43 Kan. 725 | Kan. | 1890
The opinion of the court was delivered by
What the real facts of this case are we do not know, for the real facts have not been agreed upon by the parties nor found by the court below, nor has the case even been tried by the court below, or any court, except upon demurrers to the pleadings. The court below overruled a demurrer to the plaintiff’s petition; overruled a demurrer to the second, third, and fourth defenses of the defendant’s answer; overruled a demurrer to the third paragraph of the plaintiff’s reply; sustained a demurrer to the second, fourth, fifth, and sixth paragraphs of the plaintiff’s reply; and overruled a demurrer to the sixth amended and substituted paragraph of the plaintiff’s reply. The plaintiff, the Burlington Water Works Company, as plaintiff in error, has brought the case to this court, assigning for error all the rulings of the court below made against it, and the defendant, the city of Burlington, as defendant in error, has filed a cross-petition in error, assigning for error all the rulings of the court below made against it.
The principal facts of the case as deduced from the pleadings, though they may not be and probably are not strictly the real facts of the case, seem to be substantially as follows: On July 14,1886, the city of Burlington, a city of the second class, passed an ordinance which took effect on July 16,1886, giving to J. A. O’Neil, and to his successors and assigns, the right to construct and operate water works in the city of Burlington for a period of twenty years, the city, however, having the option to purchase the water works at their appraised value at the end of each five years; and the city also in the meantime agreeing to rent and pay for a number of hydrants. On July 17, 1886, O’Neil accepted the provisions of the ordinance. On July 26,1886, an additional ordinance was passed,
secon¿ class have the right and the power |-0 provide for supplying themselves and the inhabitants of such cities with water in the manner in which such right and power were exercised in the present case, and in various other ways. (Gen. Stat. of 1889, ¶¶787, 817, 1401,1402, 7185 to 7190; Wood v. Water Works Co., 33 Kas. 590, 597.)
For the same reasons, and others, we think the court below also erred in sustaining the defendant’s demurrer to the second paragraph of the plaintiff’s reply. The plaintiff certainly had the right to prove that whatever was attempted to be done by the city authorities, and was done, though done irregularly, was afterward ratified and cured by a more perfect action on the part of the city authorities; that all the irregularities in the passage of the ordinances or elsewhere were afterward cured by subsequent action. And the plaintiff also had the right to prove what it had in fact innocently done in the way of constructing its water works, expending large sums of money therefor, and issuing and selling its negotiable bonds, etc., for the purpose of estopping the city from interposing as a defense
The court perhaps ruled correctly in sustaining the defendant’s demurrer to the fourth paragraph of the plaintiff’s reply; for while the city had the right under the ordinance to declare the franchise or privilege granted to O’Neil and to his successors and assigns forfeited for any failure on their part to properly perform the contract, yet the city was not and is not bound to declare such a forfeiture. It may resort to other remedies. But of course the remedy of declaring a forfeiture would be the best for the city and its inhabitants, if the company, after receiving notice, should persist in violating its contract, to the injury of the health, and possibly the lives, of the inhabitants. Neither do we think the court below erred in sustaining the defendant’s demurrer to the fifth paragraph of the plaintiff’s reply. The plaintiff was bound to perform its part of the contract, whether the city informed it how to do so, or not.
We cannot say that the court below erred in overruling the defendant’s demurrer to the third paragraph of the plaintiff’s reply, although it is probable, when the real facts are shown, that that paragraph will be of but little value to the plaintiff.
We hope that if this case is ever again brought to this court it will be brought here upon an agreed statement of the facts, or upon special findings of the facts made by the court or a referee or a jury, and that the facts will be given to us in full and in detail. We can then decide the case intelligently. '
For the errors of the court below in overruling the plaintiff’s demurrer to the second defense in the defendant’s answer, and in sustaining the defendant’s demurrer to the second paragraph of the plaintiff’s reply, the judgment of the court below will be reversed, and the cause remanded for further proceedings.