24 Kan. 170 | Kan. | 1880
The opinion of the court was delivered by
“Section 1. "Whenever . ... two-fifths of the resident tax-payers of any incorporated city shall petition the mayor
“ Sec. 2. Before such subscription or loan shall be made, the question shall first be submitted to the qualified electors of such . . . city, as provided in § 1 of this act, at a special or general election, as the same shall be specified in the petition ; which petition shall also designate the railroad company and the amount of stock .proposed to be taken, . . . and the terms of payment, together with the conditions upon which it is proposed to make such subscription, . . . and the form of the ballots to be used at such election for and against such proposition.
“Sec. 3. The . . . mayor and council for such city, upon the presentation of the foregoing petition and such other conditions as may be deemed advisable by the authority ordering such election to . . . the mayor of the city shall convene and make an order which order shall embrace the terms and conditions set forth in the petition, and shall fix the time for holding said election, which shall be within sixty days from the day on which . . . the members of the council shall be convened.
“Sec. 4. Thirty days’ notice of such election shall be given in some newspaper published or having a general circulation in such . . . city, and the election shall be held and the returns made and the x-esult ascertained in the same manner as provided by law for general elections.
“Sec. 5. If two-thirds of the qualified electors voting at such election shall vote for such subscription, the mayor and council, for and on behalf of such city, shall order the . . . city clerk ... to make such subscription or loan in the name of such . . . city; and shall cause such bonds, with coupons attached, as maybe required by the terms of said proposition, to be issued in the name of such . . . city, which bonds. . . . shall be signed by the mayor, and attested by the city clerk under the seal of said city: Provided, No such bonds shall be issued until the railroad to which the subscription ... -is proposed to be made shall be completed and in operation through the county, township or city voting such bonds, or to such point in sucix county, township
“Sec. 8. Before any railroad company shall be entitled to receive any bonds issued in pursuance of the foregoing provisions for the stock of such company, said company shall deliver to the treasurer of such . . . city, stock in their said road, equal in amount with the bonds authorized to be issued, dollar for dollar.”
The plaintiff was incorporated November 26, 1877. On the 14th of December, 1877, a petition was presented to the mayor and council of the city, the terms and conditions of which are embraced in the order hereafter referred to, excepting the second proviso of the petition, which is as follows :
“ Provided further, That no such bonds shall be issued until the said . . . railway shall be constructed and in operation from the city of Cherokee ... to the road-bed of the Missouri, Kansas & Texas Eailway, in the city of Parsons, and its depot established within thirty-five rods of the brick passenger depot of the last-mentioned railway, in said city of Parsons.”
On the 19th of December, 1877, after examining the petition and finding it sufficient as to numbers and qualifications ■of petitioners, etc., the mayor and council made an order calling an election, which, so far as material, is as follows:
“Whereas, on the 14th day of December, 1878, a petition was presented to the mayor and councilmen of the city of Parsons, . . . signed by more than two-fifths of the resident tax-payers ... of said city, asking that the mayor and council aforesaid cause an election to be held to submit . . . the proposition to subscribe thirty thousand ■dollars to the capital stock of the Memphis, Kansas & Colorado Eailway Company, such stock to be paid for by the bonds of said city of Parsons, in equal amounts, dollar for dollar, which bonds are to draw interest at the rate of 8 per cent, per annum from their date, and be payable in thirty years: Provided, etc. . . . Provided further, That no •such bonds shall be issued until the said railway company .shall construct a road from the city of Parsons, Kansas, to the city of Cherokee, Kansas, according to the terms relating to the construction and equipment of said road as stipulated in the contract, dated November 24th, 1877, and published
“ It shall be the duty of the mayor and clerk, so soon as the said railway company shall have constructed its road and commenced running its cars from said city of Cherokee to said city of Parsons, to issue said bonds in the said sum of thirty thousand dollars . . . and deliver them to said . . . railway company in exchange for a like amount of stock of said company. Now, therefore," etc. [Here follows the order calling a special election for the purpose indicated, and prescribing the form of ballots, etc., duly signed, sealed and attested.]
It will be noticed that the order differs from the petition, in this, that instead of leaving the manner of construction and extent of equipment an open question, it distinctly provides how the road shall be constructed and equipped.
Notice of the election was 'given as prescribed by statute. The election was held January 29, 1878, the day named in the order, and more than two-thirds of the votes polled were in favor of the proposition.
On the first of February, the mayor and council met and canvassed the vote, declared the result as stated, and at the regular session held on the 11th of the same month, passed a resolution reciting the steps that had been taken, etc., and proceeding as follows:
“ . . . And whereas, All of said proceedings, including the making of said petition, its presentation, and the order for said election made thereon, notice by publication of said election, the manner in which said election was held.
“Resolved, That the city clerk of this city, in the name and in behalf of the city of Parsons, subscribe thirty thousand, dollars to the capital stock of the Memphis, Kansas & Colorado railway; such subscription to be made and stock paid for in the manner and subject to the conditions and restrictions set out at large in the body of the proposition submitted at the election aforesaid,” etc.
On the 22d day of the same month, the city clerk, in behalf of the city, subscribed upon the books of the railway company for the stock as directed in the resolution.' The subscription, after referring to the authority under which it was made, and setting forth at length the resolution of the council last referred to, proceeded as follows:
“Now, therefore, I, E. S. Stevens, city clerk of the city of Parsons, ... in the name and for and in behalf of said city, do hereby subscribe to and for thirty thousand dollars of the capital stock of the Memphis, Kansas & Colorado Railway Company, to be issued and delivered to the treasurer of the city, . . . and to be paid for by the bonds of said city, to be issued in the manner prescribed by law, and subject to the conditions, restrictions and limitations in the proposition hereinbefore referred to. In witness whereofj” etc., [signed by the clerk, and seal of city attached.]
The material portions of the contract referred to in the proposition are as follows:
“That said parties of the second part, for and in consideration, etc., do hereby covenant and agree that they will construct, etc., in a good, workmanlike and substantial manner, a railroad from, etc., and complete, equip and put said road in operation according to the following specifications:
“ The road-bed to have at least twenty-six hundred and forty ties per mile — ties to be of sufficient size and strength to enable the road to be operated in safety, and to be of such timber as the country affords. The iron for the rails to be of good quality, weighing not less than thirty pounds to the yard, Eish-plate joints; the bridges to be all constructed in a good and substantial manner; the bridge over the Neosho river to be Howe truss, not less than one hundred feet span, with proper approaches, the maximum grade, etc., not to exceed sixty feet to the mile, etc. The equipment of the first section of the
Plaintiff having constructed its road between Cherokee and Parsons, and having daily trains running between these cities, applied for the bonds, but the city refused to issue them, claiming that the conditions upon which the subscription was made had not been complied with. Thereupon this action was commenced in this court. The case has been tried, a large amount of testimony introduced, and the questions in issue have been fully and ably discussed by counsel.
We think the pivotal question arises on the third proviso in the petition and order for the election. These provisos, of course, enter into and form the terms of the contract between the parties. The language was chosen by them to express their mutual intent, and such construction must be given thereto as will carry into effect that mutual understanding. The province of the court is interpretation. We are to ascertain what the parties understood and intended by this language, and may not deviate therefrom, whether that contract as so interpreted be wise or unwise for either party. Unfortunately, the proviso is susceptible of two interpreta
In Chamberlain v. Rld. Co., supra, the subscriber promised to pay, provided the road was permanently located through the village, etc., and a freight-house erected within a distance named; held, that the location of the road was the only condition precedent to the subscription becoming absolute, and that the building of the road, freight-house, etc., were stipulations merely, which the company undertook to perform-at the appropriate time.
In the cases of Miller v. Rld. Co., and McMillan v. Rld. Co., supra, the subscriptions were conditional upon the road being “located and constructed” upon a certain route; held, that they were payable upon permanent location, and that construction was not a condition precedent.
In Woonsocket Union Railroad Company v. Sherman, supra, the subscription was conditioned to be payable “if the road was built through the village of P.;” held, payable when the road was located, though not built.
So in Swartwout v. Railroad Company, supra, the subscription was “ upon condition that the road should be located and
On the other hand, it is claimed that the two provisos are to be construed together, the one defining the manner, and the other the time of construction ; the one declaring that the road should be constructed in accordance with certain specifications, and the other at a certain time, and that if the parties intended a different manner of construction and extent of completion in the latter proviso, such intent would have been differently and clearly expressed; that the ordinary rule of construction is, that where a matter is referred to in several places in one contract, it is to be taken in the same sense; that- the railroad company soliciting this subscription should have seen that the contract was made more specific if it intended that the language should mean one thing in one proviso and a different thing in another; that while the act is entitled and the purpose of the subscription was to aid in the construction of railroads, yet the legislature, aware that many municipalities had issued bonds without obtaining the expected road, in terms provided that “No such bonds shall be issued until the railroad to which the subscription or loan is proposed to be made shall be completed and in operation through the county, township or city voting such bonds, or to such point in such county, township or city as may be specified in the proposition set forth in the petition required' in the first section of this act.” (Sec. 5, cited, supra.) In other words, as one protection to the municipality, the legislature has ordered that a part of the road must be completed and in operation before any public aid can be given. Private
Indeed, if the specifications as to the manner of construction had not been inserted, it is not clear that it could fairly be said that on the 1st of July the road was so “completed,” using the language of the statute, as to be a compliance with ■the condition as to time. True, trains were run upon that day, and have continued to run ever since, but the road was
This last case is in many respects very instructive. It appears that the legislature passed a law authorizing and direct
This very contract contains another condition precedent, that named in the second proviso. Until the terms of that condition were complied with, no one would contend that the city was bound to issue its bonds, no matter what causes produced the delay. The third proviso is as vital as the second. It differs in this, that it makes time of the essence of the contract; but it is equally and no more a condition precedent. Parties may stipulate to make time of the essence of the contract. (M. R. Ft. S. & G. Rld. Co. v. Brickley, 21 Kas. 275.) A condition precedent is not less binding because it contains a time stipulation, nor have the courts any greater power to set it aside. In any aspect, then, of the conceded facts, it seems to us that under the contract the city is not liable.
We might close this opinion here, but it is due to the city to say that it contends that, notwithstanding the rains and
While the contract required that the maximum grade should not exceed sixty feet to the mile, out of ten places measured, eight exceeded that grade, as follows: one, 693^ feet; a second, 663^-; a third, 72^^j-; a fourth, a fifth, 683^4q-; a sixth, SO^8^; a seventh, 673®^-; and the eighth, 663-^- feet. These measurements were made at different places along, the line, and in distances of from 300 to 800 feet.
Other similar defects were noticed in the embankments, cuts, bridges, etc. Whether these defects are such that the courts would be compelled to hold that the specifications have never yet been substantially complied with, we need not stop to determine. We notice them only to show the view which the city holds of the plaintiff’s conduct in the premises, and its claimed performance of the contract.
We have given to this case full and patient investigation, and are compelled to hold that the plaintiff failed to comply with the conditions upon which alone the city contracted to issue its bonds.
Judgment must therefore be entered in favor of the defendant.