Vill. of London Mills v. White

• Decision Date: 17 February 1904
• Citation: 208 Ill. 289,70 N.E. 313
• Parties: VILLAGE OF LONDON MILLS et al. v. WHITE et al.
• Court: Illinois Supreme Court

208 Ill. 289

70 N.E. 313

VILLAGE OF LONDON MILLS et al.

v.WHITE et al.

Supreme Court of Illinois.

Feb. 17, 1904.

Appeal from Appellate Court, Third District.

Bill for injunction by Edward White and others, as co-partners under the name of Fairview-London Telephone Circuit, against the village of London Mills and others. From a judgment of the Appellate Court (105 Ill. App. 146) affirming a decree for complainants, defendants appeal. Affirmed.Chiperfield & Chiperfield and Thomas & Robison, for appellants.

A. M. Barnett, Lucien Gray, and M. P. Rice, for appellees.

On November 30, 1901, a bill for an injunction was filed by Edward White and others, appellees, against appellants, in the circuit court of Fulton county. The court permitted the complainants to amend their bill, and, as amended, a demurrer was interposed by appellants, which was overruled. A decree pro confesso was entered, and an injunction was awarded in accordance with the prayer of the bill. The cause was appealed to the Appellate Court for the Third District, where the decree of the circuit court was affirmed, and an appeal was thereupon taken to this court.

The bill alleges that the complainants are residents of this state, and, as copartners under the name of Fairview-London Telephone Circuit, have since April 2, 1900, operated a telephone system; that the system is used by members of the company, the public generally, and other connecting telephone companies; that the system connects the village of London Mills with Fairview, and furnishes telephonic communications for a large number of farmers, members of the circuit; that it has always been open to use by the public upon payment of customary charges, and is in competition with other lines; that it has expended the sum of $1,500 in constructing its plant, and has 31 miles of wire and 38 telephones; that on April 2, 1900, the circuit presented the following petition to the president and board of trustees of the village of London Mills: ‘The Fairview-London Telephone Circuit would respectfully ask that they be granted the privilege of using the streets and alleys of the village for the erection and maintenance of the necessary poles and wires for the proper communication of said circuit in the corporate limits of your village;’ that said president and trustees, at a meeting on the same day, granted such privilege, and the following record was made and entered: ‘London Mills, April 2, 1900. A petition presented by the Fairview-London Telephone Circuit, asking privilege of using the streets and alleys of the village for the erection of a telephone circuit; petition granted;’ that complainants immediately accepted said privileges, and spent $350 in erecting poles, wires, and other fixtures in said village; that they were erected so as not to interfere with the use of such streets and alleys; that complainants united with four other telephone companies (naming them) in establishing an exchange office, and have entered into a contract with those companies to jointly maintain the same, and are liable on that contract.

The bill further avers that the London Power & Electric Company was on March 13, 1901, incorporated for $2,500, under the laws of this state, ‘to conduct and maintain a suitable plant and necessary conducting apparatus in said village, to furnish said village and surrounding vicinity with electricity, light and power, and a system of water-works, and a telephone exchange,’ and sets out the names of the subscribers to the capital stock, and the number of shares subscribed for by each person. It then sets out the names of the persons at that time constituting the village board. The bill then avers that the London Power & Electric Company, by its stockholders, and the village officers, conspired and confederated together to secure to the London Power & Electric Company the exclusive control of the telephone business centering at said village; that in furtherance of such conspiracy the village board passed an ordinance, which is then set out in haec verba, the substance of which, so far as the telephone system is concerned, provides that the right and permission are granted to the London Power & Electric Company to construct, erect, operate, and maintain poles, etc., upon the streets, alleys, and highways of the said village, for furnishing to the public communication by telephone, and a telephone exchange, and that these rights and privileges shall exist and continue to be exclusive and to be in force and irrevocable for 25 years, reserving the right to pass reasonable regulations pertaining thereto; that no telephone line or company entering and using the central or exchange office of said corporation shall be charged in excess of $1 per phone per year, nor in excess of $20 per year for any one line. This ordinance proceeds to repeal all ordinances, grants, or permissions in conflict therewith, with the proviso that lines and centrals already established in the village shall remain immune, and no change shall be made in them, except by mutual agreement, for a period of six months from the date of the ordinance.

The bill alleges that a majority of the village board that passed said ordinance were interested, as stockholders, in the London Power & Electric Company; that said ordinance was passed for the purpose of requiring all telephone companies to use the exchange office of said corporation at terms fixed by it, thereby increasing its profits; that appellees and the four other telephone companies using the joint exchange at the time this ordinance was passed permitted members of any one of them to use the lines and telephones of all five companies without charge; that after March 25, 1901, the London Power & Electric Company established its exchange, and by threats attempted to compel all other companies in said village to connect their lines with such exchange; that about May 1, 1901, two companies were permitted to enter said village without any license or permit from the village authorities, on condition that they would connect with the exchange of said corporation, and that they have not been molested since; that the village board passed another ordinance imposing a fine for making discrimination between persons, and providing that no telephone company should charge any individual or member of any line any fee which is not charged to each member of every line connected therewith, and should give to all individuals the same service accorded to others; that under this ordinance said board and the stockholders of said corporation threatened the companies having the joint exchange, and the operator in charge of such exchange, with prosecution under such ordinance unless free telephone service was accorded to the public, and free transfer fees to other telephone companies were allowed, all of which was done to compel the five companies to enter the exchange of said corporation.

The bill further alleges that another ordinance was passed by said board specifically naming the Fairview-London Telephone Circuit and two other companies, and providing that the rights and privileges granted to these and all other individuals and companies, except the London Power & Electric Company, were thereby revoked and repealed, but providing that the plants might be used and maintained until September 25, 1901, but that no change or extension should be made in such systems without the consent of said board, the London Power & Electric Company, and all other parties and companies interested; that a bill for an injunction was filed by the London Power & Electric Company against the companies operating the joint exchange, to restrain them from violating said ordinances; that one of these five companies withdrew from the joint exchange and entered the exchange of said corporation, and said suit was thereupon dismissed as to such company, and is still pending as to the other companies; that on November 7, 1901, a notice was served on the Fairview-London Telephone Circuit by the village authorities, notifying and requiring said circuit to remove from the streets and alleys of said village all poles, wires, and other fixtures used, owned, controlled, and operated by it upon and across any such streets and alleys within 30 days, and that, in case of failure to comply with such demand, the said village would take the necessary steps to remove such poles, wires, etc., according to law; that the London Power & Electric Company is counseling and advising with the village authorities to carry out said threats for the purpose of compelling all companies to enter their exchange or leave the village; that no such notice has been served on any company entering the exchange of said corporation.

The bill alleges that the foregoing ordinances are against public policy and void; that complainants believe said village is about to carry out the threat to remove the telephone appliances of complainants, which will result in irreparable loss.

The village of London Mills, the president and board of trustees of the village, and the London Power & Electric Company are made defendants. The bill asks that the ordinances be declared null and void, and that defendants be enjoined from carrying out their threats and from interfering with the telephone business of the complainants.

SCOTT, J. (after stating the facts).

In this case the record of the president and board of trustees of the village of London Mills recites the presentation of the petition of the appellees, ‘asking the privilege of using the streets and alleys of the village for the erection of a telephone circuit,’ and shows that the permission was granted by resolution or motion. Acting thereon, appellees expended a considerable sum of money in establishing their lines along the streets and alleys of the village of London Mills. It is a necessary conclusion from the averments of the bill that these lines were so established with the knowledge of the...