Metropolitan Gas Co. v. Village of Hyde Park , 1888 Ill. App. LEXIS 537 ( 1888 )

Morar, J.

Appellee takes the position in its answer that appellant had no authority whatever to lay gas pipes or mains in the streets of the village, and admits that, after the receipt by the authorities of the communication from appellant that it would immediately proceed to lay gas mains and júpes in Myrtle and Lake avenues and other streets, the,president and hoard of trustees ordered the captain of police to prevent aj>pellant, or any person acting for it, to lay gas pipes or mains in „ any part of the streets. That being the position of the village authorities, it was wholly unnecessary for the gas company to make an actual attempt to lay pipe in some street before applying to the court to restrain the officers from forcibly preventing the operations of the company.

The threat to use force will justify the interference of the court if the complainant is otherwise entitled to the relief,and particularly is this so when, in the answer, the legal right of the complainant is denied and the intention-to use force to prevent the accomplishment of the act is admitted.

The suggestion by counsel for appellee that complainant should have applied for a permit is not tenable, for the reason that the answer and proof shows that no permit would be granted, as the village authorities denied complainant's legal right, and for the further reason that the conditions are not shown to have been in existence, which made it necessary for the company to have a special permit under the ordinance of the village.

The propriety of the action of the court below in refusing the relief sought by the bill depends on the question whether there was a valid ordinance which had been passed by the village and accepted by appellant, and which thus became a binding contract between appellee and appellant before the repealing ordinance of May 12, 1883, was passed by the village board.

We are disposed, in the determination of this question, to confine ourselves to the consideration of the ordinance of August 7, 1882. The only objection to the validity of this ordinance is that it gave complainants the period of five years in which to commence the erection of gas works. If the provisions of the ordinance relating to the time within which the operations of the company were to be commenced were treated as invalid,, the remaining provisions of the ordinance would stand as they are, not connected with or dependent upon the time clause. The company would be forced to accept the ordinance and act under it within a reasonable time. The ordinance then as passed must be held to have been a valid grant to the company to lay gas pipes and mains in the streets of the village and to furnish gas to the inhabitants, and the remaining question is whether said ordinance was accepted and acted upon by the appellant within a reasonable time.

It appears from the record that within four months from the passage of the ordinance appellant, through its officers, procured a person who had experience in the construction and operation of gas works, to examine certain real estate in the village, in order to determine its suitability as a location for such gas works as appellant was required to erect; and that upon said expert reporting favorably as to said real estate, the same was purchased by appellant for the sum of §10,800, and the title to the same vested in appellants by a sufficient deed.

On May 1, 1883, and within nine months after the passage of said ordinance, Bradley and Torrence, who were promoters, stockholders and officers of the appellant company, made in their own names, with Springer, a contract for the erection and equipment of gas works upon the land so purchased and held by appellant; said works to he ready to furnish gas within six months from the date of said contract, and the works, when so completed, to be turned over to the appellant. As consideration to Springer, Bradley and Torrence assigned to him all their interests in the capital stock of the appellant company, and in and to its property and franchises, and authorized him to issue bonds of the company secured by trust deed upon its property, and, after said bonds were issued, Springer was to re-assign to said Bradley and Torrence one-tliird of the capital stock of the said company.

On May 12th the village was notified of the purchase of said land by appellant, and of the making of said contract, and that such acts had been done under and in view of said ordinance.

Did those acts, done, as we are hound to believe from the evidence they were done, in good faith, constitute a sufficient acceptance by the appellant of said ordinance, so as to bind the company and create an obligation to erect gas works and furnish the inhabitants of the village with gas?

There does not appear to have been any formal acceptance of the ordinance at the meeting of the board of directors of the company, bnt while such an acceptance would probably be sufficient, yet that the ordinance was so accepted need not be shown, as acts done upon the faith of the ordinance, which are in furtherance of its purposes and induced by it, and which are known to the village or city granting the ordinance to have been done in pursuance and by virtue of the ordinance, will amount to a binding, acceptance without any formal acceptance by the managing board of the 'company. Acts which will constitute such acceptance must not be such as are merely equivocal in character, but there must be such acts as, given their fair import and interpretation, can be said to be done in furtherance of the purpose of the act.

Thus, it was held by the Supreme Court of Indiana, it was evidence of the acceptance of a railroad charter passed by the legislature in January, 1849, that in October, 1851, a meeting was held by a majority of the corporators named, when they determined to build the contemplated railroad under the charter. State v. Dawson, 22 Ind. 272.

We are of opinion that the purchase by appellant of land on which to erect its works after the passage of the ordinance, and the contract made for the benefit of appellant by persons who had invested a considerable sum for the promotion of the enterprise and who were stockholders of appellant, for the erection of gas houses and apparatus for appellant, were acts of an unequivocal character, done in pursuance of the object and purpose of the ordinance, and that when appellee had notice of those acts and the intent and purpose for which they were done, it became too late for appellee to repeal the ordinance, and that the same was and continues to be a valid and binding contract between the appellant and the village of Hyde Park.

The suggestion by counsel for appellee that the land which appellant purchased could be sold again, and therefore the purchase of it was not acting upon the ordinance as regarded the village, might be said of any act which the company could perform short of the actual laying of its pipe in the streets. A building erected by the company could, after its erection, be put to other uses than the manufacture of gas, and excavations made in the streets for pipe might be filled up again and no pipe be placed therein. The land might be purchased and the building erected and the pipe laid as a sham and a pretense, it is true,' but, if such acts were done in good faith, it is difficult to perceive why they would not be sufficient acceptance of such an ordinance as this when brought to the notice of the village.

Such acts should be regarded as done in good faith under the ordinance when the officers of the company so swear and there is no evidence to indicate the contrary.

The ordinance having been accepted before the repeal of May 12, 1883, constituted a binding contract between appellant and the village, and the village was therefore powerless to set it aside, and the attempted repeal was futile and without legal operation. City of Quincy v. Ball et al., 106 Ill. 337; City of Burlington v. Burlington Street Ry. Co., 49 la. 144; Railway Co. v. Village of Carthage, 36 Ohio St. 631.

The fact that the village had, by ordinance, granted exclusive privileges to the Hyde Bark Gas Company, and that said company have works in operation and can supply the wants of the village, can have no influence on the result of this case. The interests of the village, or the inhabitants thereof, are not likely to be injured by permitting two gas companies to distribute gas instead of one, and it is even possible that some advantage may come to the users of gas by allowing tlie competition.

We are of the opinion that the court erred in refusing the injunction prayed for, and the decree must be reversed and the cause remanded, with direction to allow the injunction in accordance with the prayer of the bill.

Reversed and remanded..