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tracks within the prohibited territory a nuisance. If valid, the ordinance became a law within the municipality, and it was not a question of fact whether the use made of the side tracks in fact constituted a nuisance, but the mere maintenance or any use of a side track within the prohibited territory became unlawful. The power of the city council did not go to this extent, but only to the extent of declaring under what conditions the maintenance or operation of side tracks should be regarded as a nuisance. Whether such conditions were reasonable would be a question of law; whether the side tracks were maintained or operated under such conditions a question of fact. An ordinance could not be valid which declared a certain thing to be a nuisance, and yet left it to the jury to determine, from the evidence in each case, whether that thing was or was not a nuisance.

festly it would not be entitled to such judg-, in the manner mentioned in the preamble as
ment, for it is conceded that the mere facts a nuisance, but declared any use of side
of the lawful existence of a side track in
a street, and its use, do not constitute a
nuisance. Then the city went on to prove,
not that the thing denounced by the ordi-
nance ás a nuisance-that is, the maintenance
and use of the side tracks-was a nuisance,
but that the manner of their use so as to
cause an obstruction and congestion of street
traffic for from one-fifth to one-third of the
time, to obstruct the view of approaching
trains, to increase the danger to the public
at the crossings, and to inconvenience and
damage the public and the property in the
neighborhood by the excessive noise, con-
fusion, dust, smoke, and dirt, created a nui-
sance. The concession that such proof was
necessary is practically an admission of the
invalidity of the ordinance, under the deci-
sion in Village of Desplaines v. Poyer, supra.
In that case it is said of public picnics and
dances, which were the subject-matter of
the ordinance there in question: "When con- Counsel for the plaintiff in error have cit-
ducted with proper decorum and circumspec- ed numerous cases in which private suits
tion, and remote from public thoroughfares, have been maintained for damages occasion-
it is impossible to conceive how any public ed by the carrying on of various kinds of
injury or annoyance can result. That the business of a useful or even necessary char-
manner of conducting them may be produc-acter. They include slaughterhouses, soap
tive of annoyance and injury to the public factories, lime-kilns, the storing of gunpow-
is not to be questioned, but since the nui-
sance must consist in this, and cannot con-
sist in the mere fact that there is a picnic
or dance, the ordinance should be directed
only to it."

der, petroleum, or nitroglycerine, brick burning, a tannery, a livery stable, gas works, railroad stock yards, switchyards, a railroad roundhouse, and many other things which, under the circumstances of the respective cases, were offensive, dangerous, or injurious to neighboring property. In other similar cases injunctions have been granted. In some of these cases, no doubt, the facts showed a public nuisance, in others a mere private nuisance; but in any event they have no bearing on the question here, which is the right of a city to declare what shall be a nuisance. The fact that damages may be recovered by a property owner who is injured by a structure or business does not show such structure or business to be a public nuisance. A railroad build and operated by authority of law cannot be held to be a nui

The ordinance here in question also declares that to be a nuisance which is not a nuisance, but which may become a nuisance under certain circumstances. The ordinance should be directed against the circumstances which are harmful, and not against the switch tracks, which are not. The ordinances which were considered in City of Evansville v. Miller, supra, and City of St. Louis v. Heitzenberg Packing & Provision Co., supra, were subject to the same objection. In City of Chicago v. Union Stockyards & Transit Co., 164 Ill. 224, page 236, 45 N. E. 430, page 433 (35 L. R. A. 281), we said: "We agree with counsel for appellee that a dis-sance, although damages occasioned by it to tinction must be taken between the structure itself and the use to which it has been put. The unlawful use may be prevented without destroying the structure which has been lawfully erected. The power in the city to abate nuisances is not denied, but it does not follow that the city may, as the easiest way to abate the nuisance, destroy valuable private property susceptible of use for a lawful purpose."

adjoining property may be recovered. Chi-
cago, Milwaukee & St. Paul Railway Co. v.
Darke, 148 Ill. 226, 35 N. E. 750.
The judgment is affirmed.
Judgment affirmed.

FARMER, J. (dissenting). I do not clearly understand the opinion of the court in this case. If it was intended to hold that no matter what use the railroad company makes of The ordinance contained a preamble which its switchyards and sidings in the business recited the manner in which the use made of district, and no matter what effect such use the side tracks was productive of public in- has upon the public safety and convenience jury and annoyance, but this amounted only and upon the use and enjoyment by neighborto a statement of the reasons which induced ing owners of their property, the city council the passage of the ordinance. The ordinance is powerless to stop it, I cannot agree to it.

It may

sessed by common carriers which authorize | their operation which must be borne by the them to maintain a nuisance. It seems to public. The passage of a train of cars upon me the proof in this case established that the the street of a city or town is necessarily use made by the railroad company of its attended with noise, with the emission of switchyards and sidings in the heart of the smoke, with detention at the crossings, etc. city and across public streets where the No recovery can be had for injuries suffered travel was heavy was a nuisance. If this from such causes. But a railroad company is correct, it would seem the situation could has the power to do certain things, which it not be remedied by regulation. The remedy has also the discretion to do in particular against nuisances, as I understand it, is ways and at particular places. It needs abatement-not regulation; and it seems ap-grounds upon which it may receive and disparent that no regulation short of abatement charge its freight and passengers. could relieve the situation in this case. Any use its right of way for such purposes. regulation that would be effective would, it discharge of a certain kind of freight at one seems to me, prohibit the use of the yards place upon its right of way may work serious and sidings for the purposes for which they injury to property owners, while its discharge are maintained. Certainly, as stated in the of the same at another place thereon may not opinion, the sidings and yards are not per se produce any such injury. The selection of a a nuisance, but their use may become a nui- locality, where damages are inflicted, in sance. A building erected for a slaughter- preference to one where damages will not be house may not in itself be a nuisance, but inflicted, cannot be said to be necessary to its use may make it one. The ordinance here the ordinary and prudent operation of the involved does not attempt to deprive the rail-road." road company of its right of way or tracks, In the above case the court cited Shirely or of their use, except in the operation of v. Cedar Rapids, I. F. & N. W. Ry. Co., 74 switch tracks or sidings for the setting out, Iowa, 169, 37 N. W. 133, 7 Am. St. Rep. 471, switching, storing of freight cars, making up being an action against a railroad company freight trains, and the loading or unloading by a property owner to recover damages on of freight cars and freight trains within the account of the maintenance of stockyards business district. The mere declaration of near plaintiff's premises, the odors from the council that this constituted a nuisance which, it was alleged, made the premises alwas not conclusive. Defendant in error's most uninhabitable and endangered health. switchyards and tracks belong to that class The defense was that the yards were necesof things which may or may not be nuisances sary to the operation of the road, and that by reason of their locality, surroundings, or they were properly conducted. A judgment the manner in which they are conducted and for plaintiff was sustained, and in the opinion managed. That class of nuisances cannot be the court said: "It is not shown that they summarily abated by the municipality. The [the odors] are unavoidable, nor does it apvalidity of an ordinance declaring things in pear that the yards might not have been lothat class nuisances presents for judicial de- cated at another place where they would termination a question of fact. That the have met the necessities of the road and its business of maintaining and operating switch-patrons." Missouri, Kansas & Texas Railyards and tracks is a lawful business, and, when established, was not a nuisance, does not signify that it cannot become such by reason of changed conditions and surroundings. Authorities are abundant holding that many kinds of lawful business which as orig-business is a lawful one, and is properly and inally established were not nuisances have subsequently become so by reason of changed conditions and surroundings.

way Co. v. Anderson, 36 Tex. Civ. App. 121, 81 S. W. 781, was an action by the plaintiff to recover damages resulting from the maintenance of railroad yards near his dwelling. The court said, in part: "The fact that the

carefully conducted, is no defense where it occasions a nuisance; and especially is this the case where a different locality could have been selected, if done, no injury would have resulted."

The rules of law upon this question which apply to those who are engaged in other lines of business are applicable to public carriers. In City of Hickory v. Southern Railway The rule that every proprietor has the right Co., 141 N. C. 716, 53 S. E. 955, the court to erect upon his property such structures as said: "Railroads are chartered for the pubhe pleases and use his property for such pur- lic convenience, and are operated by the exposes as he sees fit is subject to the qualifica-ercise of a public franchise. Such exercise tion that he cannot, by such use, deprive must be subordinate to the public welfare, another person of the use and enjoyment of and they are subject to public regulations his property. That a railroad company is subject to this qualification was decided in the case of Wylie v. Elwood, 134 Ill. 281, 25 N. E. 570, 9 L. R. A. 726, 23 Am. St. Rep. 673, where it was said: "Railroads are a public necessity and a public benefit. Many in

as to their charges and conduct. If they exercise their functions in such a manner as to become a public nuisance, they are liable to damages or to injunctive relief. The operation of their freight business, growing rapidly as it is shown to be, in the center

impede and render dangerous the circulation | neighboring owners in the use and enjoyment of the people and business from one side of of their property. Reciting or denouncing the town to the other. It necessitates the the "circumstances" in the ordinance did not keeping of many box cars on the side tracks relieve plaintiff in error from the necessity and their constant shifting up and down, of proving facts on the trial which would cutting off the view of approaching passen- authorize it being held that the ordinance ger and indeed, of other freight trains. The was reasonable. If the facts failed to show jury has found this dangerous, inconvenient, the use of the switchyards and tracks in the and a public nuisance. Indeed, we might manner prohibited was a nuisance, then the almost say it would be a matter of common ordinance would be void for unreasonableknowledge. If there are any good reasons ness. The question presented for decision by why the defendant should have resisted this action was whether the city council had the application of the town authorities and exceeded its powers in declaring the use of should not rather have anticipated the pub- its switchyards and sidings for the purposes lic wishes and convenience, by removing its mentioned in the ordinance a nuisance. Aftfreight depot to a more suitable location, er making the proof referred to in the opinthey do not appear in this record." These ion, the city offered the ordinance. If the general principles as to the relative rights of the railroad company and the city were not affected by the opinion delivered on a rehearing of that case, reported in 143 N. C. 451, 55 S. E. 840.

Plaintiff in error stated the fact to be, and offered to prove, that defendant in error owned a strip of land 200 feet wide in the corporate limits of the city, about two blocks south of its passenger depot, upon which no switch tracks were placed. On objection by defendant in error this proof was not allowed to be made. In the opinion it is said plaintiff in error on the trial proved, not that the thing denounced by the ordinance the main

facts proved established that the use of the yards and sidings was a nuisance, the ordinance was reasonable and valid, otherwise it was unreasonable and invalid. Plaintiff in error by its evidence laid before the court the facts which led it to adopt the ordinance. It seems to me this was the orderly and lawful method of procedure, that the ordinance is valid in form, and the question that should be decided by this court is whether, under the proof, the ordinance was a valid exercise of power by the council.

I think the judgment should be reversed for the refusal of the trial court to admit the ordinance in evidence.

VICKERS, J., concurs in the foregoing dissenting opinion of FARMER, J.

tenance and use of the side tracks-was a nuisance, but that their use in a manner to cause obstruction and congestion of street traffic, danger to the public at street crossings and damage to property in the neighborhood was a nuisance. Further it is said: "The ordinance should be directed against the circumstances which are harmful, and CHICAGO TITLE & TRUST CO. v. DOYLE, not against the switch tracks, which are not." If this means that that the ordinance

should have recited the effects or results from the operation of the switchyards and denounced those "circumstances" as a nuisance, it appears to me to be unsound. There would have been no "circumstances" to denounce if the yards and tracks had not been used for the purpose forbidden by the ordinance. It was the resultant effect of that use that made the doing of the things forbidden a nuisance, if it was a nuisance, just the same as the odors from a slaughterhouse may make it a nuisance to operate it. But the ordinance did, in its preamble, denounce or recite the "circumstances." After describing the territory embraced in the business district, the location of the streets and kinds of business carried on in said district by the inhabitants of the city, and the location of defendant in error's switchyards and sidings in said district, it stated how the switchyards and sidings were used, how the use of them interfered with and hindered people in the use of the streets, endangered life and safety, and how it interfered with

(259 Ill. 489)

Secretary of State. (Supreme Court of Illinois. June 18, 1913. Rehearing Denied Oct. 16, 1913.)


A corporation must have statutory authority for any consolidation, purchase, or mortgage by which it acquires the property or franchise of another.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2322-2329; Dec. Dig. § 581.*] 2. CORPORATIONS (8 586*)-CONSOLIDATIONSTATUS OF CONSOLIDATED COMPANIES.

Whether the consolidation of two corporations effects the dissolution of the original corporation and the creation of a new one depends. upon the statute authorizing the consolidation. Cent. Dig. §§ 2348-2353; Dec. Dig. § 586.*] [Ed. Note.-For other cases, see Corporations, 3. CORPORATIONS (8 586*)-CONSOLIDATIONSTATUS OF CONSOLIDATED COMPANIES.

As a general rule, the consolidation of corporations effects the dissolution of the original corporations and the creation of a new one, and if the Legislature simply authorizes a consolidation it must be held to have had the general rule in view and to intend that it shall apply.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2348-2353; Dec. Dig. § 586.*]


Under Laws 1889, p. 95, providing for the consolidation of corporations and containing no provisions conflicting with the rule that the consolidation dissolves the constituent corporations and creates a new one, the consolidation of two corporations under the name of one of them effects the creation of a new corporation, even though the transaction was in the form of a merger, and the corporation must pay the fees required from a new corporation to the Secretary of State.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2332-2337; Dec. Dig. § 585.*]

4. CORPORATIONS (§ 585*)-CONSOLIDATIONS- | the certificates without the payment of $5,000 STATUS OF CONSOLIDATED COMPANIES additional, claiming that the consolidation created a new corporation and that he was entitled to fees on its capital stock. The $5,000 was paid under protest and a receipt was given, which contemplated a suit for an injunction to test the right of the state to the fee. The consolidated corporation, the Chicago Title & Trust Company, thereupon filed its bill in this case in the circuit court of Sangamon county against Cornelius J. Doyle, individually and as Secretary of State, praying for an injunction restraining him from paying over said sum of $5,000 to the State Treasurer. The defendant demurred to the bill, and it was stipulated that, if the effect of the consolidation was not to form a new corporation but merely to continue the original Chicago Title & Trust Company as a corporation with increased capital stock, the plaintiff was entitled to the relief prayed for; but, if a new corporation was created, it was not so entitled. The chancellor overruled the demurrer, and, the defendant electing to stand by it, a decree was entered in accordance with the prayer of the bill and commanding the defendant to repay to the plaintiff said sum of money.

Appeal from Circuit Court, Sangamon County; James A. Creighton, Judge.

Suit by the Chicago Title & Trust Company against Cornelius J. Doyle. Decree for the complainant, and defendant appeals. Reversed, and bill dismissed.

P. J. Lucey, Atty. Gen., and T. E. Dempcy, of Springfield, for appellant. Lackner, Butz, Von Ammon & McGregor, of Chicago, for appellee.

CARTWRIGHT, J. On June 21, 1912, the Chicago Title & Trust Company and the Real Estate Title & Trust Company, two corporations of this state organized to carry on the same kind of business in the city of Chicago, entered into an agreement that the Real Estate Title & Trust Company should be consolidated into the Chicago Title & Trust Company, which should retain its corporate name, by-laws, officers, directors, term of existence, corporate organization, and its existing capital of $5,000,000, divided into 50,000 shares of the par value of $100 each; that the capital stock of the Real Estate Title & Trust Company of $1,000,000, divided into 10,000 shares of the par value of $100, should be surrendered, canceled, and extinguished; that the Chicago Title & Trust Company should take the necessary steps to increase its capital stock to $5,600,000, and should deliver the $600,000 of additional stock for distribution among the stockholders of the Real Estate Title & Trust Company, in the proportion of $60 par value of the stock of the consolidated company for $100 par value of stock of the Real Estate Title & Trust Company to be surrendered, canceled, and extinguished; and that the necessary steps should be taken to increase the number of directors of the consolidated company to 19 or more. On July 29, 1912, meetings of the stockholders of the two corporations were held and the agreement was ratified. The agreement to increase the capital stock and number of directors was carried out, and certificates of the consolidation and the increase of stock and number of directors were presented on July 31, 1912, to Cornelius J. Doyle, Secretary of State. A fee of $649 was paid to the secretary for the increase of the capital stock alone, but he refused to accept, file, or record

[1-3] Corporations are creations of the General Assembly, which grants to them such privileges and endows them with such powers as are deemed for the public good. As a corporation must be created originally by statutory authority, any consolidation, purchase, or merger by which it acquires the franchises of another corporation must also have statutory authority. Scheidel Coil Co. v. Rose, 242 Ill. 484, 90 N. E. 221. As the whole matter is under the control of the General Assembly, the effect of a consolidation, with respect to the extinction of the constituent corporations and the creation of a new corporation or the continued existence of one or both of the constituent corporations, depends upon the statute under which the consolidation is effected. The general rule is that the consolidation effects the dissolution of the original corporations and brings into existence a new corporation possessed of the property, rights, and franchises, and assuming the liabilities of those passing out of existence. 6 Am. & Eng. Ency. of Law (2d Ed.) 810; 10 Cyc. 302. If the General Assembly simply authorizes a consolidation, it must be held to have in view that general rule and intend that it shall apply. It may, however, authorize the merger of one corporation into another and the continuance in existence of the latter, as where it authorizes the purchase by one corporation of the franchises, stock, and property of another. It may also result, as a matter of law, from a consolidation, that each of the constituent corporations remains in existence in a certain sense and a new corporation is also created.

Our decisions contain examples of each of

these results in cases of consolidations of the St. Louis company was left without propcorporations. In Racine & Mississippi Rail-erty, corporate rights, franchises, or stockroad Co. v. Farmers' Loan & Trust Co., 49 holders; that it was a consolidation, but Ill. 331, 95 Am. Dec. 595, where the charter the purchasing company continued in exisof a railroad company authorized it to con- tence with enlarged powers, franchises, and solidate its stock with that of a Wisconsin property rights. The court stated the general corporation, it was held that a consolidation rule that a new corporation is created by condid not constitute the constituent corpora- solidation, but said that the rule was subject tions one corporation of both states or of ei- to exceptions, depending upon the statute, ther; that the corporation of each state con- and in that case the statute very clearly continued the corporation of the state of its cre- templated the continued existence of the puration. In Ohio & Mississippi Railway Co. v. chasing company. The same condition existPeople, 123 Ill. 467, 14 N. E. 874, it was held ed in the case of Chicago & Eastern Illinois that on the consummation of the consolida- Railroad Co. v. Doyle, 256 Ill. 514, 100 N. E. tion of railway companies in two or more 278, where there was a consolidation under states, authorized by the laws of the states the same statute of 1885 authorizing the creating them, a new corporation will be purchase. Under such a statute the purchase created, having in each state all the powers, of the property, corporate rights, and franrights, and franchises which the constituent chises of a corporation merges that corporacorporations had in that state, but that it tion into the one with which it is consolidatwill not have in one state the powers of the ed, and no new corporation is created. constituent corporations in the other state; [4] The remaining cases arose under statthat in relation to the different states the utes which provided for the consolidation of consolidated corporation will be a separate corporations. The act of February 28, 1854 corporation, governed by the laws of the (Laws 1854, p. 9), authorized and empowered state as to its property therein; that the railroad companies and plank road comconstituent corporations do not necessarily panies to consolidate their property and stock cease to exist although they lie dormant and with each other whenever their roads intertheir property rights, powers, and franchises sected by continuous lines, and to consolidate are possessed and exercised by the new con- with companies out of the state whenever solidated corporation. That decision was to their lines connected with the lines of such the effect that from a legal standpoint the companies. It was held that, where two railnew consolidated corporation remains a dis-road companies consolidated under that stattinct corporation in each state from which ute, the original corporations became extinct the corporate existence of the constituent and the new company formed succeeded to corporations springs. This decision was reached on account of the territorial jurisdiction of the several states and a want of jurisdiction beyond the boundaries of the state.

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the ownership of the two roads, together with all property, effects, rights, and franchises held and enjoyed by either of the old companies. People v. Louisville & Nashville Railroad Co., 120 Ill. 48, 10 N. E. 657. The There is another class of cases relied upon consolidation in the case of Scheidel Coil Co. to sustain the decree in this case, and they v. Rose, supra, was effected under the act in are cases where a statute authorized a force March 26, 1872 (Laws 1871-72, p. 487), corporation to purchase and own the assets, as amended in 1887 (Laws 1887, p. 132), and stock, and franchises of another corporation. again in 1889 (Laws 1889, p. 95), which One of them is Chicago, Santa Fé & Cali- simply provides for the consolidation of corfornia Ry. Co. v. Ashling, 160 Ill. 373, 43 porations. Neither in the title nor body of N. E. 373. The consolidation in that case the act is there anything which would take took place under the act of June 30, 1885 a consolidation under it out of the ordinary (Laws 1885, p. 229), by which all railroad and general rule that the constituent corporcompanies of this state were authorized and ations cease to exist and a new one is creatempowered to purchase and hold, in fee ed. That statute contains no authority for simple or otherwise, and to use and enjoy, the merger of one corporation into another the railway property, corporate rights, and or for the purchase of the property, stock, or franchises of another company or other com- franchises of one corporation by another, and panies owning railroads with which they it was held that a new corporation was connected. The Chicago, Santa Fé & Cali- created. The consolidation in this case was fornia Railway Company purchased the prop-under the same act, and necessarily our conerty, stock, and franchises of the Chicago & St. Louis Railway Company and issued its stock, dollar for dollar, in exchange for the stock of the St. Louis company. It was contended that the transaction was a purchase and not a consolidation; but the court said there was no magic in words, and calling a transaction a purchase and sale would not

clusion must be the same. The fact that the corporations in this case gave to their consolidation the form and language of a merger cannot affect the question in any manner. The corporations could not control the statute, but the statute controlled them, and effect must be given to the consolidation according to the legislative intent. The ques

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