106 Ill. 337 | Ill. | 1883
delivered the opinion of the Court:
The questions presented here are chiefly upon the ordinance of August 7, 1873. One is a question of construction of the ordinance, it being insisted that the ordinance, in its ■ purport, gave to Prince the right to extend his water mains only when so ordered by the city council.
By the 1st section of the ordinance there is granted to Prince the exclusive right to construct, maintain and operate water works in Quincy for thirty years. By the 9th section he is granted the exclusive right to sell water in the city for municipal and private use. By the 11th section the right of way is granted to him in all the streets and alleys of the city for the purpose of laying mains and services, etc. There is here granted, in the broadest terms, the right to construct water works in Quincy, and the right of way in all the streets and alleys of the city, for the purpose of laying mains and services, etc. For compensation for the large expenditure he would incur, Prince was to depend upon the sale of water for municipal and private use. To guard against an insufficient accommodation of the needs of the city, other parts of the ordinance provided that within a timé limited Prince should have constructed water works of a certain specified extent, and there is then the further provision that he shall “extend the mains when ordered by the city council to do so, ” which is with the qualification that in such case there shall be a fire hydrant on each cross street intersection, and that the city shall pay at the rate of $200 per annum for each fire hydrant until the number of one hundred hydrants was reached, and then a lower rate per hydrant. This provision that Prince should “extend the mains when ordered by the city council to do so, ” is relied upon in support of the position that Prince could not extend his water mains except when ordered by the city council to do so.
We can not regard that provision as limiting the broad rights granted to Prince by the portions of the ordinance first above referred to, so that he could only lay mains when and as ordered by the city council. Why should it do so ? The wants of private citizens, or the interest of Prince in getting compensation from private use of water, might call for the extension of mains. The city council might not be willing to order it. Municipal needs might not require the extension, or the city might be unwilling or unable to incur the increased expenditure of $200 per hydrant at each cross street intersection, which would be required when it should order the extension. The extension of the mains without the order of the city council would cause no additional cost to the city, and would be in accommodation of the wants of citizens, and in aid of Prince in deriving compensation from private use of water. The ordinance has in view the supplying of the wants of the inhabitants, and the compensation of Prince for his expenditure. We think it the reasonable and fair construction of the ordinance, taking all of its sections together, as appellees’ counsel properly insists they should be, that Prince might extend the mains without being ordered to do so by the city council. The provision that the “city council shall indicate the location of mains and hydrants, ” we do not regard as requiring a different construction. That provision might be satisfied by indicating the portion of the street to be used.
The other and more important question which is made with respect to the ordinance concerns its validity. It is contended that the section of the ordinance granting the right of way for the purpose of laying water pipes, etc., in the streets, is entirely void, for want of power in the city council to make such a binding grant.
It is proper to have understood at the first what the exact question is which is involved here. Comment has been made in the argument on the exclusive right which the ordinance grants to construct and maintain the water works for thirty years, and on the compensation which the city agrees to pay for that period of time, and there is citation of authority adverse to the validity of the ordinance in respect of those features of it. In these respects we shall not consider the ordinance, or express any opinion, regarding it immaterial to the present decision. The ordinance might be deemed invalid as regards the particulars named, and yet be held good in all other respects, the rule being familiar that one part of a law may be declared void, while another part of the same act is considered valid, where they are capable of being separated in their operation. There is no exclusive use asserted here. It is not a question of exclusive use, but of use at all. There is no attempt at recovery from the city of the price of water on the basis of the contract rate. The simple question involved here is, whether complainants, nn.der the ordinance, have the right of way in the streets for the purpose of laying water pipes under the surface, to supply the city and inhabitants of Quincy with water, and for the purpose of repairing their pipes laid.
The ordinance of August 7, 1873, and the acceptance of it by Prince, constituted a contract between him and the city of Quincy, by which there was granted the right of way which is claimed. The power of the city to make such a grant seems quite clear. It may be derived from the exclusive control of its streets given to the city by its charter, section 33 of which is as follows: “The city council shall have exclusive power over the streets and alleys, and may abate any and all obstructions and encroachments therein in such manner as may be provided by ordinance.” (Private Laws 1857, p. 170.) In this State there is vested in municipal corporations a fee simple title to the streets. Under the power of exclusive control over streets, it is very well settled by decisions of this court that the municipal authorities may do anything with, or allow any use of streets, which is not incompatible with the ends for which streets are established, and that it is a legitimate use of a street to allow a railroad track to be laid down in it. (Moses v. Pittsburgh, Fort Wayne and Chicago R. R. Co. 21 Ill. 522; Murphy v. Chicago, 29 id. 279; Chicago and Northwestern Ry. Co.v. Elgin, 91 id. 251.) The laying of water pipes under ground would be much less of an obstruction and interference with the ordinary purposes of a street than the laying and maintaining of a railroad track upon its surface.
It is the general doctrine that municipalities, under the power of exclusive control over their streets, may allow any use of them consistent with the public objects for which they are held, and that uses for the purpose of sewers, gas pipes and water pipes are among those for which the use of streets may be granted.' 2 Dillon on Mun. Corp. (2d ed.) secs. 544, 551, and authorities there cited.
By section 22 of its charter the city is further empowered “to provide the city with water, to erect hydrants and pumps in the street for the convenience of the inhabitants. ” (Private Laws 1857, p. 181.) By implication from this express power to supply the city with water, the power .to grant the use of the streets, as was done in the ordinance of August 7, 1873, existed in the city council of Quincy.
In 2 Dillon on Mun. Corp. (2d ed.) sec. 551, it is laid down: “The use of streets for the purpose of laying down water pipes, stands upon the same principle as their use for sewers and gas pipes. Where the charter gives to the city, in terms, the power to supply, or authorize the inhabitants to be supplied with, water, the municipal council may use, or as an incidental power may permit the contractor to use, the streets for this purpose, and the adjoining fee-holder is not entitled to compensation as for a new servitude, for it is not such, but only a proper or necessary use incident to a street in a populous place. ” And see, State ex rel. v. Cincinnati Gas Co. 18 Ohio St. 295; Indianapolis v. Gas Light Co. 66 Ind. 396; Des Moines Gas Co. v. Des Moines, 44 Iowa, 508.
Under this power to provide the city with water, then, the city might have erected its own water works and supplied itself with water, or it might have contracted with some one else to construct the water works and furnish the supply of water to the city. The city council saw fit to adopt the latter course, and accordingly, by the ordinance in question, made a contract with Prince that he should construct the watei: works, and at his own expense, and furnish the city with water. The use of the streets for the purpose of laying the water pipes may be regarded as indispensable for the construction of the water works, so that the power to contract for their construction included, as a necessary incident, the power to contract for the use of the streets for the purpose.
We thus find that there was full power in the city council to contract with Prince for the construction of these water works, and for his use of the streets for that purpose. This privilege of the use of the streets by Prince is not a mere license, revocable at the pleasure of the city council, but it is a grant under an express contract, for an adequate consideration received, and binding as such.
The position taken by appellant in opposition to the binding force of the ordinance, as it respects the use of streets, is, that the city, in the passage of the ordinance, was acting in its public, not its private, character, and that the act was a legislative or governmental act, in the exercise of the city’s legislative power of control over the use of its streets, which power of control was incapable of being abridged, but must be left free, to be exercised unrestrictedly from time to time, as the city council may see fit; and the case is put as if it were a diversion of the use of the streets from the purpose for which they were dedicated, and the permitting an obstruction in them by an individual for his private use. As we have seen, this was no diversion of the use of the streets from their proper purpose, but a use of them consistent with such purpose. It was not for a mere private object, but for the public benefit of the city, in supplying it with water. We do not perceive how the doctrine as to the legislative governmental powers of a municipality can be brought in and have any bearing upon the facts of this case. See DeVoss v. City of Richmond, 18 Gratt. 338; 1 Potter on Corp. secs. 376, 395.
We have found that the city council had power to make this contract for the use of the streets; that it had power to contract for the putting in of the water works; that they could not be constructed without the use of the streets for the purpose,—and, therefore, the power to contract for the water works included, as a necessary incident, the power to contract for the use of the streets for that purpose. The power to make a contract, but not to make a binding one, is unmeaning. Where there is power to make a contract, there is power to make one that shall bind. We see no more to be involved here than the simple law of contract,—whether a municipal corporation may at its will repudiate the obligation of a fair contract which it has made, and which it was authorized to make. The attempt is to take back a grant which the city has made under a contract. The' State itself may not revoke a grant it has made. The city must be bound by the contract and grant it has made, and had authority to make, the same as would an individual. 1 Potter on Corp. sec. 376; City of Burlington v. Burlington Street Ry. Co. 49 Iowa, 144.
Nothing hereinbefore said is to be taken as in any way in conflict with the decision in Prince v. City of Quincy, 105 Ill. 138. While the agreement for the payment of money may not be of obligatory force upon the city, because of the constitutional inhibition to incur any indebtedness when it is in debt beyond the limit prescribed by the constitution, yet in all other respects the contract may be valid and binding upon the city. We do not consider that the ordinance, or the injunction allowed, is a prevention of the exercise of the police power of the city over the streets, so as to debar the city council’s making, or complainants being subject to any, proper and reasonable police regulation with respect to the manner of making use of the right of way granted.
An objection is taken to the form of the decree in the respect of the duration of the injunction, it being made perpetual. We think the decree must be considered with reference to the claim of right which is made, and that the fair construction of the injunction is, that it is coextensive with the existence of the rights granted by the ordinance of August 7, 1873, and has no further extent.
The judgment of the Appellate Court must be affirmed.
Judgment affirmed.