Tibbetts v. West & South Towns Street Railway Co. , 153 Ill. 147 ( 1894 )

Mr. Justice Carter

delivered the opinion of the court:

This was a bill for injunction, and the questions involved arose on appellee’s demurrer to appellant’s bill of complaint.

Counsel for appellee have assigned various grounds in support of their contention that the bill is insufficient to authorize the relief prayed, and elaborate arguments have been made on behalf of both parties ; but as the bill appears to us clearly insufficient in one respect material to appellant’s case, we do not deem it important to pass upon the other questions raised, however interesting they may be, and which, in their natural order, would arise further on in the inquiry.

The construction and operation of appellee’s railway in the streets mentioned in the bill are sought to be enjoined on the ground that the ordinances authorizing the work are rendered invalid by certain alleged defects in the petition of the land owners, which petition is by statute made a prerequisite to the passage of such ordinances. The statute reads : “The city council or board of trustees shall have no power to grant the use of, or the right to lay down any railroad tracks in, any street of "the city to any steam, dummy, electric, cable, horse or other railroad company, whether the same shall be incorporated under any general or special law of the State now or hereafter in force except upon the petition of the owners of the land representing more than one-half of the frontage of the street, or so much thereof as is sought to be used for railroad purposes; and when the street, or part thereof sought to be used, shall be more than one mile in extent, no petition of land owners shall be valid unless the same shall be signed by the owners of the land representing more than one-half of the frontage of each mile, and of the fraction of a mile, if any, in excess of the whole miles, measuring from the initial point named in such petition, of such street, or of the part thereof sought to be used for railroad purposes.”

Counsel for appellant, in his brief, says : “The contention of the appellant is, that the pretended ordinances are invalid, and that appellee is obstructing West Twenty - fifth street, and is about to obstruct Lawndale avenue; public streets of Chicago, without lawful authority. The exact question involved seems to be a new one. In a city like Chicago its importance cannot be over-estimated.”

So far as this case is concerned, the validity or invalidity of the ordinances in question must be determined by the allegations in the bill of complaint. By its demurrer, appellee admits the truth of all the material allegations of the bill, so far as they are well pleaded, but does not, of course, admit all the conclusions drawn by the pleader from the facts stated, and under the rules of pleading the bill must be construed most strongly against the complainant. The substance of the allegations of the bill respecting the passage of the ordinances, and respecting the petitions therefor by the land owners, amounts to this: That petitions of the owners of land fronting on these streets, representing more than one-half of the frontage of each mile and fraction thereof, as required by the statute, were presented to the council; that the council passed the ordinances; that the petitions were sufficient in all respects, except that the names of certain of the land owners, which are stated in the bill, appeared from said petitions to have been signed, not by themselves, but by others, without any authority appearing on or with the petitions for such signing.

Appellant’s theory seems to be,—and on that theory alone he attacks the validity of these ordinances,—that the petitions are invalid because they show on their face that the names of some of the signers were signed by agents, and the agents’ authority does not appear on or with the petitions themselves, and that without such signatures the petitions would not contain the requisite signers. It is not alleged that any name was signed without authority, but simply that the authority does not appear on or with the petitions. Nor is any fraud alleged. These allegations of the bill may be perfectly true, and on the demurrer must be so taken, and yet every name purporting to have been signed by another may have been so signed by full authority given orally or in writing, and the qouncil may have had before it ample evidence of that fact. If it be conceded, as contended by counsel for appellant, that the statute requires a written petition, it does not follow that the authority of the agent who signs the name of his principal to such petition must also be in writing, or, if in writing, that it should accompany the petition. There is nothing in the statute changing the common law rule by which an agent may sign the name of his principal to a writing under authority not in writing. “The common law does not require that an authority to an agent to sign an unsealed paper or a written contract should" also be by a writing. Thus, for example, an agent may, by a verbal authority or by a mere implied authority, sign or endorse promissory notes for another. And even where a statute, such as a statute of frauds, requires an instrument to be in writing in order to bind the party, he may, without writing, authorize an agent to sign it in his behalf, unless the statute positively requires that the authority also should be in writing.” Story on Agency, sec. 50; 1 Parsons on Contracts, (5th ed.) 47; Johnson v. Dodge, 17 Ill. 433 ; Doty v. Wilder, 15 id. 407.

Counsel for appellant insists that “authority to the land owner’s individual agent to act for the land owner, in a matter like that which is involved herein, must be in writing,—the land owner himself could not authorize the grant by parol,” and in support of his contention cites Woodward v. Seely, 11 Ill. 157, National Stock Yards v. Wiggins Ferry Co. 112 id. 384, and other authorities, which hold that a license, coupled with an interest in land, can be created by a writing, only, and quotes from Woodward v. Seely, supra, where Mr. Justice Trumbull said: “A right of way, it is said, cannot be granted by parol, but must be founded upon a deed or writing, or presumption which presupposes one.” We do not think the questions decided in those cases have any application to this. In the first place, it is not important to consider whether or not, under the statute, the petitions must be in writing, since the bill shows they were in writing. In the second place, by such petitions the land owners did not grant to the company any license, coupled with an interest, in their or appellant’s land. The road was not located on their lands, but in the streets, and the city of Chicago held the possession of and the fee in the streets, in trust for the public. It could not be said that the ordinances passed in pursuance of the petitions granted to the railway company any interest in the land of the abutting property owners, and much less could it be said that the petitions themselves' operated as such grant. It does not even follow, from the allegations of the bill, that in case the streets were vacated by the city, they would, in any part in front of appellant’s premises, revert to him.

It follows from what has been said, that upon a fair construction of the bill of complaint, under the rules of chancery pleading and the principles of law applicable to the questions involved, appellant has not successfully challenged the validity of the ordinances in question, which, as alleged, were passed by the city council. The judgment of the Appellate Court must therefore be affirmed.

Judgment affirmed.