230 Ill. 157 | Ill. | 1907
delivered the opinion of the court:
The most important question presented for consideration in this case is whether or not appellant is entitled to the writ of mandamus for which it prays, requiring appellee to file a true statement of its gross receipts from all business within the present city limits and to pay into the city treasury three per cent on such gross receipts. It is insisted by appellee that the ordinance upon which appellant bases its claim of right to the writ of mandamus prayed for constitutes a contract between appellant and appellee, and that, such being the case, mandamus will not lie. It is conceded by appellant that mandamus is not the proper remedy to enforce contractual relations, and this principle is well set-tied. We are therefore brought directly to a consideration of the ordinance with a view of ascertaining whether such ordinance has, in effect, the binding force of law or whether it constitutes a contract.
It is the well settled law in this State that where there is a grant, and an acceptance by a corporation of an ordinance involving the performance of acts in the nature of duties or services to the public as a condition of the grant, the corporation accepting the franchise may be compelled by mandamus to perform the duty so enjoined. (People v. Suburban Railroad Co. 178 Ill. 594; Rogers Park Water Co. v. Fergus, 178 id. 571, and cases there cited.) But in each of these cases mandamus was awarded to compel the respondent to discharge some duty owing to the public and not to a municipal entity and where a clear right was thought to exist. There is a clearly drawn distinction between cases of that class and cases in which the duty or obligation is owed primarily to the municipality. In People v. Suburban Railroad Co. supra, it was sought to compel respondent to comply with the express provisions of an ordinance of the village of River Forest creating a duty to the public to be performed by the company for the benefit of the public. The writ was there awarded commanding the company to sell tickets to passengers good to stations in River Forest at the same rate as to stations in the town of Cicero, as the ordinance required, and it is evident that this was a duty owing to the public in general and not particularly to the municipality as such. In Rogers Park Water Co. v. Fergus, supra, a writ of mandamus was awarded fixing water rates, as provided by an ordinance of the city of Chicago enacted subsequently to the annexation of Rogers Park, ydiich was accepted by the water company and under which ordinance it had laid its pipes and previously operated its water-works. In this case, also, the company’s primary duty lay to the public as such. Evidently, in neither of the cases above cited was the obligation contractual. No individual had in either case a contract with the respondents, but the public did have certain rights under the ordinances which respondents were bound to regard. The failure on the part of respondents to regard these clear rights was the basis of the petition for mandamus, and the writ was properly awarded. But in the case at bar the public has nó relations, through the ordinance, with appellee, either contractual or otherwise. It cannot be said that an individual citizen has an interest in the filing of the statement at all. Nor can he have any interest in the payment "of the three per cent required by the ordinance to be paid into the city treasury, except the general interest that the sum so paid would be applied on the payment of municipal indebtedness and thus tend to decrease the burden of taxation. It- cannot be seriously contended that there exists in this a right so clear that it is enforcible by mandamus. The ordinance in this case prescribes certain conditions upon which the city of Chicago, as a municipal entity, is willing to permit appellee to use its streets, and parts of these conditions are that appellee shall make, semi-annually, a report of the business done by it within the city limits for the previous six months and pay into the city treasury three per cent of such sum. Appellee accepted this ordinance, and from that time forth it became a contract between the parties. A franchise emanates from the government or sovereign power, and where a corporation is created by law, with power to use the streets of the city, upon the consent of the city, under such conditions as may be imposed, and by ordinance such consent is prescribed or privilege granted, the grant by the city is a license and is not a franchise. When such license is accepted by the corporation a valid and binding contract is created with the municipality, to compel the performance of which mandamus will not lie. Chicago City Railway Co. v. People, 73 Ill. 541; Chicago Municipal Gas Light and Fuel Co. v. Town of Lake, 130 id. 42, and cases cited; City of Belleville v. Citizens’ Horse Railway Co. 152 id. 171; People v. Central Union Telephone Co. 192 id. 307; People v. Blocki, 203 id. 363; City of Chicago v. Rothschild & Co. 212 id. 590.
Having reached the above conclusion it is unnecessary to consider other assignments of error. ■
The judgment of the Appellate Court is affirmed.
Judgment affirmed.