City of Edwardsville v. Cent. Union Tel. Co.

• Decision Date: 20 October 1923
• Docket Number: No. 15225.,15225.
• Citation: 309 Ill. 482,141 N.E. 206
• Parties: CITY OF EDWARDSVILLE v. CENTRAL UNION TELEPHONE CO.
• Court: Illinois Supreme Court

309 Ill. 482

141 N.E. 206

CITY OF EDWARDSVILLE

v.CENTRAL UNION TELEPHONE CO.

No. 15225.

Supreme Court of Illinois.

Oct. 20, 1923.

Error to Appellate Court, Fourth District, on Appeal from Circuit Court, Madison County; J. E. Gillham, Judge.

Action by the City of Edwardsville against the Central Union Telephone Company, Judgment for plaintiff was affirmed by the Appellate Court (227 Ill. App. 424), and defendant brings error.

Affirmed.Cutting, Moore & Sidley, of Chicago, and Charles W. Terry and Charles E. Gueltig, both of Edwardsville (J. Dwight Dickerson, of Chicago, of counsel), for plaintiff in error.

George A. Lytle, City Atty., and J. F. Eeck, Corp. Counsel, both of Edwardsville, for defendant in error.

CARTER, J.

This case involves an ordinance of the city of Edwardsville passed on July 7, 1914, imposing an obligation to pay 50 cents annually to the city for each pole or post over 8 feet high occupying any portion of a street, alley, or sidewalk, and used to support wire or to support signs or awnings or to display for the purpose of advertising. The telephone company, the plaintiff in error here, occupies the streets by virtue of an ordinance of 1882, granting permission to erect and maintain poles for the operation of a telephone system. This ordinance was supplemented by a resolution of the city council bearing date of September 7, 1897, requesting the telephone company to furnish certain service to the city without charge and certain additional service at a discount. The resolution of 1897 was accepted by the company.

This case has previously been before this court in City of Edwardsville v. Central Union Telephone Co., 302 Ill. 362, 134 N. E. 716. The case had been transferred to this court by the Appellate Court for the Fourth District on the ground that the Appellate Court had no jurisdiction of the case. 222 Ill. App. 660. Issues then presented to the Appellate Court involved, among others, constitutional questions, but this court held, in conformity with the established rule, that the question of constitutionality was waived by taking the appeal to the Appellate Court, and by assigning errors in that court which it had jurisdiction to hear and determine. We then held that the case was improperly transferred to this court, and transferred the case back to the Appellate Court for the Fourth District. The case is now here on certiorari to review the decision of the Appellate Court for the Fourth District. 227 Ill. App. 424.

[1][2] There is but one issue involved: Does the ordinance of 1914, imposing an annual charge upon poles, apply to this company? The Appellate Court held the ordinance applicable. All constitutional issues have been waived by taking an appeal to the Appellate Court, and such issues are not proper for consideration here.

The plaintiff in error argues that the decision of the Appellate Court is wrong, basing this argument primarily upon two grounds: (1) That the ordinance of 1914 is general in its terms, and should be construed as excluding from its operation any charge upon the poles erected by the company under the specific authority of the ordinance of 1882; and (2) that to construe the ordinance of 1914 as applicable to this company would violate the terms of a contract claimed to exist under the ordinance of 1882 as supplemented by the resolution of 1897, and that wherever possible constructions should be adopted to avoid the unconstitutionality of an ordinance.

By the ordinance of 1882 this company has the right to occupy the streets of the city of Edwardsville with poles for telephone service. The resolution of 1897, agreed to by the company, requesting that the company render certain services to the city, did not extend the rights of the company under the ordinance of 1882, but is argued to be a consideration by the company to the city for rights exercised under the grant of 1882, though it is urged at the same time that consideration is not material. Under the facts it is apparently the case that the company was in a position to grant or decline the request of 1897 without affecting its rights under the ordinance of 1882, though we do not regard this as material. As we said in City of Springfield v. Inter-State Telephone Co., 279 Ill. 324, on page 327, 116 N. E. 631, on page 633:

‘When the privilege of the use of a street is granted by an ordinance which is accepted and acted upon by the grantee, it becomes a contract binding upon the city from which it cannot recede.’

Under the first point suggested above-that is, plaintiff in error's contention that the general language of the ordinance of 1914 is controlled by and an exception read into it by the ordinance of 1882, supplemented by the resolutionof 1897-it is argued that the issue involved has been decided in favor of plaintiff in error by City of Springfield v. Inter-State Telephone Co., supra. As we read that case it does not decide the question here at issue. In that case there was an ordinance of August 5, 1901, levying a charge upon poles similar to that here involved. There was a later ordinance of December 9, 1901, granting to the company the right to establish a telephone system and erect poles therefor, and expressly specifying certain services to be performed for the right so granted. The terms of the later ordinance were properly construed to exempt the company from the application of the earlier ordinance on the ground that the later ordinance was a special one making an...