People ex rel. Rockwell v. Chicago Telephone Co.

Mr. Justice Cooke delivered the opinion of the court: The errors assigned by the petitioner and by the city of Chicago question the action of the circuit court in refusing to extend the writ of mandamus so as to require the telephone company to transmit telephone calls, without extra charge or toll, from its subscribers in that portion of the city of Chicago known as Austin to its subscribers in any other part of the territory embraced within the town of Cicero in 1898, including the village of Oak Park, and also in refusing to extend such writ so as to require the telephone company to transmit telephone calls, without extra charge or toll, from its subscribers in any part of the city of Chicago to its subscribers in any part of the territory embraced within the town of Cicero in 1898. A right in favor of subscribers in that portion of the city of Chicago known as Austin to telephone to subscribers in Oak Park, Berwyn and Cicero without extra charge is claimed by virtue of the provisions of the ordinances of the town of Cicero passed November 24, 1894, and December 19, 1898. The contention that all subscribers in the city of Chicago have the right to telephone, without additional charge, to subscribers in Oak Park, Berwyn and Cicero is based upon the supposed right of subscribers residing in that portion of the city of Chicago known as Austin to telephone, without extra charge, to subscribers in Oak Park, Berwyn and Cicero, and upon the provisions contained in the ordinance passed by the city council of the city of Chicago on November 6, 1907, requiring the company to furnish telephone service to all subscribers in the city of Chicago without discrimination, it being contended by the petitioner and by the city of Chicago that as the telephone company is required by its contract with the town of Cicero to transmit, without extra charge, telephone calls from its subscribers in that portion of the city of Chicago known as Austin to its subscribers in Oak Park, Berwyn and Cicero, it must, in order to comply with the provisions of the Chicago ordinance, furnish the same kind of service to all other subscribers in the city of Chicago, without discrimination. The petitioner seems to regard the provisions of the ordinances of the town of Cicero which granted to‘ the telephone company the right to use the streets and alleys located in the territory which was included within the limits of that town in 1898 as constituting a contract between the town and the telephone company, which could only be abrogated or changed, in SO' far as it affected or applied to the whole or any part of that territory, by consent of the town. That is an erroneous view of the effect of an ordinance by a municipality granting to a public service corporation the right to use the streets, alleys and highways located within the limits of the municipality. Primarily the General Assembly, representing the people at large, possesses full and paramount power over all highways, streets and alleys in the State. I11 the distribution of governmental powers it has, however, delegated to municipalities the power to regulate and control the use of the streets and alleys within their respective limits, and municipal authorities, when exercising the power thus delegated, are acting in behalf of the State for the benefit of the people. (People v. Suburban Railroad Co. 178 Ill. 594; Harder’s Storage Co. v. City of Chicago, 235 id. 58.) In granting to the Chicago Telephone Company a license to construct its poles, wires and other fixtures in the streets and alleys of the town, the board of trustees of the town of Cicero was exercising the power to regulate and control the use of the streets and alleys within the limits of the town which had been delegated to it by the General Assembly. It was exercising a legislative function as a governmental agency of the State, and the grant was made by the town in its governmental and not in its proprietary capacity. (People v. Suburban Railroad Co. supra; Roby v. City of Chicago, 215 Ill. 604.) The grant thus made was a license which, when accepted by the telephone company, became a contract between the town, as a governmental agency of the State, and the telephone company. (City of Quincy v. Bull, 106 Ill. 337; People v. Chicago Telephone Co. 220 id. 238; City of Chicago v. Chicago Telephone Co. 230 id. 157.) Neither the town of Cicero nor any other municipality succeeding to its governmental powers over the streets and alleys of the territory then included within the town of Cicero, or any part thereof, had or could have any right to repudiate the contract or take back the grant without the consent of the telephone company; (City of Quincy v. Bull, supra;) and likewise the telephone company would have no right to repudiate the contract or avoid the obligations imposed upon it by the ordinance without the consent of the governmental agency in control of the streets and alleys in which it desired to continue to maintain and construct its poles, wires and other fixtures. No individual citizen of the town of Cicero, as the town existed in 1898, and no subscriber to the telephone service of the company, obtained any vested rights under the contract between the town .of Cicero and the telephone company. The board of trustees of the town of Cicero could, so long as it retained control over the streets and alleys in which it had granted to the company the right to construct and maintain its poles, wires and fixtures, with the consent of the company, change the terms and conditions upon which the company was granted the use of the streets and alleys without obtaining the consent of any of the citizens of the town or subscribers to the company’s telephone service. In 1899 that portion of the town of Cicero known as Austin was detached from the town of Cicero and annexed to the city of Chicago. The legality of the annexation was established in the case of Town of Cicero v. City of Chicago, 182 Ill. 301, and we there said: “When this territory [Austin] was detached from that corporation [Cicero] it was no longer a part of it for any purpose, and the municipal franchise [of the town of Cicero] could not extend over it or operate within it for township or other purposes. By the annexation the territory becomes subject to the municipal powers of the city of Chicago.” Upon the annexation of the territory known as Austin to the city of 'Chicago the power to regulate and control the use of the streets and alleys and public ways in that territory was immediately transferred from the town of Cicero to the city of Chicago, and while the city of Chicago had no right to repudiate the contract which had been made between the town of Cicero and the telephone company with reference to the use of the streets and alleys in that territory by the telephone company, it did have the same right as the town of Cicero had theretofore possessed to change that contract, with the consent of the telephone company, or make an entirely new contract with the company, and thereby impose other or additional conditions upon which the company should thereafter use the streets and alleys in that territory, or to relieve the company entirely from the performance of the conditions attached to the grant by the town of Cicero of the use of the streets in that territory by the company, and the town of Cicero had no power to deprive the city of Chicago of that right by inserting a provision in the ordinance passed December 19, 1898, that the limits of the town, as it then existed, should continue to exist until the year 1947 for the purpose of subjecting all the territory within such limits to certain provisions of that ordinance. The legislature had granted to the town of Cicero the power to regulate and control the streets and alleys within its limits only so long as those streets and alleys remained within the limits of the town. Any attempt by the town to retain control of such streets and alleys after they ceased to be within the limits of the town was ultra vires and void, and any contract made by it with reference to the use of those streets and alleys must necessarily have been made subject to the right of the legislature to transfer jurisdiction over those streets and alleys to another municipality. The abrogation of such contract by another municipality to which the legislature has transferred the power of control formerly exercised by the town of Cicero over certain streets and alleys is not depriving the town of Cicero of any legal or constitutional right. The city of Chicago, on November 6, 1907, passed an ordinance granting to the telephone company the right to construct, maintain, repair and operate in the public streets, alleys and other public ways of the city of Chicago its system of wires, cables, poles and other fixtures until January 8, 1929. That ordinance in express terms relieved the company from all future obligations imposed by any ordinance under which it had theretofore operated in the city of Chicago, and required the company, as one of the conditions of the grant, to file a written release and waiver of any right to construct, erect or maintain its poles, wires and other fixtures within the city of Chicago under or by virtue of any ordinance, grant or license from any other municipal corporation. By the acceptance of this ordinance the company was relieved of all its obligations under the ordinances of the town of Cicero in so far as they applied to any territory in the city of Chicago, and thereby received a new grant from the city of Chicago of the right to use the streets and alleys of the territory known as Austin upon different terms and conditions than those under which it had held such right under the grant from the town of Cicero. No obligation was imposed upon the company by the Chicago ordinance to furnish telephone communication, without extra charge, between subscribers in the territory known as Austin and subscribers at any place outside the city of Chicago, but the right of the company to malee an additional charge for such service was expressly recognized, subject to the limitation that the charge for communication from subscribers in the city of Chicago to subscribers residing within certain territory outside the limits of the city of Chicago should not exceed certain rates. It follows that there was no error in the action of the ■circuit court in refusing a writ of mandamus to compel the telephone company to transmit telephone calls, without extra charge or toll, from its subscribers in the city of Chicago, or its subscribers in that portion of the city of Chicago known as Austin, to its subscribers in any other part of the territory embraced within the town of Cicero in 1898, including the village of Oak Park. The cross-errors assigned by the telephone company question the action of the circuit court in awarding the writ of mandamus, commanding it to forthwith transmit telephone calls, without extra charge, from subscribers in the village of Oak Park to subscribers in any part of the territory which was embraced within the town of Cicero in 1898, including the territory in the city of Chicag'o known as Austin. There is no allegation in the petition that the company is making, or contemplates making, any extra charge for telephone service between subscribers in the village of Oak Park and subscribers in any part of the territory embraced within the limits of the town of Cicero in 1898, except the territory known as Austin. The right to telephone service, without extra charge, between subscribers in Oak Park and subscribers in any territory not embraced within the limits of the city of Chicago is therefore not an issue in this case and is not determined upon this appeal. The cross-errors must prevail for the reasons above stated in discussing the alleged right of subscribers ¿11 Austin to telephone to subscribers in the village of Oak Park. When the company accepted the ordinance passed by the city of Chicago in 1907 it ceased to operate its telephone system in the territory known as Austin under the license from or contract with the town of Cicero. That territory was, upon such acceptance, withdrawn from the operation of the terms and provisions of the ordinances of the town of Cicero, notwithstanding the provision contained in section 4 of the ordinance of December 19, 1898, that the “present limits of the town of Cicero shall be considered as if constituting the limits of one of the company’s exchanges, so that local subscribers in one part of Cicero may communicate with local subscribers in another part without additional charge.” The telephone poles, wires and other fixtures in the territory known as Austin are now part of the telephone system which the company is operating in the city of Chicago under a contract with the city of Chicago. Moreover, the subscribers to the telephone service of the company in that territory are no longer local subscribers in Cicero, and are therefore no longer such subscribers as the local subscribers now residing in the town of Cicero or in the village of Oak Park are by section 4, supra, given the right to communicate with by means of appellee’s telephone system without charge. It is unnecessary to discuss any other questions argued by the parties upon this appeal. The answer of the telephone company was a complete answer to the petition, and the facts,, set up in that answer constitute a bar to the re- ' lief sought by the petition. The judgment of the circuit court is therefore reversed and the cause will be remanded to the circuit court, with directions to overrule the- demurrer of the petitioner to the answer of the Chicago Telephone Company. Reversed and remanded, with directions.