201 U.S. Argument for the city of Chicago. Brown v. County Commissioners, 21 Pa. St. 42, 43; Pacher v. Sunbury R. R. Co., 19 Pa. St. 211; Hall v. Equator &c. Co., Fed. Cas. No. 5931; Smith v. Moore, 26 Illinois, 396; Quick v. Whitewater Twp., 7 Indiana, 578. As against a statute framed in covert and obscure language, and claimed to ratify and confirm by wholesale the acts of a municipality in its dealings with the claimants, the court will adopt the strictest possible construction in order to prevent the wresting of valuable rights from the public by such insidious and surreptitious legislation. Oakland v. Oakland Water Front Co., 118 California, 160, 194; Coosaw Mining Co. v. South Carolina, 144 U. S. 550-561; Ordranaux on Const. Legislation, p. 604. The act of February 6, 1865, did not postpone the date when the city might purchase from the Chicago West Division Railway Company under the ordinance of August 16, 1858. The right of purchase was conferred by the Parmalee ordinance of August 16, 1858, and affirmed by section 7 of the act of 1859, for the period of twenty-five years. This right was affirmed by the act of 1865; and said section 7 of said act of 1859 was not amended by the act of 1865. If the act of 1865 be construed as postponing the date upon which the city was entitled to purchase the railway property, then the act impairs the obligation of the city's contract with the company and deprives the city of its property without due process of law, in violation of the Constitution of the United States and of the State of Illinois. Art. I, sec. 10, Constitution U. S.; Art. V and XIV, Amendments to Constitution U. S.; Art. XIII, sec. 17, Const. Ill. 1848. The right of purchase vested in the city was a private property right which it could sell. De Motte v. Valparaiso (Ind.), 67 N. E. Rep. 985. In contracting with the railway company for the purchase of its rails, cars, etc., the city was acting in its proprietary or business capacity and not in its governmental capacity, and its contract is within the constitutional protection. Wagner v. City of Rock Island, 146 Illinois, 139, 154; County of Richland v. County of Lawrence, 12 Illinois, 1; Cicero Lumber Co. v. Town Argument for the city of Chicago. 201 U. S. of Cicero, 176 Illinois, 1; Board of Park Com'rs v. Detroit, 28 Michigan, 230; Western Sav. Fund Soc. v. City of Philadelphia, 31 Pa. St. 185, 189; Trustees Dartmouth College v. Woodward, 4 Wheat. 518, 633; Pike's Peak Power Co. v. City of Colorado Springs, 105 Fed. Rep. 111; Proprietors Mt. Hope Cemetery v. City of Boston, 158 Massachusetts, 509, 511; Town of Milwaukee v. City of Milwaukee, 12 Wisconsin, 93; New Orleans Ry. Co. v. New Orleans, 26 La. Ann. 478, 481; State v. Barker, 116 Iowa, 96, 244; Montpelier v. E. Montpelier, 29 Vermont, 12, 19. The following species of property have been held to be possessed by a city in its capacity as a private corporation: Water works system, Bailey v. The Mayor of N. Y., 3 Hill, 531; Pike's Peak Power Co. v. Colorado Springs, 105 Fed. Rep. 1. A building used partly for a city hall and partly rented out for offices, Oliver v. Worcester, 102 Massachusetts, 489. Gas works, Scott v. Mayor of Manchester, 2 H. & N. 204, 210; The Western Savings Fund Society v. Philadelphia, 31 Pa. St. 185; S. C., 31 Pa. St. 135. Water lots granted by the State to the city of San Francisco, Grogan v. San Francisco, 18 California, 590. Ferries and railway franchises, Mayor &c. v. Second Avenue Railway Co., 32 N. Y. 261. Public wash houses, Cowley v. The Mayor &c. of Sunderland, 6 H. & N. 565. A public cemetery, Proprietors of Mount Hope Cemetery v. Boston, 158 Massachusetts, 509. Upon failure of a company to construct a specific line within the time allowed therefor in the particular ordinance covering the same, all rights of the company to construct under said ordinance lapsed. Atchison St. Ry. Co. v. Nave, 38 Kansas, 744; Wilmington City Ry. Co. v. Wilmington & B. S. Ry. Co., 46 Atl. Rep. 12; and see St. Louis v. Western Union Tel. Co., 148 U. S. 92; Minersville Borough v. Schuylkill &c. Ry. Co., 205 Pa. St. 294; S. C., 54 Atl. Rep. 1050. Where an ordinance authorizes construction of a particular street railway line, but nothing is done under it and subsequently another new and plainly superseding ordinance, relating to the same privilege, and to the same grantee, is passed, 201 U. S. Argument for the city of Chicago. the provisions of the last ordinance will control, and acceptance of and action under the last ordinance will be a waiver, surrender or abandonment of any privileges sought to be conferred by the first ordinance. The second ordinance is, in legal effect, a revocation of and a substitution for the first. East St. Louis Union Ry. Co. v. City of East St. Louis, 39 Ill. App. 400; Logansport Ry. Co. v. Logansport, 114 Fed. Rep. 688; Cleveland Elec. Ry. Co. v. Cleveland, 137 Fed. Rep. 111; Cain v. Wyoming, 104 Ill. App. 540; Belleville v. Cit. Horse R. Co., 152 Illinois, 171; Galveston City R. Co. v. Galveston City St. Ry. Co., 63 Texas, 529. Failure to construct or operate forfeits rights of the grantee, as the chief consideration of the grant is the performance of the public service. Citizens' St. Ry. Co. v. Jones, 34 Fed. Rep. 579; State v. E. Fifth St. Ry. Co., 140 Missouri, 539; Louisville T. Co. v. Cincinnati, 76 Fed. Rep. 726. A mere colorable operation is not sufficient. Snouffer v. Cedar Rapids &c. Ry. Co., 92 N. W. Rep. 79. Street railway rights on any streets under an ordinance which may be construed to contain no provision for the term of the grant are terminable at the will of the city council. Boise City & C. Co. v. Boise City, 123 Fed. Rep. 232; Lambe v. Manning, 171 Illinois, 612; Freeport Water Co. v. Freeport, 186 Illinois, 179; S. C., 180 U. S. 587. A grant indefinite as to time will be construed as perpetual and therefore void under the strict rule of construction applicable to such grants. Milhau et al. v. Sharp et al., 27 N. Y. 611; West End &c. Co. v. Atlantic &c. Co., 49 Georgia, 151, 155; State of New York v. Mayor &c., 3 Duer, 119; Blaschko v. Wurster, 156 N. Y. 432; Ampt v. City of Cincinnati, 21 Ohio Cir. Ct. 300; Birmingham v. Birmingdam St. R. Co., 79 Alabama, 465, 473. And the rule is established, by a preponderance of the later authorites, that where the constitution or statute of a State fixes a maximum period of time for which a franchise may be granted, or a contract made, a franchise or contract running for a longer time is wholly void, and will not be upheld for the valid period. Flynn v. Little Falls E. & W. Co., 74 Minnesota, 180; Gaslight Argument for the city of Chicago. 201 U.S. &c. Co. v. City of New Albany, 156 Indiana, 406; S. C., 59 N. E. Rep. 176; State v. Minnesota Transfer Ry. Co., 83 N. W. Rep. 32; Westminster Water Co. v. City, 56 Atl. Rep. 990; City of Somerset v. Smith, 49 S. W. Rep. 456; Manhattan T. Co. v. City of Dayton, 59 Fed. Rep. 327; City of Fort Wayne v. Lehr, 88 Indiana, 62; Blaschko v. Wurster, 156 N. Y. 437; Davis v. Harrison, 46 N. J. L. 79. Apparently, contra, Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 234, 240. And see, also, as to invalidity of grants of street privileges for any fixed term, in absence of express charter authority, City of Wellston v. Morgan, 59 Ohio St. 147, 157; East St. Louis v. East St. Louis G. L. & C. Co., 98 Illinois, 415, 432, 456; Garrison v. City of Chicago, 7 Biss. 480, 487; West End &c. Co. v. Atlantic &c. Co., 49 Georgia, 151, 155; State v. Minn. Transfer Ry. Co., 83 N. W. Rep. 32; Gas Co. v. Parkersburg, 30 W. Va. 435, 440; Syracuse W. Co. v. City, 116 N. Y. 167, 182; City of Danville v. Danville W. Co., 178 Illinois, 299, 306; S. C., 180 Illinois, 235; Northern Cent. Ry. Co. v. Maryland, 187 U. S. 258, 270; People v. Pullman Car Co., 175 Illinois, 125; Harvey v. Aurora & Geneva Ry. Co., 174 Illinois, 295, 307; Cumberland Tel. & T. Co. v. City, 127 Fed. Rep. 187; People ex rel. v. Chicago Gas T. Co., 130 Illinois, 268; Chas. Simons' Sons Co. v. Maryland Tel. & Tel. Co. (Md. 1904), 57 Atl. Rep. 193; S. C., 63 L. R. A. 727; Pennsylvania Railroad v. St. Louis &c. Railroad, 118 U. S. 290, 309, 312. The general city and village law, from the date of its adoption, limited all municipal street railway grants to twenty years. Clause 24, sec. 1, Art. V, Cities and Villages Act; Chester v. W. C. & W. R. R. Co., 182 Illinois, 382, 389. This limitation cannot be avoided by artifice or indirection. Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 234, 240; Gas Light & Coke Co. v. New Albany, 156 Indiana, 406; Blaschko v. Wurster, 156 N. Y. 432. The city is not estopped to assert the invalidity of any grant beyond twenty years or otherwise ultra vires. City of Chester 201 U. S. Argument for the city of Chicago. v. W. C. & W. R. R. Co., 182 Illinois, 382; Cedar Rapids W. Co. v. Cedar Rapids, 91 N. W. Rep. 1081; Levis v. City of Newton, 75 Fed. Rep. 889, 890; City of Detroit v. Detroit City Ry. Co., 56 Fed. Rep. 893, 894; 20 Am. & Eng. Ency. of Law, 1182, and n. And see Seeger v. Mueller, 133 Illinois, 85, 94, quoted with approval in City of Danville v. Water Co., 178 Illinois, 311; Snyder v. City of Mt. Pulaski, 176 Illinois, 397; Cedar Rapids W. Co. v. Cedar Rapids, 91 N. W. 1081, 1085, Attorney General v. Bristol W. W. Co., 10 Exch. 884; S. C., 24 L. J. Exch. (N.S.) 205. By accepting the "power" ordinance of March 30, 1888, the Chicago West Division Railway Company expressly recognized and agreed to the time limitations prescribed in the ordinances under which the various lines of the company were being operated, as a legitimate exercise of the power of the city to fix time limits. It was at the end of those time limits that the company agreed to remove its tracks. Cleveland E. R. Co. v. Cleveland, 137 Fed. Rep. 118. The Chicago West Division Railway Company, Chicago City Railway Company and North Chicago City Railway Company, had no corporate capacity to accept permission from the city of Chicago to operate its cars by other than animal power. North Chicago Street Railway Co. v. Town of Lake View, 105 Illinois, 207; McCartney et al. v. Chicago Edison Co. et al., 112 Illinois, 611, 653; Omaha Horse Railway Co. v. Cable Tramway Co., 30 Fed. Rep. 324; Farrell v. Winchester Ave. R. R. Co., 61 Connecticut, 127; Rapid Transit Company v. The Hawaiian Tramway Companies, Limited, 13 Hawaiian Reports, 371, 374; Indiana Cable Street Railroad Company v. The Citizens' Railroad Company, 8 L. R. A. 539, 548; Newport & Newport v. Dayton Street Railway Co., 1 Ky. L. Rep. 404; The People ex rel. Third Avenue Railway Company v. Newton, 112 N. Y. 396, 407; V. & S. Railway Co. v. Denver Street Railway Co., 2 Colorado, 673, 680. The leases and transfers under which the receivers claim are invalid. Thompson, Law of Corporations, vol. 5, § 5880; |