dissenting:
We do not agree with the conclusion of the court that the city council of the city of Moline could determine that appellee had not complied with the provisions of the ordinance, and without any other adjudication of the matter, and without affording appellee an opportunity to be heard, repeal the ordinance authorizing it to maintain and operate its telephone system in the city. In Chicago Municipal Gas Light Co. v. Town of Lake, 130 Ill. 42, this court said (p. 54) : “The privilege of the use of the public streets of a city or town, when granted by ordinance, is not always a mere license and revocable at the pleasure of the municipality granting it, for if the grant is for an adequate consideration and is accepted by the grantee, then the ordinance ceases to be a mere license and becomes a valid and binding contract; and the same result is reached where, in case of a mere license, it is, prior to its revocation, acted úpon in some substantial manner, so that to revoke it would be inequitable and unjust.” This is approved in subsequent cases decided by this court and is in harmony with decisions of courts of last resort in other States.
If the ordinance, when accepted and acted upon, becomes a valid and binding contract and no power of revocation is reserved to the city in the ordinance, we are unable to see any authority in the city council to repeal it because it concludes the telephone company has not complied with the requirements of the ordinance. Differences of opinion may well arise as to whether the conditions of the ordinance have been kept and performed by the telephone company, or, if there has been any failure in this respect, whether such failure was in a material respect. The rule of law we think was correctly stated in City of Belleville v. Citizens’ Horse Railway Co. cited in the opinion of the court, in the following language: “But when a term of the contract is broken and there is no agreement that the breach of that term shall operate as a discharge, it is always a question for the courts to determine whether or not the default is in a matter which is vital to the contract, for if it is not the contract will not be discharged.”
In Michigan Telephone Co. v. City of St. Joseph, 121 Mich. 502, the city of St. Joseph granted the Telephone and Telegraph Construction Company permission to erect poles and string wires in its streets for a telephone system, which it did at large expense. Afterwards that company sold its properties, rights and privileges to the Michigan Telephone Company, which company continued the poles and wires in said city and operated a telephone exchange therein. The Michigan Telephone Company furnished the city two telephones free and four others at reduced rates. It also permitted the city to use its poles for fire alarm wires without charge. After the use of the streets six years by the telephone company, under the permission given by the city, the council passed a resolution declaring the poles and wires a nuisance and directing the street commissioner to remove them. The Michigan Telephone Company filed a bill asking that the city be enjoined from removing its poles and wires, and the Supreme Court of the State of Michigan said: “When the construction company and the complainant accepted the privileges granted to them by the laws of the State, and the municipality had duly given its permission and the corporations had expended their money in making valuable improvements, contracts were entered into which neither the State nor the municipality could impair or destroy, in the absence of power to do so being reserved in the grant itself, or in the constitution, which becomes a part of all such contracts.”
The opinion in this case holds that the proper issue to be tried under the pleadings is whether appellee has violated the terms of the ordinance. The effect of such holding, as we understand it, is, that if, on the trial, it shall be found appellee has not violated the conditions of the ordinance, then said ordinance is not repealed and the repealing ordinance is of no effect. If, on the other hand, it shall be found appellee has violated the conditions of the ordinance, then said ordinance is to be considered as having been repealed and the repealing ordinance is made valid and effective. In other words, the city may pass a repealing ordinance without any previous hearing or adjudication to determine the existence of the grounds upon which it bases its right to repeal, and if the telephone company refuses or fails to vacate, may have the validity of the action determined afterwards in a quo warranto proceeding. This seems to us a reversal of the proper order of procedure. If the city council had the legal right to repeal the ordinance, the repealing ordinance was effective from the time of its passage. It seems unusual to say that in the absence of a reservation in the ordinance of power to do so the city of Moline could terminate the contract with appellee, and if appellee refused to acquiesce in the action of the city council the city could then call upon the courts to adjudicate the fact as to whether appellee had failed to comply with the terms of the contract. It is very clear that appellee was bound to a substantial compliance with the ordinance and could not avoid the duties and liabilities imposed by it, but we are of opinion that whether it was in default should be adjudicated before its rights could be annulled and its property destroyed or damaged, instead of afterward.