Argument for the city of Chicago.

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Gregory, 15 Illinois, 28; State v. I. C. R. R., 33 Fed. Rep. 730, opinion by Mr. Justice Harlan.

The act embraced the general subject of the incorporation of the Chicago City Railway Company, the method of its government, its capitalization, the exercise of certain powers of eminent domain, and the authority to construct and operate street railways in the south and west divisions of the city, where and as the city should by ordinance prescribe, with important exemptions and immunities from the ordinary liability of common carriers; the extension of its business beyond the limits of Chicago; the organization of another private corporation, the North Chicago City Railway Company, with like powers and duties, privileges and exemptions, in the north division of Chicago. Apparently contra is an expression, manifestly obiter dictum, in N. C. C. Ry. Co. v. Lake View, 105 Illinois, 213. Such an act embracing more than one subject is unconstitutional, even though both subjects are expressed in its title. People v. Nelson, 133 Illinois, 565, 577; Cooley, Const. Lim. 6th ed. ch. 6, § 4, p. 177.

The real subject of the first nine sections of this act was the creation of one certain private corporation. The real subject of the tenth section of this act was the creation of another and entirely distinct private corporation. A private or local act which attempts to incorporate two private corporations, and make two separate contracts between the State and the private interests concerned in the corporations, offends against the constitutional inhibition. Belleville & Ill. R. R. Co. v. Gregory, 15 Illinois, 20; People v. Denahy, 20 Michigan, 349; Ex parte Conner, 51 Georgia, 571; King v. Banks, 61 Georgia, 20. And for a close analogy see Supervisors of Fulton County v. M. & W. R. R. Co., 21 Illinois, 338; People ex rel. &c. v. County of Tazewell, 22 Illinois, 147.

The title was "An act to promote the construction of horse railways in the city of Chicago." Section 5 attempted to authorize the corporation to extend its railways "to any point or points within the County of Cook," and section 6 attempted

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Argument for the city of Chicago.

to authorize said corporation, "with the assent of the supervisor of any township, to lay down and maintain its said railway or railways in, upon, over and along any public highway in said township." The sections providing for such extension beyond the city limits are not expressed in the words "in the city of Chicago," which limit the whole title, and are, therefore, void. People ex rel. v. Mellen, 32 Illinois, 181; Lockport v. Gaylord, 61 Illinois, 276; People v. Inst. of Protestant Deaconesses, 71 Illinois, 229; Middleport v. Etna Life Ins. Co., 82 Illinois, 562; Snell v. Chicago, 133 Illinois, 413; Ex parte Paul, 94 N. Y. 497.

If said act is valid to any extent and for any purpose, the only rights which the complainants could receive thereunder would be limited to horse railways in the city. North Chicago City Ry. Co. v. Town of Lake View, 105 Illinois, 207.

The preexisting charter power of the city, recognized and reaffirmed by this act, to prescribe terms and conditions, included the power to fix the time when the privileges granted should terminate. Cleveland Elec. Co. v. Cleveland, 137 Fed. Rep. 111; Louisville Trust Co. v. Cincinnati, 76 Fed. Rep. 296; Detroit Citizens' St. Ry. Co. v. Detroit, 64 Fed. Rep. 646; Chicago Terminal R. R. Co. v. Chicago, 203 Illinois, 576; Coverdale v. Edwards, 155 Indiana, 374; Plymouth Township v. Railway, 168 Pa. St. 181, 187; Minersville Borough v. Schuylkill Elec. Ry. Co., 205 Pa. St. 294. The time limit and the consent are inseparable. The court cannot strike down the one and hold the other valid. The consent must stand or fall in its entirety. St. Louis & Meramec R. R. Co. v. City of Kirkwood, 159 Missouri, 238, 253; Elliott on Railroads, § 1081; Blaschko v. Wurster, 156 N. Y. 437, 444.

Where a municipality has the power to give or refuse consent to the occupation and use of its streets for street railway purposes, it may impose terms and conditions, including a time limit; and an acceptance of a grant carries with it all the conditions and limitations upon which it is based. Chicago Terminal R. R. Co. v. Chicago, 203 Illinois, 576, 589; Byrne v.

Argument for the city of Chicago.

201 U.S.

Chicago Gen. Ry. Co., 169 Illinois, 75; Chicago Gen. Ry. Co. v. Chicago, 176 Illinois, 253; City of Chester v. W. C. & W. R. R. Co., 182 Illinois, 382; People v. Suburban R. R. Co., 178 Illinois, 594; Coverdale v. Edwards, 155 Indiana, 374; Plymouth Township v. Ry. Co., 168 Pa. St. 181, 186; Minersville Borough v. Schuylkill Elec. Ry. Co., 205 Pa. St. 394, 401; Allegheny City v. Millvale &c. Ry. Co., 159 Pa. St. 411, 414; St. Louis & Meramec R. R. Co. v. City of Kirkwood, 159 Missouri, 239; City of Detroit v. Detroit Ry., 95 Michigan, 456; Elliott on Railroads, § 1081; McQuillin on Mun. Ord. § 576; Dillon on Mun. Corp. 3d ed. § 706. The companies and the city for over forty years have repeatedly contracted for limited periods of street occupancy. The grants of the city have proceeded upon its right and power, and the full recognition thereof by the companies, to impose time limits. This practical construction of the acts and ordinances is controlling. Insurance Co. v. Dutcher, 95 U. S. 269, 273; Topliff v. Topliff, 122 U. S. 131; Chicago v. Sheldon, 9 Wall. 54; Lehigh Coal & Nav. Co. v. Harlan, 27 Pa. St. 439; District of Columbia v. Gallagher, 124 U. S. 505; Burgess v. Badger, 124 Illinois, 295.

The act of February 21, 1861, incorporating the Chicago West Division Railway Company, is also unconstitutional and void because it embraces more than one subject, to wit: The creation of the private corporation named in section 1 thereof, and the vesting of said company with powers conferred upon another company by certain sections of the act of February 14, 1859; the authorization of contracts between said private corporations for the purchase of ordinance rights and privileges; the creation and definition of certain misdemeanors, and the establishment of penalties for the commission thereof. So much of the act as sought to vest in the company the power enumerated in the fifth and sixth sections of the act of February 14, 1859, is void because the subject matter of said sections five and six is not expressed in the title of said act of February 21, 1861, or the title of said act of February 14, 1859. So much of said act of February 21, 1861, as attempted to

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Argument for the city of Chicago.

vest the company with power to acquire, unite and exercise the powers, franchises and privileges of the Chicago City Railway Company, by the act of February 14, 1859, or by any of the ordinances of the common council, on such terms as should be agreed upon by a contract between said corporations, is void, because the subject matter thereof is not expressed in the title of said act. The act, if valid to any extent, merely vested said Chicago West Division Railway Company with power to accept grants of street railway privileges in the streets of the city from the common council, and to recognize the preëxisting right of the city to pass such ordinances and prescribe the terms and conditions of such grants, including the period of time at which the said privileges should terminate.

The act of February 6, 1865, is unconstitutional and void, in that it embraced more than one subject, to wit: The amendment of two separate private and local acts of the General Assembly; the ratification of deeds of transfer of rights, privileges and franchises between the corporations in said acts. named; the ratification of ordinance contracts between the city and said corporations; the ratification of an ordinance contract with still another private corporation (the Chicago & Evanston Railroad), not mentioned in the acts of 1859 and 1861. None of the sections of this act except those the subject matter of which is expressed in the general words of the title, "Horse Railways in the city of Chicago," is valid. N. C. C. Ry. Co. v. Lake View, 105 Illinois, 207. The ratification of (a) the conveyances from one private corporation to another private corporation of personal property and ordinance rights and of (b) contracts between these companies respectively and the city, are not included within the title of the act. Village of Lockport v. Gaylord, 61 Illinois, 276.

The act did not amend sections 5 or 6 of said act of 1859, nor did it purport to extend or affect contracts between the companies and township supervisors. Nor did it extend or affect street railway privileges or ordinance contracts in any of the streets mentioned in the exclusion clause of the Chicago

Argument for the city of Chicago.

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and Evanston charter, reënacted in section 3 of said act of 1865.

The expression "during the life hereof," as used in the said second section, is vague and ambiguous. It may be capable of three interpretations: As meaning the life of the act; or the life of the deeds, licenses and contracts; or the lives of the railway corporations, respectively. That interpretation of the words, "during the life hereof," must be adopted, which will give to the companies as against the city and the public the minimum of privileges in the streets. Coosaw Mining Co. v. South Carolina, 144 U. S. 550; Stein v. Bienville Water Supply Co., 141 U. S. 67; Fertilizing Co. v. Hyde Park, 97 U. S. 659, 666; Central Transportation Co. v. Pullman's Car Co., 139 U. S. 24, 49; Citizens' St. Ry. Co. v. Detroit Ry., 171 U. S. 48, 54; Freeport Water Co. v. Freeport City, 180 U. S. 587, 598; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 696; Rockland Water Co. v. Camden &c. W. Co., 80 Maine, 562, 563; Chicago Terminal R. R. Co. v. Chicago, 203 Illinois, 576. See also Long v. City of Duluth, 49 Minnesota, 280; S. C., 51 N. W. Rep. 913; Wright v. Nagel, 101 U. S. 796; Charles River Bridge v. Warren Bridge, 11 Pet. 544, 549 et seq., and notation thereon in 3 Rose's Notes to United States Reports, pp. 582-587; City of Detroit v. Detroit City Ry. Co., 56 Fed. Rep. 872, 873; Omaha Horse Ry. v. Cable Tramway Co., 30 Fed. Rep. 324; Citizens' Street Co. Ry. Co. v. Jones, 34 Fed. Rep. 579; Syracuse Water Co. v. City of Syracuse, 116 N. Y. 167; S. C., 22 N. E. Rep. 381; State v. Consumers' Co., 51 N. J. L. 422; Freeport W. W. Co. v. Prager, 3 Pa. Co. Ct. 371; Saginaw Gas L. Co. v. Saginaw, 28 Fed. Rep. 529; Clarksburg Elec. L. Co. v. Clarksburg (W. Va. 1900), 50 L. R. A. 142; Commonwealth v. E. & E. R. R. Co., 27 Pa. St. 339.

The rule of construction is well settled that where a statute or clause of a statute contains repugnant or irreconcilable provisions the last in order of date or position must prevail. Endlich on Interpretation of Statutes, § 183; Potter's Dwarris on Statutes, p. 156 and n.; Harrington v. Trustees, 10 Wend. 554;