State v. Republican River Bridge Co.

20 Kan. 404 | Kan. | 1878

The opinion of the court was delivered by

Horton, C. J.:

On the 25th of September 1877, this court, upon the motion of Hon. Willard Davis, the attorney-general for the state, allowed an alternative writ of mandamus against the Republican River Bridge Company, of Davis county, commanding the company to reconstruct a bridge built in 1867 over the Republican river, on the public highway leading from Fort Riley to Junction City, in Davis county, or show cause why it had not done so. On the return of the process the defendant appeared, add moved to quash the writ, on the ground that the facts stated therein were not sufficient in law to constitute a cause of action against the company. The writ recited the original charter of the company, filed in the office of the secretary of state on November 11th 1864, and which set forth that the object for which the company was formed was the erection of a toll-bridge over the Republican river at the place above named; the joint resolution of congress, of 2d March 1867, releasing from the military reservation at Fort Riley all that part of the reserve lying and being between the Republican and Smoky Hill rivers, to-wit, about 4,000 acres of land, and granting the same to the state of Kansas to aid in the construction of a bridge over the Republican river, on the public highway leading through the reservation, upon the condition that the grant should be accepted by the state, with a guaranty given, by an act of the legislature, that the bridge should be kept up and maintained in good condition, and be free to the use of the government of the United States for all transit purposes forever, and without tolls or charges; the special law of the legislature of 26th February 1867, accepting the grant of congress, obligating the state to comply with the terms of the joint resolution, and authorizing the bridge company to proceed under its charter to construct the bridge; that by said act of February 26th it became the duty of the company to complete the bridge, within one year from the approval of the same, and deposit with the governor satisfactory surety and guaranties to fully indemnify the state against any loss or losses by reason of the guaranty given by the state to the United States, and its right to receive therefor a patent for all said lands so released from the military reservation and granted to the state. The writ further recited, that the bridge company accepted from the state the grant of land; that it constructed the bridge as required by the act of February 26th 1867; that it gave its guaranty and obligation to indemnify the state against any loss or losses by reason of its legislative guaranty to the United States, and afterward received and accepted a patent for the 4,000 acres of land; that it neglected, failed and omitted to keep up and maintain the bridge in good condition and repair, but allowed and suffered it to rot, decay, and become unsafe, and finally to fall into the river, a total wreck, and that since then it had failed, neglected and omitted to reconstruct and rebuild the bridge.

The question is raised by the motion of the respondent, which is equivalent to a demurrer to a petition in an ordinary action, whether, under the joint resolution of congress, the act of the legislature of February 26th 1867, and the facts recited, any duty has been omitted which can be enforced by a writ of mandamus against the company. The question to be decided is, not whether the state is entitled to relief from the unfortunate position in which it is liable ,to be placed by the failure of the respondent to keep up and maintain the bridge over the Republican river in a good condition, but whether it is entitled to the relief demanded, that is, a writ of mandamus to have the bridge rebuilt and forever kept in repair.

A writ of mandamus may only issue to an inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty, resulting from an office, trust, or station, (civil code, § 688, as amended laws 1870, ch. 87, p. 28,) and may not issue in such cases where there is a plain and adequate remedy at law. (Code, § 689.) Now if there is a specific duty imposed by law upon the respondent, resulting from an office, trust, or station, and no other adequate or specific remedy is provided for its enforcement, the writ of mandamus may be granted in this case; but if no such duty is enjoined, or if, being enjoined, there is another adequate remedy, then the "writ does not lie. As the object of the bridge company, under its charter, was the erection of a toll-bridge, there is no obligation, either imposed or assumed, on the part of the corporation, within the terms of its charter, to maintain forever a bridge of the character named in the application before us. It cannot be said in this case, that the state may proceed by mandamus to compel the company to rebuild on the ground that the company, having entered upon the exercise of its charter franchises, owes a duty to the public which it cannot, at its caprice, abandon. It is conceded by the learned counsel for the state, that the charter of this company is permissive, and not obligatory; that the company could build the bridge or not, at its election; that the mere exercise of a permissive right to build the bridge would not create the legal duty to maintain it forever; and that the company is not precluded by anything in its charter from abandoning its franchise, at any time. If then, this action cannot be maintained under authority to compel the company to exercise its corporate powers originally granted or obtained by its charter, the significant query is at once suggested, what duty is specially enjoined, which has been omitted ? Counsel for the state say the bridge in question was built under the act of the legislature of 26th February 1867, and not under its original charter. This is true; and we turn to that act to ascertain the specific duties, if any, commanded to be performed. They were, first, to complete the bridge within one year from the date of the approval of the law; second, to notify the governor of the state immediately of its completion; and third, to deposit with the governor satisfactory surety and guaranties, fully indemnifying the state against any loss or losses by reason of the guaranty given by the state to the United States. All these duties were promptly and fully complied with, in 1867, to the satisfaction of the governor of the state; and there is. no special duty left undone expressly enjoined by the said act.

The counsel for the state argue, however, that the acceptance of the act of 26th February 1867, by the bridge company, carried with it the implied agreement or understanding that the company would keep the bridge constructed by it in repair for all time. Admit that this was the expectation of the law-makers; yet they thought fit to protect the state’s interests only by a personal bond. A part of the land might have been retained as security; or a lien for repairs of the bridge might have remained upon the land for all time; and in other ways indemnification could have been amply secured. The state however deemed it advisable to accept a personal bond as its sole security; and the only relation the bridge company sustained to the state, arising upon the bond, is purely a contract relation, for the violation of which there is an adequate remedy at law. We look in vain through the charter of the company, the joint resolution of congress, and the act of 1867, for any duty unperformed, specially enjoined by law, resulting from an office, trust, or station. Even the implied obligation was secured, or attempted to be secured, by a penal bond, which, when taken, was acceptable. Under this view, there is no legal duty existing which can be enforced by a writ of mandamus. That the venture taken by the state is likely to prove unprofitable; that the means furnished by congress to build and maintain the bridge are exhausted; that the lands have been divided up and sold to bona fide holders; that the bridge is now a wreck, and useless; that the bond of indemnity is probably worthless, and that the state may be required to make good its legislative guaranty of 1867, are strong arguments of the recklessness and improvidence of the legislation which culminated in conferring upon the defendant the vast estate of lands it received; but these facts in no way establish any principle, or make plain any duty, upon which the relief prayed for can be granted. That the action of the legislature in 1867 was unusually hasty and inconsiderate, is evidenced by the mere statement, that the law providing for the transfer to a private corporation of all the valuable lands granted to the state to aid in building and maintaining a bridge over the Republican river, was approved on the 26th of Eebruaxy 1867, and the joint resolution of congress, making the grant of these lands, and upon which the action of the state was taken, was not approved until four days thereafter*, to-wit, March 2d. As soon as the vote had been taken' at Washington upon the joint resolution, the special act of 1867 was hurried through our legislature. That body was so anxious to give to the defendant these lands, upon the terms of the said act, that it did not defer action till the resolution of congress was formally approved by the president. That such indecent haste should finally result in trouble, vexation, and perhaps disaster to the state, is neither unexpected nor startling. A mere recitation of the facts of this case affords a seeming verification of the scriptural proverb, “They who sow the wind, shall reap the whirlwind.”

If we adopt the conclusion which has been suggested, that instead of the relation between the state and the bridge company being one purely of contract,' special powers or franchises were bestowed upon the defendant by the special act of 1867, which it is the right of this court to enforce to the full extent of compelling the company to rebuild and maintain forever the bridge, then we are met by the insurmountable barrier, that special acts of our legislature conferring corporate powers are forbidden and void. (Art. 12, §1, State Const.) “A power that would not be a corporate power when exercised by an individual, becomes a corporate power when exercised by a corporation.” Gilmore v. Norton, 10 Kas. 491. Viewing the case in the most favorable aspect we can for the state, and assuming the act of 26th February 1867, in regard to the rights conferred on the defendant, was valid, we have nothing between the state and the company, as a security for the protection of the former, but the obligation of the latter, given in pursuance of section 4 of said act of 1867; and as obligations arising upon contract merely, and involving no trust, cannot be enforced by mandamus, 'the motion of the respondent must be sustained, and this action dismissed.

All the Justices concurring.