authorized the cor-
outots or any Of them shall authorize the corpo-
ration SO to do in such manner and upon sucn erms
and conditions md with such rights and pr7egea ~
the Common Council has e., 9r may sonsSt with tho
The duration OF tho corporation b. the original char
ter was limited to twenty years. but BY an amend
ment passed in ts Il was Is stsnaed TO fo1 tns
Cennou Council with tho written consent Or concur
rance Of the other party PARTIES OF thor asatgns
~ Of tho en- Of
9'"sess ps;::' ~. 4:
authority, IN constaon ~ ana Taa;tsin " rn. M
ee4rack railway, with all necessary turnoutk, aads-
tracks, and switches, IN, upon, and along Indians
tho city provided the consent Of the owners Of two
thirds of the property, by nea eaaure fronting on
that street. should be first obtained. Under It's char
copsn9 n1s dS eonsaet It. 1x,y on ndna
nue.. rom Tweity-f eoona street south to Thirty
first street. completing the work In saptember, lS,
Of the city nn.ts when this proceeding wn COM
Menced-
Two seplcxuons stating
THE GROUNDS OF FoRFKTTUnE
were fled TO respondents plaas: First the Railway
Company did not obtain the consent Of the ownera Of
twothirds Of tho property. Hneal measure, fronting
On 1ndia2a avenue snd sseono US ;Ms. agsy copan3
venue aa T from y rweat5-seoond street 70 tho city
Of 't the % ordnanee ~ Of Aus ., isd4. ssspdndents
ravs1sed thu averments Of both repcAh ona and for
further rejonder set an ordinance passed Now 49,
18 anendatory Of the ordinance Of Aug. a. 1854, by
which the time for the completion Of the sAiwaSto
the cty Limits extended for period Of two years
from the date Of the ordinance, and In case the Com.
Court the period Of such delay s4ould 30 1dded to
such extended tine and the right and authority Of
the Company to z,ntain and uxe It's tracks then e1-
rrorided In the ordinance Upon the trial Of the Is
sues Of fact formed upon tbs first replication, the
Court. although ruling the onus prooand1 vas upon
respondent found the consent Of two-thfrds Of the
property fronting on the a7aaue had been OBJ
ta1ned within fifteen mouths OF the passage Of ths
ia,nee Of Avg z 1ssa and p9teE to iaying down the
had neglected and refused to construct its railway to
the city huts within fifteen months from the paasage
forthat cause 70 reverse that Judgment the Railway
Company bring the case to this Court On appeal.
BOTH PARTIES HAVE ASSIGNED ERRORS.
While the People have assigned for error the finding
Of the Court that the consent Of the owners Of two
thirds Of the property fronting 1pdiana aveane had
been given to laying the truck on that street was
against the weight Of the evidence, the Rawny Com
pany insists the Court ruled incorrectly in holding
that the burden Of proof to that fact rested upon It,
The doctrine of the cases On this subject seems 10 be
In proceedings by information IN the nature Of quo
people not bound to show anything.
The onus probann generally lies on the defendant,
who must provo his title a. pleaded or such part Of it
trave1sed by The replication. II hsa been 80 held
People "a. Ridgely, q Ill, s5.
whether any exception 70 this general rule Obtains
in where the net charged to work forfeiture
tho party crime that might subject him to punishment
on the ground Of IL" presumption IN
favor OF ths si deasnaants e. Innocence "aa Is
at this time to express opinion. We Satisfied
the finding of the Court the ques of facts sub
nittsa was tn % te wgns o. n1 =
tain the consent Of OWNERS Of txohirds Of the prop
er1y fronting the avenue to laying it, track. How
be- verbal or in writing the ordinance was siIent Al
written evidence Of consent in possession Of the Com
pany had been destroyed by fre in 1911. Consent
coaid nave bean expressed verbally 1t may ba H.
fcrrcd from tho acquiescence Of owners Of property
affected The ordinance under which tho track was
laid Published md canvass madn to obtain the
the lapse Of 60 great period slight evidence will be
sufficient to eetabiah the fac. 1t consent the part
Of owners Of properly. It WaS known to the public
the terns upon which it lawful for the Company
TO construct It's ruad upon that st1eet II this lRa
don between private ctizena In view Of the facts
proven we should not heatate to zaY that owners Of
property tha street would be esopped to deny TINT
the requisite consent was given.
But regarding the burden Of proof as resting upon
The Railway Company to establish the fact Of CONSENT
cau only be expected to mako such proof The nztur
Of the susceptible OF, against the demand Of
The People, have seen ail written evidence haa
long aince been destroyed Consent in some instances
may have been given verbally, md III meaus OF prov
pr it now lost or forgotten Tho longer the delay
lint iuter7ened, the more difficulty would ba expert
enced in proving by any positive testimony the requ1
site consent Of owners Of property. Under tbs CIR
asioned by The destruction Of eyidenca Ee9ard the
Rnding Of the Court, that tho consent Of ownora
If property to laying the track in 1885 wna first
,htained, is sustained By the testimony. We're 1t
question Of first impression with III, wo should no
1oubt reach the same conclusion.
Treating the provision of the ordinance Of Aug. 1
1884, that the road should be completed to the city
he canse Was granted the non-pefformance Of which
pou]d work forfeiture We will next consider
TIE LEGAL KFFEcT OF TIE AMENDAToRI oRDI-
NANCE
# Nov. Is, 1871, extending the tina for the
ON pletjou Of the road, aud Affirming the rights
II The Company. Under tho act Of 1855 the Common
Council had authority to amend modify, or annul"
s64. with the consent Of the Railway Company. The
imitation tn respect TO the time in which the road
hou.d b. flushed provision In favor Of the city
secure tbs public interests, and the aw Is purity
nar waive the benefit Of statute WheTs it contra
1enes no matter of public policy. This right the city
I'D independently Of any enabling act. It WAS the
ole nudge whether the public exigencJ required IN
II nfh rr1rf ~ fhn