The ordinance of July 5, 1883, attempting to vacate a portion of Spring street for the exclusive use of the appellant, was not legally passed, as the record shows that at that time the council was composed of fourteen aldermen, of whom but nine voted for its passage, less than three fourths of all its members, the number requisite to pass a valid ordinance for the vacation of streets and alleys (B. S. 1874, Chap. 145, Sec. 1), and therefore under this ordinance the appellant can not sustain its position that it had the right to the use of the street to the exclusion of the public. This ordinance never having been passed by a legal majority of the council, the question arises whether by any other acts, ordinances, grants, or resolutions of the city, or by virtue of any law of the State, the appellant has acquired the right of possession and use of Spring street, to the exclusion of the public from its use as a way for travel. , The only other ordinance or resolution relating to the use of the street by the railway, is that of 1853, granting the right to the Belleville and Blinoistown Bail-road Company, to whose rights the appellant succeeded, to use certain of the streets for railroad purposes, with a proviso therein contained, as above set forth. This ordinance would seem to be a fair exercise of the powers conferred upon municipal corporations to permit the streets of the city to be used for railroad purposes, as while allowing such use, it carefully preserves the right of the public to the joint use of them as ways with the railroad company. While it has ever been held in this State that it was a legitimate use of a street or alley of a city or town to permit railroad tracks therein, yet it seems to be now the settled doctrine of the Supreme Court that such use must be consistent with the public interests in them, and such city or town can not confer upon any one an exclusive right to their use, thereby depriving them of their character of public highways. Thus, in the case of City of Jacksonville v. Jacksonville Ry. Co., 67 Ill. 540, the court says: " Streets and a public square are donated. Each has a well known and well defined use and meaning. The one was designed for the purpose of travel; and the right of passage over the streets in any mode not to destroy their usefulness, was given by the plat. * * * The power of the legislature to repeal the charters of municipal corporations can not be extended to the right to divert property to the public for one use to a wholly different and inconsistent use. The power can not exist to divert property from the purpose for which it was donated.” In the case of Quincy v. Jones et al., 76 Ill. 231, the court says: “ It is the unquestioned duty of the city in controlling and improving the streets, to prepare them for public use as streets at such time and in such manner as the public necessities may require. Holding them in trust for the public, and having no authority to convey or divert them for other uses, it would seem inevitably to follow that they can have no power to grant to individuals rights or easements in the street which might in any way interfere with the duty of preparing them for the public use, to meet the public necessities ; for it is obvious that if such rights may be granted, then the practical use of the streets may become so burdened with private rights as to place it beyond the pecuniary ability of the city to discharge its duty to the public with reference to them. It is not consistent to say that a city owes a duty to the public, and yet that it may voluntarily place it beyond its power to discharge that duty.” Also citing Dillon on Municipal Corporations, Sec. -541: “ The fundamental idea of a street is not only that it is public, but public for all purposes of free and unobstructed passage, which is its chief and primary, but by no means sole use.” In the case of Stack v. City of East St. Louis, 85 Ill. 377, in which several of the former decisions were reviewed, the court says: “ It is true that the city holds the fee, but it is in trust for the use of the public for the purposes of a street. The city has no power to sell, lease, or otherwise appropriate it to other purposes; nor can it be closed or obstructed so as to deprive the public from its use as a highway. Such public pass ways are indispensable to the owners of lots in cities and villages. They are laid out and appropriated for that purpose, and it is the duty of the city government to keep them open and in repair, for the use of all persons who desire to use them for travel or passage over them. It has, however, been held that a city or village may authorize the laying of railroad tracks in their streets ; that such a use is not inconsistent with the trust for which they are held by the city. But in thus permitting them to be used, the city has no right to so obstruct the streets as to deprive the public and adjacent property holders from their use as streets. The primary object is for ordinary passage and travel, and the public or individuals can not be rightfully deprived of such use,” etc. So in City of Morrison v. Hinkson, 87 Ill. 587, it was held that a part of the street only could not be permanently used by the city for the erection of a water-tank, even for the purpose of supplying the city and residents thereof with water. In the case of Pitts., Ft. W. & C. R. R. Co. v. Reich, 101 Ill. 157, the grant to the railroad company was similar to the resolution of 1853 in this case, in which the court says: “Although, in a general sense, highways or streets, where the fee is in the State or a municipal corporation, are lands belonging to the people of the State or to the municipal corporation, they are in legislation universally, so far as we recall, referred to as ‘highways,’ or ‘streets,’. and not as public lands. The ownership in reality in such cases is but nominal, and entirely subordinate to the public trust for which the title is held. It results, then, that while under its charter the railroad corporation may doubtless have had the right to lay its tracks in Stewart avenue, that right was not an exclusive one, and could only be enjoyed in common with the use of the avenue by the public as an ordinary highway, and without materially impairing its usefulness as such.” So in the case of Chicago Dock and Canal Co. v. Garrity, 115 Ill. 155, the court says: “It is not claimed that the use of streets can be permanently granted for private purposes ; and wo recognize as unquestionable law that the use of the streets, whether for vehicles drawn by animals, for those riding upon animals, for footmen, or for the passage of railway cars, must be for the public, and that no corporation or individual can acquire any exclusive right to their use, or the use of any part of them for private purposes.” The claim of the appellant here is to the exclusive right to use and occupy Spring street for railroad purposes, and to close up the street if they so desire, by leaving its cars upon the tracks of its road where they cross the street, thus preventing any person from crossing the track along the street. This we think, under the authorities cited, it can not do, nor can the city, in violation of its trust to the public, authorize it so to do. It is not denied by the appellee that the appellant has a right to use the street in common with the public, but denies its right to the exclusive use of it, or unreasonably to obstruct public travel upon it by leaving its cars standing upon it as a place of storage for them. The acts of the city officials and the ordinance of the city, properly passed, which are relied upon as an estoppel in pais, can not have the effect claimed for them, as from the evidence it appears that at no time has the city ever legally consented to allow the appellant the exclusive use of the street, or to its obstruction beyond that incident to a reasonable and proper management of its trains. And if it had done so, such acts could not have bound the public, which, under the dedication, had an equal right to its use, and would not be concluded by acts of the city authorities, which only established a violation of the trust imposed upon it in favor of the public by the dedication, and voluntarily accepted by it. As the appellant claimed the right to obstruct the street for the reason that it had the right to exclude the public from its use, its admission that it had obstructed it should be taken as concluding it that such obstruction was in the assertion of such claimed right, and as we have seen no such right did or could exist, the court was right in holding it liable to the penalty imposed by the ordinance. What we have said disposes of the propositions of law submitted to the court, and justifies its action in refusing them, and it is unnecessary further to notice them. The judgment will be affirmed.
Judgment affirmed.