WEST CHICAGO STREET RAILROAD COMPANY, Plff. in Err., v.

PEOPLE OF THE STATE OF ILLINOIS ex rel. CITY OF CHICAGO.

(See S. C. Reporter’s ed. 506-529.)

tion _ decision on non-Federal ground.

—A state court cannot, by resting its judg¬ ment upon some ground of local or general law, defeat the appellate jurisdiction of t lie Supreme Court of tbe United States, if a Federal right or immunity was specially set up or claimed which, if recognized and en¬ forced, would require a different judgment.

contract obligations— compelling; the lowering of a street railway tunnel under navigable river.— Contract obli¬ gations are not impaired by compelling a street railway company, at its own expense, to lower, or, at its option, remove, a tunnel constructed by it under the Chicago river, which, though not an obstruction to naviga¬ tion when constructed, has since become such by reason of the increased size of the vessels plying on that river, where the municipal ordinance under which such tunnel was con¬ structed contains no stipulation that the city will not exert any power it possesses to deepen the channel and improve navigation, and it was adopted while a state statute was in force which, as construed by the state courts, made it a condition of the construc¬ tion of such a tunnel that navigation should not be unnecessarily interrupted.

tion.— The rights of a street railway com¬ pany in a tunnel under a navigable river, arising from its ownership of the fee of the land on either side of the river or in its bed, are subject to the paramount right of navi¬ gation over the waters of such river.

law — taking private property for pub¬ lic use.— Requiring a street railway company to stand the expense of lowering, or, at its option, removing, a tunnel constructed by it under the Chicago river, which, though not an obstruction to navigation when construct¬ ed, has since become such by reason of the increased size of the vessels plying upon that river, does not deny it the due process of law guaranteed by the Federal Constitution, which requires that compensation be made when private property is taken for public use, where the ordinance under which the tunnel was constructed was adopted white a statute was in force which, as construed by the state courts, made it a condition of the construction of such tunnel that navigation should not be unnecessarily interrupted.

Noth. — On the general subject of writs of error from, the United States Supreme Court to state courts — see notes to Martin v. Hunter, 4 L. ed. U. S. 97 ; Hamblin v. Western Land Co. 37 L. ed. U. S. 267 ; Kipley v. Illinois, 42 L. ed. U. S. 998 ; and Re Buchanan, 39 L. ed. U. S. 884.

On what adjudications of state courts can be brought up for review in the Supreme Court of the United States by writ of error to those courts — see note to Apex Transp. Co. v. Gar- bade, 62 L.R.A. 513.

On how and when questions must be raised and decided in a state court in order to make a case for a writ of error from the Supreme Court of the United States — see note to Mutual L. Ins. Co. v. McGrew, 63 L.R.A. 33.

On what the record must show respecting the presentation and decision of a Federal ques¬ tion in order to confer jurisdiction on the Supreme Court of the United States on a writ 201 U. S.

of error to a state court — see note to Hooker v. Los Angeles, 63 L.R.A. 471.

As to what laws are void as impairing obli¬ gation of contracts — see notes to Franklin County Grammar School v. Bailey, 10 L.R.A. 405 ; Fletcher v. Peck, “ L. ed. U. S. 162 ; McCanna & F. Co. v. Citizens' Trust & Surety Co. 24 C. C. A. 20 ; and Montana Ore-Pur¬ chasing Co. v. Boston & M. Consol. Copper & S. Min. Co. 35 C. C A. 12.

As to public rights on navigable waters — see notes to Eisenbacb v. Hatfield, 12 L.R.A. 632 ; Mills v. United States, 12 L.R.A. 673 ; and Swanson v. Mississippi & It. River Boom Co. ,7 L.R.A. 673.

On the right to improve the navigabiliy of a stream — see note to Beidler v. Sanitary Dis¬ trict, 67 L.R.A. 820.

On the right to obstruct or destroy rights of navigation — see note to Hutton v. Webb, 59 L. R. A. 33.

845

Supreme Court of the United States.

Oct. Term,

navigable waters — approval of Secre¬ tary of War. — The city of Chicago was em¬ powered, without the approval of the Secre¬ tary of War, to require the lowering of a street railway tunnel under the Chicago riv¬ er to give a clear depth of 21 feet of water above it, or, in the alternative, to compel Its removal, by the declaration in the river and harbor act of March 3, 1899 (30 Stat. at L. 1156, chap. 425), that all the work of re¬ moving and reconstructing bridges and piers and lowering tunnels, necessary to permit a practicable channel with the prescribed "project” depth of 21 feet in the Chicago river should be done by the city without ex¬ pense to the United States.

[No. 241.]

Argued January 10, 11, 1906. Decided April. 9, 1906.

IN ERROR to the Supreme Court of the State of Illinois to review a judgment which, affirming the reversal in the Appel¬ late Court for the First District of a judg¬ ment of the Circuit Court of Cook County, in that state, awarded a peremptory man¬ damus directing a street railway company at its own expense to lower, or, at its op¬ tion, remove, its tunnel under the Chicago river. Affirmed.

See same ease below, 214 Ill. 9, 73 N. E.

The facts are stated in the opinion.

Mr. John P. Wilson argued the cause, and, with Mr. Charles 8'. Babcock, filed a brief for plaintiff in error:

Until the United States assumed juris¬ diction over the Chicago river by the act of Congress of September 13, 1900, the state of Illinois had plenary authority over the Chicago river.

Willson v. Black Bird Creek Marsh Co. 2 Pet. 245, 7 L. ed. 412 ; Gilman v. Phila¬ delphia, 3 Wall. 713, 18 L. ed. 96; Pound v. Turck, 95 U. S. 459, 24 L. ed. 525; North¬ ern Transp. Co. v. Chicago, 99 U. S. 635, 26 L. ed. 336 ; Corrigan Transp. Co. v. Sani¬ tary District, 125 Fed. Oil; Escanaba <6 L. M. Transp. Co. v. Chicago, 107 U. S. 678, 27 L. ed. 442, 2 Sup. tit,. Rep. 185; Miller v. Neio York, 109 U. S. 385, 27 L. ed. 971, 3 Sup. Ct. Rep. 228; (hud well v. American Hirer Bridge Co. 113 U. S. 205, 28 L. ed. 959, 5 Sup. Ct. Rep. 423; Mobile County v.

On the rights of littoral owners on navigable stream — see notes to Fulmer v. Williams, 1 D.R.A. 604; Case v Loftus. 5 L.R.A. 684; Miller v. Mendenhall, 8 L.R.A. 89; and Eisen- bach v. Hatfield, supra. ,

As to what constitutes due process of law — see notes to People v. O’Brien, 2 L.R.A. 255 ; Kuntz v. Sumption, 2 L.R.A. 655; Re Gannon, 5 L.R.A. 359; Ulman v Baltimore, 11 L.R.A. 224 ; Gilman v. Tucker, 13 L.R.A. 304 ; Pear- 846

Kimball, 102 U. S. 691, 26 L. ed. 238; Pross¬ er v. Northern P. R. Co. 152 U. S. 59, 38 L. ed. 352, 14 Sup. Ct. Rep. 528; Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1, 31 L. ed. 629, 8 Sup. Ct. Rep. 811.

The tunnel was as lawful as though it had been directly constructed by the city itself under its charter powers.

McCartney v. Chicago & E. R. Co. 112 Ill. 611.

The carrying of passengers through the tunnel is commerce of the same grade as the carrying of passengers or freight on the river.

Northern Transp. Co. v. Chicago, supra.

The tunnel, being the lawful property of the railroad company, could not be taken from the company for the purpose of im¬ proving the navigation of the Chicago river without compensation being made to the company.

Yates v. Milwaukee, 10 Wall. 497, 19 L. ed. 984; Newport & C. Bridge Co. v. United States, 105 U. S. 470, 26 L. ed. 1143; Monongahela Nav. Co. v. United States, 148 U. S. 312, 37 L. ed. 463, 13 Sup. Ct. Rep. 622; Scranton v. Wheeler, 179 U. S. 141, 45 L. ed. 126, 21 Sup. Ct. Rep. 48; United States v. Lynah, 188 U. S. 445, 47 L. ed. 539, 23 Sup. Ct. Rep. 349; Chicago v. Laflin, 49 Ill. 172; Chicago v. Van Ingen, 152 Ill. 624, 43 Am. St. Rep. 285, 38 N. E.

The enforcement of the judgment of the state court would constitute a taking of the railroad company’s property.

Newport & C. Bridge Co. v. United States, 105 U. S. 470, 506, 26 L. ed. 1143, 1155.

The enforcement of the ordinance requir¬ ing the railroad company to lower its tun¬ nel at its own cost would deprive the com¬ pany of its property without due process of law, in violation of the 14th Amendment to the Constitution of the United States.

Chicago, B. d- Q. R. Co. v. Chicago, 166 U. S. 235, 41 L. ed. 984, 17 Sup. Ct. Rep.

The Secretary of War was not alleged or shown to have approved or consented to the doing of the work required by the ordi¬ nance, and therefore the company was nei¬ ther under obligation nor had the right to do the work required by the ordinance and the mandate of the court.

son v. Yewdall, 24 L. ed. U. S. 436; and Wil¬ son v. North Carolina, 42 L. ed. U. S. 865.

As to what constitutes a taking of private property for public use — see notes to Memphis & C. R. Co. v. Birmingham, S. & T. R. R. Co. 18 L.R.A. 166 ; D. M. Osborne & Co. v. Mis¬ souri P. R. Co. 37 L. ed. U. S 156; Sweet v. Rechel, 40 L. ed. U. S. 188 ; Backus v. Port Street Union Depot Co. 42 L. ed. U. S. 853 ; and High Bridge Lumber Co. v. United States, 16 C. C. A. 468.

201 U. S.

1905. West Chicago Street R. Co.

River and harbor act, 1899, § 10; River and harbor act, 1890; Cummings v. Chi¬ cago, 1SS U. S. 410, 47 L. ed. 525, 23 Sup. Ct. Rep. 472; Chicago v. Law, 144 Ill. 569, 33 N. E. 855; Lussem v. Sanitary District, 192 Ill. 404, 61 N. E. 544.

The horse and dummy act does not control or affect the rights of the railroad com¬ pany in its tunnel.

McCartney v. Chicago d E. R. Co. supra. Mr. John P. Wilson also filed a sepa¬ rate reply brief for plaintiff in error:

The writ of error should not be dismissed for want of jurisdiction.

Vicksburg, S. d P. R. Co. v. Dennis, 116 U. S. 667, 29 L. ed. 771, 6 Sup. Ct. Rep. 625; Bryan v. Board of Education, 151 U. S. 639. 38 L. ed. 297, 14 Sup. Ct. Rep. 465; Capital City Light d Fuel Co. v. Talla¬ hassee, 186 U. S. 406, 46 L. ed. 1223, 22 Sup. Ct. Rep. 866; Wilson v. Standefer, 184 U. S. 399, 46 L. ed. 612, 22 Sup. CtT Rep. 384; Louisville & N. R. Co. v. Palmes, 109 U. S. 244, 27 L. ed. 922, 3 Sup. Ct. Rep. 193; Chicago, B. d- Q. R. Co. v. Nebraska, 170 U. S. 57, 42 L. ed. 948, 18 Sup. Ct. Rep. 513; Northicestern University v. Illinois, 99 U. S. 321, 25 L. ed. 389; Houston & T. C.

R. Co. v. Texas, 177 U. S. 66, 44 L. ed. 673, 20 Sup. Ct. Rep. 545; St. Paul Gaslight Co. v. St. Paul, 181 U. S. 148, 45 L. ed. 791, 21 Sup. Ct. Rep. 575.

The ordinance requiring the company, at its own cost and expense, to reconstruct this tunnel, in the absence of any legal obliga¬ tion or contract so to do, not only impaired the obligation of the contract under which it was constructed, but also deprived the railway company of its property without due process of law.

Delaware, L. & T7. R. Co. v. Pennsylvania, 198 U. S. 341, 49 L. ed. 1077, 25 Sup. Ct. Rep. 669.

Messrs. James Hamilton Lewis and Granville W. Browning argued the cause and filed a brief for defendant in er¬ ror :

There is no Federal question involved. The writ of error should be dismissed.

Bacon v. Texas, 163 U. S. 207, 41 L. ed. 132, 16 Sup. Ct. Rep. 1023; Rutland R. Co. v. Central Vermont R. Co. 159 U. S. 630, 40 L. ed. 284. 16 Sup. Ct. Rep. 113; Balti¬ more & P. R. Co. v. Hopkins, 130 U. S. 210, 32 L. ed. 908, 9 Sup. Ct. Rep. 503; Egan v. Hart, 165 U. S. 188, 41 L. ed. 680, 17 Sup. Ct. Rep. 300; Henderson Bridge Co. v. Henderson, 141 U. S. 679, 35 L. ed. 900, 12 Sup. Ct. Rep. 114; Leonard v. Vicksburg,

S. & P. R. Co. 198 U. S. 416, 49 L. ed. 1108, 25 Sup. Ct. Rep. 750; Defiance Water Co. v. Defiance, 191 U. S. 184, 48 L. ed. 140, 24 Sup. Ct. Rep. 63; Allen v. Arguimbau, 198 U. S. 149, 49 L. ed. 990, 25 Sup. Ct. Rep. 201 U. S.

v. Illinois ex rel. Chicago.

622 ; Bier v. McGehee, 148 U. S. 137, 37 L. ed. 397, 13 Sup. Ct. Rep. 580; Cook County v. Calumet & C. Canal d Dock Co. 138 U. S. 635, 34 L. ed. 1110, 11 Sup. Ct. Rep. 435; Beaupre v. Noyes, 138 U. S. 397, 34 L. ed. 991, 11 Sup. Ct. Rep. 296; St. Louis, C. G. d- Ft. S. Ii. Co. v. Missouri, 156 U. S. 478, 39 L. ed. 502, 15 Sup. Ct. Rep. 443; Dibble v. Bellingham Bay Land Co. 163 U. S. 63, 41 L. ed. 72, 16 Sup. Ct. Rep. 939; White v. Leovy, 174 U. S. 91, 43 L. ed. 907, 19 Sup. Ct. Rep. 604; Yesler v. Washington Harbor Line, 146 U. S. 646, 36 L. ed. 1119, 13 Sup. Ct. Rep. 190.

The finding that this tunnel is an ob¬ struction to navigation will not be re¬ viewed.

Telluride Power Transmission Co. v. Rio Grande Western R. Co. 175 U. S. 639, 44 L. ed. 305, 20 Sup. Ct. Rep. 245.

The tunnel is now an unlawful structure. Atlee v. Northwestern Union Packet Co. 21 Wall. 389, 22 L. ed. 619; Chicago, B. d Q. R. Co. v. People, 212 Ill. 103, 72 N. E. 219; United States v. Bellingham Bay Boom Co. 176 U. S. 211, 44 L. ed. 437,. 20 Sup. Ct. Rep. 343.

The title of the street railway company is subject to the paramount right of navi¬ gation.

Chicago, B. d Q. R. Co. v. People, supra; Chicago v. Laftin, 49 111. 172; Stockton v. Baltimore d N . Y. R. Co. 1 Inters. Com. Rep. 411, 32 Fed. 9; Braxon v. Bresslcr, 64 Ill. 488; Hawkins Point Light-House Case, 39 Fed. 87; Illinois C. R. Co. v. Illi¬ nois, 146 U. S. 458, 36 L. ed. 1044, 13 Sup. Ct. Rep. 110; Scranton v. Wheeler. 179 U. S. 163, 45 L. ed. 137, 21 Sup. Ct. Rep. 48, 6 C. C. A. 585, 16 U. S. App. 152, 57 Fed. 809; Parmeter v. Gibbs, 10 Price. 412; Sage v. New York, 154 N. Y. 61, 38 L.R.A. 606, 61 Am. St. Rep. 592, 47 N. E. 1096; Colchester v. Brooke, 15 L. J. Q. B. N. S. 59; Atty. Gen. v. Parmeter, 10 Price, 378; Atty. Gen. v. Richards, 2 Anstr. 603; 1 Wood, bJuisances, p. 119; Weber v. State Harbor, 18 Wall. 57, 21 L. ed. 798; Gibson v. United States, 166 U. S. 269, 276, 41 L. ed. 996, 1002, 17 Sup. Ct. Rep. 578.

The city has power to order this obstruc¬ tion removed.

Escanaba d L. M. Transp. Co. v. Chicago, 107 U. S. 679, 27 L. ed. 443, 2 Sup. Ct. Rep. 185; Harmon v. Chicago, 140 Ill. 397, 29 N. E. 732; Chicago v. McGinn, 51 Ill. 266, 2 Am. Rep. 295; West Chicago Street R. Co. v. People, 214 Ill. 9, 73 N. E. 393, 203 Ill. 551, 68 N. E. 78; Lake Shore d M. S. R. Co. v. Ohio, 165 U. S. 365, 41 L. ed. 747, 17 Sup. Ct. Rep. 357 ; Cummings v. Chicago, 188 U. S. 410, 47 L. ed.-525, 23 Sup. Ct. Rep. 472.

847

513-515

Supreme Court of the United States.

Oct. Term,

The street railway company is not en¬ titled to compensation.

West Chicago Street R. Co. v. People and Chicago, B. & Q. R. Co. v. People, supra; Northern Transp. Co. v. Chicago, 90 U. S. 635, 25 L. ed. 336; Gibson v. United States and United States v. Bellingham Bag Boom Co. supra; Scranton v. Wheeler, 179 U. S. 159, 45 L. ed. 135, 21 Sup. Ct. Rep. 48, 6 C. C. A. 585, 16 U. S. App. 152, 57 Fed. 803; Newport & C. Bridge Co. v. United States, 105 U. S. 470, 20 L. ed. 1143; Pennsylvania v. Wheeling <£• B. Bridge Co. 13 How. 518, 14 L. ed. 249; United States v. Moline, 82 Fed. 592; Hawkins Point Light-House Case, 39 Fed. 77 ; Stockton v. Baltimore & N. Y. R. Co. supra; State v. Sargent & Co. 45 Conn. 358; New Orleans Gaslight Co. v. Drainage Commission, 197 U. S. 453, 49 L. ed. 831, 25 Sup. Ct. Rep.

Mr. Justice Harlan delivered the opin¬ ion of the court:

This case presents some questions of ju¬ risdiction and constitutionality arising out of the relative rights and duties of the city of Chicago and the West Chicago Street [514:]Railroad Company *in respect of a tunnel maintained by that company under the south branch of Chicago river at or near Van Buren street, in that city.

The judgment in the circuit court of Cook county, Illinois, was in favor of the rail¬ road company, but it was reversed in the appellate court, first district, the former court being directed to give to the city the relief asked. Upon appeal to the supreme court of Illinois a judgment was rendered in favor of the city.

The contention of the company is that the judgment under review cannot be sustained .consistently either with the contract clause of the Constitution of the United States or with the due process of law enjoined by the 14th Amendment.

The case presented by the record is sub¬ stantially as will be now stated.

On or about April 2d, 1888, the city council of Chicago adopted in due form the following ordinance:

“Whereas, the board of directors of the West Chicago Street Railroad Company, on the second day of April, 1888, by and at the request of the mayor of the city of Chicago, adopted the following resolution: Resolved, That the West Chicago Street Railroad Company, in consideration of the passage and approval by the mayor of the three ordinances passed by the city council of Chicago on the 30th day of March, 1888, — one granting to the West Division Railway Company the right to change its motive power from horse to cable or electric pow- 848

er; one granting to the Chicago Passenger Railway Company the right to make the same change; and one granting to the West Chicago Street Railroad Company the right to construct its tracks on Jefferson street, between Madison and Washington streets, and to use horse, cable, or electric power thereon, — hereby agrees, by and with the city of Chicago, at its own expense to construct a tunnel under the Chicago river, and acquire the necessary right of way therefor on a route to be located by said company between Madison and Twelfth streets, with the east terminus at Fifth avenue or west thereof, and *the

western terminus at Halsted street or east thereof; provided, however, that this com¬ pany shall have the right from said city to construct said tunnel under any inter¬ vening street or streets and said river within said limits, but such location and construction shall be such as not to inter¬ fere with the capacity, usefulness, or grade of said streets; said tunnel to be used by this company for street railroad tracks, and the construction thereof shall be commenced within three years, and be completed with¬ in four years, after the said city council shall grant permission to said railroad company to make said improvements, un¬ less prevented by injunctions or strikes, and the time said construction is so inter¬ fered with shall be added to said four years, all work to be done in a manner satisfac¬ tory to the commissioner of public works, and the tracks through the tunnel shall be connected with the street railroad tracks controlled by this company. Now, there¬ fore, be it ordained by the city council:

That the agreement in said resolution con¬ tained be and the same is hereby accepted by and on behalf of the city of Chicago as a consideration from said company for the passage and approval by the mayor of the ordinances in said resolution specified, and authority is hereby granted said company to make the improvements therein men¬ tioned.”

When this ordinance was passed there was in force what is known as the horse and dummy act, passed in 1874, which provided: “That any company which has been or shall be incorporated under the general laws of this state, for the pur¬ pose of constructing, maintaining, or oper¬ ating any horse or dummy railroad or tramway, may enter upon and appropriate any property necessary for the construc¬ tion, maintenance, and operation of its road, and all necessary siding, side tracks, and appurtenances, and may, subject to the provisions contained in this act, locate and construct its road upon or over any street, alley, road, or highway, or across

201 TJ. S.

West Chicago Street R. Co. v. Illinois ex rel. Chicago.

515-519

or over any waters in this state, in such manner as not to unnecessarily obstruct the public use of such street, alley, road, or highway, or interrupt the navigation of such leaters.”

*In 214 Ill. 9, 19, 73 N. E. 393, 396, the supreme court of Illinois, referring to this act, said: “This act was an addition to the charter of any company organized under the general incorporation act, and its provi¬ sions have existed under some form ever since, conferring powers upon street rail¬ road companies organized as the defendant is. It gave the defendant the right to con¬ struct its railroad either over or across the Chicago river, which included the tunnel, subject to the condition contained in it. Defendant could only hold real estate for the transaction of its business of main¬ taining and operating a street railroad, and the statute fixed the conditions under which it might use its real estate for building the tunnel.”

The tunnel was completed by the rail¬ road company in March, 1894, and has ever since been used and is now being used as a passageway under the river for its cars. When constructed (as well as at the present time) the water in the south branch of the Chicago river over the tunnel, near Van Buren street, varied in depth from 17 to 18 3-10 feet.

On the 3d day of March, 1899, Congress passed a river and harbor act, among the provisions of which was one directing the Secretary of War to cause surveys to be made and the cost of improving certain rivers and harbors to be estimated and re¬ ported to Congress, as follows: “Improving Chicago river in Illinois: Survey and esti¬ mate of cost for a channel twenty-one feet deep from its mouth to the stock yards, on the south branch, and to Belmont ave¬ nue, on the north branch, so far as may be permitted by existing docks and wharves, exclusive of cost of removing or construct¬ ing bridges or piers or lowei>ing tunnels; and the aforesaid depth of twenty-one feet is hereby adopted as the project depth for the improvement in lieu of that fixed by the act of June third, eighteen hundred and ninety-six [29 Stat. at L. 202, chap. 314] ; Provided, That all the work of re¬ moving and reconstructing bridges and piers and lowering tunnels necessary to permit a practicable channel with said

depth to *be obtained shall be done, or caused to be done, by the city of Chicago, without expense to the United States.” 30 Stat. at L. 1156, chap. 425.

After the passage of that act steps were taken to dredge the Chicago river so as to deepen its channel in accordance with the provisions of the act of Congress, and, it 201 U. S.

is alleged, such work “lias been proceeding under the authority and supervision of the government of. the United States, for the purpose of providing a sufficiently deep channel for the uses and pu poses of com¬ merce and navigation as aforesaid.”

For the purpose of obeying the act of Congress, and in order to obtain a free and unobstructed navigation of the Chicago river for the benefit of commerce, inter¬ state and domestic, the city council of Chicago, on the 19th day of March, 1900, duly passed the following ordinance: “Whereas, by act of Congress of March,

3d, 1899, it is provided that in the survey and estimate of cost for a channel 21 feet deep, in the improvement of the Chicago river from its mouth to the stock yards on the south branch, and to Belmont avenue on the north branch, the aforesaid depth of 21 feet is adopted as the project depth for such improvement; ivhcreas, it is in said act further provided that all the work of removing and reconstructing bridges and piers and lowering tunnels necessary to permit a practicable channel with said depth to be obtained shall be done or caused to be done by the city of Chicago, without expense to the United' States; whereas, the tunnel under the south branch of the Chicago river at Van Buren street tvas constructed by the West Chicago Street Railroad Company under a certain ordi¬ nance of the city of Chicago, passed April 2d, 1888 ; whereas, a channel in the Chicago river of the depth of at least 21 feet, is now made necessary by the requirements of navigation and by the increase in the draft of vessels engaged in the shipping trade of the Lakes; whereas, the said tunnel is an obstruction to said proposed improve¬ ment to the Chicago river and to the navi¬ gation thereof, and, as such obstruction, must be lowered so that there may be above it in *said river a depth of at least 21 feet[51Ji| of water, or be removed altogether: Now, therefore, be it ordained by the city coun¬ cil of the city of Chicago: That the West Chicago Street Railroad Company be and it is hereby ordered and directed within three months after the date of the passage of this ordinance, at the sole cost and ex¬ pense of said W'est Chicago Street Railroad Company, and without cost, damage, loss, or expense of any kind whatsoever to the city of Chicago, to proceed to lower tlm tunnel under the south branch of the Chi¬ cago -river at or near Van Buren street, being the same tunnel heretofore con¬ structed by the said West Chicago Street Railroad Company under an agreement dated April 2, 1888, between the said West Chicago Street Railroad Company and the city of Chicago, and an ordinance passed

849

518-520 Supreme Court of

by the city council of the city of Chicago, April 2, 1888, authorizing the construction of said tunnel in accordance with the provi¬ sions of said agreement, so as to provide for a clear depth above said tunnel of at least 21 feet of water at all times. Said work shall be performed by the said West Chicago Street Railroad Company under the supervision and direction, and subject to the approval, of the commissioner of public works of the city of Chicago, and shall be completed on or before March 1, 1901.”

In execution of the provisions of that ordinance the city caused notice to be given to the railroad company, demanding com¬ pliance with its provisions. The company did not heed that notice.

The present action was thereupon insti¬ tuted by the people of Illinois, on the re¬ lation of the city of Chicago, against the railroad company. The specific relief asked was the issuing of a writ of mandamus di¬ recting the railroad company, without cost, damage, loss, or expense of any kind what¬ soever to the city, to proceed to lower its tunnel under the south branch of the Chi¬ cago river at or .near Van Buren street, so as to provide for a clear depth above it of at least 21 feet of water at all times, for its entire width and length, or to wholly remove it, “so that the same shall cease to I519]be an obstruction to the free ’navigation of said Chicago river or the south branch thereof, and to perform said work under the supervision and direction of the com¬ missioner of public works of the city of Chicago.”

The circuit court found the issues for the defendant, and denied the application for a mandamus. Upon error to the appellate court, first district, the judgment of the circuit court was reversed and the cause re¬ manded with directions “to issue a writ of mandamus commanding the railroad com¬ pany to remove its tunnel, said writ not to be executed until the Washington street and La Salle street tunnels are both re¬ moved or lowered to a sufficient depth to be no longer an obstruction to navigation.”

Upon appeal to the supreme court of Illi¬ nois a final judgment was there entered awarding a peremptory writ of mandamus as prayed for in the petition. 214 Ill. 9, 73 N. E. 393.

As explanatory of the reference to the tunnels on Washington and La Salle streets it may be here stated that those tunnels be¬ longed to the city, and were located between the tunnel at Van Buren street, owned by the railroad company, and the mouth of the river at the lake. Of course, until the city’s tunnels are lowered or removed, the lowering or removal of the tunnel on 850

the United States. Oct. Term,

Van Buren street would not be of material aid to navigation.

We come now to consider the question.? arising on the record and discussed at the bar.

writ of error should be dismissed for want of jurisdiction in this court cannot be sus¬ tained. It is true that the judgment of the state court rests partly upon grounds of local or general law. But, by its neces¬ sary operation, — although the opinion of the state court does not expressly refer to the Constitution of the United States, — the judgment rejects the claim of the com¬ pany, specially set up in its answer, that the relief asked by the city cannot, in any view of the case, be granted consistently either with the contract clause of the Con¬ stitution or with the clause prohibiting *the

state from depriving anyone of his property without due process of law. If that posi¬ tion be well tajcen, then a judgment based merely upon grounds of local or general

law would be error ; for the Federal ques¬ tions raised cover the whole case, and are of such a nature that the rights of the parties could not be finally determined without deciding them. As the judgment, by its necessary operation, denied the com¬ pany’s claims based on the Constitution of the United States, this court has juris¬ diction to inquire whether those claims are sustained by that instrument. Our views on this question are fully stated in Chi¬ cago, B. & Q. R. Co. v. People (recently decided) 200 U. S. 561, amte, 596, 26 Sup.

Ct. Rep. 341.

road company on the fact that it is the owner in fee of the bed of the river at the point where the tunnel was constructed.

But that fact is not vital in the present discussion; for it was adjudged by the state court — in harmony with settled doc¬ trines, as will presently appear— -that “the title to land under a navigable river is not the same as the title to the shore land:” that “in a navigable stream the public right is paramount, and the owner of the soil under the bed of such a stream can only use and enjoy it in so far as is consistent with the public right, which must be free and unobstructed;” that “the title to the up¬ land is absolute and paramount, while the title to the lands over which the navigable water flows is subordinate to the public right of navigation;” and that “the city could not, if it would, grant the right to ob¬ struct the navigation of the river, or bind itself to permit anything which has become an obstruction to be continued.” 214 Ill.

9, 20, 21, 73 N. E. 393, 397.

201 U. S.

West Chicago Street R. Co. v. Illinois ex rel. Chicago.

520-523

strictly Federal questions raised by the company. Its contention is that the tunnel was constructed under a valid contract with the city, evidenced by the ordinance of 1888, and that the mere order to remove or lower the tunnel impaired the obligation of that contract, in violation of the Consti¬ tution.

Upon a careful scrutiny of the ordinance [521 ]of 1888, we find no *clause or provision which so restricted the power of the city that it could not require the railroad com¬ pany to lower or remove the tunnel when the public interests, as involved in the un¬ obstructed navigation of Chicago river, de¬ manded that to be done. The railroad company, in consideration of certain rights and privileges granted to it by the city, undertook to construct the tunnel ; and it is true that when constructed the tunnel did not interfere with navigation; nor would it now obstruct navigation, if only boats and vessels of the size and capacity in use when the tunnel was constructed were en¬ gaged in commerce on the river. But such boats and vessels are insufficient to meet the present needs of commerce at Chicago. The business of that city has enormously in¬ creased since the passage of the ordinance of 1888, and, admittedly, the tunnel is now an obstruction to free navigation on the river by boats and vessels of large size. The railroad company may have believed, when the ordinance of 1888 was passed, that the tunnel would never interrupt or ob¬ struct navigation. Nevertheless, the ordi¬ nance did not expressly or by necessary im¬ plication bind the city to forbear the ex¬ ercise of any power it had to deepen the channel of the river and thereby improve navigation. As the city could not legally adopt an ordinance inconsistent with a stat¬ ute of the state, we must read into the or¬ dinance of 1888 that part of the act of 1874 which, as construed by the supreme court of Illinois, made it a condition of the right of a street railroad company to cross its cars through a tunnel under Chi¬ cago river that its road and tunnel should be so located and constructed as not un¬ necessarily to interrupt navigation. Apart from any question as to the power of the city to bargain away or surrender its au¬ thority to improve navigation and protect it against obstruction, the railroad company must be held to have accepted the ordinance and constructed the tunnel subject to the requirement that navigation should not be interrupted by it. As the present tunnel is an obstruction to the use of the river by many boats and vessels employed in com¬ merce on the Lakes, and as, by the ordi-

nance *in question, the city did not stipulate 201 U. S.

— even if it could lawfully have stipulated — that it would not exert whatever powers it had in order to protect the free navi¬ gation of Chicago river whenever it became necessary or proper to do so, the result must be that the execution of the order to lower or remove the tunnel would not impair the obligation of any contract pro¬ tected by the Constitution of the United States. If, in the ordinance of 1888, the city had stipulated that it would meet the expense of any alteration of the tunnel made by its direction, a different question would have been presented. But the ordi¬ nance cannot be construed as containing such a stipulation, and consistently with the settled doctrines of this court no such stipulation can arise from mere implica¬ tion. There is, in our judgment, no ground whatever for holding that the city, by the ordinance of 1888, came under the obliga¬ tion of a contract to meet the cost of any changes in the tunnel that might be law¬ fully required in order that the river could be safely navigated by large vessels.

tion in the case: Whether, consistently with the Constitution of the United States, the railroad company can be required to lower or remove the tunnel in question and ( if it continues to use a tunnel in cross¬ ing Chicago river with its cars) to con¬ struct and maintain, at its' own expense, such a tunnel as will conform to the provi¬ sions of the ordinance of March 19th, 1900.

It is indisputable, on this record, that the depth of water over the present tunnel is not sufficient to accommodate many boats and vessels now commonly employed in commerce between Chicago and other cities and towns on the Lakes. It is to be taken also as indisputable that, in order that such boats and vessels may navigate the south branch of Chicago river with safety the depth of water over the Van Buren street tunnel must be at least as great as that specified in the city ordinance of

we may properly do — that the ordinance is a reasonable, not an arbitrary, exertion of the power conferred on the city “to con¬ struct and keep *in repair bridges, viaducts,

and tunnels, and to regulate the use there¬ of,” and . “to deepen, widen, dock, cover, wall, alter, and change the channel of the water courses.” We must, in addition, upon this record, assume that the means adopted by the city have a direct, real, and substantial connection with the pub¬ lic object intended to be accomplished, namely, to' free the navigation of the south branch of Chicago river from an obstruc¬ tion which prevents the use of that rivor by

851

523-525

Supreme Court of the United States.

Oct. Term,

vessels of the size demanded by the vast business transacted at Chicago.

As already observed, the contention of the company is, in effect, that even if the present tunnel be an obstruction to the navigation of the river by large vessels, the lowering or removal of the tunnel, against the company’s will, would be a tak¬ ing of private property for public use without compensation, in violation of the constitutional guaranty of due process of law.

This resuit, it is supposed by the railroad company, necessarily follows from the fact that the present tunnel was constructed with the assent of the city, and when con¬ structed was sufficient for purposes of navi¬ gation by vessels, of whatever size, then engaged in commerce on the Chicago river. But these facts are not all that must be considered in this discussion. They can¬ not be considered apart from other mat¬ ters of a vital character, namely: That the city was under the duty of protecting the free navigation of the river and its branches, — a duty from the discharge of which it could not be exempted by any agreement it might make with the rail¬ road company; that the city granted the right to construct the present tunnel under the river subject to the condition, necessa¬ rily implied by the statute of 1874, in force when the ordinance of 1888 was adopted, that the tunnel should not in¬ terrupt navigation; that if the assent of the company to such a condition was im¬ portant, it must be held to have given such assent by accepting the ordinance of 1888, into which, as already indicated, must be read the requirement in the stat¬ ute of 1874 that navigation should not be unnecessarily interrupted; and that the [624] provision in *that statute forbidding any interruption of the navigation of the river had reference to the needs of navigation not only at the time the tunnel was con¬ structed, but its needs at any subsequent period, as found and declared by the city, upon reasonable grounds; which declara¬ tion would, of course, be subject to the con¬ dition, vital in our system of govern¬ ment, that the courts may look through and behind mere forms, and interfere, when¬ ever necessary, for the protection of private rights against an illegal, arbitrary exer¬ cise of governmental power.

In addition to these considerations we may suggest the important one that the rights of the company, as the owner of the fee of land on either side of the river or in its bed, were subject to the paramount right of navigation over the waters of the river. Weber v. State Harbor, 18 Wall. 57, 66, 21 L. ed. 798. 802; Illinois C. R. 852

Go. v. Illinois, 146 U. S. 387, 458, 36 L. ed. 1018, 1044, 13 Sup. Ct. Rep. 110; Shively v. Bowlby, 152 U. S. 30, 38 L. ed.

342, 14 Sup. Ct. Rep. 548; Gibson v. United States, 166 U. S. 269-270, 41 L. ed. 996-1002, 17 Sup. Ct. Rep. 578; Scranton v. Wheeler, 179 U. S. 163, 45 L. ed. 137, 21 Sup. Ct. Rep. 48; Chicago, B. & Q. R. Go. v. People, 212 Ill. 103, 72 N. E. 219; Brax- on v. Bressler, 64 Ill. 488; People v. Van¬ derbilt, 28 N. Y. 396, 84 Am. Dec. 351;

Sage v. New York, 154 N. Y. 61, 38 L. R.

A. 606, 61 Am. St. Rep. 592, 47 N. E. 1096;

State v. Parrott, 71 N. C. 311, 17 Am. Rep.

5;, State v. Dibble, 49 N. C. (4 Jones, L.)

107; Diedrich v. Northwestern Union P.

Co. 42 Wis. 248, 24 Am. Rep. 399 ; Par- meter v. Gibbs, 10 Price, 412; Williams v. Wilcox, 8 Ad. & El. 314; Colchester v. Brooke, 7 Q. B. 339. The principle is thus declared by a leading text writer: “The privilege of navigation upon all waters which are capable of such use in their natural condition, and are accessible with¬ out trespassing upon private lands, is a common and paramount right. ... At common law the right of navigating a pub¬ lic stream is paramount to the right of pas¬ sage across the stream by means of a bridge.” Gould, Waters, §§ 86, 88.

If, then, the right of the railroad com¬ pany to have and maintain a tunnel under the Chicago river is subject to the para¬ mount public right of navigation; if its right to maintain a tunnel in the river is a qualified one, because subject to the spe¬ cific condition in the act of 1874 that no tunnel should interrupt navigation; if the present tunnel is an obstruction to *navi-

gation, as, upon this record, we must take it to be; and if the city, as representing the state and public, may rightfully insist that such obstruction shall not longer remain in the way of free navigation, — it necessarily follows that the railway company is under a duty to comply with the demand made upon it to remove, at its own expense, the ob¬ struction which itself has created and main¬ tained. If the obstruction cannot be removed except by lowering the tunnel to the re¬ quired depth and ( if a tunnel is to be main¬ tained) providing one that will not interrupt navigation, then the cost attendant upon such work must be met by the company.

The city asks nothing more than that the railroad company shall do what is necessary to free navigation from an obstruction for which it is responsible, and (if it intends not to abandon its right to maintain a tun¬ nel at or near Van Buren street) that it shall itself provide a new tunnel with the necessary depth of water above it. The case differs somewhat from Chicago, B. & Q. R.

Co. v. People (just decided) 200 U. S. 501,

201 U. S.

West Chicago Street R. Co. v. Illinois ex rel. Chicago.

525-527

ante, 596, 26 Sup. Ct. Rep. 341. In that case we held it to be the duty of the railway company, at its own cost, to remove the bridge, culvert, timbers, and stones which it placed in Rob Roy creek, and which prevented the execution of the plan devised by the drain¬ age commissioners. But tfie commissioners demanded that more be done; for their plan contemplated that earth outside of the rail¬ road bridge and culvert be removed, in or¬ der that the channel be enlarged, widened, and deepened. But in that improvement the railway company had no interest. It was not responsible for the inadequacy of the original channel of Rob Roy creek for the system of drainage adopted by the commis¬ sioners. Its only duty, and the only burden imposed upon it, was to remove, at its own cost, the obstructions placed by it in the creek, and which stood in the way of the proposed system of drainage. In the case be¬ fore us the public demands nothing to be done by the railroad company except to re¬ move the obstruction which itself placed and maintains in the river under the condition that navigation should not at any' time be [526 [thereby interrupted. *The removal of such obstruction is all that is needed to protect navigation. So that whatever cost attends the removal of the obstruction must be borne by the railroad company. The condition under which the company placed its tunnel in the river being met by the company, the public has no further demands upon it. This cannot be deemed a taking of private property for public use or a deni¬ al of the equal protection of laws, within the meaning of the Constitution, but is only the result of the lawful exercise of a gov¬ ernmental power for the common good. This appears from the authorities cited in Chi¬ cago, B. & Q. R. Co. v. People, supra, f The state court has well said that to main¬ tain the navigable character of the stream in a lawful way is not, within the meaning of the law, the taking of private property or any property right of the owner of the soil under the river, such ownership being subject to the right of free and unobstructed navigation. People ex rel. Chicago v. West Chicago Street R. Co. 203 Ill. 551, 557, 68 N. E. 78. What the city asks, and all that it asks, is that the railroad company be

f Northern Transp. Co. v. Chicago, 99 TJ. S. 635, 642, 25 L. ed. 336, 338 ; Mugler v. Kan¬ sas, 123 U. S. 623, 669, 31 L. ed. 205, 213, 8 Sup. Ct. Rep. 273 ; New York & N. E. R. Co v. Bristol, 151 U. S. 556, 561, 38 L. ed. 269, 271, 14 Sup. Ct. Rep. 437 ; Chicago, B. & Q. R. Co. v. Chicago, 166 TJ. S. 226, 252, 41 L. ed. 979, 990, 17 Sup. Ct. Rep. 581; Gibson v. United States, 166 U. S. 269, 271, 276, 41 L. ed. 996, 998, 1002, 17 Sup. Ct. Rep. 578 ; Scranton v. Wheeler, 179 U. S. 141, 164, 45 L. ed. 126, 137, 21 Sup. Ct. Rep. 48; New Orleans Gas- 201 U. S.

required, in the exercise of its rights and in the use of its property, to respect the public needs as declared by competent authority, upon reasonable grounds, to exist. This is not an arbitrary or unreasonable demand.

It does not, in any legal sense, take or ap¬ propriate the company’s property for the public benefit, but only insists that the com¬ pany shall not use its property so as to interrupt navigation.

Further discussion of the general question will be found in * Chicago, B. d Q. R. Co. v.

People, supra. We need not repeat all said in the opinion in that case on this ques¬ tion.

Another matter requires notice. The rail¬ road company contends that the city had no power to require or authorize any changes in the bed of the river without the approval of the Secretary of War. River and harbor act of 1899, § 10, 30 Stat. at L. 1151, chap.

425, U. £j. Comp. Stat. 1901, p. 3541. The same act contains directions for the im¬ provement of Chicago river. Construing all the provisions together, we think it clear that when Congress declared in the river and harbor act of 1899, under the heading of “Improving Chicago River in Illinois”

(p. 1156), that “all the work of removing and reconstructing bridges and piers and lowering tunnels necessary to permit a prac¬ ticable channel” with the prescribed “proj¬ ect” depth of 21 feet in Chicago river should be done by the city, without expense to the United States, it meant to give the assent of the United States to any work done by the city towards accomplishing the end which the government had in view. The state court properly said that “the city has power, under its charter, to deepen the chan¬ nel, and as a preliminary to doing so, to require this tunnel to be lowered or re¬ moved, and the act of Congress permits it to proceed, so far as the lowering of the tunnel is concerned.”

As showing that the action taken by the city of Chicago is in accordance with the will of Congress, we may refer to the act of Congress of April 27th, 1904, relating to certain tunnels under Chicago river, includ¬ ing the particular tunnel here in question.

That act provides: “That the tunnels under

light Co. v. Drainage Commission, 197 U. S.

453, 49 L. ed. 831, 25 Sup. Ct. Rep. 471 ; Mills v. United States, 12 L. R. A. 673, 46 Fed. 738 ;

United States v. Lynah, 188 U. S. 445, 47 L. ed. 539, 23 Sup. Ct. Rep. 349 ; Bedford v.

United States, 192 U. S. 217, 48 L. ed. 414,

24 Sup. Ct. Rep. 238 ; Ohio & M. R. Co. v. McClelland, 25 Ill. 140, 144 ; Kankakte & S.

R. Co. v. Horan,. 131 Ill. 288, 23 N. E. 621; Carthage v. Frederick, 122 N. Y. 268, 10 L. R.

A. 178, 19 Am. St. Rep. 490, 25 N. E. 480;

Sedgw. Stat. & Const. Law, 313, 3K,

853

527-529

Supreme Court of the United States.

Oct. Term

the Chicago river, in the state of Illinois, at La Salle street, Washington street, and near Van Buren street, in the city of Chi¬ cago, in said state of Illinois, are, and each of them is, hereby declared to be, as now con¬ structed, an unreasonable obstruction to the free navigation of said Chicago river, and each of said tunnels is hereby declared to be a public nuisance. And it shall be the duty of the Secretary of War to give notice to the persons or corporations own¬ ing or controlling said tunnels, or any of

them, so to * alter the same as to render navi¬ gation over said tunnels free, easy, and un¬ obstructed. and in giving such notice he shall specify the changes recommended by the chief of engineers that are needed to be made in order that said tunnels, or any of them, shall not thereafter be an obstruction to navigation, and shall prescribe in each case a reasonable time in which to make said changes. If, at the expiration of Such time, such changes have not been made, the Secre¬ tary of War shall forthwith notify the Unit¬ ed States district attorney for the northern district of Illinois, in which said tunnels are situated, to the end that the criminal pro¬ ceedings hereinafter prescribed may be tak¬ en. If the person or persons, corporation or corporations, owning or controlling any of the said tunnels shall, after receiving notice to that effect, as hereinbefore required, from the Secretary of War, and within the time prescribed by him, fail or refuse to remove the same or to make the changes specified in the notice of the Secretary of War, such person or persons, corporation or corporations, shall be deemed guilty of a mis¬ demeanor, and on conviction thereof shall be punished by a fine not exceeding ten thou¬ sand dollars ; and each and every month such person or persons, corporation or corpora¬ tions, shall remain in default in respect to the removal or alteration of such tunnel shall be deemed a new offense and subject the person or persons, corporation or cor¬ porations, so offending to the penalty herein prescribed: Provided, That in any case aris¬ ing under the provisions of this act an ap¬ peal or writ of error may be taken from the district court or from the circuit court di¬ rect to the Supreme Court either by the United States or by the defendants.” 33 Stat. at L. 314, .chap. 1615. For some rea¬ son, not explained in the record, no allusion was made to this act in the opinion of the supreme court of Illinois, nor is it alluded to in the briefs of counsel. That 'act, it seems to the nourt, emphasizes and strengthens the views expressed in this opinion, and tends to support the conclusions reached.

Mr. Justice Holmes concurs in the judg- 854

ment, upon the authority of Chicago, B. d Q. R. Co. v. People.

For the reasons we have stated, and in conformity with the principles announced in Chicago, B. d Q. R. Co. v. People, *the judg-

ment of the Supreme Court must he af¬ firmed.

It is so ordered.

The Chief Justice, Mr. Justice Brewer,

Mr. Justice White, and Mr. Justice Mc¬ Kenna dissent.