156 Mo. 620 | Mo. | 1900
Appeal from the judgment of the circuit court of Jasper county awarding a writ of mandamus.
The substance of the complaint is that under an ordinance of the city passed in 1875, a right of way for a mill race across certain streets and alleys was granted to Cowgill & Hill, upon condition that “the same shall not interfere with the ordinary use, occupation and enjoyment of such streets and alleys;” that the race was constructed across Main and Jackson streets, and bridges were built over it by Cowgill & Hill to comply with that provision of the ordinance; that in 1895 these bridges were washed away by a flood and the defendant milling company a corporation, which is the assignee of Oowgill & Hill, has refused to repair them, and the streets are thereby left in a dangerous condition and unfit for the public use. The requirement of the alternative writ is that the defendant “repair, fix and construct said race at said points across said Main street and Jackson street in said city so that said race will not interfere with the ordinary use, occupation and enjoyment of said streets, or show cause,” etc. The return is, substantially, that at the date of the issuance of the alternative writ the race was properly bridged and the streets at the crossing of the race were in good and safe condition for travel; that at the date of the grant of the right of way in 1875, there was already a natural ditch, made by the waters of Spring river at seasons of high water, which crossed those streets, and
The reply denied that the streets were in reasonably safe condition at the issuance of the alternative writ, admitted that the city had erected bridges across the race at the points named, but that they were only temporary affairs, put there to use “during the pendency of this cause,” and were dangerous to the public; denies that there was a natural ditch rendering bridges necessary, averred that the agreement of 1881 was void for the reason that the city acted only by resolution of its council, whereas it could grant a franchise by ordinance only, or alter the terms of such ordinance by another ordinance; that' the city had no right under its charter to release Oowgill & Hill from their obligation, that there was río. dispute about their liability, and it was only an attempt to release them from it, and
The defendant offered testimony to show that these new bridges were located in this way because the city contemplated building iron bridges there,.and the present structures were to serve the public until the iron bridges should be built, but on objection of relator the evidence was excluded. Those bridges, at the date of the alternative writ, were serving all the purpose required in the use of the streets, rendering them reasonably safe and convenient.
At the request of defendant the court gave a declaration of law in the nature of an instruction to the effect that the ordinance introduced in evidence by the relator which was ..passed in 1837, after the ordinance of ratification,- was invalid so far as it attempts to impair the effect of the contract evidenced by the resolution of the council in 1881,
“1. The court declares the law to be that under the pleadings and evidence, the finding and judgment should be for the respondent.
“2. The court further declares the law to be that,'if the court finds from the evidence that at the time of suing out the alternative writ of mandamus in this case, there were constructed over defendant’s mill race convenient and suitable bridges to accommodate the travel of the public in going and coming on Main street and Jackson street, the finding and judgment should be for respondent, although it may appear from the evidence that said bridges were constructed by the city of Carthage and were not constructed wholly on the line of said streets.
“3. The court further declares the law to be, that the contract and resolution of the city of Carthage with Cowgill & Hill, of date July 25, 1881, and the ordinance No. 76, passed and approved February 11, 1887, in consideration of the payment by Cowgill & Hill to the city of Carthage of the sum of $150, relieving said Ciowgill & Hill from any duty to maintain or repair bridges across their mill race on Main and Jackson streets, and other streets, and its assuming the burden of maintaining and repairing such bridges, are valid and binding on the city.
“1. The court further declares the law to be, that if the court finds from the evidence that on the making of the contract by the city, with Cowgill & Hill, on the 25th day of July, 1881, the city of Carthage took possession and control of the bridges across the mill race of defendant, and accepted the same as public bridges in the city of Carthage, and assumed exclusive control of said bridges and maintained and repaired them from that time until the suing*629 out of the alternative writ in this ease, then the city of Carthage assumed the -duty of maintaining and keeping said bridges in repair; and the finding and judgment should be for respondent.
“2>. The court declares the law to be, _ that if it finds from the evidence that at some time prior to the suing out of the alternative writ in this case, the bridge across the mill race on Main street and Jackson street had been washed away by high water, and that afterwards and prior to the suing out of the writ in this ease, ¿lie city of Carthage, by its council, officers and agents, replaced said bridges across said mill race, and that at that time said bridges were safe and convenient and accommodated the public in going and coming over said mill race, on said' bridges, it was the duty of said city, in replacing said bridges, to place them where they would be most convenient for the use of the public in going to and fro on said street and across said mill race, and said city ought not now to be heard to complain that it had not replaced said bridges over said mill race in the center of said streets or that it had placed said bridges only partly in said streets.”
The circuit court awarded the peremptory writ, and the defendant appeals.
I. As there was no. declaration of law showing the theory on which the trial court based its judgment, we are somewhat at a loss to understand what the theory was. By refusing the second and fifth instructions the court seemed to hold that the fact that at the time the alternative writ was issued, there were convenient, safe and suitable bridges to accommodate the public using the streets, built by, the relator, but not exactly in line of the street, was no defense. If there were such bridges, and the evidence was very conclusive of the fact, then the defendant’s mill race did not in the language of the ordinance granting the right of way
H. At the time this right of way was granted, Carthage wa.s not the large city it now is, and these streets which are now great thoroughfares were, at the points where they are crossed by the mill race, little used, there were but little indications to show that they were streets at all, and for that reason perhaps the city authorities in drawing the ordinance, and Cowgill & Hill in accepting it, were not as particular as they would have been if they had foreseen the development, or as they would be now if a similar franchise were to be granted. The whole grant is in these words: “That there shall be and it is hereby granted to H. Olay Cowgill and Erank Hill a way and right of way'for their mill race where the same is now located and constructed over, across and through all streets and alleys now crossed by-the same in said city; provided the same shall not interfere with the ordinary use, occupation and enjoyment of such streets and alleys.” The manifest meaning of that
Rut we do not think it necessary to answer that question in this case, because whatever obligation Oowgill & Hill were under, if any, in reference to the bridges after their original construction, was discharged under the agreement, of 1881 whereby for $150 which they paid, the city agreed to release them and assume that burden itself. That agreement is evidenced by the following from the records of the council proceedings of July 25, 1881: “Motion offered to-accept proposition of Oowgill & Hill to pay the city one hundred and fifty dollars in consideration of which the city is-to assume charge of and keep in repair the mill race bridges. Motion carried by the following votes: Ayes, Oouneilmen Stebbins and Tuttle; nays, Councilman Hedrick.” This was ratified by an ordinance passed in due form in 1887.
On the part of relator it is contended that the agreement was void for the reason that contracts granting franchises could only be made by ordinance and altered only in the same way. We are not pointed to any provision of the
At the time this charter was granted by the legislature, the necessity for throwing around such municipal acts the restrictions that now appear in some of our city charters, was probably not apparent; at all events, in this instance the power was given -without such restriction, and the city was left in a great measure, free to exercise it as it might see fit. The difference between an act of the city by ordinance, and one by simple resolution, is thus expressed by Black, C. J., in Eichenlaub v. St. Joseph, 113 Mo. loc. cit. 402: “Where a charter commits the decision of a matter to the council, and is silent as to the mode of expressing the decision, it may be evidenced by resolution and need not be in the form of an ordinance:” The same doctrine is stated in Dillon on Municipal Corporations (4 Ed.), sec. 449. And in section 451, cited by counsel for the relator, the same waiter says: “The assent of a municipal corporation to the variation or modification of a contract need not necessarily be expressed by the formal action or resolution of the common council; but it may be implied from acts relating to the contract work subsequent to the date of the contract; but wfbere the contract is made by ordinance in the prescribed statutory mode, it can only be repealed or annulled in the same manner.” Prom the last clause in the above quotation, it is argued for the relator that because this franchise was granted by ordinance, the obligation to maintain the bridges could be released only in that manner. But whilst this franchise was granted by ordinance, there was no statute requiring it to be done in that manner, and even if there had been, the agreement of 1881, in no sense repealed or
We are cited to Rouse v. Somerville, 130 Mass. 361, to support the proposition that it was the duty of the owners of the mill race to keep the bridges in repair, and the city could not by contract assume that obligation. In that case the legislature of Massachusetts had imposed on the railroad company the duty of building and keeping the bridges in repair and had given the town no authority over it and it was held that because the town had no corporate power over the bridge, it could not by contract with the railroad company to keep the bridge in repair render itself liable to a person injured, for negligence in failure to do so. But that is no authority for the proposition in this case, for here the legis
We see no reason, therefore, for holding that the proposition of Cowgill & Hill and its acceptance by the resolution of the city council was not a valid agreement. But if the agreement lacked anything in the formality of its execution that defect was cured by the ordinance which expressly ratified it. That a municipal corporation may ratify an act done in its name, which was within its corporate powers, but which was not done in the manner prescribed by law, is not questioned. “A municipal corporation is not bound by a contract made by its agent or officer, which the agent or officer had no authority to make. But if the contract is for a corporate purpose, and within the powers conferred upon the municipality by its charter, or by the general, law, it may be ratified by the corporation and become binding upon it. So, also, contracts made in the name of a corporation before it has been chartered, or before it has received legislative authority to contract, may be ratified by the corporation after it has been incorporated or authorized to contract. .......When the statutes prescribe a special mode in which alone a valid contract can be made by the municipality, and the contract is invalid, because of non-compliance with the statutory requirement, it must be observed in any act of ratification. Thus, where a corporation could only make a valid contract by ordinance, the ratification is required to be by ordinance, and can not be. ratified by a subsequent resolution.” [Tiedeman on Mun. Oorp., sec. 170, and cases cited.] The contention that the ordinance of ratification was invalid because there was no new consideration to support it, arises upon a misapprehension of the nature of a ratification. It is no new contract and therefore needs no new consideration; it is simply adopting what has been done in its name, accepting or acknowledging the benefits and assuming the burdens.