Cook County IL Archives Court.....Chicago, General Railway Co 1900
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Source: Reports Of Cases At Law And In Chancery
Written: 1900

The Chicago General Railway Company 

v.

The Chicago City Railway Company. 

Opinion filed June 21, 1900.


Street railways—one company cannot base action against another on latter's 
alleged excess of charter powers. A street railway company cannot, 
irrespective of the question of negligence, base a right of recovery against 
another street railway company for a collision solely upon the latter's use of 
cable power in operating its cars, the declaration averring that the defendant 
was authorized to use "animal power only," since the question whether the 
defendant exceeded its powers can only be raised in a direct proceeding by the 
city or public.

Chicago Gen. Ry. Co. v. Chicago City Ry. Co. 87 Ill. App. 17, affirmed.

Appeal from, the Appellate Court for the First District;—heard in that court 
on appeal from the Circuit Court of Cook county; the Hon. E. F. Dunne, Judge, 
presiding.

Glenn E. Plumb, for appellant.

George Gillette, (E. R. Bliss, of counsel,) for appellee.

Mr. Chief Justice Boggs delivered the opinion of the court:

The circuit court of Cook county adjudged the declaration filed by the 
appellant company against the appellee company in an action on the case to be 
obnoxious to demurrer. The appellant elected to abide its declaration, and the 
court entered judgment against appellant for costs. This is an appeal from the 
judgment of the Appellate Court affirming that of the circuit court.

The declaration was in case and contained five counts, but the third count was 
abandoned in the Appellate Court. In the view we have taken of the declaration 
the slight differences between the remaining counts are unimportant. The 
material allegations of each of said remaining counts are, that on the 15th 
day of October, 1897, the appellant company was duly authorized by its charter 
and by an ordinance of the city of Chicago to operate by electricity its line 
of street railway cars on its tracks in and along Twenty-second street, in the 
city of Chicago; that the appellee company was then and there possessed of 
certain railway tracks in and along State street, in said city of Chicago, and 
of certain street cars which it was then and there operating by means of an 
underground cable propelled by certain steam engines by it maintained; that 
said appellee company was operating its said railway cars on said tracks in 
and along State street under and by virtue of an ordinance of the city council 
of the city of Chicago adopted in 1858, and extended for a further term of 
years (but not otherwise affected) by another ordinance of the said city 
adopted in 1883; that said original ordinance of 1858 provided that the cars 
to be operated by the appellee company upon the said tracks in and along State 
street should be propelled "with animal power only," and the declaration also 
averred that the authority of the appellee company was limited by the charter 
granted to it by the State, as well as by said ordinance of the city of 
Chicago, to the operation of cars along its railway in State street "by animal 
power only;" that said State street intersects said Twenty-second street at 
right angles; that on said 15th day of October, 1897, said appellee company, 
in violation of the provisions of its charter and said ordinances of the city 
of Chicago, was operating on its said tracks on said State street a train of 
three cars by means of an underground cable propelled by steam engines of 
great power, at a high rate of speed, to-wit, twenty miles per hour; that the 
cars composing the said train were much larger and heavier than cars to 
be "operated by animal power only," and that such excess of weight was, to-
wit, twenty tons and that the excess of speed was twelve miles per hour; that 
the momentum of a car so operated by cable power is ten times the momentum of 
a car operated "by animal power only;" that said train of cable cars so 
without authority put in motion in said State street by the said appellee 
company, because of the operation thereof by cable power and because of the 
excess in weight, speed and momentum over the weight, speed and momentum of a 
car operated "by animal power only," then and there ran into and struck with 
great force and violence an electric car which the appellant company, with all 
due care and diligence and with lawful right and authority so to do, was then 
moving in and along said Twenty-second street at the intersection of said 
Twenty-second street and said State street, and injured and damaged said 
electric car, etc., and inflicted personal injuries on passengers being 
transported by the appellant company in such electric car to the damage of the 
appellant company in the sum of $25,000.

It will be observed there is no allegation the collision was occasioned by any 
act of negligence or want of care on the part of the appellee company. The 
position of counsel for the appellant company is, that it appeared from the 
averments of the declaration the appellee company was propelling its train of 
cable cars on the said public street without lawful authority so to occupy the 
said street with cable cars, and in so doing was a trespasser and intruder 
upon the street, and that such unlawful occupation of the streets rendered the 
use of the said State street at the intersection of Twenty-second street 
hazardous to the appellant company and others having lawful authority to pass 
along and across said intersection of said streets, and constituted a 
nuisance, and made the appellee company liable to respond to the appellant 
company for the special damages shown by the declaration to have been suffered 
by the appellant company, and that such liability was created by reason of the 
existence of said alleged nuisance, and wholly independent of the question 
whether the alleged collision was the result of negligence on the part of the 
appellee company in the matter of the management of the train. We do not 
assent to this as the correct legal doctrine. It was stated in each of the 
counts of the declaration that the appellee company held a charter from the 
State authorizing it to engage in the business of operating street cars; that 
it had been granted an ordinance by the city of Chicago authorizing it to lay 
its tracks and to operate a line of street cars in and along said State 
street, and that at the time of the alleged collision it "was operating its 
trains (on said State street) under and by virtue of such ordinance of the 
city of Chicago." The tracks of the appellee company were rightfully in the 
street, and it had lawful authority and right to operate street cars on said 
tracks and across said intersection of State and Twenty-second streets. 
Whether a proper construction of the charter of the appellee company, or of 
the ordinance "under and by virtue" of which it was operating its trains, 
limited it to the use of animal power and prohibited it to use steam-driven 
cables as a motive power for moving the cars, or whether the adoption of that 
character of motive power was an abuse of its franchise under the said charter 
or ordinance, can only be determined in a direct proceeding instituted in 
behalf of the city or of the public, acting through the Attorney General or 
the State's attorney.

The declaration disclosed the appellee company possessed the requisite 
corporate power and capacity to occupy the streets with its tracks and to move 
street cars along such tracks.   Whether, in adopting the cable system as a 
motive power, it had exceeded its chartered powers or its privileges as 
licensee of the city under the ordinance, is a question which concerns the 
public and the municipality. The appellee company is not answerable to the 
appellant company for any abuse of its corporate powers or privileges, nor 
would the public or the city be concluded by an adjudication of the question 
in an action between private parties. The abuse of its chartered powers ot of 
powers derived from an ordinance, or whether, in transacting its business it 
was authorized by charter and said ordinance to transact, it had proceeded 
contrary to the terms or conditions of said charter or said ordinance, 
concerns only the public. The appellant company, in the assertion of a mere 
private right, can not base right of recovery on the non-observance of such 
terms and conditions, or on the denial of power in the appellee company to 
exercise a power or privilege which the appellee company is exercising and is 
being permitted to exercise under the authority or color of a grant of power 
from the State and city. As to all others than the State or the municipality, 
the appellee company, under the circumstances disclosed by the declaration, is 
to be regarded as rightfully prosecuting the business of operating a line of 
cable street cars on said State street, and answerable to others than the 
representatives of the public only for negligence in the manner or mode of 
transacting its business and operating its trains.

While the precise question has, so far as we are advised, not been adjudicated 
by this court, the principle involved is clearly recognized in Rice v. Rock 
Island and Alton Railroad Co. 21 Ill. 93, Attorney General v. Chicago and 
Evanston Railroad Co. 112 id. 520, Barnes v. Suddard, 117 id. 237, County of 
Cook v. Great Western Railroad Co. 119 id. 218, and Chicago and Eastern 
Illinois Railroad Co. v. Wright, 153 id. 307. The point arose for 
determination in Hine v. Railway Co. 73 N. W. Rep. (Mich.) 116. The action was 
to recover for injuries inflicted upon a child by a car operated by the 
railway company in a street. The car was moved by electricity, and the lack of 
authority to use such motive power was asserted and liability predicated on 
such alleged want of power. It was there said: "We do not think this question 
can be raised in this proceeding. The fact was made to appear that the company 
did operate its cars by electricity, and for the purpose of this case the 
trial must proceed as though it had the right to do so. If the street railway 
company is operating its road contrary to the terms of its franchise the 
question could undoubtedly be raised by the city in a proper proceeding, but 
we do not think the question is involved in this issue."

The circuit court correctly ruled the declaration did not present a cause of 
action. The judgment of the Appellate Court is affirmed.

Judgment affirmed.

Additional Comments:
Reports of Cases at Law and in Chancery Argued and Determined in the Supreme 
Court of Illinois, Volume 186, Containing Cases in which Opinions were filed 
in June and October, 1900, and Cases in which Rehearings were denied at the 
October term, 1900. Isaac Newton Phillips, Reporter. Springfield: 1900.

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