WILLIAM E. GILLETTE*

v.

THE AURORA RAILWAYS COMPANY.

Opinion filed June 19, 1907-Rehearing denied October 8, 1907.

1. CHANGE OF VENUE-all defendants in condemnation need not join in petition for change. In a condemnation proceeding where several of the defendants, after proper notice, present petitions for a change of venue, in proper form and duly verified, alleging prejudice of the judge and averring that the change will not be prejudicial to the petitioner or any of the other defendants, it is the duty of the judge to grant the petitions without first directing separate trials, since the change of venue operates as a severance. (Eddleman v. Union County Traction Co. 217 Ill. 409, explained.)

2. SAME-what is not a waiver of error in denying a change of venue. Proceeding at once to the trial of a condemnation case after taking exception to the action of the trial court in overruling the petitions of several of the defendants for a change of venue upon the ground of prejudice of the trial judge is not a waiver by defendants of the alleged error in overruling the petitions. (DuQuoin Water-Works Co. v. Parks, 207 Ill. 46, distinguished.)

3. RAILROADS-commercial railroad may construct its line in a public street. Paragraph 5 of section 19 of the general Railroad act gives to corporations organized thereunder the power, with the consent of a city, to construct its railroad upon and along any public street of the city, and paragraph 90 of section 1 of article 5 of the City and Village act imposes the conditions upon which a city may grant such a privilege to a railroad.

4. SAME-right of commercial railroad to condemn fee in street. Where a city has granted to a corporation organized under the general Railroad act the right to construct its railroad upon and along a public street of the city, the power of the corporation to condemn the interests of abutting property owners who own the fee in the street cannot be denied upon the ground that the property is already devoted to public use as a street.

5. SAME fact that city prohibits railroad from hauling freight does not change its character. A corporation cannot be organized

*With this case are decided the following consolidated cases: 5352, Greene v. Aurora Railways Co.; 5359 Russell v. Same; 5360, Bennett v. Same; 5362, Elder v. Same; 5363, Dunning v. Same; 5364, Bell v. Same; 5365, Evans v. Same; 5366, Safford v. Same.

under the general Railroad act for the sole purpose of operating a line of street railway in a city, but the fact that the city, in granting to a commercial railroad the right to construct its railroad along a certain street, restricts the use to passengers, baggage and express, does not deprive the corporation of its power to condemn the fee in the street, if it is otherwise authorized to exercise such power.

6. SAME any corporation having power to construct a railroad has power to condemn. Under the Eminent Domain act any corporation which has the right to construct or maintain any railroad has power to take property for the use of its road without the owner's consent and to take the proceedings for that purpose specified

in the act.

7. SAME-right to construct railroad is a condition precedent to power to condemn. Whether there has been any irregularity in the organization of a railroad corporation such as precludes it from being a corporation de jure is a question which cannot be inquired into in a proceeding by it to condemn land, but the question whether there is any law which authorizes a corporation to exercise the powers which are assumed by it may be determined in such a proceeding, since the right to condemn is made, by statute, to depend upon the right to construct the railroad.

8. SAME-court may determine whether uses fall within terms of grant. The question under what conditions the power of eminent domain may be exercised is purely legislative, but it is for the courts to determine whether the statutory conditions authorizing the exercise of the power exist in the particular case, and whether the uses and purposes for which the property is sought fall within the legislative grant.

9. SAME-whether articles of incorporation authorize condemnation proceeding is open to investigation. In a proceeding by a corporation to condemn land, the question whether the articles of incorporation authorize the proceeding is open to investigation by the court.

10. SAME-general Railroad act requires fixed termini between places named. The general act for the incorporation of railroad companies authorizes the organization of such corporations for the purpose of building a railroad, with fixed termini, between places named in the articles of incorporation, and is not designed for nor adapted to the construction and operation of a system of street railways in a city.

II. SAME-general Railroad act does not authorize construction of street railway system. The general Railroad act does not authorize the organization of a company to construct and operate a railroad "from and between points in the city of Aurora, Kane county, Illinois, to points outside of said city and adjacent thereto,

connecting with lines of its railroad running around said city," since such description authorizes the construction of a whole system of street railways in the city named, and being without power to construct the railroad the company is without power to condemn.

APPEAL from the City Court of Aurora; the Hon. JOHN L. HEALY, Judge, presiding.

HOPKINS, PEFFERS & HOPKINS, and CARNES, Faissler & COCHRAN, for appellant Gillette :

When à petition for a change of venue is offered in proper form, the court has no discretion and should grant the change. Woodhull v. Kelly, 10 Ill. App. 445; McGoon v. Little, 2 Gilm. 42.

Appellee's charter did not comply with the conditions precedent of the statute in setting out the termini of the road. The statute (chap. 114, sec. 3, clause 2,) requires that the articles shall state the places from and to which it is intended to construct the proposed railway. Appellee having failed to comply with this condition precedent of the statute, it could not condemn appellant's property in Galena street or construct any railway in Galena street. Gillinwater v. Railroad Co. 13 Ill. 1; Mitchell v. Railroad Co. 68 id. 286; Railroad Co. v. Smith, 78 id. 96.

Appellee is a corporation organized under the general Railroad act, and cannot, under its charter, condemn property for the use of and operate a street railway. Wiggins Ferry Co. v. Railway Co. 107 Ill. 407; Harvey v. Railway Co. 174 id. 295; Dewey v. Railway Co. 184 id. 426; Goddard v. Railway Co. 202 id. 362; Knopf v. Railroad Co. 197 id. 212.

Appellee is a railroad organized and existing under the general Railroad act, and it could not bind itself, by stipulation or ordinance, not to carry freight upon its lines of railway. It cannot change itself from a commercial railroad into a street railroad by contract with the city.

Appellee has no right, power or authority to condemn Galena street from May to River street, and to construct its railroad longitudinally in that street. Railroad Co. v. Sanitary District, 218 Ill. 286.

Where land is devoted to a public use it cannot be taken by condemnation for another public use, unless the legislature, in express terms or by necessary implication, has authorized it to be taken. 10 Am. & Eng. Ency. of Law, 1095, 1096; Inhabitants v. Railroad Co. 58 Mass. 63; Pennsylvania Railroad Co.'s Appeal, 115 Pa. St. 514; Goddard v. Railway Co. 202 Ill. 362; Rev. Stat. chap. 114, sec. 3, and pars. 5, 6, of sec. 19; Gillinwater v. Railroad Co. 13 Ill. 1; Const. art. II, sec. 12; Railroad Co. v. Railroad Co. 122 Ill. 473; Harvey v. Railway Co. 174 id. 295.

Appellant had the right to deny appellee's power to condemn, and this denial of its power was no collateral attack upon its existence as a corporation. Harvey v. Railway Co. 174 Ill. 295; Trust Co. v. Railroad Co. 208 id. 419; Dewey v. Railroad Co. 202 id. 362; Tudor v. Railroad Co. 154 id. 129; Goddard v. Railway Co. 202 id. 362.

NEWMAN, NORTHRUP, LEVINSON & BECKER, CHESTER E. CLEVELAND, and REID & QUACKENBUSH, (SEARS & SMITH, of counsel,) for other appellants.

FRED A. DOLPH, CHARLES C. BUELL, CHARLEs P. AbBEY, JOHN M. RAYMOND, JOHN K. NEWHALL, and THEODORE WORCESTER, for appellee:

The application for a change of venue was properly refused because all of the defendants below did not join, as required by statute. Eddleman v. Traction Co. 217 Ill. 409.

Appellants asked for no severance but insisted the case should be tried as one case. Some of the appellants in this court did not join in the application for a change of venue, and none of the respondents who have not appealed filed motion for a change. If joinder was unnecessary, the par

ties now raising the question are estopped because they waived the error by afterwards going to trial before the same judge without insisting upon his disqualification. Water-Works Co. v. Parks, 207 Ill. 49; Johnson v. VonKettler, 66 id. 63; Flagg v. Roberts, 67 id. 485; Noyes v. Kern, 94 id. 521; Sampson v. People, 188 id. 592; 11 Ency. of Pl. & Pr. 782.

All preliminary questions of power and jurisdiction must be raised by motions to dismiss, and without such motions will be deemed waived. Cella v. Railroad Co. 217 Ill. 326; Guyer v. Railway Co. 196 id. 370; Lieberman v. Railroad Co. 141 id. 140; Sexton v. Stock Yards Co. 200 id. 244.

The Aurora Railways Company was organized under the general Railroad act of Illinois. It has received its charter from the State. It is therefore not merely a de facto corporation, but is a corporation de jure. The questions whether it is lawfully incorporated, and whether the construction and operation of its proposed railroad are acts beyond the power of its corporate charter, are such as can be raised only in direct proceedings by the State. Railway Co. v. Railroad Co. 112 Ill. 589; McAuley v. Railroad Co. 83 id. 348; Railway Co. v. Railway Co. 105 id. 110; Henry v. Railway Co. 121 id. 264; Thomas v. Railway Co. 164 id. 634; Morrison v. Forman, 177 id. 427; Eddleman v. Traction Co. 217 id. 409; Brown v. Railway Co. 125 id. 601; Hudson v. Green Hill Seminary, 113 id. 618; Trust Co. v. Railroad Co. 157 id. 641; Railway Co. v. Wright, 153 id. 307; 1 Clark & Marshall on Private Corp. 226-241; Smith v. Sheeley, 12 Wall. 358; County of Macon v. Shores, 97 U. S. 272; Dallas County v. Huedkoper, 154 id. 654.

The only charter point raised is in regard to termini, the claim being that our stated "places from and to which" are too indefinite. In the following authorities will be found termini stated in the articles of incorporation even less definite than the statement in this case: Railway Co. v. Railroad Co. 112 Ill. 589; Lieberman v. Railroad Co. 141 id. 140;