these payments in ignorance of the fact that they were not three per cent of all the gross receipts from the business within the city limits for the previous six months; that the city and its successive comptrollers were deceived in accepting all of the said payments by the peculiar and cunning wording of the statements which accompanied them. Certain parts of the petition were expunged by the trial court.

The court below sustained the demurrer upon two grounds: First, that the ordinance set out by appellant in its petition constitutes, in substance, a contract between the parties, and that a writ of mandamus will not issue to enforce a mere contract; second, that mandamus will not be awarded where it is sought for the enforcement of a mere abstract right and will not definitely fix the rights of the parties, even though the right of the petitioner, under the contract, is clear.

MACLAY HOYNE, (JAMES HAMILTON LEWIS, Corporation Counsel, and KNIGHT & HOYNE, of counsel,) for appellant.

HOLT, WHEELER & SIDLEY, for appellee.

Mr. JUSTICE VICKERS delivered the opinion of the court: The most important question presented for consideration in this case is whether or not appellant is entitled to the writ of mandamus for which it prays, requiring appellee to file a true statement of its gross receipts from all business within the present city limits and to pay into the city treasury three per cent on such gross receipts. It is insisted by appellee that the ordinance upon which appellant bases its claim of right to the writ of mandamus prayed for constitutes a contract between appellant and appellee, and that, such being the case, mandamus will not lie. It is conceded by appellant that mandamus is not the proper remedy to enforce contractual relations, and this principle is well set

tled. We are therefore brought directly to a consideration of the ordinance with a view of ascertaining whether such ordinance has, in effect, the binding force of law or whether it constitutes a contract.

It is the well settled law in this State that where there is a grant, and an acceptance by a corporation of an ordinance involving the performance of acts in the nature of duties or services to the public as a condition of the grant, the corporation accepting the franchise may be compelled by mandamus to perform the duty so enjoined. (People v. Suburban Railroad Co. 178 Ill. 594; Rogers Park Water Co. v. Fergus, 178 id. 571, and cases there cited.) But in each of these cases mandamus was awarded to compel the respondent to discharge some duty owing to the public and not to a municipal entity and where a clear right was thought to exist. There is a clearly drawn distinction between cases of that class and cases in which the duty or obligation is owed primarily to the municipality. In People v. Suburban Railroad Co. supra, it was sought to compel respondent to comply with the express provisions of an ordinance of the village of River Forest creating a duty to the public to be performed by the company for the benefit of the public. The writ was there awarded commanding the company to sell tickets to passengers good to stations in River Forest at the same rate as to stations in the town of Cicero, as the ordinance required, and it is evident that this was a duty owing to the public in general and not particularly to the municipality as such. In Rogers Park Water Co. v. Fergus, supra, a writ of mandamus was awarded fixing water rates, as provided by an ordinance of the city of Chicago enacted subsequently to the annexation of Rogers Park, which was accepted by the water company and under which ordinance it had laid its pipes and previously operated its water-works. In this case, also, the company's primary duty lay to the public as such. Evidently, in neither of the cases above cited was the obligation contractual.

No individual had in either case a contract with the respondents, but the public did have certain rights under the ordinances which respondents were bound to regard. The failure on the part of respondents to regard these clear rights was the basis of the petition for mandamus, and the writ was properly awarded. But in the case at bar the public has no relations, through the ordinance, with appellee, either contractual or otherwise. It cannot be said that an individual citizen has an interest in the filing of the statement at all. Nor can he have any interest in the payment of the three per cent required by the ordinance to be paid into the city treasury, except the general interest that the sum so paid would be applied on the payment of municipal indebtedness and thus tend to decrease the burden of taxation. It cannot be seriously contended that there exists in this a right so clear that it is enforcible by mandamus. The ordinance in this case prescribes certain conditions upon which the city of Chicago, as a municipal entity, is willing to permit appellee to use its streets, and parts of these conditions are that appellee shall make, semi-annually, a report of the business done by it within the city limits for the previous six months and pay into the city treasury three per cent of such sum. Appellee accepted this ordinance, and from that time forth it became a contract between the parties. A franchise emanates from the government or sovereign power, and where a corporation is created by law, with power to use the streets of the city, upon the consent of the city, under such conditions as may be imposed, and by ordinance such consent is prescribed or privilege granted, the grant by the city is a license and is not a franchise. When such license is accepted by the corporation a valid and binding contract is created with the municipality, to compel the performance of which mandamus will not lie. Chicago City Railway Co. v. People, 73 Ill. 541; Chicago Municipal Gas Light and Fuel Co. v. Town of Lake, 130 id. 42, and cases cited; City of Belleville v. Citizens' Horse

Railway Co. 152 id. 171; People v. Central Union Telephone Co. 192 id. 307; People v. Blocki, 203 id. 363; City of Chicago v. Rothschild & Co. 212 id. 590.

Having reached the above conclusion it is unnecessary

to consider other assignments of error.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

THE COAL BELT ELECTRIC RAILWAY COMPANY et al.

v.

THE PEABODY COAL COMPANY et al.

Opinion filed October 23, 1907–Rehearing denied Dec. 5, 1907.

I. CORPORATIONS-purchaser of stock of a corporation does not become owner of corporate property. One who purchases all the stock in a corporation does not become the legal owner of the corporate property in the sense that representations made to him with reference to the property, interests and easements possessed by the corporation can create an estoppel in favor of the corporation itself, which it may rely upon as ground for enjoining interference with such alleged property, interests or easements.

2. SAME a corporation sustains same relation to its property after transfer of stock as before. If a railway corporation, before the transfer of all its stock to an individual, was drawing water supply from a pond by sufferance of another corporation, the fact that the president of the latter may have represented to the purchaser of the stock that the railway corporation had a proprietary interest in the pond does not, by way of estoppel or otherwise, enlarge such use, by sufferance, into an easement.

3. INJUNCTION-clear and unequivocal evidence required where complainant relies upon an estoppel. Where the complainant in a bill for injunction relies upon an estoppel as the basis of his claim, the alleged estoppel must be established by clear, precise and unequivocal evidence.

APPEAL from the Circuit Court of Williamson county; the Hon. W. W. DUNCAN, Judge, presiding.

FORMAN & WHITNEL, and WILLIAM H. WArder, for appellants.

ARTHUR W. UNDERWOOD, and DENISON & SPILLER, for appellees.

Mr. JUSTICE DUNN delivered the opinion of the court:

In 1889, and later, the Egyptian Prospecting Company purchased the coal underlying certain lands in Williamson. county and began the sinking of a mine and the construction of a coal washer, near which was constructed a pond for the purpose of collecting water necessary for use in said. mine and washer. On March 21, 1901, all the rights of the Egyptian Prospecting Company were conveyed to the Southern Illinois Coal Mining and Washing Company, which continued to own and operate the mine and washer until January 7, 1905, when it conveyed all its interests to the Peabody Coal Company of Illinois. In 1901 the Coal Belt Electric Railway Company built an electric railroad passing near the said mine and constructed its power house near said pond. The water supply for this power house was first obtained from the pond above mentioned under a verbal arrangement between the presidents of the two companies, the railway company paying nothing for the privilege and having no right beyond the oral consent of the president of the Southern Illinois Coal Mining and Washing Company. The water was used in this way for some time but with much controversy between the superintendents of the two companies, the superintendent of the mining company demanding, when the water was low in the pond, that the railway company should cease using it. Finally the railway company laid a pipe to the shaft of another mine and for a few weeks used the water from that mine, until a deep well was driven near the power house. The water obtained from the well was not good for use in the boilers, and while