22 Minn. 437 | Minn. | 1876
Assuming the city ordinance to have been duly and legally passed and ratified, in conformity with the act of the legislature of May 15, 1869, (Sp. Laws 1869, ch. 34,) it cannot be doubted that an acceptance of its terms and conditions, and full compliance therewith, on the part of the company, in the construction of its road, constituted a valid and binding contract between it and the city.
It is well settled that, in all cases where equitable relief is sought through the extraordinary remedy of an injunction, the facts entitling the party to such relief mu§t be clearly and positively alleged and shown. It is not enough that their existence may be inferred or spelt out from the averments in the complaint. If, in this case, the relief sought was intended to be based upon the fact that no contract existed between the -company and the city, growing out of
Instead, however, the ordinance is alleged to have been passed by the council, and voted upon by the people, and approved by them, at an election held for that purpose. It is averred that “ said railway company has fully constructed and completed its said road, and is operating the same, as in said ordinance required,” and “that said common council of the city of Hastings has made no agreement with said railway company for, or relating to, the disposal of said bonds, or the proceeds thereof, in aid of said railway.” These several averments must all stand together, if possible, and be construed accordingly. Hence the last cannot be held as negativing the existence of an agreement between the city and the company, such as is necessarily implied from the passage of the ordinance by the former and its acceptance by the latter. It does not negative the expressly averred fact ‘ ‘ that the company has constructed and completed its road as in said ordinance required;” and the fair implication from this is that the terms and conditions of the ordinance have been fully complied with on the part of the company — a fact necessarily presupposing an acceptance on its part. This conclusion is strengthened by the fact that the complaint particularly specifies the grounds of objection to the issuance of the bonds to be an alleged irregularity in the publication of the ordinance, and an insufficient notice of the election at which it was ratified, and not the want of an agreement between the city and company.
From this view of the complaint it must be assumed that a valid and binding obligation rests upon the city to issue its bonds, as provided in the ordinance, unless the ordinance itself is invalid by reason of a want of requisite authority in the council to pass it, or of a failure on the part of the voters of the city legally to ratify it within the- prescribed time.
Section 2 enacts that, “ before said bonds are issued, the question of issuing them shall be submitted to the legal voters of said city at any general or special election,” to be held and conducted as therein provided, upon a notice of at least ten days, published in some newspaper in said city. It also declares that “if a majority of the ballots cast at such election shall have upon them the words, £ for railway bonds,’ then said bonds shall be issued, and the common council may make any and all such agreements as they may deem proper with said railway company for, or relating to, the disposal of said bonds, or the proceeds thereof, in aid of said railway,” and concludes with the proviso “ that the question of issuing such bonds may again, at any time or times prior to August 1, 1870, in like manner be submitted to said legal voters, and with like effect.”
It is claimed by plaintiff that because the bonds authorized to be issued under this act, or their proceeds, are by its terms required to be used in aid of the construction of the road, therefore they must be issued before the completion of the work, and cannot be thereafter ; also, that the power or authority conferred upon the city by the act was limited
According to this argument the city had the right to issue and deliver its bonds to the company prior to August 1, 1870, to aid in the construction of a road thereafter to be built, in the manner and upon the terms prescribed in the ordinance, but had no power to protect itself against a contingent failure of the enterprise by withholding the actual issue and delivery of the bonds till full performance by the company. It is obvious that a construction thus narrow and technical ought not to prevail, unless required by the express terms of the enactment or its clearly expressed intention ; and neither its context nor declared purpose, in our judgment, warrants any such conclusion.
The object of the act was to enable the city to aid the public enterprise indicated, by a use of its credit, and this could be as effectually accomplished by a pledge of its credit, contingent upon the completion of the road, as by the actual issue and delivery of its bonds in advance of construction. The act cleaidy contemplates that the road was to be built after the determination of the question as to the issue of the bonds by the decision of the council and ratification by the people, for it is exjmessly provided that, upon such ratification, “ then said bonds shall be issued, and the council may then make any and all such agreements as they may deem proper with said railway company for, or relating to, the disposal of said bonds, or the proceeds thereof, in aid of said railway.” The time limited for the settlement of this question as to the issue, by the act of the council and the vote of the people, was August 1, 1870.
But the council went further than this. In the ordinance which it adopted and submitted to the voters of the city it not only submitted the question as to the issue of the bonds, but the time when, and the terms and conditions upon which, they were to be issued. To this, however, no valid objection can be conceived. The real question which was required to be submitted to the voters, by the act, was fully and fairly presented by the ordinance, aud their decision thereon, followed, as must be assumed, by an acceptance of its terms and conditions by the company, constituted a valid contract, entitling it to a delivery of the bonds upon a full performance on its part.
The only other point made by plaintiff is that the election was illegal because the requisite ten days’ notice was not properly given. The election was held on the 15th day of May, the time designated in the ordinance. The notice was published on the 5th, simultaneously with the first publication of the ordinance, and as the ordinance, which alone
Order affirmed.