This was a suit brought in a state court by Henrietta Snell and Albert J. Stone, administrators of the estate of Amos J. Snell, deceased, and others, to enjoin the city of Chicago and the commissioner of the department of public works thereof from removing a tollgate or interfering with plaintiffs' collection of tolls thereat. The court dismissed the bill, and, plaintiffs having appealed to the supreme court of the state, the decree was there affirmed. 24 N. E. 532. They then sued out this writ of error.
Statement by Mr. Justice BREWER: This case is before us on error to the supreme court of the state of Illinois. The record discloses these facts: On December 21, 1888, the plaintiffs in error, as plaintiffs, filed in the office of the clerk of the superior court, of Cook county their bill of complaint, seeking to enjoin the defendants, their officers, agents, and servants, from removing, or attempting to remove, a certain tollgate on Milwaukee avenue, in the city of Chicago, and from interfering with the plaintiffs' collection of tolls thereat. The bill sets forth that on February 10, 1849, the general assembly of the state of Illinois passed an act to incorporate the Chicago Northwestern Plank-Road Company, certain sections of which were quoted. It is unnecessary to refer to these sections in detail; it is enough to say that they provided for the incorporation of a company to construct a plank road, and described the various powers and privileges given to such corporation. The bill then refers to an act of the general assembly dated February 12, 1849, entitled 'An act to construct a plank road,' etc., the twenty-first and twenty-second sections of which, quoted in the bill, purport to incorporate the Northwestern Plank-Road Company, the incorporators of which, as appears from section 21, had a license from the county commissioners' court of Cook county to construct a plank road from the city of Chicago to Oak Ridge, and from thence to Wheeling and the north line of said county. It then quotes the act of the general assembly of the state of Illinois of date March 1, 1854, entitled 'An act to incorporate the Northwestern Plank-Road Company.' This act commences with a preamble which, referring to the act of February 12, 1849, says that doubts exist as to whether, by the twenty-first, twenty-second, and twenty-third sections of said act, the Northwestern Plank-Road Company was duly incorporated, and therefore, in the first section, in terms incorporates the Northwestern Plank-Road Company, and by the second section grants to it the powers and privileges, rights, and duties, contained in the sections quoted from the earlier act of 1849. The allegation is that, by virtue of these several acts, the Northwestern Plank-Road Company became duly incorporated and organized as a corporation, and proceeded to, and did, prosecute and complete the construction of the road under the powers and franchises granted. The bill further sets forth that on February 15, 1865, another act was passed by the general assembly of the state of Illinois, which act is set forth in full, and the material sections of which are as follows:
'Sec. 3. The president, by the advice and direction of a majority of the stockholders, may sell to the county of Cook the franchise, the property, and immunities of said company, or to any other party or parties, and thus dissolve said company, and divide the avails amongst the stockholders.
'Sec. 4. And be it further enacted, that the board of supervisors of Cook county may purchase such franchise, property, and immunities, and, upon the order of said board, the clerk of said county shall proceed to purchase and receive the deed of title to the same, and should said county fail to purchase the same, any person or persons may purchase the same, and thereby make the same private property.
'Sec. 5. The deed of the president of said company to the said county of Cook, or to any other party purchasing, shall be a good and lawful title to the same; provided, always, that all the debts and liabilities of said company shall be paid; provided, further, that the purchaser or purchasers of said franchise and road shall be bound by all the obligations said Northwestern Plank-Road Company is by its charter, and shall enjoy all the rights and privileges enjoyed by said company, and no more.'
On August 5, 1870, the Northwestern Plank-Road Company made a deed to Amos J. Snell. This deed, after reciting the incorporation under the act of March 1, 1854, quoting sections 3 and 5 of the act of February 15, 1865, and reciting a meeting of the stockholders on January 5, 1866, closes with this resolution, passed at such meeting, and this granting clause:
'Resolved, by the stockholders of this company, that Thomas Richmond, president, be authorized to sell the plank road, tollhouses, and other property belonging to the company, with the franchise and all its rights and privileges, and give a deed of the same to the purchaser for such sum, and upon such conditions, as he shall deem advisable.
'And whereas the said plank-road company is entirely free from debt, now, therefore, I, Thomas Richmond, president of the Northwestern Plank-Road Company, for and in consideration of the sum of twenty thousand dollars ($20,000) to me in hand paid by Amos J. Snell, of Jefferson, in the county of Cook and state of Illinois, do hereby sell, transfer, convey, and set over to the said Amos J. Snell, his heirs, executors, administrators, and assigns, 'all the property of said company, consisting of the charter and its amendments and franchises, the right of way, the grading, the planking, ditches, bridges, and drainages, the tollhouses, gates, teams, implements of work, and being the plank from the old city limits of Chicago aforesaid to the nine-mile post, together with all the property, goods, and chattels of said company, of whatsoever nature or description.'
'To have and to hold unto the said Amos J. Snell, his heirs, executors, administrators, and assigns, forever.
'In witness whereof the said Thomas Richmond, as president, has hereunto signed his name, and affixed the seal of the said Northwestern Plank-Road Company, this fifth day of August, A. D. 1870.
'[Corporate seal of the Northw. P. R. R. Co.]
Thomas Richmond,
'Prest. N. W. P. R. R. Co.'
This deed was duly recorded. The bill also alleges that, from that time until his death, Snell continued in the ownership of said property, and in the actual and exclusive possession, control, and enjoyment thereof, and the undisturbed exercise of all the franchises, rights, and powers which were conferred upon the corporation by said enactments. At this time the plank road, or so much thereof as was constructed, was outside of the corporate limits of the city of Chicago, and during such time Snell erected a tollgate and tollhouse on the southeast corner of Milwaukee avenue and Fullerton avenue, at which place the tolls were collected. It is further averred that on February 8, 1888, Snell died; that the present plaintiffs are his personal representatives and heirs; that on December 10, 1888, the defendants commenced proceedings for the purpose of removing such tollgate, the territorial limits of the city having been duly extended so as to include a part at least of the tollroad, and the part on which the tollgate was situated.
To this bill a demurrer was filed, which on February 6, 1890, was sustained, and, the plaintiffs electing to stand by the bill, a decree of dismissal was entered. On appeal to the supreme court of the state the decision of the superior court was, on the 14th day of May, 1890, sustained, and the decree of dismissal affirmed. 133 Ill. 413, 24 N. E. 532.
Framk J. Crawford, for plaintiffs in error.
Edward Roby, for defendants in error.
Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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