At the time of the passage of the ordinance of November, 1888, by the village of Rogers Park, counsel for plaintiff in error says 'two general acts were in force in Illinois, which related to the power of municipalities to pass ordinances for waterworks to be built and operated by private enterprise.' The first is as follows:
'An Act Entitled 'An Act to Enable Cities, Incorporated Towns and Villages to Contract for a Supply of Water for Public Use, and to Levy and Collect a Tax to Pay for the Water so Supplied.' (Approved April 9, 1872. In Force July 1, 1872. L. 1871-2, p. 271. This title is as Amended by Act Approved June 26, 1885, in Force July 1, 1885, p. 64.)
'Sec. 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That in all cities, incorporated towns and villages where waterworks have been or may hereafter be constructed by any person or incorporated comapny, the city, town, or village authorities in such cities, incorporated towns and villages may contract with such person or incorporated company for a supply of water for public use for a period not exceeding thirty years.' (As amended by act approved June 30, 1885. In force July 1, 1885, L. 1885, p. 64.)
'Sec. 2. Any such city or village so contracting may levy and collect a tax on all taxable property within such city or village for the water so supplied.'
The second, passed one day later and taking effect on the same day as the first, was the cities, villages, and towns act. The title to that act and the article and section bearing upon this case are as follows:
'An Act Entitled 'An Act to Provide for the Incorporation of Cities and Villages.' (Approved April 10, 1872. In force July 1, 1872. Laws of 1871-2, p. 218.)
'Article X. section 1. The city council or board of trustees shall have the power to provide for a supply of water by the boring and sinking of artesian wells, or by the construction and regulation of wells, pumps, cisterns, reservoirs, or waterworks, and to borrow money therefor, and to authorize any person or private corporation to construct and maintain the same at such rates as may be fixed by ordinance, and for a period not exceeding thirty years; also to prevent the unnecessary waste of water; to prevent the pollution of the water, and injuries to such wells, pumps, cisterns, reservoirs, or waterworks.'
These acts are urged to establish the power in the village of Rogers Park to grant to the plaintiff in error the right to charge and collect for thirty years the rates prescribed by the ordinance of November, 1888. We have passed on a similar contention in Freeport Water Co. v. Freeport, 180 U.S. 587, 21 Sup. Ct. Rep. 493, and in Danville Water Co. v. Danville, 180 U.S. 619, 21 Sup. Ct. Rep. 505; and we need not repeat the reasoning. Besides, it is disputable if the ordinance of 1888 justifies the claim of plaintiff in error. The supreme court of the state held that it did not. A strict construction must be exercised. The contract claimed concerned governmental functions, and such functions cannot be held to have been stipulated away by doubtful or ambiguous provisions.
Section 1 of the ordinance recites 'that, in consideration of the public benefit to be derived therefrom, the village of Rogers Park, Illinois, hereby grants the exclusive right and privilege, for a period of thirty years . . . unto H. E. Keeler, his successor or assigns,' of erecting and maintaining a system of waterworks. The use of the streets was also granted for such purpose.
Section 3 recites, 'in consideration of the public benefits and the protection of property resulting from the construction of said system of waterworks,' the village agrees to pay a certain annual rental proportional to the length of the mains.
The grnatee, on his part to pay 'all municipal and village taxes' (§ 3), 'in consideration of the rentals herein agreed to be paid and in consideration of the rights and privileges granted' (§ 4), agreed to furnish the village and the residents thereof an adequate supply of water. Failing to supply water for a year in quantity or quality stipulated, the 'franchise and all their rights and privileges granted under this ordinance, and the contract entered into, shall be null and void.'
If the ordinance contained any other provisions it could not be claimed that the company's charges to consumers of the water furnished them were free from regulation by the municipality if it otherwise had power of regulation. These are other provisions, and especial stress is laid upon them. Section 12 provides as follows: