APPEAL from the Superior Court of Cook County; the Hon. FRANK
M. PADDEN, Judge, presiding.
MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 19, 1951.
This is a direct appeal from the superior court of Cook County by the city of Berwyn and town of Cicero, hereinafter referred to as appellants, from a decision of the superior court of Cook County dismissing their intervening petitions, together with dismissal of the complaint herein for want of equity. The trial court denied all relief as prayed for in the original complaint and the intervening petitions when the cause was tried before it without a jury.
In essence, the pleadings, requesting a mandatory injunction, alleged that, by reason of certain franchise rights granted to the Metropolitan West Side Elevated Railway Company by the intervening petitioners, that carrier acquired and built a right of way in and through the appellant municipalities; that under the terms and conditions of the franchise, the carrier was to operate a transportational system of electrically powered cars operating upon rails along the right of way so acquired, which operation was an extension of that carrier's then existing Douglas Park branch; that further, under other provisions of this same agreement, the carrier was obligated to maintain its service seven days per week upon such schedule as would reasonably accommodate the inhabitants of the appellant municipalities and the service was to continue from the loop district in the city of Chicago to the west side terminal of the carrier at Oak Park Avenue in the city of Berwyn. The pleadings then allege that the Chicago Transity Authority, hereinafter referred to as Authority, acquired the properties of the Metropolitan West Side Elevated Railway Company and that on July 10, 1949, defendant suspended all week-end service along the Douglas Park line, beginning at Cicero Avenue in the town of Cicero on the east and extending to the terminal at Oak Park Avenue in the city of Berwyn on the west; that, in lieu of this electric powered service along its right of way, the Authority substituted shuttle bus service.
The petitions then alleged that the suspension of week-end electrical service and the substitution of shuttle busses therefor was in violation of a contractual obligation as contained in the franchise grant and, in addition, endangered the public health and safety of the citizens of the appellant municipalities.
Briefly, the appellants argue that since the statute creating the defendant was never adopted by the appellants as provided in section 4 of the Metropolitan Transit Authority Act, the Authority is operating as a public carrier while within the territories of the appellant municipalities and not as a municipal corporation. They further contend that such service was subject to the control of the respective municipalities affected. They further argue that the defendant is subject, in this cause at least, to the control of the municipalities and that they are entitled to appeal to a court of equity to force the Authority to abide by its franchise contract. The appellant town of Cicero goes even further and insists that the Authority has no right to operate its facilities in the town of Cicero and should be ordered to remove its property from the town of Cicero after such reasonable time as it would take for the town of Cicero to procure other transportation facilities.
The court below determined that the Authority should not be compelled by mandatory injunction to render electrical train service under the ordinances between the municipalities and the Authority and that it should not be prevented by injunction from operating busses for interurban transportation services on public highways without obtaining a permit to do so from each of the municipalities.
The only matter presented to this court is one of law. The sole question for decision, as indicated by the record in this case, is whether or not the Chicago Transit Authority, a creature of statute, can be said to be bound by the ordinances of the city of Berwyn and town of Cicero, and whether or not it is subject to municipal consent and control for operations within the limits of those municipalities.
The two municipalities are generally in agreement on their argument against the ruling of the lower court. They say first that the town of Cicero has the general police power over its streets and alleys and has the exclusive right and power to control and regulate the alleyways, streets, and other public places and abate any obstruction or nuisance therein, citing City of Geneseo v. Illinois Northern Utilities Co. 378 Ill. 506.
They say that the municipalities have the right to insist upon the performance of the terms of the license, franchise, or ordinance because the franchise in question is a contract between the original grantee and cannot be impaired at the will and pleasure of the successor to the grantee. They again cite City of Geneseo v. Northern Illinois Utilities Co. for this proposition.
Lastly, the appellant municipalities contend that the transfer of the franchise, no matter how consummated, carries with it any burden which is inherent in the grant of the franchise. For this they cite People ex rel. Cantrell v. St. Louis Alton and Terre Haute Railroad Co. 176 Ill. 512, and cases from other jurisdictions.
The appellee says that the enactment of the Public Utilities Act repealed any authority which cities and villages previously had to adopt ordinances regulating services or rates for public utilities and abrogated such provisions of ordinances which had been adopted prior to the date of passage of the act. Counsel cite here City of Geneseo v. Illinois Northern Utilities Co. 378 Ill. 506; Chicago North Shore and Milwaukee Railroad Co. v. City of Chicago, 331 Ill. 360 and section 30 of the Metropolitan Transit Authority Act. Ill. Rev. Stat., 1949, chap. 111 2/3, par. 330.
The Authority further argues that it exercises its powers by virtue of legislative authority and not as an assignee of any permission or authority under the fifty-year franchise ordinances, which the villages contend are controlling here. Counsel cite Fallon v. Commerce Com. 402 Ill. 516, and People v. Chicago Transit Authority, 392 Ill. 77.
Appellee further states, citing the above cases and references to the act, that in the acquisition of the properties from the elevated railways pursuant to the plan of reorganization, the Authority was expressly exempted from any obligation of its predecessors ...