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provement is for a purely local corporate purpose wholly for the benefit of the municipality are not controlling.
The judgment of the circuit court is reversed and the orders of the Public Utilities Commission are affirmed.
Judgment reversed and orders affirmed.
(No. 12427.-Reversed and remanded.) THE CHICAGO, MILWAUKEE AND ST. PAUL RAILWAY COM
PANY, Appellant, vs. Geo. E. FRANZEN et al. Appellees.
Opinion filed February 20, 1919–Rehearing denied April 3, 1919.
1. RAILROADS—what is proof of existence of corporation under laws of another State. The existence of a railroad company as a corporation under the laws of another State is sufficiently proved by a certificate of the Secretary of State of the foreign State showing the articles of association of the company, a statute of the foreign State ratifying and confirming the organization and declaring the company to be a corporation, and, where the company has changed its name, the resolution changing the name of the corporation to the present one.
2. SAME-only authority for foreign railroad corporation to exercise power of eminent domain is act of 1899 for sale and transfer of railroads. A railroad company incorporated under the laws of another State has no authority to exercise the power of eminent domain by virtue of the general statute on that subject, but its only authority for that purpose is the act of 1899 for the sale and transfer of railroads in certain cases.
3. SAME—when railroads are not within proviso to act of 1899 against purchase of parallel or competing lines. The fact that a distant point outside the State may be reached by railroads running in different directions, through their connections, does not bring such railroads within the proviso to the act of 1899 against the purchase of parallel or competing lines when they do not run through or serve the same territory and are not competitors.
4. SAME—where corporation has authority to exercise power of eminent domain it may determine necessity for its exercise. Where the legislature has delegated to a corporation the authority to exercise the power of eminent domain the corporation has also the authority to decide on the necessity for exercising the right, and
its decision will be conclusive in the absence of a clear abuse of the right.
5. SAME-contract for joint use of tracks is lawful. All railroad corporations in the State have the power to make contracts for the joint use of tracks and arrange with each other and with railroad corporations of other States for leasing or running their roads, or any part thereof, as shall be necessary and convenient.
6. SAME-when building of connections is not making new line of railroad. The operation of trains by two separate corporations over one track does not make two railroads either in fact or in law, and the building of connections at the extremities of such a track to facilitate its use by both companies does not constitute the building of a new line of railroad.
7. Same-consent of Public Utilities Commission is not a condition precedent to exercise of power of eminent domain. Though the approval of the Public Utilities Commission is necessary to the validity of a contract between two railroad corporations for the joint use of a cut-off, it is not necessary that such consent shall be obtained or that the contract be made before the exercise of the right to condemn land for the connecting tracks.
APPEAL from the County Court of DuPage county; the Hon. S. L. RATHJE, Judge, presiding.
H. H. FIELD, C. S. JEFFERSON, and O. W. DYNES, for appellant.
RATHJE, WESEMANN & VANSCHAICK, (FRANCIS W. WALKER, and GEORGE W. THOMA, of counsel,) for appellees.
Mr. Justice Dunn delivered the opinion of the court:
The Chicago, Milwaukee and St. Paul Railway Company filed a petition in the county court of DuPage county for the condemnation of certain land for railroad purposes. George E. Franzen, the owner, appeared and filed what is called a traverse, denying that the petitioner had attempted to agree with him before filing the petition as to the compensation and damages to be paid for the land and denying the petitioner's authority in law to condemn the land sought
to be taken. This traverse was accompanied by a motion to dismiss the petition for want of jurisdiction, and after a hearing upon evidence the court entered a judgment dismissing the petition at the petitioner's costs, finding that it was not authorized by law to take the property. The petitioner appealed.
The petition avers that the petitioner is, and has been for more than twenty-five years, a railway corporation organized under the laws of the State of Wisconsin, owning and operating a system of railroads extending from the city of Chicago west, northwest and southwest through or into the States of Illinois, Iowa, Wisconsin, Minnesota and other States, one of which lines extends north to the city of Milwaukee, Wisconsin, and is known as the Chicago and Milwaukee division, and another, known as the Illinois division, extends from a point on the Chicago and Milwaukee division in the city of Chicago west to Savanna, on the Mississippi river; that the title to those portions of these lines of railroad lying within the State of Illinois was acquired under the statute of the State approved April 21, 1899, known as paragraph 218 of chapter 114 of Hurd's Statutes; that in connection with its said lines of railroad it owns and operates yards, depot grounds and facilities used in connection with its lines of railroad in its business as a common carrier; that both within and without the corporate limits of the city of Chicago its said two lines intersect and connect with lines of railroad of other companies, and at such points cars, loaded and empty, are transferred and delivered from one railroad to the other and business is interchanged; that the Chicago and Milwaukee and Illinois divisions intersect and are connected at Pacific Junction, within the city of Chicago, and there cars, loaded and empty, are transferred and through freight trains pass from one line to the other; that it owns and operates extensive yards, particularly on the Illinois division at Galewood and Godfrey, for the classification of cars and the
making up and breaking up of freight trains; that at and near the Godfrey yards there is a connection with the Indiana Harbor Belt railroad, where cars are transferred and interchanged from one railroad to the other destined to industries and for points on connecting lines in the city of Chicago and east and west thereof, and at or near the Galewood yard there is a connection with the Chicago and Western Indiana railroad, operating what is known as the Inner Belt Line, where like connections and interchanges are made; that at the present time cars of freight coming to Chicago over the Chicago and Milwaukee division destined for points on the Illinois division or west of the Mississippi river or for delivery to the belt lines, and cars of freight coming to Chicago over the Illinois division destined for delivery to the Chicago and Milwaukee division and beyond, are hauled by way of the Pacific Junction connection; that the Godfrey yards are very large and provided with facilities for the classification of cars and the making up and breaking up of trains preparatory to the forwarding of cars to their respective destinations, and cars are classified and trains are made up and broken up which have arrived or are to be forwarded over either division. The petition further shows that to avoid the congestion which prevails on the route by way of Pacific Junction and at said yards and points of connection with said belt lines and other railroads, it is proposing to form a new connection between the Chicago and Milwaukee and the Illinois divisions, which shall extend from Techny, a station on the Chicago and Milwaukee division, to a point near Bensenville, a station on the Illinois division a short distance west of the Godfrey yards, the distance from Techny to Bensenville being approximately fourteen miles by way of the proposed connection and twenty-seven miles by way of Pacific Junction; that for the purpose of making such connection it has contracted with the Chicago and Northwestern Railway Company for running rights over a portion of its
railway from a point near Techny to a point near Bensenville; that when the connections are made, trains and cars can pass from one of said divisions to the other and avoid the congestion and longer haul by way of Pacific Junction, the interchange of cars between said divisions and the belt lines and other railroads may be made with greater economy and dispatch and with less delay and inconvenience, the use, facility and efficiency of the Galewood and Godfrey yards will be increased and the petitioner's service as a common carrier improved; that for the purpose of such connection it is necessary to acquire land for right of way at and near Techny and at and near Bensenville; that the connecting track will also be used, maintained and operated for the transfer and interchange of cars between the petitioner's said two divisions and the Chicago and Northwestern Railway Company, and that the formation of a new connection and the construction of connecting tracks are necessary for the convenient, economical and efficient transaction of the petitioner's business as a common carrier and the accommodation and convenience of the public; that the use, control and operation of the petitioner's railroad and system of transportation were taken over by the President of the United States under the proclamation dated December 26, 1917, and are now under Federal control and subject to the provisions of an act of Congress to provide for the operation of transportation systems while under Federal control, etc., and that the formation of the proposed new connection and the expenditure of money to defray the cost have been authorized by the proper officials administering the business of the petitioner under such Federal control.
The objection that there had been no attempt before filing the petition to agree with the owner as to compensation and damages was expressly waived by the appellees.
The appellees insist that the petition was properly dismissed because there was no allegation or proof that there