{ "id": 5305252, "name": "The People, ex rel. James M. Mahoney, State's Attorney, v. Decatur, Springfield & St. Louis Railway Company, et al.", "name_abbreviation": "People ex rel. Mahoney v. Decatur, Springfield & St. Louis Railway Co.", "decision_date": "1905-04-20", "docket_number": "", "first_page": "229", "last_page": "235", "citations": [ { "type": "official", "cite": "120 Ill. App. 229" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "212 Ill. 227", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3310918 ], "opinion_index": 0, "case_paths": [ "/ill/212/0227-01" ] }, { "cite": "165 Ill. 510", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3103806 ], "opinion_index": 0, "case_paths": [ "/ill/165/0510-01" ] }, { "cite": "213 Ill. 302", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3313535 ], "opinion_index": 0, "case_paths": [ "/ill/213/0302-01" ] }, { "cite": "211 Ill. 296", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3306639 ], "opinion_index": 0, "case_paths": [ "/ill/211/0296-01" ] }, { "cite": "172 Ill. 129", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3174943 ], "opinion_index": 0, "case_paths": [ "/ill/172/0129-01" ] } ], "analysis": { "cardinality": 575, "char_count": 12676, "ocr_confidence": 0.563, "pagerank": { "raw": 1.3479730608274902e-07, "percentile": 0.632710439875066 }, "sha256": "b237425e3d73a1198b423a27ef8b966a3b2d281ccfd2f1759e21f20adbf7db07", "simhash": "1:0c0f6102ea9201c2", "word_count": 2148 }, "last_updated": "2023-07-14T14:38:55.672753+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People, ex rel. James M. Mahoney, State\u2019s Attorney, v. Decatur, Springfield & St. Louis Railway Company, et al." ], "opinions": [ { "text": "Mr. Justice Puterbaugh\ndelivered the opinion of the court.\nThis is an information or bill in chancery, in the name of the People of the State of Illinois, filed by James M. Mahoney, state\u2019s attorney of Macoupin county, praying that appellees may be perpetually enjoined from entering upon any portion of West street .in Carlinville, a city incorporated under the general incorporation law of Illinois, for the purpose of constructing a railroad, and from constructing such railroad in or upon said street. Upon a hearing upon the merits, the Circuit Court entered a decree dismissing the bill for want of equity, from which the complainant appeals.\nAppellees were engaged in building an electric railroad from the city of Springfield to and through the city of Carlinville, and desired to obtain the right to lay down railroad tracks in and upon West street, in said city of Carlinville.\nPursuant to the statute enumerating the powers of city councils, which provides that a city council shall have no power to grant the use of, or the right to, lay down any railroad tracks, in any street of the city, to any railroad company, except upon the petition of the owners of the land representing more than one-half of the frontage of the street, or so much thereof as is sought to be used for railroad purposes (Rev. Stat. 1903), certain persons professing to own property having a frontage of 8,200.5 feet upon said West street (the total frontage upon said street being 13,364.8\u00e9 feet) on July 30, 1903, filed with the city clerk of said city a petition asking the city council to adopt an ordinance granting such right to appellees. On August 17, 1903, a number of those who had signed such original petition, and who represented 1,716 feet of frontage, filed with the city clerk an instrument in writing, which was on the same day presented and read to a meeting of the city council, by which they sought to withdraw their signatures from the original petition, and protesting that by reason of such withdrawal there remained no petition signed by more than one-half of the frontage of said street as required by law and therefore the council had no legal power to pass an ordinance granting such privilege. On August 21, 1903, an ordinance was duly passed by the city council authorizing appellees to construct, maintain and operate an electric railway on said West street.-\nIt is first contended by appellees that the bill was properly dismissed for the reason that it appears that the proceeding is not bona fide for the purpose of protecting a public right shown to be threatened, but was in fact instituted to protect private owners of abutting property from, a threatened injury to their property for which there is a complete remedy at law.\nIn support of such contention affidavits were presented and filed upon the hearing, to the effect that the bill of information is contained in a wrapp\u00e9r indorsed with the names of the attorneys who are assisting the state\u2019s attorney in the case; that the interlineations therein and indorsements thereon are in the handwriting of one of such attorneys, and further that the state\u2019s attorney had theretofore stated that the bill was filed in his name because the property owners had been advised by their attorneys that they could not obtain an injunction in anj way and that they had for that reason gotten him to file the bill in his own name.\nAffidavits filed by appellant show that the information was prepared and filed conjointly by the state\u2019s attorney and counsel for certain property owners who were, at the request of the state\u2019s attorney, assisting him in the suit, and that the state\u2019s attorney was impelled to act in the matter through the solicitation and importunity of different property holders upon West street and elsewhere in the city. We are unable to perceive how the actions of the state\u2019s attorney can be impugned because he was thus moved to act, or that there was any impropriety in his accepting the assistance of private counsel, who were acting also for certain property owners. Any citizen has a right to call upon the state\u2019s attorney to redress a public wrong. The fact that private rights may also be involved and that through the acts of the state\u2019s attorney in the interests of the public, private wrongs, as well, may directly or indirectly be redressed, is immaterial. There was no impropriety in the action of the state\u2019s attorney in requesting and accepting the assistance of such other counsel. Moreover it appears from the affidavit of the assistant state\u2019s attorney, made in the absence of his chief from the State, that the information was filed by the state\u2019s attorney of his own motion as the representative of the public; that he has not received and does not expect to receive any compensation whatever for his acts or services in the matter. In the case of People v. G. E. Ry. Co., 172 Ill. 129, cited by counsel for appellees, the court dismissed a similar proceeding to this for the reason that it clearly appeared from the evidence that the people were not in fact parties, that, on the contrary, the suit was instituted and prosecuted by the attorney-general at the sole instigation of a rival corporation by which he was employed and paid for his services. Nothing of the kind appears in the case at bar, and we, therefore, hold the contention in question to be unfounded and without merit.\nIt is further contended by appellees in support of the decree that the parties who signed the original petition asking the city council to grant the privileges sought by appellees could not afterward, and before the adoption of an ordinance, withdraw their signatures from such petition, and revoke such authority as said signatures thereto had given\" the council.\nIn the case of Theurer v. The People, 211 Ill. 296, the sufficiency of an application for a license to keep a .dram-shop was involved. By an ordinance of the village of Hyde Park, it was necessary that a majority of the property owners within a certain prescribed territory should sign the application for such a license before the same could be \u2022granted by the mayor of the city of Chicago, to which the village had been annexed. The application there under consideration was, among others, signed by one Alister, who represented a certain number of feet frontage. It was presented to the mayor on May 29th. On June 22nd, and while the matter was under consideration and the signatures to the application were being verified, the mayor consented that the dram-shop might be opened, subject however, to the revocation of such provisional consent, if evidence should meanwhile be produced, sufficient under the law, in the judgment of the mayor, to invalidate the application. On July 22nd, following, Alister withdrew his name from the application, the effect of which was to leave the application unsupported by the requisite amount of frontage. Whereupon the mayor refused to grant the license. It was insisted by counsel for the applicant seeking the license, that the act of signing the application was an irrevocable act. The court held that Alister had a right to withdraw his consent at any time before the mayor had finally acted. See also, Kinsloe v. Pogue, 213 Ill. 302.\nWe are of opinion that the reasoning adopted and the conclusions reached by the court in the Theurer case and the cases there cited, and the rule thereby established, are applicable to the case at bar and are decisive of the question under consideration. That upon the withdrawal by property owners representing 1,716 feet of frontage, of their signatures to the application, there remained no such petition as is required by statute. Consequently the city council were without legal power or authority thereafter to adopt the ordinance in question and such ordinance was void and without legal force or effect.\nAppellees further contend that inasmuch as the legislature has committed to the city of Carlinville, and other like municipalities, its sovereignty in respect to streets, highways and public grounds within its limits, the city of Carlinville is invested with the authority of the State in this respect and is the proper, if not the only party to maintain a bill in equity to restrain obstructions of streets within its limits; that it may, or may not, in its discretion, question appellees\u2019 right of occupancy of West street; and further that the city having decided not to act, abutting owners can recover at law and have no other remedy.\nIn answer to this contention it is sufficient to reiterate that this proceeding is not by abutting property owners, but is, brought by the representative of the public, in their interest and behalf. In Doane v. Lake St. El. R. Co., 165 Ill. 510, it is said where the use of a street has not been legally authorized, an information in chancery by the attorney-general or state\u2019s attorney on behalf of the People or a bill for injunction by the city, affords a proper and complete remedy. There is nothing in the authorities cited by counsel inconsistent with the view that a bill may be filed by either the city, the attorney-general or the state\u2019s attorney, or that the state\u2019s attorney may act regardless of whether the city may or may not think proper to do so. In the case under consideration, the city council has acted without legal authority or power. The theory that unless such city council chooses to stultify itself by authorizing proceedings to attach and defeat the result of such illegal action on its part the public is without remedy in the premises, is without support of reason or authority and clearly untenable.\nIt is finally insisted that the abutting and other property owners upon whose motion the state\u2019s attorney acted, have been guilty of such laches in denying the filing of the bill for five months, while the railroad company was acquiring and grading its right of way, and in failing to urge the application for an injunction for six months further while the company was completing its tracks up West street; that no such drastic relief as asked should be now allowed, but that they should be remitted to their action at law. The proceeding being in behalf of, and in the interests of the People, the doctrine of laches is not applicable.\n\u201c The attorney-general and the state\u2019s attorney may file an information on behalf of the People where the interests of the public are involved and lapse of time constitutes no bar to such proceeding. The doctrine of estoppel does not apply to a matter in the nature of a public right, and the State is not embraced within the Statute of Limitations unless specially named, and, by analogy, does not fall within the doctrine of estoppel.\u201d The People v. Burns, 212 Ill. 227.\nThe decree of the Circuit Court will be reversed and the cause remanded with directions to proceed in conformity with the views herein expressed.\nReversed and remanded.", "type": "majority", "author": "Mr. Justice Puterbaugh" } ], "attorneys": [ "James M. Mahoney, State\u2019s Attorney, and Bell & Burton, for appellant.", "W. E. P. Anderson and Rinaker & Rinaker, for appellees." ], "corrections": "", "head_matter": "The People, ex rel. James M. Mahoney, State\u2019s Attorney, v. Decatur, Springfield & St. Louis Railway Company, et al.\n1. Collusive suit\u2014what does not establish. The fact that the state\u2019s attorney institutes a proceeding for injunction in the name of the people at the instigation of property owners, and accepts from them the aid of special counsel, does not establish that the proceeding is collusive, where it appears that such state\u2019s attorney received no compensation or promise of compensation for his services.\n3. Frontage consents\u2014right to withdraw. Property owners signing frontage consents, authorizing the construction of a railroad in front of and along their property, may withdraw the same at any time before finally acted upon by the mayor.\n3. Frontage consents\u2014effect of absence of, upon ordinance. Where the obtaining of frontage consents from private property owners is essential to the passage of an ordinance, the absence of such consents will render the ordinance void.\n4. Streets\u2014when state\u2019s attorney may maintain injunction proceedings to restrain unlawful use of. The state\u2019s attorney of a county is empowered to institute and maintain proceedings to enjoin the unlawful and unauthorized use of a public street by a traction company.\n5. Laches\u2014when doctrine of, does not apply. The doctrine of laches has no application to and will not apply against a cause brought in behalf of and in the interests of the people.\nBill in chancery. Appeal from the Circuit Court of Macoupin County; the Hon. Owen P. Thompson, Judge, presiding.\nHeard in this court at the November term, 1904.\nReversed and remanded.\nOpinion filed April 20, 1905.\nJames M. Mahoney, State\u2019s Attorney, and Bell & Burton, for appellant.\nW. E. P. Anderson and Rinaker & Rinaker, for appellees." }, "file_name": "0229-01", "first_page_order": 267, "last_page_order": 273 }