The City of East St. Louis v. the East St. Louis Gas Light

• Decision Date: 31 May 1881
• Citation: 1881 WL 10498,98 Ill. 415,38 Am.Rep. 97
• Parties: THE CITY OF EAST ST. LOUISv.THE EAST ST. LOUIS GAS LIGHT AND COKE COMPANY.
• Court: Illinois Supreme Court

98 Ill. 415

1881 WL 10498 (Ill.)

38 Am.Rep. 97

THE CITY OF EAST ST. LOUIS

v.THE EAST ST. LOUIS GAS LIGHT AND COKE COMPANY.

Supreme Court of Illinois.

Filed at Mt. Vernon Feb. 3, 1881.Rehearing denied May Term, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Fourth District;--the Hon. TAZEWELL B. TANNER, presiding Justice, and the Hon. JAMES C. ALLEN, and Hon. DAVID J. BAKER, Justices;--heard in that court on appeal from the Circuit Court of St. Clair county, the Hon. WILLIAM H. SNYDER, Judge, presiding.

Mr. M. MILLARD, and Mr. J. M. FREELS, for the appellant:

The only authority of the city to provide for the erection of lamp-posts and lighting the streets is found in art. 3, sec. 5, paragraph 6, vol. 1, Priv. Laws 1869, p. 889.

The power conferred is one of a public and continuing nature, and must be exercised by ordinance, and not by contract. The contract in question is not authorized by any provision of the charter, and is in conflict with its general purpose and policy, and illegally suspends the operation of the legislative and other powers of the common council for the period of ten years, and is contrary to public policy. 25 Conn. 20, 39, 40; 12 Abb. Rep. 360, 378; Presbyterian Church v. City of New York, 5 Cowen, 538; Coates v. Mayor, etc. of New York, 7 Id. 585; Milhau v. Sharp, 17 Barb. 435; Milhau v. Sharp (in Court of Appeals), 27 N. Y. 611; State v. Cincinnati Gas Co. 18 Ohio St. 262; Dillon on Mun. Corp. secs. 371, 372; Gale v. The Village of Kalamazoo, 23 Mich. 344; Butler v. Mayor of New York, 31 How. Prac. Rep. 251; Mayor and Aldermen of the City of Jackson v. Bowman, 39 Miss. 671; Gozzler v. Corporation of Georgetown, 6 Wheat. 593; East Hartford v. Hartford Bridge Co. 10 How. 535; Davis v. Mayor of New York, 14 N. Y. 506; Richmond County Gas Light Co. v. Middletown, 59 N. Y. 228; 1 Dillon on Corp. secs. 253, 254, 256, 257, 259, 296; Thompson v. Schemmerhorn, 6 N. Y. 92; State ex rel. v. Cincinnati Gas Light Co. 18 Ohio St. 290; Illinois and St. Louis Railroad and Canal Co. v. City of St. Louis, 2 Dill. Circuit Court Rep. 71; Harlem Gas Co. v. Mayor of New York, 33 N. Y. 307; Bradley v. Mayor, 20 Id. 312.

A city can not be held liable for a contract made by the municipal officers in violation of law. Fox v. New Orleans, 12 La. Ann. Rep. 154.

Contracts to violate the charter or to bargain away or restrict the free exercise of legislative discretion vested in the municipality or its officers, in reference to public trusts, are void. See action against Bowman, 35 Miss. 671; 1 Dillon on Mun. Corp. sec. 372; Munsell v. Temple, 3 Gilm. 93.

The principle is well settled, that the powers conferred upon a municipal corporation constitute a trust to be exercised for the public good, and can not be delegated, embarrassed, bartered away, or impaired by contract. Dillon on Mun. Corp. sec. 64; Cooley's Const. Lim. 206; State v. Mayor of New York, 3 Duer, 131.

It will be seen from the foregoing authorities, that the principle, that the officers of a municipal government can not bind their successors by any acts which tend to limit the exercise of the powers conferred by the charter of the corporation, has been applied to the following powers, analogous in their character to the one in question:

The power to control and regulate the public streets-- Davis v. The Mayor of New York, 14 N. Y. 506; Milhau v. Sharp, 27 Id. 611; The State v. The Cincinnati Gas Light and Coke Co. 18 Ohio St. 262. The power to regulate the grading and leveling of the streets-- Gozzler v. Georgetown, 6 Wheat. 593; Reynolds v. Shreveport, 13 La. Ann. Rep. 426. The power to provide for the cleaning and sweeping of public streets-- Britton v. The Mayor of New York, 21 How. Prac. 251. The power to provide for and regulate public markets-- Gale v. Kalamazoo, 23 Mich. 344. The power to regulate and control the public wharves-- Illinois, etc. Canal Co. v. St. Louis, 2 Dill. Circuit Court Rep. 70. A power identical with the one in question, namely, the power to cause the public streets to be lighted-- Richmond County Gas Light Co. v. Middletown, 59 N. Y. 228.

A municipal corporation may successfully interpose the plea of ultra vires,-- that is, set up as a defence its own want of power, under its charter or constituent statute, to enter into a given contract, or to do a given act in violation or excess of its corporate power and authority. The cases asserting these principles are numerous and uniform. Some of the more important and striking ones only need be cited. Mayor of Albany v. Cunliff, (city not liable for negligently building bridge, under an unconstitutional statute,) 2 Comst. (N. Y.) 165 (1849); reversing same case, 2 Barb. 190; Cuyler v. Trustees of Rochester (laying out street contrary to charter), 12 Wend. 165 (1834); Hodges v. Buffalo (4th July appropriation), 2 Denio, 110 (1846); Halstead v. The Mayor, 3 Comst. 430 (1850); Martin v. The Mayor, 1 Hill, 545; Boone v. Utica, 2 Barb. 104; Cornell v. Guilford, 1 Denio, 510; Boyland v. The Mayor and Aldermen of New York, 1 Sandf. (N. Y.) 27 (1847); Dill v. Wareham, 7 Metc. 438 (1844); Vincent v. Nantucket, 12 Cush. 103 (1858), per Merrick, J.; Stetson v. Kempton, 13 Mass. 272; Parsons v. Inhabitants of Goshen, 11 Pick. 396; Wood v. Inhabitants of Lynn, 1 Allen (Mass.), 108 (1861); Spalding v. Lowell, 23 Pick. 71; Mitchell v. Rockland, 45 Me. 496 (1858); same case, 41 Id. 363; Anthony v. Adams, 1 Metc. (Mass.) 284 (1840); Western College v. Cleveland, 12 Ohio, 375 (1861); Commissioners v. Cox, 6 Ind. 403 (1855); The Inhabitants v. Weir, 9 Id. 224 (1857); Smead v. The Indianapolis, Pittsburgh and Cleveland Railroad Co. 11 Id. 104 (1858); Brady v. The Mayor, 20 N. Y. (6 Smith) 312; Appleby v. The Mayor, etc. 15 How. Prac. 428; Estep v. Keokuk Co. 18 Iowa, 199, and cases cited by Cole, J.; Clark v. Polk County, 19 Iowa, 248; Clark v. City of DesMoines, 6 Am. Law Register, 149. Appellee claims that an interest bearing indebtedness is what the constitution was intended to prohibit; but that is not the doctrine of this court, as is well known. Springfield v. Edwards, 84 Ill. 626; Law v. People, etc. 87 Id. 385; New Orleans v. Clark, 95 U. S. 652.

Mr. R. A. HALBERT, Mr. JOHN B. BOWMAN, and Mr. C. F. NŒTLING, for the appellee:

As to the general powers of municipal corporations to make contracts to carry out the powers expressly conferred, counsel cited many authorities, among which are Cooley Const. Lim. 205; Dillon on Mun. Corp. secs. 371, 372; Douglas v. Virginia City, 5 Nev. 147; Tucker v. Virginia City, 4 Id. 207; Reynold v. Com'rs of Stark Co. 5 Ohio, 204; Allen v. Cerro Gordo Co. 34 Iowa, 54; City of Galena v. Corwith, 48 Ill. 423; People v. Hurlbut, 24 Mich. 103; Board of Park Com. v. Detroit, 28 Mich. 237; Bailey v. New York, 3 Hill, 531; Small v. Danville, 51 Me. 361; Philadelphia v. Fox,64 Penn. St. 180; Western College v. Cleveland, 12 Ohio N. S. 375; Western Saving Fund Society v. Philadelphia, 31 Penn. sec. 183; San Francisco Gas Co. v. San Francisco, 9 Cal. 453; Oliver v. Worcester, 102 Mass. 499; Dillon on Mun. Corp. sec. 39; Moodalay v. East India Co. 1 Brown's Ch. R. 469; State v. Tappan, 29 Wis. 664; Atkins v. Randolph, 31 Vt. 226; People v. Mayor of Chicago, 51 Ill. 30; DeVoss v. Richmond, 18 Gratt. 338; Lloyd v. Mayor of New York, 5 N. Y. (1 Seld.) 374; Touchard v. Touchard, 5 Cal. 306; Rochester White Lead Co. v. City of Rochester, 3 N. Y. 466; Bailey v. New York, 3 Hill, 531; Wheeler v. City of Philadelphia,77 Penn. St. 374.

It is contended that the power to provide for lighting the streets is a governmental power, because it is required to be exercised by ordinance. The usual mode by which cities may contract, is by ordinance. Dillon on Mun. Corp. secs. 373, 374; People v. San Francisco, 27 Cal. 655. And when the charter points out the mode, it must be pursued in making contracts, and when thus made it can be changed only by a vote of the council. Terre Haute v. Lake, 43 Ind. 430; Indianapolis v. Bly, 39 Id. 373.

Where a city contracts in its corporate capacity through its officers, acting by authority of an ordinance of the common council, the city is not at liberty to annul the contract so made by an ordinance repealing the one authorizing the contract. Having made the law the city is bound by it. State v. Heath, 20 La. Ann. 1721.

It has no more rights in that respect than an individual. Hewitt v. Town of Alton, 7 N. H. 257; Western Saving Society v. Philadelphia,31 Pa. St. 175; Prather v. New Orleans, 24 La. Ann. 41; Davenport Gas Co. v. Davenport, 13 Iowa, 233.

The right to borrow money does not nullify the power of a corporation to pay its debts, or provide for their payment at a future day. This power is a vital one. Mills v. Gleason, 11 Miss. 470; Dean v. City of Madison, 7 Wis. 688; Williamsport v. Commonwealth,84 Pa. St. 487; Bank v. Chillicothe, 7 Ohio, 221; Clark v. School District, 3 R. I. 197; Sheffield v. Andress, 56 Ind. 157; Tucker v. Raleigh, 75 N. C. 367; Douglas v. Virginia City, 5 Nev. 147; Sturtevant v. Alton, 3 McLean, 393; Lexington v. Butler, 14 Wall. 282.

As to the power of a city to create a debt, payable in the future, to carry out a given power, counsel cited Gale v. City of Kalamazoo, 23 Mich. 344; Ketchum v. City of Buffalo, 14 N. Y. 351; Grant v. Davenport, 36 Iowa, 396; Swartz v. Flatboats, 14 La. Ann. 244; Brown v. Duplessis, 14 Id. 842.

The constitutional provision does not apply to such a case as this. There was no debt except at the end of each month. At the time the city made this contract, it might lawfully have incurred an indebtedness of $20,000. On the ground assumed by the appellant, that a debt of over $300,000 was incurred by making the contract, twenty thousand of the debt would have been valid. It would only have been void in so far as it was in excess of the power to contract a debt. McPherson v. Foster, 43 Iowa, 48. See, also, Wiley v. Silliman, 62 Ill. 170; Marshall v. Silliman, 61 Id. 218; Grant...