City of Springfield v. Central Union Telephone Co. , 1913 Ill. App. LEXIS 167 ( 1913 )

Mr. Justice Thompson

delivered the opinion of the court.

It appears from the averments of the first and third pleas that the defendant is occupying the streets and alleys of plaintiff with a telephone system constructed originally under an ordinance that by its terms expired in December, 1903. The only claim of right to,occupy the streets and alleys of plaintiff made by the defendant is that it occupies as assignee of the rights granted to Thomas W. Wilson and S. M. Rogers under the ordinance of June 19, 1899. Under that ordinance Wilson and his associates and their assigns agree to furnish the city officials and the police and fire departments free telephone service, and that the plaintiff shall have the right to use the poles of Wilson and his associates and their assigns to support the wires used by plaintiff, “in connection with the police and fire alarm systems and all the rights herein granted shall be subject to all general ordinances of the city now in force.”

The substance of these pleas is that defendant occupies the streets of plaintiff as assignee of the ordinance passed June 19, 1899, which it insists is an ordinance granting the rights therein given to Wilson and others for a consideration to be received by the plaintiff from Wilson or his assigns, and that defendant has rendered all the services it has rendered to the plaintiff because they are required by that ordinance, and that the rental of one dollar for each pole is not required by the Wilson ordinance.

The ordinance of January 3, 1898, was enacted before the ordinance granting the right to Wilson and others was passed and was in force when they accepted the rights granted under the ordinance passed in 1899. The ordinance of 1898 provides that any person, firm or corporation owning, etc., shall pay annually the sum of one dollar for each pole over eight feet high which may occupy any portion of any street, alley or sidewalk. The ordinance requiring the payment of remuneration for the use of the streets of plaintiff by poles supporting electric wires is a general ordinance. Neither plea avers that it is not a general ordinance, nor are facts averred which show that Wilson and others and their assigns are not subject to the provisions of that ordinance. The acceptance by Wilson and others of the rights granted them by the ordinance of June, 1899, was an acceptance of the rights granted thereby subject to all the terms and conditions of the grant. The assignee of Wilson and others can have no greater rights in the street under the ordinance of 1899 than the grantees therein.

Neither the first nor third plea avers that the defendant as assignee of Wilson and others have furnished or given to the plaintiff anything since it became the assignee of Wilson and others, that Wilson and others and their assignees were not required to furnish and give to plaintiff as a consideration therefor, unless it be the operation of the fire alarm bell and that was required by the ordinance of 1883, and no charge is made therefor. By the acceptance of the ordinance of 1899, Wilson and others accepted such grant of privileges knowing that the general ordinances required the payment of an annual compensation to plaintiff of one dollar per pole. The ordinance is clear and free from ambiguity, the words must be taken in their ordinary sense and there is no room for construction. The court erred in overruling the demurrer to these pleas."

The ordinance of June, 1899, grants to Wilson and others, to be known as the Springfield Mutual Telephone and Telegraph Company, and to their assigns the right “to construct and operate a telephone and telegraph system” pursuant to the grant in that ordinance. From the averments of the pleas the Springfield Mutual Telephone and Telegraph Company did become incorporated. The defendant may in violation of public policy (Union Trust & Savings Bank of East St. Louis v. Kinloch Long Distance Tel. Co. of Missouri, 258 Ill. 202; People v. Union Gas & Electric Co., 254 Ill. 395) have become the assignee of the grant under the ordinance of June 3,1899, for the purpose of preventing competition, as contended by plaintiff, but there is no pleading raising that question.

The replication to the fourth and fifth pleas are that the defendant is estopped to plea that the ordinance fixing a remuneration of one dollar annually for each pole is unreasonable, and that defendant has rendered to plaintiff telephone services equal to or beyond the value of the use of the streets by the poles of defendant because said services were rendered pursuant to ordinances pleaded.

The ordinance granting to Wilson and others the right to construct and operate a telephone and telegraph system in the City of Springfield contains a section providing that the ordinance shall be null and void, if it shall not be accepted in writing and the construction of said system be begun within one year from the date of its passage. The question of the reasonableness of the grant was for the parties to decide. If the grantees in the ordinance were not satisfied with its terms they should have refused to accept it. Postal Telegraph Cable Co. v. City of Newport, 25 Ky. Law Rep. 635. Wilson and his associates had the right to accept or reject the terms of the ordinance. Having chosen to accept the ordinance with all its terms, they are hound by it and may not be heard to say that they accept the benefits and that they refuse the burdens imposed by it. The city had the right to give or withhold the privilege of constructing and operating a telephone system on its streets. One of the conditions under which the plaintiff granted to the assignors of defendant the right to occupy the streets with telephone poles was the compliance with the general ordinances of the plaintiff, one of which required the annual payment of one dollar as remuneration for each pole occupying the streets additional to the other conditions of telephone service specified in the ordinance. The ordinance having been accepted, neither the grantees nor their assignee may be permitted to repudiate any of its terms and conditions that are not contrary to public policy or prohibited by statute. Having been accepted it became a valid contract in its entirety. Chicago General Ry. Co. v. City of Chicago, 176 Ill. 253; Commonwealth Electric Co. v. Rose, 214 Ill. 545. The court erred in sustaining the demurrer to the replications to the fourth and fifth pleas. The judgment is reversed and the cause remanded with instructions to sustain the demurrer to the first and third pleas and to overrule the demurrer to the replications to the fourth and fifth pleas.

Reversed and remanded with directions.