# Village of London Mills v. White

> Illinois Supreme Court · February 17, 1904 · 208 Ill. 289

URL: https://www.frixlaw.com/law-library/cases/6971359

## Case

- **Full name:** The Village of London Mills v. Edward White
- **Court:** Illinois Supreme Court
- **Decided:** February 17, 1904
- **Citations:** 208 Ill. 289; 70 N.E. 313
- **Precedential status:** Published
- **Opinion:** Concurrence by Ruder
- **Judges:** Ruder, Scott
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Mr. Justice Mag ruder, specially concurring:
I concur in the conclusion reached by this opinion and in the opinion itself, so far as it holds that, where a village board has by resolution granted to the owner of a telephone line the use of its streets and alleys in which to set poles and to string wires for telephone uses, and has, by ordinance subsequently passed, recognized the existence of the right so granted, such grant, where it has been set apart and acted upon by erecting poles and stringing wires, is valid. That is to say, such resolution, when followed by an ordinance recognizing the existence of the right granted by the resolution, will be upheld; but the resolution itself, if there were no subsequent ordinance recognizing the existence of the right granted by it, would not be a sufficient authority to confer such right.
I think that the granting of the use of the streets for the purposes named in the opinion must be deemed a legislative act; that any action of a city council or village board, the effect of which is to grant to a corporation the use of the public streets, must be regarded as legislation of the highest character. Such a grant can not be accomplished by a mere resolution.
In Chicago and Northern Pacific Railroad Co. v. City of Chicago, 174 Ill. 439 , it was held by this court that the act of the city council in establishing the grade of a street is legislative in character, and must be put in the form of an ordinance, and not a mere resolution or order. The views upon this subject, expressed in Chicago and Northern Pacific Railroad Co. v. City of Chicago, supra, including the interpretation therein given to the case of City of Quincy v. Chicago, Burlington and Quincy Railroad Co. 92 Ill. 21 , have been approved and adopted in the following cases, to-wit: Village of Altamont v. Baltimore and Ohio Southwestern Railway Co. 184 Ill. 47 ; Claftin v. City of Chicago, 178 id. 549; Brewster v. City of Peru, 180 id. 124; Shannon v. Village of Hinsdale, id. 202; People v. Mount, 186 id. 560; Craig v. People, 193 id. 199. If the establishment of a street grade cannot be accomplished by a resolution, but must be effected by an ordinance, surely the granting of the use of a public street to a corporation should be by the high legislative act of an ordinance, and not by a mere resolution. In the case of City of Quincy v. Chicago, Burlington and Quincy Railroad Co. 92 Ill. 21 , such a grant by a resolution was upheld simply because of the recognition of the rights of the corporation under the resolution referred to in that case for a period of over twenty years, and the resolution was there held to be binding because of the deed made under it and the long possession held under such deed. The case is not authority for the position that such grant can be made by a resolution alone.
One of the reasons, why it is an unfortunate doctrine to hold that the use of the streets can be granted to a corporation by a mere resolution is the fact, that resolutions do not need to be submitted to the mayor for his approval. As was said in People v. Mount, supra, (referring to authorities): “The wise and salutary provision of the statute, which clothes the mayor with the veto power, may be defeated by a city council by the simple election on its part to change the form of its legislative acts into resolutions, instead of embodying them in ordinances, if it be true that municipal legislation can be accomplished by mere resolutions.” The mayor cannot exercise his supervisory power over the action of the council if important municipal legislation takes the form of a resolution. The responsibility to the People can be less easily evaded in the case of an individual than in the case of a body of men. Where so important an act is done by the common council as the granting of the use of the public, streets to a corporation, the mayor should have the power to veto such act if, in his judgment, the granting of the privilege or franchise is unwise, and against the interests of the • people. This supervisory power of the mayor is apt to be defeated where the result is to be accomplished by a mere resolution, instead of an ordinance.
Afterwards, on April 6, 1904, upon the consideration by the court of the petition for rehearing filed herein, Mr. Justice Scott, speaking for the court, delivered the following additional opinion:
It is now insisted the majority opinion heretofore filed in this cause, in so fat as it holds that a natural person may acquire the. right to maintain poles and wires for telephone purposes in the streets of a city or village, is in conflict with the case of Goddard v. Chicago and Northwestern Railway Co. 202 Ill. 362 . In that case it is held that the right to operate a street railway in this State is one that can be acquired and exercised, under existing laws, only by a corporation. Sections 11 and 12 of chapter 134 of Hurd’s Revised Statutes of 19dl expressly recognize the -right of natural persons to engage in the telephone business outside the incorporated limits of cities and villages, and we think that business one in which such persons may engage within cities and villages, subject, of course, to the limitation that they can not exercise the power of eminent domain. The casé at bar is thus distinguished from Goddard v. Chicago and Northwestern Railway Co. supra.
• The petition for rehearing will be denied.
Rehearing denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6971359. Public record. Not legal advice.