session of the system of street railroads;, the defendant city, it was given out that, that the property included the rights, privi- unless the railroad company would surrenleges, and franchises originally granted to der its franchises and rights to occupy the the Chicago West Division Railway Com- streets of the city, the city would oust the pany by the state of Illinois; that on Oc- railroad company therefrom and pass an tober 20, 1887, the Chicago West Division ordinance granting the right to operate Railway Company leased the property to street railways upon the streets now octhe West Chicago Street Railroad Company cupied by the railroad company, to other [405] for the full term of nine *hundred and nine- persons or corporations. That unless an ty-nine years; that on June 1, 1889, that injunction is granted, the city will, after company transferred and conveyed to the July 30, 1903, proceed, by declaration of Chicago Union Traction Company all its forfeiture or otherwise, to interfere with property, franchises, and rights, which were and prevent the occupation and enjoyment taken possession of by that company and of the fifty-six railway routes described in were possessed and enjoyed by it with the the bill. That as to the street railroads consent of the city council, until the ap- where ordinances provided for possession unpointment of complainants as receivers; that til the city shall purchase the lines, the since the appointment they have been di- city has never made an offer to purchase, rected by the court to make expenditures and seeks to force a surrender of the franof about $580,000 in procuring new equip- chises and privileges, and to compel the railment; for that purpose it was necessary road company to accept a twenty years' to issue receiver's certificates to borrow license, at an oppressive and ruinous annual money, which they alleged they were unable rental. That if the claim and contentions of to do, because of the hostile acts of the city | the city are sustained, the entire system of of Chicago, its mayor, its council committees the railroad company will be destroyed and and representatives, which amounted to an its charter rights illegally confiscated. impairment of the contract rights and franchises secured to the complainants and granted by the acts of the general assembly of Illinois, passed February 14, 1859, and February 6, 1865. They received a notice from the superintendent of streets, dated July 16, 1903, addressed to them as receivers, and stating that all permits issued to the Chicago Union Traction Company to do work and make repairs upon the streets, alleys, or public places in the city of Chicago were to be revoked on July 30, 1903. The bill sets out a large number of ordinances of the city and acts of the state of Illinois, under which acts, it was alleged, privileges and franchises were granted on fifty-six of the streets of the city, for the period of ninety-nine years from February 14, 1859. The prayer for relief is that the Chicago West Division Railway Company be decreed to be vested by the state of Illinois with the franchises and right to own, maintain, and operate fifty-six street railway routes, described in the bill, until 1960, and until such time thereafter as the city shall purchase the lines and pay for them in cash at their then appraised value, according to the terms of the ordinance contract; that it be decreed that the claim of the city of Chicago that the rights of the companies will expire on July 30, 1903, impairs the obligation of the charter subsisting between the state of Illinois and the said companies, and constitutes an unlawful taking of the rights and property of the company without compensation, and an unlawful interference with the property in the custody of It was averred that the city denies any con- the court; that the charter rights of the tract right with the complainants under and companies to maintain, operate, and enjoy by virtue of the said laws and ordinances, the lines described in the bill until the and, for the purpose of coercing the rail-year 1960, and thereafter until the city pur-[407] road companies to surrender their franchises, received from the state, asserts and claims that the act of 1865 is unconstitutional and void; that, if valid, it only operates to the extent of such lines as were authorized and consented to before its passage; that, if valid, the railroads could only operate their lines by animal power; that by force of the ordinance of July 30, 1883, the right to operate lines constructed prior thereto was absolutely limited to July 30, 1903, and that thereafter the railroad com[406]pany *would be a trespasser upon the streets of the city; that, by messages and official declarations of the mayor and council of chases the same, be established and quieted as against the hostile claims of the city, and that such claims be declared and decreed unconstitutional, contrary to law, and exist as clouds upon the title of the company, and for a perpetual injunction against the city from asserting the claims aforesaid, or interfering with the possession, occupation, and enjoyment of the railroad's property, except in the proper exercise of its police power, until the lawful determination of the charter rights. The bill in the North Chicago case is substantially the same. It avers that the property vested in the receivers in the north, the ordinances set up in the bill expire on July 30, 1903. Defendant denies that it The city answered and set up, among other The city denies that the city council passed any ordinance or resolutions that constitute an impairment of the contract rights of the complainants, granted under the acts of the general assembly of the state of Illinois, February 14, 1859, and February 6, 1865. or the ordinances of the city, and denies that it has ever threatened interference with any lawful rights, franchises, or privileges held by the complainants. It admits that its superintendent of streets sent a written notice to the complainants, as alleged in the bill, but without authority from the defend ant, and that on July 21, 1903, the same was rescinded and recalled. The answer then sets up the claims of the city concerning the legislative acts and ordinances pleaded in the bill, admits the passage or attempted passage thereof, but denies that the same has resulted in investing the railroad companies with a franchise from the state, to maintain and operate the system of railroads for ninety-nine years. and avers that the rights under certain of solutely ceased and determined, but, on the contrary, has recognized and conceded the existence of the purchase clause contained in certain of said ordinances as affecting the time limitations therein, and has endeavored to procure proper fiscal legislation by the general assembly of the state, which would enable the city to avail itself of said ordinance provisions with reference to purchase, and has frequently proposed and desired negotiations with the companies to provide new ordinances for the purchase by the defendant of the tangible property of said companies. The answer denies the allegations of the bills as to unlawful threats and compulsions, but admits that it does intend to enforce its rights in its streets against the unlawful claims of the companies, and admits that, unless restrained by injunction, it will proceed by every proper and lawful method to enforce its rights in its streets as set up in the answer, and to procure necessary street rai!way facilities for the citizens of Chicago, and to prevent the companies from unlawful usurpation of rights in the streets or from continuing to occupy the same after the right so to do has ceased and determined. It admits that as early as 1883 a serious difference as to the nature and extent of the legal and contract rights of the street railway companies in certain of the streets of the city arose between the companies and defendant. It sets up the messages of the mayor and copies of the various resolutions of the council with regard to opening negotiations with the companies for the ascertainment of their rights and those of the city. The case having been tried, the circuit court rendered a decree holding that the legislative acts of 1859, 1861, and 1865 constituted a grant to the companies to use the streets of the city to be designated by the council, but that the franchise to use the streets was a grant from the state; that the acts of 1859, 1861, as amended in 1865, extended the franchises of the companies for ninety-nine years, the extended life of the corporation; that the Constitution of Illinois of 1870 prohibited the further creation of corporations by special laws, [410] and decreed that the general assembly should not grant the right to construct any street railways in the city without acquiring the consent of the local authorities then having control over the streets; that the cities and villages act of 1872 empowered cities organized under that act to permit, regulate, or prohibit the locating, laying, or constructing of tracks of horse railroads in any street, alley, or public place, but such permission was limited to a period not to exceed twenty years; that the acts of 1859, 1861, as amended in 1865, did not constitute a grant by the legislature of streets which were authorized to be used and occupied by the city after it adopted and elected to be governed by the city and village act, and that after date of May 3, 1875, as to such streets, the street railway companies' rights were regulated by the city ordinances affecting the same; that the act of 1859, under the 10th section of which the North Chicago City Railway Company was incorporated, amended by the act of February 21, 1865, extended the life of the corporation for ninety-nine years; and held that said amendment applied not only to the Chicago City Railway Company, but as well to the rights conferred by the act of 1859 on the North Chicago City Rail way Company. The case is reported in 132 Fed. 848. Pertinent parts of the ordinance of August 16, 1858, the acts of February 14, 1859, February 21, 1861, and February 6, 1865, are given in the margin.t Ordinance of August 16, 1858. Messrs. Brainard Tolles, John S. Miller, and John G. Johnson argued the cause, and, with Messrs. Joseph S. Auerbach and W. W. Gurley filed a brief for appellants in Nos. 331, 332, 334, and 335, and for appellees in Nos. 333 and 336: The jurisdiction of the court herein must be determined alone from the record of these cases in equity, now here on appeal. The transcripts of the record of the suits at law in which the judgments were recovered which were the basis of the creditors' bills in which the receivers were appointed are no part of the transcript of record here; nor are the transcripts of record of such creditors' suits. Pacific R. Co. v. Missouri P. R. Co. 111 U. S. 505, 522, 28 L. ed. 498, 504, 4 Sup. Ct. Rep. 583; Continental Trust Co. v. Toledo, St. L. & K. C. R. Co. 82 Fed. 642; Richardson v. Loree, 36 C. C. A. 301, 94 Fed. 375. They are records of other suits than those before the court on these appeals. Neither of them can be looked into in order to defeat the jurisdiction of the court below to enter these decrees; although there is authority that they might be offered in evidence here, if necessary, in order to sustain the decrees. Stilwell v. Carpenter, 62 N. Y. 639; Wines v. New York, 70 N. Y. 613. Promissory notes were delivered to the plaintiff by the defendant bearing the indorsement of Markham B. Orde, treasurer or assistant treasurer, and the money was advanced to the defendant by the plaintiff, so that the plaintiff held the notes as first taker, and not as an assignee. The juris diction of the circuit court to render judg ment on the notes was clear. Wachusett Nat. Bank v. Sioux City Stove Works, 56 Fed. 321; Holmes v. Goldsmith, 147 U. S. 150, 37 L. ed. 118, 13 Sup. Ct. Rep. 288; Bank of British N. A. v. Bar ling, 46 Fed. 357. The notes were made payable to the order of makers, and by them indorsed, as held by this court in Falk v. Moebs, 127 U. S. 597, the city of Chicago hereinafter mentioned, and to operate railway cars and carriages thereon in the manner, and for the time, and upon the conditions hereinafter prescribed; provided, that said tracks shall not be laid within 12 Be it ordained by the common council of the feet of the sidewalks upon any of the streets. city of Chicago: Sec. 2. That said parties are hereby authorized to lay a single or double track for a railway in and along the course of the following streets in said city, and extending the same as follows: Commencing on State street, at Section 1. That there is hereby granted to Henry Fuller, Franklin Parmalee, and Liberty Bigelow, and such other persons as may hereafter become associated with them, and to their executors, administrators, and assigns, permis- the south side of Lake street; thence south sion and authority and consent of the common council to lay a single or double track for a railway, with all necessary and convenient tracks for turn-outs, side tracks, and switches, in and along the course of certain streets of to the present city limits. Also, commencing on State street, at the junction of Ringgold place; thence on Ringgold place to Cottage Grove avenue, thence on Cottage Grove avenue to the present limits of the city of Chicago. 32 L. ed. 266, 8 Sup. Ct. Rep. 1319. And to the defendant, and upon an account statthat question is one of general commercial ed, etc., showed a controversy within the law, on which that decision is conclusive, jurisdiction of the court, and it must be and not of Illinois law, as conceived by presumed that these counts were sustained counsel for the city of Chicago. by proof. Re Cuddy, 131 U. S. 280, 33 L. ed. 154, 9 Sup. Ct. Rep. 703; Galpin v. Page, 18 Wall. 350, 21 L. ed. 959; Wolcott v. Cole Burgess v. Seligman, 107 U. S. 20, 27 L. ed. 359, 2 Sup. Ct. Rep. 10; Independent School District v. Rew, 55 L.R.A. 364, 49 C. C. A. 198, 111 Fed. 1; McPeck v. Cen-man, 2 Conn. 324; Bunyea v. Metropolitan tral Vermont R. Co. 25 C. C. A. 110, 50 U. R. Co. 8 Mackey, 76; Harvey v. Laflin, 2 S. App. 27, 79 Fed. 590; Phipps v. Hard- Ind. 477. ing (Hudson Furniture Co. v. Harding) 30 L.R.A. 513, 17 C. C. A. 203, 34 U. S. App. 148, 70 Fed. 468; Windsor Sav. Bank v. McMahon, 3 L.R.A. 192, 38 Fed. 283; Union Bank v. Oxford, 90 Fed. 7. In any event, the common counts in the declaration for money loaned and advanced Also, commencing on State street, at the junction of the Archer road; thence along the said Archer road to the present limits of the city. Also, commencing on State street, at the intersection of Madison street, and extending west along said Madison street to the present city limits. Sec. 3. The cars to be used upon said tracks shall be operated with animal power only; and said railways shall not connect with any other railroad on which other power is used, and no railway car or carriage used upon any other railroad in this state shall be used or passed upon said tracks. Sec. 4. The said tracks and railways shall be used for no other purpose than to transport passengers and their ordinary baggage, and the cars or carriages used for that purpose shall be of the best style and class in use on such railways. The common council shall have power at all times to make such regulations as to the rate of speed and time of running said cars or carriages as the public safety and convenience may require. Sec. 5. The tracks of said railways shall not be elevated above the surface of the street; shall be laid with modern improved rails, and shall be so laid that carriages and other vehicles can easily and freely cross said tracks at any and all points, and in any and all directions, without obstruction. Sec. 6. The rate of fare for any distance shall not exceed 5 cents, except when cars or carriages shall be chartered for a specific purpose. Sec. 7. The said parties, their associates and successors, shall pay one third of the cost of grading, paving, macadamizing, filling, or planking on the streets or parts of streets on which they shall construct their said railways, and in the respects last mentioned shall keep such portion of their respective streets as shall be occupied by their said railways, or either of them, in good repair and condition during the whole time that the privileges hereby granted to the said parties shall extend, in accordance with whatever orders may be passed in that behalf by the common council of the said city of Chicago; and said parties shall be liable for all legal or consequential damages which may be sustained by any person by reason of the carelessness, neglect, or misconduct of any agent or servant of said parties, in the course of their employment in the construction or the Again, this attack on the judgments is a collateral attack, and cannot be made. Every intendment is made in their favor. Re Cuddy, 131 U. S. 280, 285, 33 L. ed. 154, 156, 9 Sup. Ct. Rep. 703; Van Fleet, Collateral Attack, §§ 12, 829. The jurisdiction of the court to entertain use of the said tracks or rallways, and said parties shall moreover pay to the property owners on any street so used by them as aforesaid for their said railways, which has, since the 1st day of January, A. D. 1858, been paved, macadamized, or planked, and at any time between said date last mentioned and the time of going into the occupation of either of said respective streets with the said railway by said parties, their associates or successors, may be paved, macadamized, or planked, one third of the reasonable cost and expense thereof so paid by said property owners, respectively. Sec. 8. The rights and privileges granted to said parties by virtue of this ordinance shall be forfeited to the city of Chicago unless the construction of one of said railways shall be commenced on or before the 1st day of November, A. D. 1858; and unless the said railway commencing on the south side of Lake street and extending to Ringgold place shall be fully completed and ready for use on or before the 15th day of October, A. D. 1859; and the Madison street railway, commencing at the intersection of State street, and running on said Madison street to the city limits, completed and ready for use on or before the 15th day of October, A. D. 1860; and said railway from Ringgold place to Cottage Grove avenue, and along the same to the city limits, by the 1st day of January, A. D. 1861, and all the remaining railways herein before mentioned, on or before the 1st day of January, A. D. 1863, the said railways, together with all improvements made upon the same, shall be forfeited to said city of Chicago, unless the common council of said city shall grant to said parties a further extension of time; provided, that if said parties are delayed by the order or injunction of any court, the time of such delay shall be excluded, and the same time, in addition to the periods above prescribed, shall be allowed for the completion of said railways as that during which they may be so delayed. Sec. 9. If the said parties, their associates or successors, shall hereafter become incorpo rated, the rights and privileges granted to them by virtue of this ordinance shall extend to such corporation for the time and upon the conditions herein prescribed, and when such act of incorporation shall have been obtained, such corporation shall have all the rights and privileges hereby granted as the successors of the creditors' bills brought for the collec-| C. R. Co. 137 U. S. 171, 201, 34 L. ed. tion of these judgments cannot be here col- 625, 635, 11 Sup. Ct. Rep. 61; Re Tyler, 149 laterally questioned. U. S. 164, 181, 37 L. ed. 689, 694, 13 Sup. Ct. Rep. 785; Rouse v. Letcher, 156 U. S. 47, 39 L. ed. 341, 15 Sup. Ct. Rep. 266. Re Cuddy, supra; Commercial Nat. Bank v. Burch, 141 Ill. 519, 33 Am. St. Rep. 331, 31 N. E. 420; St. Paul Trust Co. v. St. Paul Globe Pub. Co. 60 Minn. 105, 61 N. W. 813; Capital City Mut. F. Ins. Co. v. Boggs, 172 Pa. 91, 33 Atl. 349. The jurisdiction of the Federal court in these cases at bar arises from possession | of assets. Freeman v. Howe, 24 How. 450, 16 L. ed. 749; Krippendorf v. Hyde, 110 U. S. 276, 283, 28 L. ed. 145, 148, Sup. Ct. Rep. 27; Gumbel v. Pitkin, 124 U. S. 131, 156, 31 L. ed. 374, 382, 8 Sup. Ct. Rep. 379; Morgan's L. & T. R. & S. S. Co. v. Texas said parties, without further action of the common council. Sec. 10. The right to operate said railways shall extend to the full time of twenty-five years from the passage hereof, and at the expiration of said time the parties operating said railways shall be entitled to enjoy all of said privileges until the common council shall elect, by order for that purpose, to purchase said tracks of said railways, cars, carriages, station houses, station grounds, depot grounds, furniture, and implements of every kind and description, used in the construction or operation of said railways, or any of the appurtenances in and about the same, and pay for the same in the manner hereinafter mentioned. Sec. 11. Such order shall fix the time when said city of Chicago will take such railways and other property before mentioned, which shall not be less than six months after the passage of said order, and at the time of taking said railways and other property before mentioned the city of Chicago shall pay to the parties operating the same a sum of money, to be ascertained by three commissioners, to be appointed for that purpose, as follows: One to be chosen from the disinterested freeholders of Cook county by the said common council, one in like manner by the said parties, their associates and successors, and the two persons so chosen to choose the third from said freeholders. Sec. 12. All rights heretofore vested in the board of water commissioners and sewerage commissioners, or other corporations, are not to be impaired or affected by this ordinance, but the rights and privileges hereby granted are subject thereto. Sec. 13. The said Henry Fuller, Franklin Parmalee, and Liberty Bigelow shall enter into a good and sufficient bond with the city of Chicago, in the penal sum of $25,000, for the faithful performance of all the terms and conditions herein contained in this ordinance, and that said railways herein mentioned shall be completed at the times and manner herein stated, unless delayed by the order or injunction of some court having jurisdiction of such matters from so completing the same, and, until such bond shall be so executed by said parties. this ordinance snail have no force or erfect whatever. It is also sustainable as an exercise of ancillary jurisdiction. White v. Ewing, 159 U. S. 36, 40 L. ed. 67, 15 Sup. Ct. Rep. 1018; Pope v. Louisville, N. A. & C. R. Co. 173 U. S. 573, 43 L. ed. 814, 19 Sup. Ct. Rep. 500; Porter v. Sabin, 149 U. S. 473, 479, 37 L. ed. 815, 818, 13 Sup. Ct. Rep. 1008; Byers v. McAuley, 149 U. S. 608, 618, 37 L. ed. 867, 872, 13 Sup. Ct. Rep. 906; Price v. Abbott, 17 Fed. 506; Armstrong v. Trautman, 36 Fed. 275; Compton v. Jesup, 15 C. C. A. 397, 31 U. S. App. 486, 68 Fed. 263; Lan ter of this ordinance (except to which this is an amendment), or in conflict with this ordinance or that to which the same is an amendment, are hereby repealed. Act of February 14, 1859. Act to Promote the Construction of Horse Railways in the City of Chicago. Section 1. Be it enacted by the people of the state of Illinois, represented in the general assembly, That Franklin Parmalee, Liberty Bigelow, Henry Fuller, and David A. Gage and their successors be and they are hereby created and constituted a body corporate and politic by the name of the Chicago City Railway Company for the term of twenty-five years, with all the powers and authority incident to corporations for the purposes hereinafter mentioned. Sec. 2. The said corporation is hereby authorized and empowered to construct, maintain, and operate a single or double track railway, with all necessary and convenient tracks for turn-outs, side tracks, and appendages in the city of Chicago, and in, on, over, and along such street or streets, highway or highways, bridge or bridges, river or rivers, within the present or future limits of the south or west divisions of the city of Chicago as the common council of said city have authorized said corporators, or any of them, or shall authorize said corporation so to do, in such manner and upon such terms and conditions, and with such rights and privileges, as the said common council has or may have contracted with said parties, or any or either of them prescribed, but said corporation shall not be liable for the loss of any baggage carried on said railways kept in and under the care of its owner, his servant or agent. Sec. 3. [As to capital stock.] Sec. 5. The said corporation is hereby anthorized to extend the said several railways herein authorized to be built in the manner aforesaid to any point or points within the county of Cook in this state; and to enable said corporation to construct any or all the railways therein authorized or their appendages, the said corporation is hereby vested with power to take and apply private property for the purposes and in the manner prescribed by an act entitled "An Act to Amend the Law ConSec. 14. All ordinances or parts of ordinances demning Right of Way for Purposes of Interheretofore passed respecting the subject-mat-nal Improvement," approved June 22d, 1852, and |