Mr. Justice Holdom
delivered the opinion of the court.
Three questions lie at the root of the right to maintain this decree:
First, is the structure in question authorized by the ordinance of June 29, 1896, under the 'facts appearing in this record! '
Second, is the ordinance of December 13, 1897, declaring this and like structures a- nuisance, void as to the, structure in question!
Third, is the structure built and maintained for the public convenience, or for private enterprise and profit?
First, as may be seen from the foregoing statement, the right to maintain this structure must be founded on the antecedent condition contained in the ordinance of June 29, 1896, that “nothing herein contained, however, shall prohibit said company from locating and maintaining its stations * * * in buildings adjacent to said stations or platforms, where authority is given by owners or lessees of said buildings for above purposes, wherein it may for the convenience and comfort of its patron's place its ticket offices, waiting rooms, sanitary accommodations, stairways, and all requisite methods • of ingress and egress, and the right to construct and maintain covered passageways or connections between the interior of all such station buildings and the exterior platforms, is hereby expressly granted to said company.” It therefore becomes pertinent to ascertain whether or not the condition here provided did exist when this structure was erected. The purpose contemplated by this ordinance was the locating and maintaining in such buildings by the company of a station with a ticket office, not a station and ticket office of any particular or limited character, but a station and ticket office assumedly corresponding to other stations and ticket offices similarly situate, and sufficient to meet the necessities of patrons at such locations. It will be observed that there is nothing in this ordinance which allows a station ticket office of a different character to be installed and located within buildings adjacent to the elevated road from those maintained in the streets adjoining the platforms.. Such stations, the ordinance contemplates, shall be supplied with waiting rooms, sanitary accommodations, stairways and all requisite methods of ingress and egress; in other words, shall have all necessary adjuncts and accommodations usually found at such stations. When stations are located in such buildings by authority granted for that purpose, then the elevated company under the ordinance is given the right to construct and maintain passageways connecting the interior of “all such station buildings and the exterior platforms” of the road. It is not only undisputed but expressly admitted, that none of the elevated roads using the loop, or the holding company, the Northwestern Elevated Bailroad Company, have any interest or control within the interior of the Bothschild & Company building. In no sense does the elevated company maintain any station in the building connected with the “loop” by the structure in question, and they have.no control of the stairways, the entrances or the exits. In no way is it pretended that they have even a supervisory control of the so-called waiting room at the north end of this connecting passageway, nor is it contended that any employe or servant of the roads are either in charge of this waiting room or have anything whatever to do with it. There is no ticket office maintained in this so-called waiting room or in any other part of the Bothschild building. This waiting room was maintained as such before the connecting passageway was constructed. Bothschild & Company has complete and absolute control of this room. In it they have merchandise, counters, shelving and tables, and salesmen to sell the goods. Immediately above it on the third floor is a similar waiting room, and in other parts of the building other rooms of a like character. The nearest ticket office to this second floor “waiting room” is at the south end of the connecting passageway, where a ticket seller is maintained at the expense of Bothschild & Company, who sells tickets, during the hours the Bothschild establishment is open for business, of the Metropolitan Company only. The structure itself was built at the cost and expense of Rothschild & Company, who is bound to maintain it in good repair and to keep it clean and free from obstruction, as also the sidewalk and street underneath it and save harmless the elevated company from any damage resulting from any negligent maintenance of this structure. Every evidential fact in this record as to ownership of this connecting passageway would seem to indicate title in Rothschild & Company. They bargained for it. They paid for its construction. They have assumed every duty and obligation imposed by its maintenance, including responsibility for all damages which may flow from its maintenance. It is immaterial who in fact built this connecting passageway. If the elevated road did so, they did it for Rothschild & Company. In equity, forms must give way to substance; they will be brushed away in the search for the fact, and the disguise in which such fact may be clothed removed wherever found. By this method of procedure we find that the connecting structure was ostensibly built by the elevated railroad, not for themselves, but for Rothschild & Company, to whom, when completed, possession and control were delivered. Ordinarily stations are open to the public and tickets sold on all classes of railroads during the time trains are run. Not so with the ticket office on this connecting passageway, or the so-called waiting room in the Rothschild building. After Rothschild’s business hours the so-called “waiting room,” stairways leading to it, and the connecting passageway are closed, or, as put by a witness, “not available.”
It is, however, contended that the contract made by Rothschild & Company for the construction of this connecting passageway- was by the ordinance supra ratified and consequently must be given the same effect as though the city had in express terms authorized its construction and maintenance. While we are unable to coincide with this contention if it were material to our decision, yet there being no proof that the existence of this contract was made known to the city or any of its officers, or that the city had .in fact any knowledge of its existence, the ordinance in no way affects the rights of the parties under that contract, for the reason that this structure was not authorized by that ordinance. The ordinance does not contemplate the maintenance of any such structure by any one but the elevated railroad company in connection with a station. Ordinances of the nature of the one supra will be construed strictly in favor of the municipality and against those asserting rights under them. Such ordinances confer no powers not set forth in clear and explicit terms. Neither presumption nor implication will be indulged by construction, and in case of ambiguity nothing will be presumed in favor of the beneficiary. Snell v. City of Chicago, 133 Ill. 426; People v. L. & N. R. R. Co., 120 Ill. 48; Chicago Ter. R. R. Co. v. Chicago, 120 Ill. 576.
Second. In Pennsylvania v. City of Chicago, 181 Ill. 289, it was held that the city had no power or authority to grant the exclusive use of its streets to any private person or for any private purpose, but must hold and control possession exclusively for public use, laying down the rule that all public highways from side to side and end to end are held for the use of the public.
In Barnett v.
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Mr. Justice Holdom
delivered the opinion of the court.
Three questions lie at the root of the right to maintain this decree:
First, is the structure in question authorized by the ordinance of June 29, 1896, under the 'facts appearing in this record! '
Second, is the ordinance of December 13, 1897, declaring this and like structures a- nuisance, void as to the, structure in question!
Third, is the structure built and maintained for the public convenience, or for private enterprise and profit?
First, as may be seen from the foregoing statement, the right to maintain this structure must be founded on the antecedent condition contained in the ordinance of June 29, 1896, that “nothing herein contained, however, shall prohibit said company from locating and maintaining its stations * * * in buildings adjacent to said stations or platforms, where authority is given by owners or lessees of said buildings for above purposes, wherein it may for the convenience and comfort of its patron's place its ticket offices, waiting rooms, sanitary accommodations, stairways, and all requisite methods • of ingress and egress, and the right to construct and maintain covered passageways or connections between the interior of all such station buildings and the exterior platforms, is hereby expressly granted to said company.” It therefore becomes pertinent to ascertain whether or not the condition here provided did exist when this structure was erected. The purpose contemplated by this ordinance was the locating and maintaining in such buildings by the company of a station with a ticket office, not a station and ticket office of any particular or limited character, but a station and ticket office assumedly corresponding to other stations and ticket offices similarly situate, and sufficient to meet the necessities of patrons at such locations. It will be observed that there is nothing in this ordinance which allows a station ticket office of a different character to be installed and located within buildings adjacent to the elevated road from those maintained in the streets adjoining the platforms.. Such stations, the ordinance contemplates, shall be supplied with waiting rooms, sanitary accommodations, stairways and all requisite methods of ingress and egress; in other words, shall have all necessary adjuncts and accommodations usually found at such stations. When stations are located in such buildings by authority granted for that purpose, then the elevated company under the ordinance is given the right to construct and maintain passageways connecting the interior of “all such station buildings and the exterior platforms” of the road. It is not only undisputed but expressly admitted, that none of the elevated roads using the loop, or the holding company, the Northwestern Elevated Bailroad Company, have any interest or control within the interior of the Bothschild & Company building. In no sense does the elevated company maintain any station in the building connected with the “loop” by the structure in question, and they have.no control of the stairways, the entrances or the exits. In no way is it pretended that they have even a supervisory control of the so-called waiting room at the north end of this connecting passageway, nor is it contended that any employe or servant of the roads are either in charge of this waiting room or have anything whatever to do with it. There is no ticket office maintained in this so-called waiting room or in any other part of the Bothschild building. This waiting room was maintained as such before the connecting passageway was constructed. Bothschild & Company has complete and absolute control of this room. In it they have merchandise, counters, shelving and tables, and salesmen to sell the goods. Immediately above it on the third floor is a similar waiting room, and in other parts of the building other rooms of a like character. The nearest ticket office to this second floor “waiting room” is at the south end of the connecting passageway, where a ticket seller is maintained at the expense of Bothschild & Company, who sells tickets, during the hours the Bothschild establishment is open for business, of the Metropolitan Company only. The structure itself was built at the cost and expense of Rothschild & Company, who is bound to maintain it in good repair and to keep it clean and free from obstruction, as also the sidewalk and street underneath it and save harmless the elevated company from any damage resulting from any negligent maintenance of this structure. Every evidential fact in this record as to ownership of this connecting passageway would seem to indicate title in Rothschild & Company. They bargained for it. They paid for its construction. They have assumed every duty and obligation imposed by its maintenance, including responsibility for all damages which may flow from its maintenance. It is immaterial who in fact built this connecting passageway. If the elevated road did so, they did it for Rothschild & Company. In equity, forms must give way to substance; they will be brushed away in the search for the fact, and the disguise in which such fact may be clothed removed wherever found. By this method of procedure we find that the connecting structure was ostensibly built by the elevated railroad, not for themselves, but for Rothschild & Company, to whom, when completed, possession and control were delivered. Ordinarily stations are open to the public and tickets sold on all classes of railroads during the time trains are run. Not so with the ticket office on this connecting passageway, or the so-called waiting room in the Rothschild building. After Rothschild’s business hours the so-called “waiting room,” stairways leading to it, and the connecting passageway are closed, or, as put by a witness, “not available.”
It is, however, contended that the contract made by Rothschild & Company for the construction of this connecting passageway- was by the ordinance supra ratified and consequently must be given the same effect as though the city had in express terms authorized its construction and maintenance. While we are unable to coincide with this contention if it were material to our decision, yet there being no proof that the existence of this contract was made known to the city or any of its officers, or that the city had .in fact any knowledge of its existence, the ordinance in no way affects the rights of the parties under that contract, for the reason that this structure was not authorized by that ordinance. The ordinance does not contemplate the maintenance of any such structure by any one but the elevated railroad company in connection with a station. Ordinances of the nature of the one supra will be construed strictly in favor of the municipality and against those asserting rights under them. Such ordinances confer no powers not set forth in clear and explicit terms. Neither presumption nor implication will be indulged by construction, and in case of ambiguity nothing will be presumed in favor of the beneficiary. Snell v. City of Chicago, 133 Ill. 426; People v. L. & N. R. R. Co., 120 Ill. 48; Chicago Ter. R. R. Co. v. Chicago, 120 Ill. 576.
Second. In Pennsylvania v. City of Chicago, 181 Ill. 289, it was held that the city had no power or authority to grant the exclusive use of its streets to any private person or for any private purpose, but must hold and control possession exclusively for public use, laying down the rule that all public highways from side to side and end to end are held for the use of the public.
In Barnett v. Johnson, 15 N. J. Eq. 485, the court said: “The column of light and air above the roadbed, whether .of land or water, is as much a part of the highway as the roadbed itself. * * * By its being declared a highway by the sovereign power, the light and air above it became again the common property of all, which all may breathe and use whenever they may legally touch it;” and again in Hibbard v. City of Chicago, 173 Ill. 91: “The right of the public to the exclusive use of the streets for public purposes is inconsistent with the right of a private citizen to encroach thereon by the erection of a permanent structure. * * * The mere consent of the city council by resolution or order gives no vested right. The averment that the awning so erected does not injure or obstruct any person does not change the case. The sole question to be determined is, is it an encroachment on the street of the city, and, if so, it is a purpresture.”
Elliott on Roads and Streets, p. 478, uses this language: “Any permanent structure or purpresture which materially encroaches upon a public street * * * is a nuisance per se and may be abated.” In Snyder v. City of Mt. Pulaski, 176 Ill. 402, the court said: “A • permanent encroachment upon public streets for a private use is a purpresture, and is in law a nuisance. * * * Such permission to so use the street is not binding on the city and is not irrevocable. The municipality having no power to grant such permanent use, there can be no estoppel against it from requiring the street to be open in its entirety, because no estoppel can arise from an act of the municipal authorities done without authority of law.”
Notwithstanding the ordinance of July 29, 1896, and the permit issued by the commissioner of public works, authorizing the erection of this connecting passageway—even if the ordinance permitted its erection—in the circumstances here pointed qut, the city had the right to declare it a nuisance and order its removal, and in so far as this connecting passageway is affected by the ordinance of December 13, 1897, such ordinance is a proper exercise of the authority of the city under the law and is legal.
Third, That this structure was built and is maintained for private gain to the business enterprise of Rothschild & Company is patent from all the evidential facts as detailed in the testimony of the witness Davis, the president of Rothschild & Company.
In the first place, they made the agreement with the elevated railroad company to permit of this connecting passageway a condition of their consent to the erection of the road in Van Burén street in front of their store. They agreed to pay all the expenses of its construction and maintenance, and to assume all the burdens arising from its maintenance in any way, and protect and save harmless the elevated company from any expense or liability incident to its construction and maintenance. It was primarily a feeder of patrons for their store, accessible and usable only during the hours the store is open and on the days open for business. At the hours the public is in the greatest need of its accommodations, it is closed.- During the busiest and most congested condition of the station platforms and the stairways leading to it, it is useless. At no time when this structure does not serve as a feeder of patrons to the store of Rothschild & Company can it be used by the public. On Sundays and holidays, when it might serve as a relief to the crowded street entrances, exits and stairways, it is inaccessible; Davis says that the object of procuring the bridge was to offer better facilities for people to get in and out of the store, not the station—it was “philanthropic and charitable' as much as anything else,” he says, but with this we do not agree. The cross-complainant in answering the original bill denies in substance that the connection with the Rothschild building is of material assistance or necessary in accommodating the public or in relieving the stairways of travel in any appreciable way. It is plain that if the public must manage to get along without the stairways and connecting bridge at the hours of the greatest need, that they will suffer no hardship in being deprived of them at' the less busy hours of the day. Without any doubt this structure is maintained for the benefit, -accommodation and profit of Rothschild & Company not for the convenience of the public.
We place our decision in this case upon the facts and the law as we find them applicable to it, without any reference or bearing whatever to other cases referred to in argument and stipulation of facts, where it is claimed similar conditions exist and like questions arise as here. Such cases will be adjudicated when—if ever—they reach this court.
The decree of the Circuit Court is reversed, and the bill, supplemental bill and cross-bill are dismissed for want of equity, plaintiffs in error to recover cost in this and the Circuit Courts.
Reversed.