Mr. Justice Brown
delivered the opinion of the court.
We are of the opinion that on the facts detailed in the statement hereunto prefixed, no liability can be enforced against the Chicago & Western Indiana Railroad Company under the ordinance of November 4, 1907, or otherwise, for the money or any part of it paid by the said City for repairing, constructing and paving the roadway on the east approach to the 18th street viaduct.
The claim of the City therefor is based on a threefold ground—first on the ordinance of November 4„ 1907, which attempts expressly to impose the asserted liability; secondly, on the ordinance of September'15, 1879, which makes a condition of the privilege granted the Railroad Company of laying its tracks in the city, an undertaking on its part to erect and maintain viaducts over any of its tracks or any street crossed by its tracks where and as the City Council may require, and to erect and construct the approaches to all such viaducts with proper areas on either side of said approaches; and, thirdly, on the general police power which the City asserts over the use, impairment or alteration of its streets by railroad companies.
The first of these grounds may be said to imply the existence of the third; for if the ordinance of November 4,1907, is valid, it must be because it is an order by the City Council for the enforcement or execution of a police power belonging to the City. This is the only ground on which have been sustained such ordinances imposing on particular persons or corporations using a street an expenditure which must otherwise be met by taxation or special assessment. Chicago & N. W. R. Co. v. City of Chicago, 140 Ill. 309-320; City of Bloomington v. Illinois Cent. R. Co., 154 Ill. 539; People v. Illinois Cent. R. Co., 235 Ill. 374.
The second of the grounds on which the City bases its claim may be referred, however, to a purely contractual relation between the Railroad and the City.
Considering first this contractual relation evidenced by the right of way ordinance of September 15, 1879, it seems plain that no obligation based on it alone can exist to pave the roadway on the approaches to the viaduct in question. A distinction seems carefully made between the viaduct and the approaches and between the obligation of the Railroad Company to erect and maintain the viaduct and the obligation only to erect and construct the approaches. The distinction certainly is not an artificial or inequitable one.
The viaduct itself is a bridge, and the necessary repairs on it might reason ably be treated differently in such a contract from the repaving of an approach which consists of a roadway that can be repaved like any other portion of the street, from which it is distinguished only by its being inclined on an embankment rendered necessary by the viaduct. We may, therefore, assume that the language used to express the differing obligations of the city as to the viaduct and the approaches was advisedly and intelligently used.
But the City maintains that the Council by the ordinance of 1879 did not attempt to contract away the inherent police power of the City to compel the repair of the approaches, and in no event could have done so. The utmost that can be argued from the language of the ordinance, it is insisted, is that by accepting the ordinance the Company did not specifically undertake to repave the approaches. It was not, however, relieved from an obligation to conform in relation thereto to the orders of the City in the exercise of its police powers.
This i§ a contention which may be considered in connection with the position taken by the Railroad Company, that if it be granted that the police power of the City would otherwise have allowed it to pass and enforce the ordinance of November 4, 1907, it was es-topped from doing so on various scores.
The City bases its alleged rights on the position that an approach to a viaduct is in the eye of the law a necessary and integral part of the viaduct itself. Therefore, since it is conceded that the City may compel the maintenance and repair of the viaduct, it must necessarily be allowed the right to compel the repair or repaving of the approaches.
Counsel for the City in support of the general proposition that the “approaches” to a viaduct are in the view of the law parts of the viaduct itself, quote the vigorous language of Mr. Justice Chytraus of the Branch Appellate Court to that effect in City of Chicago v. Pittsburg, C., C. & St. L. R. Co., 146 Ill. App. 403. Independently of the fact that the opinion is not binding on us, and that because of the ultimate disposition of the case it is on the point involved obiter dictum, we do not think that even taken in its most literal sense, it implies that by mutual agreement and action a City and a Railroad can not place a definite meaning on the word “viaduct” in any given ease which excludes the “approaches” thereto.
At all events the Supreme Court, whose decisions and considered utterances do bind us, has in City of Chicago v. Pittsburgh, Ft. W. & C. R Co., 247 Ill. 319, used much less decisive language on this point. In the course of an opinion explaining the conclusion reached that the City had no power in that case to compel the defendant to pave 18th street between Canal and Mechanic streets to the west of a viaduct on 18th street connected with the one here involved by the bridge over the river, it said that while “ordinarily an ‘approach’, as that term is used, is considered a part of the viaduct,” yet that “what is a viaduct proper and what is an approach, where one begins and the other ends, and what is a street or highway as distinguished from the approach, are more questions of fact than of law, and are sometimes not easy to decide,” and that the requirement under the police^ power of the municipality that a railroad shall keep and maintain its crossings “does not necessarily require the railroad to keep and maintain that which is for every practical purpose a street or highway, even though incidentally it is used as a part of the ascent or approach to reach the viaduct.”
So far as we can gather from a comparison of the facts stated in the opinion in the case just cited and those which appear in the case at bar, the state of things between the west line of Wentworth avenue and the east end of the viaduct is not very dissimilar from that existing between Canal and Mechanic streets west of the viaduct on the west side of the river, and discussed in the opinion in question.
The ordinance of 1879, as we have noted, makes the distinction between the viaduct proper over the tracks and the approach, which may well be said to be “for every practical purpose a street or highway, even though incidentally used as a part of the ascent or approach to the viaduct.”
Inasmuch as the existence of the viaduct required at a considerable cost the filling in permanently of the street through its full width to a higher grade by material of the same or different nature from that used in the rest of the roadway, while the paving and repairing of the ascending roadway after it was built would not differ materially in nature or cost from that necessary if it was level, the distinction between the obligations was, as we have also noted, a natural and apparently equitable one.
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Mr. Justice Brown
delivered the opinion of the court.
We are of the opinion that on the facts detailed in the statement hereunto prefixed, no liability can be enforced against the Chicago & Western Indiana Railroad Company under the ordinance of November 4, 1907, or otherwise, for the money or any part of it paid by the said City for repairing, constructing and paving the roadway on the east approach to the 18th street viaduct.
The claim of the City therefor is based on a threefold ground—first on the ordinance of November 4„ 1907, which attempts expressly to impose the asserted liability; secondly, on the ordinance of September'15, 1879, which makes a condition of the privilege granted the Railroad Company of laying its tracks in the city, an undertaking on its part to erect and maintain viaducts over any of its tracks or any street crossed by its tracks where and as the City Council may require, and to erect and construct the approaches to all such viaducts with proper areas on either side of said approaches; and, thirdly, on the general police power which the City asserts over the use, impairment or alteration of its streets by railroad companies.
The first of these grounds may be said to imply the existence of the third; for if the ordinance of November 4,1907, is valid, it must be because it is an order by the City Council for the enforcement or execution of a police power belonging to the City. This is the only ground on which have been sustained such ordinances imposing on particular persons or corporations using a street an expenditure which must otherwise be met by taxation or special assessment. Chicago & N. W. R. Co. v. City of Chicago, 140 Ill. 309-320; City of Bloomington v. Illinois Cent. R. Co., 154 Ill. 539; People v. Illinois Cent. R. Co., 235 Ill. 374.
The second of the grounds on which the City bases its claim may be referred, however, to a purely contractual relation between the Railroad and the City.
Considering first this contractual relation evidenced by the right of way ordinance of September 15, 1879, it seems plain that no obligation based on it alone can exist to pave the roadway on the approaches to the viaduct in question. A distinction seems carefully made between the viaduct and the approaches and between the obligation of the Railroad Company to erect and maintain the viaduct and the obligation only to erect and construct the approaches. The distinction certainly is not an artificial or inequitable one.
The viaduct itself is a bridge, and the necessary repairs on it might reason ably be treated differently in such a contract from the repaving of an approach which consists of a roadway that can be repaved like any other portion of the street, from which it is distinguished only by its being inclined on an embankment rendered necessary by the viaduct. We may, therefore, assume that the language used to express the differing obligations of the city as to the viaduct and the approaches was advisedly and intelligently used.
But the City maintains that the Council by the ordinance of 1879 did not attempt to contract away the inherent police power of the City to compel the repair of the approaches, and in no event could have done so. The utmost that can be argued from the language of the ordinance, it is insisted, is that by accepting the ordinance the Company did not specifically undertake to repave the approaches. It was not, however, relieved from an obligation to conform in relation thereto to the orders of the City in the exercise of its police powers.
This i§ a contention which may be considered in connection with the position taken by the Railroad Company, that if it be granted that the police power of the City would otherwise have allowed it to pass and enforce the ordinance of November 4, 1907, it was es-topped from doing so on various scores.
The City bases its alleged rights on the position that an approach to a viaduct is in the eye of the law a necessary and integral part of the viaduct itself. Therefore, since it is conceded that the City may compel the maintenance and repair of the viaduct, it must necessarily be allowed the right to compel the repair or repaving of the approaches.
Counsel for the City in support of the general proposition that the “approaches” to a viaduct are in the view of the law parts of the viaduct itself, quote the vigorous language of Mr. Justice Chytraus of the Branch Appellate Court to that effect in City of Chicago v. Pittsburg, C., C. & St. L. R. Co., 146 Ill. App. 403. Independently of the fact that the opinion is not binding on us, and that because of the ultimate disposition of the case it is on the point involved obiter dictum, we do not think that even taken in its most literal sense, it implies that by mutual agreement and action a City and a Railroad can not place a definite meaning on the word “viaduct” in any given ease which excludes the “approaches” thereto.
At all events the Supreme Court, whose decisions and considered utterances do bind us, has in City of Chicago v. Pittsburgh, Ft. W. & C. R Co., 247 Ill. 319, used much less decisive language on this point. In the course of an opinion explaining the conclusion reached that the City had no power in that case to compel the defendant to pave 18th street between Canal and Mechanic streets to the west of a viaduct on 18th street connected with the one here involved by the bridge over the river, it said that while “ordinarily an ‘approach’, as that term is used, is considered a part of the viaduct,” yet that “what is a viaduct proper and what is an approach, where one begins and the other ends, and what is a street or highway as distinguished from the approach, are more questions of fact than of law, and are sometimes not easy to decide,” and that the requirement under the police^ power of the municipality that a railroad shall keep and maintain its crossings “does not necessarily require the railroad to keep and maintain that which is for every practical purpose a street or highway, even though incidentally it is used as a part of the ascent or approach to reach the viaduct.”
So far as we can gather from a comparison of the facts stated in the opinion in the case just cited and those which appear in the case at bar, the state of things between the west line of Wentworth avenue and the east end of the viaduct is not very dissimilar from that existing between Canal and Mechanic streets west of the viaduct on the west side of the river, and discussed in the opinion in question.
The ordinance of 1879, as we have noted, makes the distinction between the viaduct proper over the tracks and the approach, which may well be said to be “for every practical purpose a street or highway, even though incidentally used as a part of the ascent or approach to the viaduct.”
Inasmuch as the existence of the viaduct required at a considerable cost the filling in permanently of the street through its full width to a higher grade by material of the same or different nature from that used in the rest of the roadway, while the paving and repairing of the ascending roadway after it was built would not differ materially in nature or cost from that necessary if it was level, the distinction between the obligations was, as we have also noted, a natural and apparently equitable one. It was recognized again in an agreement between the City and the Railroad Company, which was made and acted on by both parties in 1887. The City found it necessary to build a new bridge over the river between the two viaducts on 18th street. This compelled the construction of a new viaduct, and the agreement provided that the railroad company should pay one-sixth of the cost of construction of the centre pier of the bridge and, with an exception noted, the entire cost of the construction of the viaduct and eastern approach “to the end of the approach at the west curb line of Wentworth avenue.” The construction which the Railroad Company thus agreed to pay for was accordingly paid for by it to an amount greater than $123,000; but again the distinction was made between the maintenance and repair of the viaduct proper and of the approach. “From the easternmost pier of the bridge to the easternmost pier of the viaduct” the Railroad Company agrees to keep the work so constructed forever maintained and in repair, but it undertakes nothing as to the maintenance and repair of the roadway over the approach, which all lies east of the easternmost pier of the viaduct.
For twenty years the City from time to time made the usual and necessary repairs on this roadway, but never demanded from the Railroad Company either advance or reimbursement therefor.
The City maintains that the agreement of. 1887 thus acted on was not the contract of the City of Chicago, because it is signed only by “G-eorge B. Swift, Commissioner of Public Works,” and that the record contains no evidence of his authority to execute it. Further it maintains that even if the agreement be treated as the contract of the City, it cannot work an estoppel against the City’s claim made under its police power by the ordinance of 1907.
To neither of these positions can we give our assent. The construction of a new viaduct according to prescribed plans and the participation in the cost of the new bridge over the river, aggregating an expenditure of $123,000, were not matters so plainly within the City’s power to command under the right of way ordinance as to render them not the proper subject of special agreement, and it is too late, when such an agreement has been followed by that expenditure and acquiesced in and acted on in other respects by both parties for twenty years, to question the authority of the officer of the City who signed it.
And while it is true that a municipal government “as a representative of the State” cannot, by a contract, “surrender or alienate a strictly governmental function, which it is required to continue in existence for the welfare of the public” (City of Chicago v. Chicago Union Traction Co., 1991 Ill. 2591, p. 270) it is equally true that a municipal corporation may be equitably estopped, not indeed by mere lapse of time, but by circumstances which make it unconformable to right and justice, from exercising a power over the use and management of some particular highway which would otherwise fall within its police powers considered in their broadest aspect.
This is the doctrine adopted by our Supreme Court in cases like Chicago, R. I. & P. R. Co. v. City of Joliet, 79 Ill. 25; Chicago & N. W. R. Co. v. People, 91 Ill. 251; Martel v. City of East St. Louis, 94 Ill. 67, and City of Chicago v. Sawyer, 166 Ill. 290; and these decisions are in harmony with the general course of decisions in other jurisdictions.
We think that in the present case the distinction which the City had hitherto made by ordinance and contract between the duties of the Bailroad Company as to the viaduct involved, and its duties as to the roadway leading thereto from Wentworth avenue, and the action hy both parties in apparent reliance on that distinction, estopped it from enforcing the ordinance of 1907, which preceded the institution of this suit.
We think, moreover, that the same reasoning, viewed generally, which led the Supreme Court- to deny the validity of the ordinance of October 28, 1907, requiring the Illinois Central Railroad Company to reconstruct the pavement of a subway beneath its tracks (People v. Illinois Cent. R. Co., 235 Ill. 374) and the validity of the ordinance of October 21,1907, requiring the Pittsburgh, Fort Wayne & Chicago Railway Company to repave the “approach” to the viaduct on the west side of the river at Eighteenth street (City of Chicago v. Pittsburgh, Ft. W. & C. R. Co., 247 Ill. 319) applies to the case at bar. This view of the matter renders it unnecessary for us to decide the additional question raised by the defendant, whether the ordinance would be in any case invalid as to the roadway west of Wentworth avenue, because it orders as well the repaving of the roadway one hundred and fifty feet east of Wentworth avenue, which it is conceded is no part of the approach; or the further additional question whether recovery was barred because the plaintiff did not show that other railroads named in the ordinance were, according to its terms, served with notice.
We do not understand that the facts are in dispute in this case. We reverse the judgment of the Municipal Court in acordance with our views of the law.
Reversed.