201 U. S. Argument for the Railway Corporations, tion. The fact of acquiescence in the construction and public operation of such lines for a period of forty years, constitutes a designation as substantial, binding and precise as any ordinance; and raises a conclusive inference of law that such use was under sanction of proper authority. Chicago City v. Robbins, 2 Black, 418, 425; Robbins v. Chicago City, 4 Wall. 657, 679; Gridley v. The City of Bloomington, 68 Illinois, 47, 50; Gregsten v. City of Chicago, 145 Illinois, 451; Town of New Castle v. Lake Erie &c. R. R. Co., 155 Indiana, 18; People ex rel. &c. v. Cromwell, 89 App. Div. N. Y. 291; City Railway Co. v. Citizens' Street R. R. Co., 166 U. S. 557, 568; Town of Bruce v. Dickey, 116 Illinois, 527; Jennings v. Van Schaick, 108 N. Y. 530, 532; Jorgensen v. Squires, 144 N. Y. 280, 285; Babbage v. Powers, 130 N. Y. 281; Donnelly v. City of Rochester, 166 N. Y. 315, 318. In any event the city is now estopped to deny the existence of a proper designation. The situation cannot be distinguished from that in City of Chicago v. Stock Yards Company, 164 Illinois, 224. The Chicago West Division Railway Company had a contract right, under its charter, to complete the construction of its railway and to operate the same for the period prescribed by its charter, upon any route designated for it or its predecessor in title prior to May 3, 1875, upon which its railway had been partly constructed before said date, at least to the extent of prolonging such railway to its authorized terminus on the same street on which such construction had been begun. The Illinois decisions are a unit in holding that where ordinances are not only formally accepted but actually acted upon, they become contracts which neither the State nor the city can impair without the consent of the company, save by the exercise of some reserved power. City of Quincy v. Bull, 106 Illinois, 337, 349; Chicago Mun. Gas Light Co. v. Lake, 130 Illinois, 42; Belleville v. Citizens' H. Ry. Co., 152 Illinois, 171, 185; The People v. The Chicago West Division Railway Co., 18 Ill. App. 125; S. C., aff'd 118 Illinois. 113: Village of Argument for the Railway Corporations. 201 U.S. London Mills v. Telephone Circuit, 105 Ill. App. 146, 150. See also Louisville &c. R. Co. v. Bowling Green Ry. Co., 63 S. W. Rep. 4; Hoodman v. Kansas City Horse R. R., 79 Missouri, 632; Mayor v. Houston St. Ry. Co., 83 Texas, 548; Hudson Tel. Co. v. Jersey City, 49 N. J. L. 303; Rochester &c. Water Co. v. Rochester Co., 84 App. Div. N. Y. 71; Telephone Co. v. City of St. Joseph, 121 Michigan, 502; Northwestern Telephone Co. v. Minneapolis, 81 Minnesota, 140; City of Duluth v. Duluth Telephone Co., 84 Minnesota, 486, 492; Abbott v. Duluth, 104 Fed. Rep. 833; City of Indianapolis v. Gas Company, 104 Indiana, 107, 115. A consent when once given by a muncipiality or an abutting owner to the use of a street for railway purposes is property within the meaning of the constitutional provision forbidding the deprivation of a person of property without due process of law. City of Chicago v. Baer, 41 Illinois, 306; Chicago T. T. R. R. Co. v. Chicago, 203 Illinois, 576, 587; Cicero Railway Co. v. Chicago, 176 Illinois, 501, 504; Rich v. Chicago, 152 Illinois, 18; Indianapolis v. Consumers' Gas Co., 140 Indiana, 107, 113; People v. O'Brien, 111 N. Y. 1; S. R. T. Co. v. Mayor, 128 N. Y. 510, 520; Paige v. Schenectady Ry. Co., 178 N. Y. 102, 112; Ghee v. Northern Union Gas Co., 158 N. Y. 510, 513; People ex rel. Woodhaven Gas Co. v. Deehan, 153 N. Y. 528, 532; Matter of Seaboard T. & T. Co., 68 App. Div. N. Y. 283, 285; H. G. & C. Trac. Co. v. H. & L. Elec. Tran. Co., 69 Ohio St. 402, 410. The words "in the city of Chicago" in the title of the act of 1859 did not render void the authority conferred in the act upon the North Chicago City Railway Company to extend its lines outside of the limits of the city of Chicago. City of Ottawa v. The People ex rel., 48 Illinois, 233; Prescott v. City of Chicago, 60 Illinois, 123; Binz v. Weber, 81 Illinois, 288; Cole v. Hall, 103 Illinois, 30; Timm v. Harrison, 109 Illinois, 597; McGurn v. Board of Education, 133 Illinois, 122; West Chicago Park Commissioners v. Sweet, 167 Illinois, 332; Hudnall v. Ham, 172 Illinois, 76; Bobel v. The People, 173 Illinois, 201 U.S. . Opinion of the Court. 23; Park v. Modern Woodmen of America, 181 Illinois, 227; Boehm v. Hertz, 182 Illinois, 156; Village of London Mills v. Edward White, 208 Illinois, 289; Montclair v. Ramsdell, 107 U. S. 155; Detroit v. Detroit Citizens' St. Ry., 184 U. S. 368; People v. Mellen, 32 Illinois, 181; Lockport v. Gaylord, 61 Illinois, 276; Jonesboro v. Cairo & St. L. R. R. Co., 110 U. S. 198; People v. Institution of Protestant Deaconesses, 71 Illinois, 229. The incorporation by the act of the legislature of the town of Lake View did not deprive the North Chicago City Railway Company of its charter right to extend its street railway lines into the town of Lake View upon its streets and highways. Chicago Municipal Gas Light Co. v. Town of Lake, 130 Illinois, 54; City of Quincy v. Bull et al., 106 Illinois, 349; The People v. Blocki, 203 Illinois, 368. MR. JUSTICE DAY, after making the foregoing statement, delivered the opinion of the court. The jurisdiction of the Circuit Court to render the original judgments against the companies and to maintain the ancillary bill is challenged at the outset. These objections require notice before considering the controversy upon its merits. It is insisted that the Circuit Court had no jurisdiction to render the judgments at law because of the provisions of the act of August 13, 1888, 25 Stat. 433, 434, providing that no Circuit Court shall have cognizance of any suit to recover the contents of any promissory note in favor of any assignee, or subsequent holder if such instrument be payable to bearer, unless such suit might have been prosecuted in such court to recover, if an assignment or transfer had not been made. As the notes were made payable to the order of "Markham B. Orde, Treas.," and there is no allegation that Orde was not a citizen of the State of Illinois, of which State the defendant companies were corporations and citizens, it is insisted that the jurisdiction must fail, under the provisions of the statute just referred to. Assuming without deciding that this ques tion could be raised by way of defense to the ancillary bill, we think the objection must fail, for under the allegations of the declaration the money was furnished directly to the defendants by the Guaranty Trust Company, and that company was the first taker of the notes. In Falk v. Moebs, 127 U. S. 597, it was held that notes made in this form, payable to the treasurer, indorsed before delivery by him, are the notes of the company. And when it appears that the indorser is not in fact an assignee of the paper, suit may be brought in a Federal court by a holder having the requisite diverse citizenship, notwithstanding the indorser might have been a citizen of the same State with the defendant. Holmes v. Goldsmith, 147 U. S. 150. It is further argued that the entire proceedings were fraudulent and collusive; that no money was in fact loaned, and that they were the result of a conspiracy between corporations of Illinois to obtain the jurisdiction of the Federal court, and its decision on the controverted rights of the parties under the statutes of the State. We have examined the supplemental records submitted since the argument in this court, on this branch of the case, and think the charges of bad faith and conspiracy are not sustained. We have no doubt that the money was loaned by the Guaranty Trust Company to these corporations and that the original judgments were bona fide. As to the conspiracy to get the case into the Federal court, with a view to the decision of the rights of the parties therein, we are not aware of any principle which prevents parties having the requisite citizenship and a justiciable demand from seeking the Federal courts for redress, if such be their choice of a forum in which to have contested rights litigated. Having a proper cause of action and the requisite diversity of citizenship confers jurisdiction upon the Federal courts, and in such cases the motive of the creditor in seeking Federal jurisdiction is immaterial. South Dakota v. North Carolina, 192 U. S. 286, 310; Dickerman v. Northern Trust Company, 176 U. S. 181, 190; Lehigh Mining and Manufacturing Com pany v. Kelly, 160 U. S. 327, 336; Crawford v. Neal, 144 U. S. 585; Cheever v. Wilson, 9 Wall. 108, 123; Smith v. Kernochen, 7 How. 198, 216. It is true that the judgments were taken and the receivers appointed on the same day, and it is quite likely that the receiverships were in view when the judgments were taken, and that preparations had been made in that direction, but we perceive in this no legal objection to the jurisdiction of the court. It is further insisted by the counsel for the city that the ancillary bills cannot be sustained upon their merits. But we think a case was made out by the allegations of the bills, especially when considered with reference to the admissions of the answer, which showed that the extent and character of the property rights of the corporations whose rights and franchises were the subjects of the receivership were in direct and serious controversy between the company and the receiver on the one hand and the city on the other. While it may be that there would have been no interference on the part of the city with the property while it was in the hands of the court's receivers, still the record shows that the city strenuously contested the asserted rights of the corporations to the franchise to use the streets of the city for ninetynine years, the term claimed to have been granted to them by the act of February, 1865. It was the claim of the city that as to many of the ordinances granting rights in a number of the streets, the right to the use and occupancy of them would expire July 30, 1903. The city had asserted in a number of ways its purpose to treat the rights of the companies and whatever franchises they had as terminated at that date. It declared its purpose to resume possession of the streets and resort to all legal means to protect its rights against what were deemed the unfounded claims of the companies as to the extended franchises. Without going into further detail upon this branch of the case, we think that the attitude and claims of the city cast a cloud upon the title to this property which was in the hands of the receivers to be administered VOL. CCI-29 |