220 Mo. 496 | Mo. | 1909
Lead Opinion
IN BANC.
Upon consideration of this case the opinion of (xraves, J., in Division No. 1, is adopted as the opinion of the Court in Banc.
Judgment affirmed.
This is an action for injunction tried in the city of St. Louis. The plaintiff, "William K. Kavanaugh, claims to be the trustee of an express trust for the Wiggins Perry Company, an Illinois corporation.- The suit is against the city of St. Louis, and its street commissioner and its superintendent of city lighting. The facts pleaded and proven by plaintiff are these:
Prior to April 13, 1888, the Fourth Street and Arsenal Railway Company was a duly incorporated street railway company under laws of Missouri. By city Ordinance 14485, passed on said last-mentioned date, the said city of St. Louis authorized said street railway company to build a street railway in and along certain streets in said city. Said ordinance was accepted and the railway built. Said street railway company executed later, but very shortly thereafter, a deed of trust covering all of its said property, including its franchise, in which deed Charles Parsons was made trustee. This instrument was to secure the payment of $50,000 in bonds at the time issued by the company. Under this deed, owing to default having been made, a sale was had in September, 1898, and said property was bought by John H. Overall, to whom a trustee’s deed was made. Very shortly thereafter, within a few days, Overall and wife conveyed the property to John Scullin, who in September, 1903, being joined therein by his wife, conveyed to the present plaintiff. Upon the receipt of his deed Mr. Kavanaugh made and executed a trust agreement with the Wiggins Perry Company, of which he was at the time president. In said instrument it is recited that the consideration was paid by the said Perry Company and not by Kavanaugh, together with other proper recitals for such an instrument. It is averred that on
By answer the defendants charged: 1. That by section 6 of Ordinance 14485, the railway company was required to run cars at intervals of five minutes between 6 o’clock a. m. to 12 o’clock p. m. each and every day of the year. 2. That it was by section 5 of the city ordinance required to keep the space between the tracks and for twelve inches on each side in complete repair and condition with the same or better material than that used upon the remainder of the street. 3. That by Ordinance 21113, dated April 6, 1903, it was required to operate its cars as in ordinance specified on each and every day. 4. That since 1896 the said railway company wholly failed to run any cars upon said streets over its said lines, or otherwise exercise any rights, privileges or franchises theretofore granted; that it failed to take out license so to do as required by ordinance. 5. That since 1896,. although frequently notified, said railway company and all of its assigns wholly failed to keep in repair the space between its rails and on the sides thereof as required by ordinance. 6. That said company and assigns paid no attention to the roadbed, poles, wires or apparatus, and neglected and refused to attend to same, or repair the same, and allowed. such to fall into decay, disuse and dilapidation, which made the streets dangerous and unsafe to the public and for public use and travel. 7. That said company and assigns refused and failed to take or claim said tracks, rails, poles and wires when notified by the city that
“Defendants aver that by reason of the premises the said company and its alleged successors and assigns, including the plaintiff, have long ago abandoned and lost all rights, privileges and franchises obtained under said ordinances, and have repudiated all obligations, thereunder, and have abandoned and lost all its tracks, wires, poles and other apparatus pertaining to its former street railway, and have repudiated all obligations thereunder; and have not now, and have not had for years, any property of any kind or nature necessary for the operation of a street railway.
“Defendant further avers that neither the plaintiff nor said railway company, or its assigns, now have, or for the past eight years have had, any intention, nor have they Or any of them made any efforts, to operate a street car railroad over the streets mentioned in plaintiff’s petition.
“Wherefore the defendant prays that the relief prayed for by plaintiff be denied.
“And for cross-bill, defendants herein, alleging all the matters and things by them alleged in their defense above set forth, and incorporating the same herein as a cross-bill, and as a basis for affirmative*505 relief, pray the court to decree that said railway company and its assigns, the plaintiffs, and those for whom the plaintiffs hold, have abandoned all their rights, privileges and franchises granted said Fourth Street and Arsenal Railway Company, and all the tracks, wires, poles, and other apparatus now or for-merely on said streets of the city of St. Louis.”
By way of reply and ^answer to the crossbill the plaintiff says that the question raised by defendant’s answer can only be raised in a quo warranto proceeding on the part of the State. He then pleads by way of’ estoppel in pais, that at the request of and with the knowledge and consent of the city, he as trustee had expended large sums of money in paving streets along the line of street railway.
That the line had not been operated at' all for some years is practically conceded. In fact it is shown that in a quo warranto proceeding in this court in 1904, the plaintiff consented to the following judgment of ouster:
“Now at this day come the said parties by attorneys and upon their stipulation, it is considered and adjudged by the court that the said respondent, William K. Kavanaugh, be, and is hereby ousted from having, maintaining or using any franchises or rights to run or maintain any street railroad or railway, in or over the following streets of the city of St. Louis, Missouri, viz.:
“Beginning in Fourth street at its intersection with Morgan street, thence running northwardly along Fourth street and Third street near Carr street; and that said appellant recover against the said respondent, William K. Kavanaugh, its costs and charges herein expended, and have therefor execution.”
This is a part of the original line conveyed to Kavanaugh. The city substantially proved every charge in its answer by evidence both strong and convincing. It shows that not a car has been run for
Plaintiff had some evidence tending to show that the notices were heeded and repairs were made. Plaintiff also showed that in 1905, shortly before this suit, he paid on one paving bill for Dorcas street $770 and another bill of $251. No attempt is made by plaintiff to show that cars were run on the tracks and wires kept in condition to run a street railway during all this period.
By decree the court permanently enjoined the defendants and each of them and their respective agents and employees, “from taking up or removing any of the ties, rails, switches, poles or wires formerly belonging' to the Fourth Street and Arsenal Railway Company and now belonging*to the plaintiff as trustee for the Wiggins Ferry Company, and from interfering with the plaintiff as such trustee from replacing and repairing the said ties, rails, switches, poles and wires, and from interfering with plaintiff as such trustee in using and operating the same for street railway purposes, and ordering and adjudging that the cross-bill of defendants be dismissed, and that the costs of
. From this decree, after unsuccessful motion for new trial, the defendants appeal. In the brief counsel for defendants say:
“The defendants below insisted that the Wiggins Ferry Company, a corporation of the State of Illinois, had no right to acquire the right of way along the said streets granted to the Fourth Street and Arsenal Railway Company, because, in the first place, such Illinois Company had no power to own and operate such franchise; in the second place, the attempted transfers were void by virtue of the general law, in the third place, such transfers were void as being made in fraud of and without the consent of the city of St. Louis; in the fourth place, the Fourth Street and Arsenal Railway Company had, for a period of eight or ten years, persistently violated every duty assumed by it in its charter and imposed by the charter and ordinances of the city of St. Louis; it, as well as its pretended successors and assigns, had physically abandoned the franchise and right of way along the public streets, and they had no intention of ever operating a street railway as provided for in their franchise along the said right of way in the streets mentioned; consequently they had abandoned the said right of way which reverted ipso facto to the city.”
This states the contentions here as briefly as we could put them. In the record are found all the conveyances and ordinances mentioned. This sufficiently states the case and the contentions.
I. The first question in importance is to determine whether or not the Fourth Street and Arsenal Railway Company had any power to mortgage the franchises granted to it by the city, under Ordinance 14485. The first section of that ordinance reads: “The Fourth Street and Arsenal Railway Company, its sue
The rights here involved are those conveyed by section 2, of said ordinance, the material portion of which reads: ‘ ‘ Said Fourth Street and Arsenal Railway Company is hereby authorized to construct, maintain and operate a railroad to be operated by horsepower, or by cable laid underground, or by electricity supplied by storage batteries carried on the cars, in and along the following streets, that is to say, . . . And so soon as the streets shall have been 'graded and put in suitable condition to permit of the operation of the same, the said company shall have the right to extend the single track of its railroad in Third street, south from said Anna street to Dorcas street; thence east, with a single track, in Dorcas street to Second street; thence north, with a single track in Second street, to Anna street, and to a junction with its track in Second street north of Anna street. With the right also in said company to lay all necessary tracks into and out of its carsheds and other buildings located at the northwest corner of Second and Victor streets.”
The description of the streets and lines to be constructed we have omitted, but they cover the property rights in dispute. If will be noticed that as to the rights granted in the first section the words “its successors and assigns” are used, whilst as to the rights granted under the second section no such words are used, and this is the bone of contention. Defendants contend that the deed of trust made by the railway company as to the franchises mentioned in section two is void, and the subsequent sale and transfers thereunder void. If this be true, plaintiff has no standing in court.
That without statutory authority a corporation cannot alienate such franchises as are involved in this case, is determined by the following authorities: Snell v. Chicago, 152 U. S. 191; Com. v. Smith, 92 Mass. 448; Coe v. Railroad, 10 Ohio St. 372; Wood on Railroads (2 Ed.), sec. 455; Short’s Law of Railway Bonds and Mortgages, sec. 142; Moorshead v. Railroad, 203 Mo. l. c. 148.
That the ordinance or law granting such franchise must he strictly construed is equally certain. [Endlich on the Interpretation of Statutes (Ed. of May 1, 1888), sec. 354.]
So also that mortgaging is an alienation is fully decided. This for the reason that such an instrument may culminate in the absolute alienation of the property. Vide cases cited supra. Also 1 Elliott on Railroads, sec. 488, whereat it is said: ’ “Railroad bonds are usually secured by mortgage or trust deed, and mortgages are frequently executed for other purposes as well. As a railway company receives from the State special privileges because of its public purpose, and has public duties to perform in person, and as a mortgage may become in effect an absolute conveyance or result in a sale by foreclosure, such a company cannot, without legislative authority, mortgage its franchises
But at the time this corporation was organized we.had an express statute authorizing it to mortgage its property, i. e., section 706, .Revised Statutes 1879. This statute, so far as applicable to the point in issue, reads: “Every corporation, as suoh, has power . . . fourth, to hold, purchase, mortgage or otherwise convey such real and personal estate as the purposes of the corporation shall require, not exceeding the amount limited in its charter or the law creating it, and also to take, hold and convey such other property, real, personal or mixed, as shall be necessary or requisite for such corporation to acquire in order to obtain or secure the payment of any indebtedness or liability belonging to the corporation.”
Under this statute we have expressly held that such corporation had the right to mortgage its property, including the franchise, which is property. [Hovelman v. Railroad, 79 Mo. l. c. 643.] In this case we said: “It is also argued that the Union Depot Horse Railroad Company had no power to mortgage its right of. way, and that, therefore, Dye, who purchased the right of way at the sale made under the deed of trust or mortgage, could not and did not acquire said right, and that consequently his deed to defendant was inoperative to convey the same to defendant. This position we think is answered by section 706, Revised Statutes 1879, which, among other things, provides that ‘every corporation, as such, . . . has power to hold, purchase, mortgage or otherwise convey such real and personal estate as the purposes of the corporation may require, . . . and also to take, hold, and convey such other property, real, personal and mixed, as shall be necessary for such cor
And we have further held that such franchises really come from the State through its authorized agencies. [State ex rel. v. Railroad, 140 Mo. l. c. 550.] In the latter case, we said: “This court has recognized the rights of street railways in the streets of a municipality as franchises and as vested rights which might be mortgaged by the company to whom the franchise belonged. [Hovelman v. Railroad, 79 Mo. 643.] While the franchises involved in this controversy were derived directly from the city by the East Fifth Street Railway Company, under ordinances passed under the grant of power contained in the city charter, that power was conferred upon the city 'by the General Assembly, so that the power came indirectly from the State, and in granting it the State acted through the city as its agent. [Transportation Co. v. Chicago, 99 U. S. 641; Port of Mobile v. Railroad, 84 Ala. 119.] The power of the city to grant the franchises in question is unquestionable.”
So that under the laws of this State, whatever it may be elsewhere, we are forced to the view that the railway company had the general right to mortgage, as it did, the property rights granted to it by the city of St. Louis, and having such right, John H. Overall had a right to purchase and thereby acquire a good title. The limitation of this right, if such there be, will be discussed in another paragraph. There is no
However this is a question to be determined later, and not at all necessary to the point now under consideration, i. e., whether or not the railway company had the broad right to mortgage this property. As to this question we hold that it had such right, subject to the views hereinafter to he expressed upon certain limitations upon the broad statutory rights.
II. It is next contended that the ferry company, an Illinois corporation, has no legal right to hold the beneficial interest in this property. This point is not briefed nor argued by counsel and presumably has been abandoned. The petition charges that the plaintiff was a trustee of an express trust, without stating who had and held the beneficial interest. No motion was made to require such petition to be made more specific. Answer was filed without raising the question, and it remained for the evidence to disclose the actual beneficial owner. By motion to make more specific defendants could have complained that the beneficial owner was not named. If the court had sustained such motion, as it no doubt would have done, the defendants could have pleaded, as they did not do, the fact that such beneficial owner, in law, could not hold the property. Neither by pleading nor proof are we advised as to the corporate powers of the Wiggins Ferry Company. Its charter is not before
III. But it is earnestly insisted that these transfers, having been made without the assent of the city, are void, notwithstanding the statute, section 706, Revised Statutes 1879. This statute places no limitation upon the right to alienate or mortgage, which latter as we have seen is of itself an alienation. Defendants insist that there is a constitutional provision which limits the broad terms of the statute. This provision is section 20 of article 12, Constitution of 1875. This provision was in full force and effect when the franchises were granted, when the mortgage was made, and when the sale was made under the mortgage. The constitutional provision reads: “No law shall he passed by the General Assembly granting the right to construct and operate a street railroad within any city, town, village, or on any public highway, without first acquiring the consent of the local authorities having control of the street or highway proposed to be occupied by such street railroad; and the franchises so granted shall not be transferred without similar'assent first obtained.”
The latter clause, “and the franchises so granted shall not be transferred without similar assent first obtained,” is the one relied upon by the defendants. They urge that this provision of the Constitution was not considered in the case of Hovelman v. Railway, supra, and in this we think defendants are correct. That case only discusses the statute, but does not dis
This objection is vague and indefinite. Counsel may have had in mind that no municipal assent had been obtained, but why not so say in the pleading and likewise in the objection. When it appeared that the railway company had in fact made the deed of trust, the presumption arose that all things necessary had been done to make it valid, i. e., that municipal assent had been obtained. Discussing a similar question, this court, through Lamm, J., in Chlanda v. Railroad, 213 Mo. l. c. 262, said: “In other words those artificial persons, yclept corporations, are entitled to a presumption of duty well done until the contrary appears, the same as a natural person. A presumption
■ In this case the defendants not only fail to plead the want of assent, but when the deed of trust is read and the other conveyances are read in evidence, thus raising the presumption above discussed, they do not by proof undertake to rebut the presumption. So that we conclude that the want of assent is not sufficiently pleaded or shown.
The case was tried upon a wholly different theory below. Abandonment was the slogan there, and so it must be here.
IV. It is next contended that the evidence in this case shows an abandonment and non-user of the franchise granted by the city for eight to ten years. The evidence does so show. Whilst there is some slight proof tending to show repairs, as against a mass of proof upon the same subject offered by defendants,
In State ex rel. v. Railroad, 140 Mo. l. c. 550, we held that a franchise of this character, whilst granted by the city, was in fact granted by the State, through the agency of the city; that in granting such a franchise the State acted through the city. We there cited Transportation Co. v. Chicago, 99 U. S. 641, and Port of Mobile v. Railroad, 84 Ala. 119, as supporting the doctrine. Many other cases might be cited. Thus, in Railroad v. City of Memphis, 96 Fed. l. c. 121, Taft, J., said: “When, therefore, the taxing district of the county of Shelby made a contract with the complainant company by which it secured to that company for fifty-five years occupancy of Kentucky avenue, it was acting as an agent of the State, and as a trustee of the public at large. When now the city of
If then, as we hold, the franchises are granted by the State through the agencies of the cities, in our judgment a direct proceeding in quo warranto is the remedy.
In the brief of counsel in the case of State ex rel. v. Railroad, 140 Mo. l. c. 541, it was urged that such contracts should be canceled in a proceeding in equity. In support of his contention learned counsel cites some of the cases cited by counsel for defendant in this case. In that case, learned counsel press the question in this language in their brief: “The ordinances set.out in the information are simply contracts between the relator and the defendant, in which the State has no
The doctrine of State ex rel. v. Railroad, 140 Mo. l. c. 541, supra, is sustained by the following, among other cases: Jersey City Gaslight Co. v. Gas Co., 40 N. J. Eq. 427; Railroad v. Commissioners, 39 N. J. L. 28; Railroad v. Railroad, 110 Fed. 879. The abandonment pleaded and proven in this case is but evidence of forfeiture, or at least of such non-user as would authorize a decree of forfeiture, but this decree of forfeiture must be in a direct legal action for that purpose. Courts of equity do not as a rule declare or determine forfeitures. Neither can the city by its' agencies or officers declare a forfeiture.' Such must be by judgment of a court. Considering all the questions raised we think this case was well decided. If there has been such acts as will justify a judgment of forfeiture, as in the case cited from the 140 Mo., let the parties bring their proper action.
The present judgment will be affirmed.
Dissenting Opinion
DISSENTING OPINION IN BANC.
I concur in the propositions of law laid down in the opinion of my learned Brother Graves, but I draw from them a different conclusion and reach a different result from that reached by him in the application of those principles to the facts of this case.
A forfeiture results from the operation of law, it results immediately when the party whose right is forfeited has done or permitted the act by which he loses his right. It does not require a judgment of
If you enter into a contract with a man by which you grant him the right to build his fence across a portion of your land to join your fence on a condition subsequent that by a certain time he will do certain things for you and that unless he performs the condition he shall forfeit the right to maintain the fence; he builds the fence but fails to perform the condition, you would not have to go into court for a judgment of forfeiture before you could remove the fence from your land, but you could act on your own judgment, and remove the fence. If, in such case, you should be sued as for a trespass you could plead the forfeiture as a legal defense, and if the judgment of the court should be in your favor on the ground that your adversary had forfeited his right to maintain the fence, the judgment would not create the forfeiture, but would simply be declaratory of the fact that a forfeiture had resulted from the failure of the man to perform the condition. The city of St. Louis has no judicial power to declare a forfeiture, as in the opinion is well said, for the city in that respect has no more authority than an individual, but in a matter in which the city is a party in interest it may judge for itself that a forfeiture has resulted and act on its own judgment, at its own risk of course, just as the man in the case above supposed acted on his own judgment when he removed the fence. If the city grants a party the right to put an obstruction in the street, with a speci
In the enforcement of forfeitures and in awarding damages for wrongs growing out of acts based on a mistaken assumption that a right had been forfeited, the law courts alone have jurisdiction. Equity has no jurisdiction over the subject of forfeitures except to relieve against them when it would be unconscionable to allow them to be enforced. It may be stated in strong terms’that equity never interferes in a case of forfeiture except to relieve against it, or, what is the same thing, impose equitable conditions on its enforcement. If there are no equitable circumstances appealing to the enlightened conscience of the chancellor he leaves the parties to settle their affairs in a court of law.
There is no branch of its jurisdiction to which a court of equity is more partial than that which enables it to grant relief against a rigid application of a legal result when there are equitable considerations that call for such relief. But in the absence or non-appearance of such considerations a court of equity keeps its hands off and leaves the parties to their legal remedies; it will not aid either one side or the other.
Now what has the equity court done in the case at bar? It has interfered in behalf of a party who apparently has forfeited his right to maintain an obstruction in the street and who shows no equitable considerations why the law should not be allowed to take its course, and, by its decree, the court has tied the hands of the opposite party and imposed on it the burden of coins: to law to have the forfeiture de
In my opinion when the facts of the case were developed at the trial, as they appear in the record before us, the chancellor should have dismissed the bill and have left the parties to fight it out at law.
