76 Ark. 48 | Ark. | 1905
Lead Opinion
(after stating the facts.) 1. ^The franchise sought to be enjoyed was granted by the council of Little Rock, August 10, 1902, when the jurisdiction'of the city of Little Rock over the Eighth Ward thereof, where the franchise was to have been enjoyed, would have ceased for all purposes but for the injunction granted for the instance of the city of Little Rock, this appellant company, and other parties to the suit.
One of the grounds relied upon for the injunction was the probability that the other municipality seeking to absorb this territory would grant therein street car franchises conflicting with those theretofore granted by the city of Little Rock. So far as this record shows, the franchise to this company, granted subject to several conditions set out in the statement of facts, was the franchise sought to be protected against encroachment and conflict. This franchise was amended after the injunction, so as to take out the conditions which prevented it from becoming at once operative. The injunction was granted upon this ana other allegations, and unquestionably was intended to preserve the status quo of the two municipalities, so far as the Eighth Ward was concerned, pending the appeal to determine whether or not the proceedings for its annexation to North Little Rock were valid.
Lord Chancellor Eldon' held that where a party obtained an injunction which prevented his adversary from pursuing and enjoying rights, and the injunction was finally dissolved, the party could not take advantage of any rights which he had thus wrongfully prevented his adversary from enjoying. The Lord Chancellor said: “If there be a principle upon which courts of justice ought to act without scruple, it is this, to relieve parties against that injustice occasioned by its own acts or oversights, at the instance of the party against whom the relief is sought. That proposition is broadly laid down in some of the cases.” In such cases it is reasoned by the great chancellor that the plaintiff, seeking relief by the mere circumstances of filing the bill, would be required to submit to every thing conscience and justice required. That the plaintiff seeking the relief impliedly says that he asks it on the terms of prttting his adversary in exactly the same situation if it be determined in his favor. Pulteney v. Warren, 6 Vesey, Jr., 73.
This principle has found secure lodgment in equity jurisprudence, and is appliéd to varying kinds of cases involving its application. Erequently it is applied when an injunction stays an action, and it becomes barred, or right to execution lapses; and in many cases where an injunction wrongfully prevents the assertion of a right, or causes it to lapse, then the court treats the plaintiff wrongfully causing this effect to be reciprocally bound by the injunction. Mercantile Trust Co. v. St. L. & S. F. Ry. Co., 69 Fed. Rep. 193; Hutsonpeiler v. Storer, 12 Gratt. (Va.) 579; Marshall v. Minter, 43 Miss. 666; Work v. Harper, 66 Am. Dec. 549; Sugg v. Thrasher, 30 Miss. 135.
Chief Justice ScitorfiErd in applying this doctrine in a case in Illinois, said:
“The only function of an injunction is to stay threatened action and suspend the conflicting claims of right of the respective parties where they then are until they can be properly adjudicated. 2 Daniell, Ch. Pr. (5th Ed.) 1639, and note. And so it must necessarily follow that to allow one party to obtain any advantage by acting when the hands of the adverse party are thus tied by the writ or the order for it is an. abuse of legal process which cannot be tolerated.” Lake Shore & M. S. Ry. Co. v. Taylor, 134 Ill. 603, s. c. 25 N. E. 588.
While the hands of the town of North Little Rock were effectually tied by the injunction sought at the instance of the city of Little Rock and the street car company, then the street car company obtained from its co-plaintiff the franchise in question in territory over which the city of Little Rock would not have had at that time a vestige of jurisdiction except by reason of the injunction preserving the status quo in regard to franchises as well as police and municipal control. The statement of the situation shows more clearly than argument that it is inequitable to allow rights to be thus acquired.
It is argued that these cases proceed upon the ground that the party obtaining the injunction has violated its spirit, or that the restraining party took advantage of something he could not have had before, or that the position of the party enjoined 0 was more favorable before the injunction. Many of the cases do proceed on such propositions, but the underlying principiéis that the injunction acts reciprocally, and binds in spirit the moving party, while binding expressly the other.
While the city of Little Rock could have granted an absolute franchise the day it obtained the injunction, it did not do so, and when it did grant the absolute franchise, the city of North Little Rock was then under injunction from granting such franchise. If it had not been under such injunction, it could have been granted a franchise over these streets, and the city of Little Rock could not have done so. The court is of the opinion that the principles of these cases apply to this case.
2. Counsel for the appellant qpntends that the city has no property interests in the streets; that it is a mere agent of the State, to whom the State has delegated control of the streets, and the State, in the first instance, and the city, in the second instance, is but a trustee for the public. Many authorities are cited on this proposition, and it is summed up in a recent case in the Supreme Court of the United States in this language:
“The statutes show that there was lodged by the Legislature of Ohio in the municipal council of Cleveland comprehensive power to contract with street railway companies in respect to the terms and conditions upon which such roads might be constructed, operated, extended and consolidated. * * * That, in passing ordinances based upon the grant of power referred to, the municipal council of Cleveland was exercising a portion of the authority of the State, as an agency of the State, cannot in reason be disputed.” Cleveland v. Cleveland City Ry. Co., 194 U. S. 517.
The argument of counsel on this line is fully conceded as established in principle and by authority. But it does not follow from this status of the city that it may by its own act prolong its governmental agency, and grant rights otherwise divested from it by the State. In’ this case the State by appropriate legislation authorized the transfer of the control of the streets in question from one agent to another agent. The holding agent prolonged its holding by this injunction, contrary, as it was afterwards determined, to the act of the Legislature. Can it be said that on account of these governmental functions it is freed of the ordinary rules governing litigants? In Fort Smith v. McKibbin, 41 Ark. 45, the statute of limitations was invoked against the city’s control of an alley of the city of Eort Smith. The doctrine of governmental agency was there presented, but this court held, on a conflict in the authorities, that the weight of authority and the better reason was in favor of applying the statute. In Searcy v. Yarnell, 47 Ark. 269, this court quoted approvingly from Bailey v. Mayor of New York, 3 Hill, 555, as follows: “A municipal corporation, when in the exercise óf franchises and the prosecution of works for its own emolument or advantage, and in which the State in its sovereign capacity has no interest, is answerable as a private corporation, although such works may also be in the nature of ‘great enterprises for the public good,’ and ‘granted exclusively for public purposes belonging to the corporation in its public, political or municipal character.’ Powers granted for private advantages, though the public may also derive benefit therefrom, are to be regarded as exercised by the municipality as a private corporation.” In that case an estoppel was invoked against the'town of -Searcy. In fact, an estoppel may be invoked against the government of the United States, the government of a State, or a municipality. Indiana v. Milk, 11 Fed Rep. 389, and numerous authorities there cited; La Fayette Bridge Co. v. Streator, 105 Fed. Rep. 729; United States v. La Chapelle, 81 Fed. Rep. 152.
In the case of Indiana v. Milk, supra, Judge Gresham said: “Resolute good faith should characterize the conduct of States in their dealings with individuals, and there is no reason, in morals or law, that will exempt them from the doctrine of estoppel.” If the State may be estopped, certainly the agent of the State, who prolongs the power of the State in itself, may be estopped by reason of its action in so prolonging this power.
Passing, however, from the governmental agency of the city to the result of the action of the city in pursuance of this agency, in the recent case, heretofore referred to, of Cleveland v. Cleveland City Ry. Co., 194 U. S. 517, the court said: “That in the courts of Ohio the acceptance of an ordinance of the character of those just referred to is deemed to create a binding contract” is settled. (Citing authorities.) Then the court considered the question as one of general- law, without treating the decisions of Ohio as binding, and reached the same conclusion. A like view is taken of the question in this State. “Now, a grant which has been accepted and acted upon by the grantee is a contract, within the meaning of the Constituí ion of the United States, which forbids laws impairing the obligation of contracts.” Hot Springs Electric Light Co. v. Hot Springs, 70 Ark. 300. This is the general rule. McQuillin, Mun. Ord. § 238.
The grants in this case were duly accepted, and constituted contracts; and hence it follows, aside from any estoppel of the governmental agent, that the grant in question was a contract right, and subject to all the protection and liability of other contractual rights, and among the latter is the sound equitable rule that such rights can not be acquired in violation of an injunction obtained for the benefit of the contracting parties. All of these reasons would be applicable if a stranger had obtained the franchise; but when it is obtained from one party to the injunction in favor of a co-plaintiff therein, they are doubly applicable. Without pursuing the question further, the. court is of opinion that neither the city of Little Rock nor the street car company can hold rights acquired over the streets of the Eighth Ward during the life of the injunction.
3. An estoppel is sought against the town of North Little Rock on account of its permitting the street car company to partially construct its line over these streets, and expend about $27,000 without protest, or resistance. The city of North Little Rock was enjoined from interfering in any manner with the jurisdiction and control of the city of Little Rock over the Eighth Ward. The stréet car company was acting with open eyes; if it won its injunction suit, its rights were peffect, and necessarily it knew that, if it lost, its rights were builded solely on rights acquired while it tied, the hands of the other municipality from exercising control over these streets. The case does not call for an estoppel on this ground against North Little Rock.
The decree in the court below allowed the street railway company sixty days to dispose of or remove the rails, cross ties and other material placed by it on the streets, and that is as favorable as it can ask on this score.
4. Deciding that no rights can be sustained under the ordinance of 'August 10, 1902, does not dispose of any rights which the street car company may have under the ordinance passed June 25, 1902. It is true that the ordinance of August 10 repealed the 'conditions precedent therein to its vesting at once, and attempted to vest the franchise forthwith; but the view the court takes of that ordinance renders that action entirely nugatory, and leaves in force whatever right the street car company may have had when the jurisdiction of the municipalities over the Eighth Ward would have been changed but for the intervention of the injunction. The appellee seeks to avoid that proposition by invoking the doctrine of relation, and contends that the final act of annexation was carried back to the date the election was ordered, June 15, 1903. That contention overlooks the plain provision of the act under which the proceedings were had. It declares that, upon the declaration of the vote favorable to annexation by the council and entering it upon the record of the council such actions constitute the change of jurisdiction. Those acts raise the new flag over the territory annexed.
The obtaining of the consent of the county court of Pulaski County to the use of the free bridge before the franchise could be enjoyed was clearly a condition precedent .to it vesting, and was. a reasonable and enforcible condition precedent. Joyce on Electric Law, § § 187, 352, 358, and authorities cited in notes.
This and the other conditions mentioned in the ordinances would have to be complied with within a reasonable time. In determining reasonable time the subject-matter and all the circumstances are to be considered, as there can never be a fixed rule on such a subject. In this case the ordinance was passed June 25, 1903, and the election was held July 21, and the result would have at once been declared, and the jurisdiction changed, but for the injunction. The rights of North Little Rock must be determined as of date when it should have acquired jurisdiction. That date was less than one month after the passage of the ordinance. Therefore North Little Rock assumed jurisdiction over the Eighth Ward subject to a valid ordinance granting a franchise to certain streets therein subject to conditions precedent to be performed in a reasonable time from June 25, 1903. The subsequent proceedings did not alter that status, for the jurisdiction, when assumed in. February, 1904, was, so far as these parties were concerned, as of date July 21, 1903, or as soon thereafter as the vote could be declared. The rights acquired after that date should be cut off, and those acquired prior thereto given full force.
The court is of opinion that one month was not reasonable time to allow the street car company to comply with the conditions precedent, and it follows, therefore, that the street car company still has a reasonable time, under the ordinance of Jutie 25, 1903, to comply with the conditions precedent.
The decree of the chancellor cancelling and annulling the ordinance of June 25, 1903, is erroneous, and the same is hereby reversed. The decree cancelling and annulling the ordinance of August 10, 1903, and all other matters therein, except as above stated, is affirmed.
Dissenting Opinion
(dissenting.) Judge Dillon says: “Public streets, squares, and commons, unless there be some special restriction, when the same are dedicated or acquired, are for public use, and the use is none the less for the public at large, as distinguished from the municipality, because they are situated within the limits of the latter, and because the Legislature may have given the supervision, control and regulation of them to the local authorities. The Legislature of the State represents the public at large, and has, in the absence of special constitutional restraint, and subject to the property rights and easements of the abutting owner, full and paramount authority over all public ways and public places.”
He further says: “Whether the fee of the street be in the municipality in trust for the public use, or in the adjoining proprietor, it is in either case of the essence of the street that it is public, and hence, as we have already shown, under the paramount control of the Legislature as the representative of the public. Streets do not belong to the city or town within which they are situated, even although acquired by the exercise of eminent domain, and the damages paid out of the corporation treasury. The authority of municipalities over streets they derive, as they derive all their other powers, from the Legislature — from charter or statute. The fundamental idea of a street is not only that it is public for all purposes of free and unobstructed passage, which is its chief and primary, but by no means sole, use.” 2 Dillon on Municipal Corporations, § § 656,. 683.
“The city corporation, as freeholder of the streets and highways in trust for public use, is but an agent of the State. Any control which it exercises over them, or the power of regulating-their use, is a mere public or governmental power delegated by the State, subject to its control and direction, and to be exercised in strict subordination -to its will. The corporation, as such, has no franchise in connection with the use of the streets for the transportation of passengers.” People v. Kerr, 27 N. Y. 213; Chicago v. Rumsey, 87 Ill. 348, 355; State ex rel. v. Madison St, Ry., 72 Wis. 617, 619; Stanley v. Davenport, 54 Iowa, 463.
Neither the State nor the cities have any proprietary interest in the streets. The public they represent has no interest in the soil. Reichardt v. St. Louis & S. F. Ry. Co., 51 Ark. 491, 497. The power and control either has over the same is governmental. When they grant an easement over the streets, not common to the public at large, they do so, not because they have any proprietary interest in the land, but because of their control over the streets in a governmental capacity. San Francisco v. Spring Valley Waterworks, 48 Cal. 493, 529; Detroit v. Detroit City Ry., 56 Fed. 867, 874; City Ry. v. Citizens Ry., 166 U. S. 557, 563.
Under the statutes of this State, city councils have the care, supervision and control of-all the public highways, streets and alleys within the city, and may grant an exclusive privilege of the streets of the city for street railway purposes for such term of years as they may agree upon. Kirby’s Dig. § § 5530, 5448. This power extends to all the streets within the city, and continues so long as they remain in the city, regardless of the time they have been in or may remain in the city. It-is exclusively governmental. The streets in question in this case,, together with the care, supervision, control and power over the same, remained in the city of Little Rock until the 22d day of February, 1904, when they became a part of the city of North Little Rock, according to the act entitled, “An act to amend the laws in relation to municipal corporations,” approved March 16, 1903. Acts of 1903, page 148.
The ordinances in question were passed by the 'city council of Little Rock while the streets of which they were the subjects of. legislation were in that city, and within its territorial jurisdiction; and as an incident to that jurisdiction it had the power to pass them. Appellant accepted them, and undertook, by the expenditure of considerable sums of money and labor, to construct a railway over the streets according to the terms thereof. The ordinance thereby became a valid contract, binding upon the public, the city of Little Rock and of North Little Rock. State v Madison St. Ry., 72 Wis. 617, 619; City Ry. v. Citizens Ry. 166 U. S. 557, 563; Elliott on Roads and Streets, § § 741, 742; 27 Am. & Eng. Enc. Law (2d Ed.), 15.
I think the ordinances should be sustained.
Rehearing
ON REHEARING.
Both parties seek a rehearing of the cause. Appellant asks that we set aside that part of the decision'holding that ordinance No. 1019, passed August 10, 1903, is void, and that appellant acquired no rights thereunder, and appellee asks that we set aside that part of the decision holding that ordinance No. 1002, passed June 25, 1903, conferred a valid franchise.
Upon consideration we adhere to the conclusion heretofore announced, and both petitions for rehearing will be overruled.
Counsel for appellee insists that when the disannexation of territory was accomplished, the power reserved in ordinance No. 1002 by the city of Little Rock to revoke the franchise upon the refusal of the county court to confirm the right of way over the free bridge, as well as all other rights and powers reserved to that municipality, passed to the city of North Little Rock, .and that the latter could then properly exercise the power of revocation. He contends that we should, for that reason, hold that appellant had no existent rights in the franchise conferred by that ordinance. It is sufficient to say, in response to that contention, that the condition upon which the power of revocation rests, i. e./the refusal of the county court to confirm the right of way over the free bridge, is not shown either in the pleadings or proof in this case to exist. Appellee’s complaint alleges that application to the county court to confirm the right of way had never been made, and appellant’s answer expressly ' admits this to be true. J. A. Trawick, the manager of appellant company, testified (which was all the testimony on the subject) that no application was made to the county court, though he had reason to believe, he says, from information received that permission to cross the bridge would not be granted.
The question of revocation is, therefore, not presented to us in this record, and we cannot properly pass upon it.
We merely held in the former opinion that ordinance No. 1002 conferred a valid franchise, and that at the time of the commencement of this suit an unreasonable time for the performance by the grantee of the conditions precedent therein named had not elapsed.
Whether or not it is now too late for appellant, under the circumstances, to perform them and preserve the granted rights; whether the power of revocation passed to appellee upon the disannexation of territory, and, if so, under what circumstances it may be exercised; and whether or not appellant may proceed to the enjoyment of the franchise without obtaining from the county court the right of way over the bridge, are all questions which we have not decided, and do not deem it necessary or proper upon the record in this case to decide. They must be brought before us in proper proceedings, and upon appropriate allegations and proof, before a determination can be reached.
Appellant asks further that the judgment of this court be modified so as to permit the tracks constructed under the franchise by appellant before the commencement of this suit to remain in the streets of North Little Rock pending further proceedings by appellant to test and secure enjoyment of -its alleged rights under ordinance No. 1002, and to restrain said city from disturbing said tracks during such further proceedings. This, however, is provisional relief, which must be granted, if at all, by the court of original jurisdiction in which such further proceeding is instituted, subject to review on appeal. We cannot grant it in this suit. Nothing in this decision will bar such relief, if appellant be shown in other respects to be entitled to it. Following the decree of the chancellor, appellant has in the original judgment here been allowed sixty days in which to dispose of or remove the tracks and material now on the streets of North Little Rock, and said period will run from this date.
To that extent the judgment heretofore entered here will be modified. In all other respects it will stand.
