People ex rel. City of Kewanee v. Kewanee Light & Power Co.

• Decision Date: 09 April 1914
• Citation: 104 N.E. 680,262 Ill. 255
• Court: Illinois Supreme Court
• Parties: PEOPLE ex rel. CITY OF KEWANEE et al. v. KEWANEE LIGHT & POWER CO.

262 Ill. 255

104 N.E. 680

PEOPLE ex rel. CITY OF KEWANEE et al.

v.KEWANEE LIGHT & POWER CO.

Supreme Court of Illinois.

Feb. 21, 1914.

Rehearing Denied April 9, 1914.

Appeal from Circuit Court, Henry County; Frank D. Ramsay, Judge.

Information by the People, on relation of the City of Kewanee and others, against the Kewanee Light & Power Company. From an order sustaining a demurrer to the information, relators appeal. Affirmed.

P. J. Lucey, Atty. Gen., and Nels F. Anderson, of Kewanee (J. T. & S. R. Kenworthy, of Rock Island, and Thomas J. Welch, of Kewanee, of counsel), for appellants.

Pam & Hurd, of Chicago, and Robert C. Morse, of Kewanee, for appellee.

DUNN, J.

This is an appeal from a decree of the circuit court of Henry county dismissing an information in chancery filed by the Attorney General and the State's attorney of Henry county, on the relation of the city of Kewanee and a number of its citizens and real estate owners, seeking to enjoin the maintenance in the streets of Kewanee, by the Kewanee Light & Power Company, of various gas mains and pipes now in the streets of that city. The appellee, the Kewanee Light & Power Company, demurred to the information and the demurrer was sustained. The appellants elected to abide by the information, and a decree was entered dismissing it.

The information alleged that the city of Kewanee was a municipal corporation organized under the laws of this state in January, 1897; that on August 6, 1872, the village of Kewanee was incorporated and continued as a village until the city of Kewanee was organized; that the Kewanee Light & Power Company claims to be a corporation organized under the laws of the state, and claims that a license was issued to it by the Secretary of State on July 8, 1899; that said corporation, shortly after being chartered, began to lay, operate, and maintain pipes for the distribution of inflammable gas for fuel and lighting purposes in the public streets and alleys of the city, and ever since that time has maintained, operated, and laid pipes in said streets and alleys; that neither the board of trustees of the village of Kewanee nor the city council of the city of Kewanee ever passed an ordinance granting a franchise to said corporation for that purpose; that the only ordinance ever passed by the board of trustees of the village of Kewanee which pretended to grant any such right was ordinance No. 50, approved on April 15, 1880. That ordinance provided that George B. Dunn, his heirs, successors, and assigns, should have the right to erect buildings and all works necessary to the manufacture of illuminating coal gas, and in consideration thereof should have the sole and exclusive right of selling and furnishing gas to said city and its inhabitants for 20 years. It granted the exclusive right for that term to lay such gas pipes in the streets, alleys, and sidewalks of the village, and provided that Dunn might occupy certain premises, after having acquired title thereto, for the purpose of building a gasometer and all necessary buildings for the manufacture of gas. It was further alleged that the only ordinance ever passed by the city councilof the city of Kewanee pretending to grant any franchise to lay pipes for the distribution of gas for fuel and lighting purposes was ordinance No. 37, approved on April 24, 1899, granting to the Kewanee Gas Light & Coke Company a franchise for a period of 25 years from October 1, 1900, which ordinance is set out in the information. The information then alleged that appellee, the Kewanee Light & Power Company, claims to be the assignee of all the rights granted to Dunn under ordinance No. 50, but that whatever rights may have been granted by that ordinance expired on October 15, 1900; that at the time ordinance No. 37 was passed there was in force an act of the General Assembly approved April 5, 1897, entitled ‘An act to regulate and prescribe the conditions for the granting of rights and privileges for lighting and heating purposes by cities, villages and incorporated towns, and providing a remedy by the property owners where such conditions have not been complied with.’ The information then set out in full the provisions of this statute, and alleged that no petition of the property owners owning property on any of the streets of the city of Kewanee, representing more than one-half of the frontage thereof, was ever filed with or presented to the city council prior to the passage of ordinance No. 37 and that the ordinance was not based upon any such petition; that since January 1, 1900, the appellee has torn up the public streets of the city, made excavations therein, piled dirt and rubbish along said excavations, to a greater or less extent has blockaded the streets, has laid pipes in such excavations through which is conducted inflammable gas for fuel and lighting purposes, in connection with such gas mains has constructed risers of iron pipe which project several inches above the surface of the street, and unless restrained by an injunction will continue to maintain all of these things against the objection and without the consent of said city. The information further alleged that ever since the passage of ordinance No. 37 the city has insisted that said ordinance was void because it was not based upon the petition of any property owners and has protested against the tearing up of the streets and the laying of gas mains therein; that there has been a continuous dispute between the city and the appellee as to the right of the appellee to use the streets of the city; that the appellee has claimed to be a public service corporation using the streets for the purpose of furnishing gas for public and private consumers; that during its occupancy of said streets the appellee has furnished gas of an inferior quality at an exorbitant price and in its dealings with the public has been oppressive and high-handed; that because of the attitude of appellee and its furnishing of inferior gas at exorbitant prices the city and the inhabitants thereof are desirous of ousting it from the public streets unless it will obtain from the city a franchise upon fair and equitable terms and upon petition of the owners of land, as provided in the statute. The prayer was that the appellee disclose to the court by what right or authority it claimed to be using the public streets and alleys, and that it be restrained from maintaining gas pipes and mains in any of the public streets and from laying any gas pipes in said streets.

The act of June 5, 1897 (Laws of 1897, p. 100), erroneously referred to both in the information and the demurrer as approved April 5, 1897, is as follows: ‘That the city council in cities, or the president and board of trustees in villages and incorporated towns, shall have no power to pass an ordinance granting to any person or corporation the right or privilege to lay any gas pipes for the distribution of inflammable gas for fuel or lighting purposes, or to pass an ordinance granting to any person or corporation the right or privilege to lay in or on the ground, or string on poles any wires on, over or by which electricity for lighting purposes is to be used, conveyed or distributed in any street, alley or public grounds in any such city, village or incorporated town, except upon the petition of the owner of the land representing more than one-half of the frontage on the street or alley, or so much thereof as is sought to be used for the purposes above mentioned, or any or either of them, and when the street or alley, or part thereof sought to be used shall be more than one mile in length, no right or privilege to lay pipes, or lay or string wires for lighting purposes, shall be granted, unless a petition therefor shall be presented to the city council of the city, or board of trustees of the incorporated town or village, in which such right or privilege is sought, 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 mile, measuring from the initial point named in such petition of such street or alley, or of the part thereof sought to be used for the purposes above mentioned, or either of them. Any person being the owner of, or interested in, any lot fronting on any street or alley, or part thereof, as is sought to be used for any or either of such purposes, shall have the right by bill in chancery, in his or their own name, to enjoin any person or corporation from using such street or alley, or part of street or alley, for either of such purposes, under any grant by the city council or board of trustees which is not made in conformity with the provisions hereof, and the sufficiency of the petition herein required shall be ascertained by the court in which such bill in chancery may be filed.’

One of the reasons set out as grounds of demurrer was that this act is special legislation and violates section 22 of article 4 of the Constitution. That section prohibits the Legislature from passing any local or special law changing or amending the charter of any town, city, or village, or granting to any corporation, association, or individual any special or exclusive privilege, immunity, or franchise whatever. By section 1 of article 5 of the Cities and Villages Act (Hurd's Rev. St. 1912, c. 24, § 62) the city council in cities is given authority to exercise the following powers: ‘Seventh. To lay out, to establish, open, alter, widen, extend, grade, pave or otherwise improve streets, alleys, avenues, sidewalks, wharves, parks and public grounds, and vacate the same. * * * Ninth. To regulate the use of the same. * * * Thirteenth. To regulate the openings therein for the laying of gas or water mains and pipes, and the building and repairing of sewers, tunnels and drains, and erecting gas lights: Provided, however, that any company heretofore organized under the general laws of this state, or any...