STATE OF ILLINOIS
V.
ILLINOIS CENT.
R.
CO.
721
'STATE OF ILLINOIS ex rd. HUNT, Atty. Gen., V.ILLINOIS CENT./R. Co. (Oircuit Oourt. N. t.
n. Illinois.
February 23.1888.)
REMOVAL OF CAUSES-FEDERAL QUESTION-LAWS IMPAIRING OBLIGATION OF' CONTRACT-DISOLAIMER.
2. ·
In an action in the nature of quo warranto, brou,ght in the name of the state, by her attorney general, to prevent a railroad company from exerciSIng certain rights and privileges, and from controlling certain lands, the defendant :petitioned for the removal of the cause to the circuit court of the United States, alleging that it acquired ownership in the land under an act of the leg' islature, and hi. accordance therewith exercised rights of ownership; that sub sequentlythe act granting the land was repealed; that such repealing act was in violation. of the provisions of the constitution relating to laws impairing the obligation of contracts, and of the fourteenth amendment, declaring .that no person shall be deprived of property without due process of law. Held, that the petition showed an issue in the action arising under the constitution, withiu the meaning of act Congo 3, 1887, relating to the removal of causes from the state to the federal courts; aud a disclaimer by the attoruey general of the state, that 0.0 reliance was placed on the act, cannot operate to eliminate such "issue. .
8AME-;-CIVIL AO,:\,ION-Q.UO WARRANTO.
An information in the nature of quo warranto, under Rev. 81. Ill. C. 112. against'A-railroad company for exercising possessory rights over lands with<llit authority of .law, .although in form a crimiual proceediug, is in its nature essen"tially a; civil action, within..the meaning of act Congo March 3.J887, relatnig to the removal of causes from the state to the federal courts.
On Motion to Remand wtheState Courts· .The attorney general of Illinois, having first obtained leave, filed, May 9, 1887:, in the criminal court of Cook county, an information in the nature ofa quo warranto,in the name and on behalf of the people of Illinois, against the Illinois Central Railroad. Company. The infonnation sets forth that the Illinois Central Railroad Company was incorporated by an act of the general assemlily of Illinois, approved February. 1851, and for more than 12. months last past has used and exercised. and still uses and exercises, without any warrant, charter, or grant therefor, the following privileges, powers, and franchises, to-wit; It,assumes. to own the submerged lands as the same existed April 16, 1869, constituting the bed of Lake Michigan, and lying east of the tracks and · breakwater of the Illinois Central Railroad Company, for the distance of one mile, and between the south line of the south pier extended eastwardly ami a line extended eastward from the south line of lot 21, south ·of and near the round-house and machine-shops of said company in the South division of the city of Chicago, county of Cook, comprising 1,000 acres, moreot less, which tract or parcel of land is not owned, possessed, ·or used for any of the uses or purposes for which said company was incorporated, and is not owned, used, or held in pursuance of the provisions of said act; and that said company has assumed to exercise,and does usurp and unlawfully exercise, possessory rights and rights of ownership over said submerged lands, has filled portions of the same with earth and other materials, and has constructed, and is constructing, ,docks, pierst,wharves, and breakwaters in ai;ld upon such lands. The information charges that the company, during the same period. has v.33F.no.14-46
722
FEDERAL REPORTER.
usurped and has unlawfully exercised other powers, liberties, privileges, arid franchilles, not granted to -it, to-wit: That of constructing, maintain:'ng, operating, and using, and leasing for hire, docks, wharves, and piers, in and upon, and in with, the'submerged lands constitutingthe,bed of Lake Michigan, and extending to the navigable waters thereof, which said docks, wharves, ,and piers are not necessary to owning, and operating of said railroad, and still usurps and unlawfully exercisessaidpowers, privileges, liberties, and franchises, apd time has unlawfully 9laimed, and still unlawfully claims, the right to operate, lease for hire, and use said docks, wharves, and piers,and to collect tolls and charges for the use thereof by vessels, ltny and all persons using the same for the purpose of receiving freightirom, or in delivering, freight to, vessels upon the of Lake Michigat;l.' The prayer of the information is that the company answer by whatwa,rra:nt it chiim,sto hl1ve, use, alid enjoy said powers, liberties, privilegeso,and franchises. On the 16th of May, 1887,-at which time it was required to appear railroad company filed its petition and. bond for the remova.lorthecause into this cpurt. "The petitlcni. for removalstatea that dispute exceeds the sum of $2,000, exclusive of costs; that this involves as well' tl1e legal title and ownetship of the lands described in the information, as the right to use and occupy the same for the purposes therein mentioned; and that the suit really and substantially.involv'es a controversy between thelstate of Illinois and the company, arising l1nder,the constitution of the United States. Itasserts title in the company to the premises in controversY,and thenght to use and occupy them as in the informationalleged,through an act of the general assembly of the state of Illinois, passed April 16, 1869, entitled "An act relation to a portion ofthesubmerged lands and Park grounds lying: on and adjacent to the shore of Lake Michigan, on the eastern frontage 'of the city of Chicago," the third, seventh, and eighth sections of which are as follows:
in
X;i,ghtof the Illinois Central Railroad Company, nnderthe grant "Sec. S. from the state, ip. its charter, which said grant constitutes a part of the consideration for which the said company, pays to the state at least seven per cent. Of its grosll'earnings, and under and 'by Virtue of its appropriation, occupancy, ,use,arid' eontrohiRnd the riparian ownership incident to such grant; appro,priation, ,occupancy, use, and ,controlin and to the lands.. submerged or otherwise, lying' of said line running parallel with and 400 ;feet e3$t of the west line of Michigan avenue, in fractional sections ten (10) and lifteen, (15,.) 'townsbip and range as aforesaid, is hereby confirmed, and all the right and title of the stateiof Illinois in and to the submerged lands constituting the bed , of Lake Michigan, and lying east oNhe tracks and breakwater of the nUnois Central Railroud Company, for thedis.tance of one mile, and between the south , Une of, the; 80uth ,pier extended eastwardly, and a line extended eastward from the lot twenty-one, south of and ne,artothe round-house and machine-shops of said compaqy, in the S,Quth diyision of the said city of OhiCago, are hereby granted,hifee, to the safdI1linois ,Central Raih'oadCompany, its successol's'and assigns: prOVided, however, that the fee to said lands shall be held by said company 'in perpetuity, and that the said company shall not have
STATE OF ILLINOIS'll. ILLINOIS CENT. R. CO.
723
power to grant. sell, or convey the fee to the same; and that all gross receipts from use, profits, leases, or otherwise of said lands, or the improvements thereon, or that may hereafter be made thereon, shall form a part of the gross proceeds, receipts, and income of the said Illinois Central Railroad Company, upon which said company shall forever pay into the state treasury, semi-annually, the per centum provided for in its charter, in accordance with the requirements of said charter. And provided, also, that nothing herein contained shall authorize obstrnctions to the Chicago harbor, or impair the public right of navigation; nOl' Shall this act be construed to exempt the Illinois Central Railroad Company, its lessees or assigns. from any act of the general assembly which may be hereafter passed, regulating the rates of wharfage and dockage to be charged in said harbor. And provided, further, that any of the lands hereby granted to the Illinois Central Railroad Company, and the improvementsnow, or which may hereafter be. on the same, which shall hereafter be leased by said Illinois Central Railroad Company to any person oreorpora,tion, or which may hereafter be occupied by any person or corporation other than said Illinois Central Railroad Company, shall not. during the continuance of such least'hold estate, or of such occupancy, be exempt from municipal or <lther taxation." . "8ec; 1. The·grants to the Illinois Central Railroad Company contained in this hereby declared to be upon the express condition that said Illinois Central Raih'oad Company shall perpetually pay into the treasury of the state of lllihoill the per centum on the gross or total proceeds, roof'ipts, or income derived from said road and branches stipulated in its charter, and also the per centum on the gross of said company reserved in this act. . . "Sec. 8. This act shall be.a act, and in force from and after its passage." Ill. 1869, p. 245. . The petition further alleges that the company formally accepted the act, causing due and proper notice thereof to be made a matter of record in the office of the secretary of state of the state of Illinoisi and, relying upon said act, more particularly the third, seventh, and eighth sections thereof, after the passage thereof formally took possession of considerable. portions of the submerged lands described therein, and thereafter expended upon the same about the sum of $500,000j that after suchacceptance, arid lifter it had formally taken possession of said lands, an act was passed. by the general assembly of Illinois, approved April 15, 1873, (Laws Ill. 1873-74, p; 119,) in terms providing that the act of April 16,1869, "be, and the same is hereby, repealedi" but which repf'.al"ing act, it will insist at the hearing of the cause, was an attempt to impair and annul the contract between it and the state, resulting from the act of April 16, 18l)9, and the acceptance thereof, and is therefore repugnant to the fi·rstclause of section 10, art. 1, Const. U. S., providing that no state shall pas&any law impairing the obligation of contracts; that it will also insist, at the hearing, that the act of April 15, 1873, is void, as an attempt to deprive i\of property and vested rights and interests, without due process of law, and is therefore in violation of the first section of the fourteenth amendment of the constitution of the United States, providing that no state shall deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of th6laws. The,petition states that these questions ate material; must be determined at the trial of this suit; and that said suit is one
724
arising under the constitution of the United States within the meaning of the act of congress approved March 3, 1887, relating to the jurisdiction of circuit courts of the United States, and regulating the removal of causes from state courts. On the 31st of May, 1887, after the transcript of the record from the state court had been filed in this court by the state, the attorney general plitced; on file the following paper: ," And now comes the people of the state of Illinois, by George Hunt, attorney g-eneral of said state, and as to the certain parts and portions of the petitionof Said defendant for the removal of this cause from the criminal court of county to this court, which state and set up in effect that this suit really and :substantially involves. a controversy between the people of the state of Illinojs and said petitioner, the defendant, arising under the constitution of the Unitl;ld &tates, by reason of the repeal by the act of A.pril 15, 1873, of the alof4prill6, 1869, in said petition mentioned, the said people of the stateo:UllinQis, by said attorney general, denies and traverses the allegations in that behalf contained in said petition for removal, .and says that the sole .wl:Jich it is ,by the said people of the state Of that the said infor1Ill'tion does not rightfully possess, and ought to be oUl5ted:frotD, the exercise of, the powers and franchif:!es 11,l said information alleged to'.lJave been unlawfully usurped, etc., is that. the people of the stat.e of Illinois hat,hnot ever, or in any manner"either by the Original charter of said IIlinoil'iOen,tral Railroad Company, or by the said suppolled act of April 16, 1869. in ,said. petition for removal mentioned, or by any other act of the general assembly of said state, granted to, or conferred upon, the said Illinois Central Railroad Company the corporate powers and franchises in said information alleged ,to have been unlawfully usurped and exercised by said railroad company; and said people of the state of Illinois have not made any claim, and now make no Claim, that the said act of April 15, 1873, in said petition for removal mentioned, ever had, or has, the effect, or eould have the effect, to impair or deprive the said railroad company of any corporate rights, powers, franchises, or property which it acquired, or with which it became vested by virtue of the s\tid supposed act,of Apri116, 1869; and the said attorney general, for and in behalf of the people of the state of Illinois, ltereby disclaims and disavows any such right or claim under said repealing act of April 15, 1873; and the said attorney general hereby disclaims any reliance on said repealing act of April 15, 1873, for any purpose whatever in this cause; and so the said attorney gene-ml,ior and in behalf of the people of the state of Illinois, denies that said prosecution so instituted in said criminal court involves a controversy bet ween the people of the state of Illinois and the said railroad company, arising under the constitution of the United States,as alleged in said petition for removal; wherefore, upon. this ground, as well as upon the ground that the said proceedin,g in said criminal court, by such information in the nature of a quo war1'anto, is not, under the laws of the state of Illinois, a suit of a civil nature, and is not, therefore, removable under the act of congress in that behalf, from ,said criminal cou rt to this court, the said attorney general prays that the same JUay be remanded to said criminal court of Cook county," etc· .' "GEORGE HUNT, Attorney Gen'l of Ill."
W. G.Ewing, Diat. Atty., f01" the United States. Hunt, Atty. Gen., E.1J. McOagg, and WiUiama k Thompson, for the People. ' B. F. Ayer. J. N. Jewett, and Lym,an TrumbuU, for the illinois Cent.
R.·Co.
STATE OF ILLINOIS V. ILLINOIS CE1>T. R. CO.
725
_M. W. Fuller, for the city of Chicago.
James K. Edsall and A. S. Bradley, for Citizens' Committee. Mr. Justice HARLAN,after stating the facts in the foregoing language, delivered the opinion of the court.' This cause is before the court upon a motion in behalf of the state to remand it to the criminal court of Cook county, upon the general ground' that it is not one of which a circuit court of the United States can, under the act of March 3, 1887, properly take cognizance. As the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000, the motion must be denied, if the suit is one"aril:>ing under the constitution or laws of the United States," and is also of a "civil nature." Act March 3, 1887, §§ 1,2. It is the settled doctrine of the supreme court of the United States that a case is one arising under the constitution or a law of the United States "whenever its correct decision depends upon the construction of either," or when "the title or right set up by the party may be defeated by one construction of the constitution or laws of the United States,or sustained by the opposite construction." ·Cohtna v. Virginia, 6 Wheat. 379; OBborn v. Bank, 9 Wheat. 822; Water Co. v. KeyeB, 96 U. S. 201; Railroad Co. v. MisBissippi, 102 U. S. 135; Starin v. New York, 115 U. S. 257, 6 Sup. Ct. Rep. 28. In the last case, the language of the court, speaking by the chief justice, was: "If, from the questions, it appears that some title,right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of the ,constitution or a law of the United States, or sustained by the opposite .construction, the case will be one arising under the constitution or laws of the United States." It is equally well settled that, as the right of removal from a state court to a court of the United States is statutory, "jurisdiction mustin some form appear in the record of every suit," and, in a case commenced in a state court, that the record includes the petition for removal. So that, if the pleadings do not, at the time the application for removal is made, show the case to be one arising under the constitution or a law of the United States, the facts making such a case must be set forth in the petition for removal; otherwise the state court is not deprived of its right to proceed. Water 0>. v. Keyes, 96 U. S. 201. Applying these rules, it is clear that the present case is one arising under the constitution of the United States. Thp, information questions the au: thority of the railroad company to exercise posessory and proprietary body of submerged lands, constituting the bed of Lake rights over a Michigan, and to construct, maintain, operate, and lease for hire, docks, wharves, and piers upon said lands, The defense of the company, as we have seen, is that it acquired the ownership of those lands, and the right to construct, maintain, operate, and lease wharves, docks, and piers in connectionthei'ewith, by the act of April 16, 1869; and that the repealing act of 1873 is repugnant, as well to the clau-se of the constitution providing that no state shall pass any law impairing the obligation of .contracts, as to the section of the fourteenth amendment declaring that :JlO state shall deprive any person of life, liberty, or property, withou.t
726
due process of law, nor deny to any person within itsjnrisdiction the equal protection of the laws. It is plain, upon the record as it stood when the right of removal was asserted, that the case really and substantially a controversy as to rights depending upon the construction or effect o( the constitution. It does not differ, iurespect to the point under consideration, from State v. Railroad Co., 16 l!'ed. Rep. .881, now under submission for final. decree by this court. But it is Gontended that. the case should be remanded, hepause it appe!1rs from the paper filed1;>y the attorney general of Illinois, that he disclaims reliance for any purpose whatever in this proceeding upon the repealing act. It is quite sufficient, upon this point, to say that the court is bound to take judicial notice. of that statute. an,d must give effect to it, unless at the hearing it 1;>e adjudged to be unconstitutional and void. The disclaimer of nor close the attorney general cannot work a repeal of the act of theeyeo£the court to the fact that the state-if it could be constitutionally done-.<-has repealed the act of 1869. As the railroad company bases . its,claim to own the lands in question, and its authority to construct and maintain wharves, docks,and piers ill connection with them, upon the the court, notwithstanding this disclaimer, could not refuse act o,pinion-that the right of the comto adjudge-if such should be pany, ,to claim anything under that statute, in respect to ,those lands, had been legally: withdrawn by the repealing act. Even if tho attorney general haq stipulated with the company that he would not, in this proceed.,a,nything for the state under thelatteract, the court would ing, feel obliged to disregard such stipulation. Whether the repealing act is a question which the com pany proposes to raise, at had such the proper ,titllE;', .and in proper form, for judicial determination. Upon that question tu.ainly depends the result of this litigation. The prE-sence in the 9auseofsuch an issue makes this a case arising under the constitution oftbe United States. The next question to be considered is whether this cause is of a civil nature. . Except certain cases, of which this is not oue, no case is removable from a state court, into a Circtlit court of the United States, unl6llS it is.of a The earliest statute in Illinois allowing an inforof a quo warranto was enacted in 1826. Its provismation intbe ions were substantially preserved in the act of Murch 3, 1845, (Rev. St. allowed such ,an information against any perIll. 184p, p. son usurping,Jntruding into, or unlawfully holding or executing any office or fran9pise, and which provided that, if the defendant was adjudged to be guilty, the eoud might give judgment of ouster from said office or franchise, and also impose a upon him. The first case in tbe: supI:eme, court of Illinois, under tbatstatute, was Donnelly v.Peaple, 11 Ill. 552. There the question waswhetber the constitutional provisbe carried on' in the name and by the ion that" ali prosecutions authority of the people of the state of :Q1jpois,' and conclude' against the peace and dignity of the, same,'" embraced the case of an information in the nature 'Clfa quo warranto against an individual for nsurping a public office. 'l,'hecqurt held the be a substitute for the ancient
STATE OF ILLINOIS'll. ILLnWIS CENT.
R. CO.
727
writ of quo warranto, "but none the less of criminal prosecution, as well to punish the usurper for the usurpation of the franchise as to oust him from its enjoyment;" and that the' same certainty is required in such informations as is required in indictments. To the same effect, as to the point in judgment, are Peaple v. Railroad Co., 13 m. 66, and Hay v. People,59 Ill. 94. In People v. Ridgley, 21 Ill. 66, it was said that such an information was" understood to be a criminal proceeding;" and in SmUh v. People, 44 Ill. 23,-which was an information in the nature of quo warranto for usurpation of office, by one who was alleged to be ineligible thereto,-the proceeding was inoidentally described as one "in the nature of a criminal information, and, before it can be maintained, the proof must be clear and satisfactory that the party is disqualified." But the cases which seem to involve more directly the question as to the nature bf stich a proceeding are People v.Shaw, 13 Ill. 581, and Ensminger v. Peopl.e, 47 Ill. 387. In PeOple v. Shaw-which was an information in the nature of a quo warranto against certain persons for usurping the office of bridge commissioners-one of the questions presented was whether that case was embraced by a: statute regulating changes ofvehue only in -civil causes. The court, speaking by CATON, J., said: "In form this is a. criminal proceeding, but it is only so in form. In substance it is fot the protection of the private and individual- rights of the relator and others in the precinct similarly situated. DonniUyv. People, 1:1 Ill. -552. * * * It is the nature of the rights to' be asserl.ed and maintained to which we should look, rather than the -form in which the party may be obliged to proceed to assert those rights, in giving a just interpretation to 'the' statute. This being, in substance, a civil suit, we are of opinion secured to the relator a right to a change of venue upon -making out a proper case." In People-which was an information in the nature of a quo war1'anw against certain persons assuming to collect tolls and control the anchoring of vessels at Cairo-the question was whether the case was governed by the act-giving power to the court to grant a change of venue to adefeJidant in 'an indictment or information, for an offense not punishable by death. It was contended that the court, under that statute, had a discretion in the premises, whereas, in civil causes, the right to a ohange of venue, incertain circumstances, was absolute. The court said: Ills this an offense punishable criminally? If so, it falls within this en'actment; ifinot, it is otherwise. -We are aware of no decision that has ever 4eld that'a proceeding by qUQwarranto is criminal in its nature, much less in form. * * * Ittbenfol1ows that,as this is not a criminal proceeding the court erred in refusing to grant a change of venue.» The result of the cases underthe statute of 1845,in the state court, seems to be that, while an information in the nature of a quo warranto, for usurpation ofan office or franchise, is a" proseoution," within the meaning of constitutional provision above referred to, must be framed with'the 'precision required in 'indictments, and be sustained by clear and satisfactory proof,-"-it is, iIi its SUbstance, and from the nature of -the -rightS asserted by it, a civil proceeding. Such, evidently, is the
728
<theory of the act of March 23, 1874, under which this proceeding was instituted. That act is a revision of the law of Illinois in relation to qlW wetrranto. Among the cases in which it permits an information in the na,ture ora quo warranto, is that of a corporation exercising I;' powers not conferred by law," in respect to which, if found guilty, the court enter judgment of ouster, also impose a fine. The seventh section,of that act provides that "appeals and writs of error may be taken and prosecuted in the manner, and upon the same terms, and with like effect, as in other civil cases,"-directlyimplying, if not expressly declaring, that the cases-therein provided for are civil cases After the adoption of this statute,<the case of Peoplev. Holtz, 92 Ill. 428, was determined in the suprerneCQurtof Illinois. That was an information in the nature of a quo warranto to try the title to the office of of schools in a certain distdctofSt. Clair county. The question was presented whether the appeal in that case should not have gone to the appelhite court of the state. The court said: "This is not a criminal case, nor does it involve oR freehold or the validity of a; statute." In Ames v. KamaB, 111; U. S. 460, 4 Sup. Ct. Rep. 4<37, the whole subject:was carefUlly considered. That was a proceeding to test the right of onetailroad company to hold, possess, and use the franchises and privileges; powers and immunities, of another railroad corporation. It iscoutended. that that case is inapplicable here, because, while the Kansas: statute authorized a dissolution. of the corporation, where the charge was sustil.ined, it did not authorize the imposition oia fine. But it is clear that the court would not have reached a conclusion different from that announced,had the local statute authorized the imposition of a fine or penalty upon the 'offending corporation. The chief justice, upon a full review of the authorities, and referring to the original common-law writ, however, Jell into disuse in Engwrit of qwJ warranto, said: <land centuries.ago,and its place was supplied by an information in the nature of a. ([!W warranto, which, in its origin, was 'a criminal method of prosecution, as<well to punish the usurper by a fine for the usurpation of the franohise as to oust him. or keep it for the crown.' 3 Bl. Comm. 263. Long before our Revolution, however, it lost its character as a criminal proceeding in everything except form, and was' applied to the mere purposes of trying the civil right, seizing the franchise, or onsting the unlawful possessor,-:-the fine being nominal only, "'-citing, among other authorities,. King v. Francis, 2 Term R. 484. In the latter case the inquiry was whether a new trial could be granted on an information in the nature ora quo warranto for usurping an office; its determination depending upon. the qnestion <whether the proceeding, was criminal or civil in its nature. The new trial was granted, the court observing "that of late years aqua warrant.o information had been, considered merely in the nature of a· civil proceeding." The decision in' Ames v. KansaB was .distinctly to the ,effect that the nature. of the right asserted and at issue . in a proceeding of this character, under a state law, furnisluld the test whether the proceeding was of a civil or a criminal nature. So, in 4 Bl. Comm. 312, the author says that the information in the
STATE OF ILLINOis V. ILLIKOIS CENT. R. CO.
729
nature of a quo warranto is "usually considered, at present, as merely a civil proceeding." Referring to the two modes for judicially ascertaining and enforcing the forfeiture of a charter for default or abuse of power, one mode being by scire facias, where there is a legal existing body capable of acting, but who has abused their power, Kent says: "The other mode is by information in the nature of a quo warranto, which is in form criminal, and in its nature a civil remedy." 2 Kent, Comm. 313. See, also, Cole, Crim. Inf. 112, 113; Jac. Law Diet. tits. "Information and Quo Warranto;" Ang. & A. Corp. § 733. Although the practice in Illinois in this class of cases is. in sonie respects,similar to that obtaining in criminal cases, and although informa-: tions in the nature of quo warranto may be of a "quasi criminal nature," under the statute definii1g and regulating the jurisdiction of the criminal court of Cook county, (Wiggins v. Oity of Chicago, 68 Ill. 372; Naylorv. City of Galesburg, 56111.. 285.,) I am of opinion that, as the primary and only material object of the present proceeding is to· enforce a civil right, it is to be. regarded as a suit of a.. civil nature, within the principle of the decision in Ames v. Kansas, and within the meaning of the act of congress; 8;nd this, notwithstanding the court has a discretion, in addition to a judgment of ouster, to impose a fine. The motion to remand is denied. BLODGETT,
J.
I concur in both the opinion and the judgment.
780 ISTATE OF ILLINOIS 'V.
!LUNOIS CENT.
R. Co.
CITY
OF
CHICAGO ,.
SAME.
UNITED STATES 'V. SAME.
{(Jircuit Oourt. No D. Illinois. February 28,1888.) 1. PUBLIC LANDs-MILITARY SITES-SALE-ACT OF, MARCH 3, 1819-DELEClATION OF POWER. . Under a.ct Congo March 8, 1819, authorizing the secretary of war to cause to be sold certain military sites, such sale could be made through an agent spefor that purpose, and acting under a power of attorney. cially It SAME-SUBDryISION INTO BWCKS AND LOTS. And if in making a sale,under such act, of lands within the limits of, or near to, a municipal corporation, a subdivision of the tract into blocks, lots, and would be most beneficial to the government, It was the duty of the . to adopt that method of selling the tract. 8. SAllE-DEDICATION-TITLE TO STREETS.. WlienFort Dearborn 'reservation, nea.t·the mouth of Chicago river, was subdiViiI.00 .. th.e secretary o.f. ,war proc.eedingllD.der th.e act of con·. .., 3, 1819, into lots, and they were sold with reference to the map '. or platof'sucn subdivision, and it w8,s lio longer used as a military site or for ·,) any purpose connected with the exercise of the· p'owers of the general govern. ment, alltpe lalj.Qs embraced within its ·lbnits. ceased to be a part of the national domain. The title to the specific lots passed to those who purchased them, while jurisdiction over the streets and open grounds dedicated to public use passed from the United States; the title to, and immediate possessien and control of, such streets and /P'0unds vesting in the local governmentthat,is, 1!1 thq.mull,iclpal corporatlOlj. of Chicago-as a public agency of the state for the'purposes for which such dedication was made. . 4. RIPARIAN RIGHTS - MUNICIPAL CORPORATIONS - POWERS - DELEGATION TO RAILROAD. . Thedtyof Chicago, as riparian owner of ground on tbe shore of Lake Mich· igan, having, by the provisions of its charter, to maintain wharves and slips at the end of streets, and to maintain a breakwater to protect the shore from the encroachment of the lake, could delegate the power to erect such breakwater to a railroad company as consideration for allowing the road to enter the city; and upon the erection of such breakwater, and the filling in of the space between the breakwater and the shore-line. the land thus reclaimed belongs to the city. BLODGETT, J., dissenting. G. SAME. In the absence of any legislative or governmental direction as to tbe man· ner of the occupancy of the bed of Lake Michigan within the state of Illinois, the Illinois Central Railroad Company, as the riparian owner of the waterlots in the city of Chicago north of Randolph street, and south of Park row, had the right, by virtue of such ownership, and as part of its purchase of such lots, to connect the shore-line by artificial constructions with outside waters that were navigable in fact; although the exercise of that right is at all times subject to such regulations-at least, those not amounting to prohibition-as the state may establish. 6. SAME-POWER OF STATE OVER RIPARIAN OWNERS. Tbe state of Illinois has the power, by legislation, to prescribe the lines in the harbor of Chicago beyond which piers, docks, wharves, and other structures-other than those erected under the authority, express or implied. of the general government-may not be built by riparian owners in the waters of tbe harbor that are navigable in fact. ., SAME-RAILROAD COMPANIES-CHARTERS AND FRANCHISES The charter of the Illinois Central Railroad Company granted it the right to take and use all such lands and waters belonging to the state as were necessary to the construction and complete operation of the road, provided such use did not interrupt navigation of the waters. Held that, upon the consent from the city of Chicago to enter its limits. the company had the right to erect piers and breakwaters, and fill in the shallow waters of Lake Michigan within