Chicago, Kansas & Western Railroad v. Board of Commissioners

49 Kan. 399

Opinion

The opinion of the court was delivered by

Johnston, J.:

This is a proceeding brought by the Chicago, Kansas & Western Railroad Company to compel the defendants to issue and deliver to plaintiff the bonds of Chase county in accordance with the vote of the people and the contract of the parties. Several phases of the controversy have already received the consideration of the court, and some preliminary questions have been determined. [C. K. & W. Rld. Co. v. Comm’rs of Chase Co., 42 Kas. 223; same case, 43 id. 760. See, also, C. K. & W. Rld. Co. v. Evans, 41 Kas. 94.) It has been finally submitted upon the merits, and the large volume of testimony which has been taken relates mostly to the sufficiency of the petition upon which the election was ordered. The alternative writ alleges in substance that a legal petition was presented to the board of county commissioners of Chase county on October 12, 1886, asking that an election be called to submit to the voters of the county a proposition to subscribe for $80,000 of the capital stock of the railroad company; that the petition was signed by 828 resident tax-payers of the county; that the board duly considered the petition, and found and determined that it contained the signatures of more than two-fifths of the resident tax-payers of the county, and thereupon ordered an election to be held on November 16, 1886, to determine whether the subscription should be made upon the terms and conditions contained in the order for the election; that an election was duly held, and the returns canvassed, and the result found and declared to be in favor of the subscription, and that the county clerk upon the order of the board thereupon subscribe for $80,000 of the capital stock of the company; and that the company thereupon constructed and completed its road in accordance with the terms of the subscription made by the county; and it is finally alleged, that the defendants refuse to issue and deliver its bonds or to carry out the terms of the subscription.

Three principal objections are urged by the defendants against the allowance of the writ: First, the insufficiency of the petition presented to the board of county commissioners on October 12, 1886, for the calling of an election; second, non-compliance with the conditions of the contract of subscription made between the county and the company; and, third, the insufficiency of the demand made by the company for the issuance of the bonds.

The leading consideration in the case, and the one upon which the most effort has been expended by the parties, is the sufficiency of the petition which was the basis of the call for an election. It was regular in form and appeared to contain a sufficient number of signatures, and it recited that the signers were residents and legal voters of the county. Upon a canvass of the petition, the board of county commissioners found and determined that it contained more than two-fifths of the resident tax-payers of the county, and thereupon ordered an election in accordance with the prayer of the petition. The sufficiency of the petition was not challenged by any one until after the election was held, the bonds voted, the subscription made by the county, and the railroad built, nor until after steps had been taken by the plaintiff to obtain the execution and delivery of the bonds. Notwithstanding the finding and declaration of the board of county commissioners that the petition was legal and sufficient, the defendants have endeavored to show that all who signed it were not legal petitioners, and that it did not contain the requisite number of legal signers.

i. case, followed. The plaintiff insists that it has shown the petition to have been sufficient in every respect, but it contends that this inquiry is no longer open, and that the defendants by their acts and acquiescence are estopped from asserting that the petition was not signed by two-fifths of the resident tax-payers, if it really had been defective in that respect. The last contention has already received-the attention of the court, and the doctrine of estoppel in a case substantially like this one has been applied and sustained. (H. & S. Rld. Co. v. Comm’rs of Kingman Co., 48 Kas. 70; same case, 28 Pac. Rep. 1078.) As has been stated, the election was called upon what appeared to be a valid petition, and which was found and determined by the county board to be formal and legal. A large majority of the legal electors of the county voted in favor of the proposition, and the county board canvassed the result, and declared that the bonds had been voted in accordance with the vote of the people, and, upon the order of the county board, a legal subscription was made to the capital stock of the company, upon the faith of which the company proceeded to construct the railroad in accordance with the terms of the proposition, and it is claimed that the railroad company has substantially complied with all the conditions of the proposition. If there has been such compliance» the case falls fairly within the ruling in the Kingman county case, and entitles the plaintiff to the allowance of the writ. The two cases were pending at the same time, and the counsel in the present case appeared in the Kingman county case, and were heard at length in argument upon the question of estoppel.

We see no cause to disturb the ruling nor to enlarge upon the reasoning of the decision made in that case; neither do we find any room for a distinction in the facts of the two cases; nor any reason why the ruling in the Kingman county case is inapplicable here. The defendants attempt to distinguish the cases, for the reason that some persons connected with the railroad company assisted in securing the petition and the calling of the election. The obtaining of signatures and the presentation of the petition appear to have been in the hands of a committee of the citizens of Chase county, and this committee was assisted to some extent in its work by persons who were officers or agents of the company. It does not appear, however, that the company or any of its officers or agents had any knowledge of the defects in the petition, if any existed; nor is it shown that any insufficiency in the petition was called to the attention of the company until after the road was completed aud the conditions of the contract upon its part carried out. No knowledge of defects, no bad faith, nor attempt to mislead on the part of the company is shown, and no reason is seen why the plaintiff cannot avail itself of the principle of estoppel. The fact that the capital stock was received and retained by the township in the King-man county case, and not in this case, will not prevent the application of the rule here. The exchange of stock for bonds is subsequent in point of time to the expenditure of money on the faith of the contract and the completion of the road by the company; and hence, the tender or receipt of the stock does not affect the question of estoppel.

It is insisted now, however, that the company did not substantially comply with the conditions of the contract between it and the county. The contract required that the company should build, complete and put in operation, by lease or otherwise, on or before the 1st day of June, 1887, a railroad, from a connection with the Ellinor extension, at some favorable point in the valley of the South Fork, on the Cottonwood river, in the county pf Chase, to the north line of the county; and one of the conditions was, that the company should “ establish and maintain a division terminus, with such division facilities as may be necessary in the operation of the Chicago, Kansas & Western railroad, at a point situated between the cities of Strong City and Cottonwood Falls, Chase county.” The proof shows the establishment of a division terminus with such division facilities at a point on the line of road between Cottonwood Falls and Strong City. It appears, however, that it is a little east of a direct line between the points named; and it is contended that for this reason there is a non-compliance with the conditions of the contract. There is nothing substantial in this objection. It was the contract and purpose of the parties that the division facilities should be located on the line of the road, and nothing in the proposition indicates that the company was required to build a straight line of road between the points named. It was doubtless the intention of both parties that diversions from a direct line should be made wherever it was necessary in order to obtain a good road-bed. The division facilities in this case are only a few rods east of a direct line between the towns, and no reasonable interpretation of the contract would hold that there was a non-compliance with respect to the location.

It is said that the contract was not complied with in respect to the building of bridges across the Cottonwood river at Cottonwood Falls, and over Fox creek a short distance west of Strong City. Bridges were built at both points, and the road was in operation, from its initial point on the Ellinor extension to the north line of the county, on the 31st day of May, 1887. They were what is known as pile bridges, and such as are in common use on western railroads, and the same as were built over such streams by tne Chicago, Kansas & Western and the Atchison, Topeka & Santa Fé railroads. A short time after the opening and operation of this road, there was substituted for the bridge at Cottonwood Falls what is known as a Howe truss bridge; and over Fox creek, where the road was built parallel with that of the Atchison, Topeka & Santa Fé railroad, the plaintiff joined with the Atchison company in the construction of an iron bridge. The fact that other bridges were substituted for these later in the year, and the fact that when these first bridges were built the company had in contemplation the putting in of a better class of bridges, does not prove that these first built were insufficient to meet the requirements of the contract between the county and the company. It appears, too, that one end of the Cottonwood bridge was dislodged by a freshet shortly after it was constructed; but the-testimony clearly shows that both bridges were up to the standard of railroad bridges in this state, over such streams,, both as to expense and durability.

It is also said that the plaintiff had no track over Fox creek for a time. The testimony satisfactorily shows, however, that on the 1st day of June, 1887, the plaintiff had a track of its own from the initial point on the Ellinor extension to the north line of the county. Some of the testimony tends to show that the track at Fox creek was subsequently-taken up and another track used for a time; but if this-was done it was during the substitution of the iron for the wooden bridge at that point, and the mere temporary use of another track under the circumstances, and for a short time, could not be regarded as a breach of the contract. At Strong City, and for a short distance west of that point, the plaintiff’s line of road runs parallel with that of the Atchison Topeka & Santa Fé Eailroad Company, and by an agreement with the latter company, the plaintiff obtained the right to-occupy a portion o|t the right-of-way of the Atchison roa 1. In accordance with that agreement and license the road was-built, but no deed or conveyance of the easement was ever made to the plaintiff. The Atchison company agreed to deed the right-of-way, but for some reason the execution of the-conveyance was overlooked. The failure to execute a form d conveyance, however, is no defense in the present case. The plaintiff has entered upon the possession of the right-of-way under the agreement, has constructed its road relying upon the agreement, and has expended money upon the faith of it, and therefore the plaintiff cannot be disturbed in its possession. It does not appear, however, that the plaintiff’s right of possession has ever been questioned by the Atchison company, or by any one else. A reading of the testimony very clearly shows a substantial compliance with the conditions of the subscription. (S. K. & P. Rld. Co. v. Towner, 41 Kas. 72; C. K. & W. Rld. Co. v. Makepeace, 44 id. 676.)

2' pany,°entitied to bonds. The finding of the district court in the case of C. K. & W. Rld. Co. v. Evans, 41 Kas. 94, was to the same effect. Although the decision in that case has no binding force in this, it discloses that at a trial in the immediate locality, and with the witnesses personally present in the court, it was found that the “railroad company complied with and fulfilled each, every and all of the propositions and conditions which it was required to fulfill and comply with in order to carry out its part of said subscription, and it fully did and performed each, all and every of the several things which it was to do and perform under and by the terms of the proposition, . . . and within the time therein required.” It appears, therefore, that the plaintiff has earned the bonds of the county, and was entitled to the delivery of the same after June 1, 1887, upon demand.

3. Mandamus-demand before application, It is claimed as a defense, however, that no legal demand was ever made upon the board of county commissioners for the issuance and delivery of the bonds. It appears that, after the completion of the road, and about the middle of June, 1887, the members of the board were notified that their presence was required at the county seat to take action with reference to the bonds, and that they responded to this call, when an agent of the plaintiff visited Cottonwood Falls and deposited $80,000 of the capital stock of the plaintiff with the county treasurer, and then delivered bonds prepared for signing in the county clerk’s office, where members of the board were, and requested the execution of the same. The county commissioners, however, were not in session as a board; and, while it was evident that the individual members of the board were unwilling to execute and deliver the bonds, no action was taken by them in an organized capacity. Neither was any formal demand made when they were sitting as a board, and a demand upon the individual members is not sufficient in a case where a demand is required. It would seem, therefore, that no formal demand was made prior to the commencement of this proceeding. But such a demand is not always necessary in order to maintain mandamus. If, when this action was begun, the board had shown a willingness to perform its duty, but had also set forth that no demand had been made upon it, the board certainly would have been entitled to a judgment for costs. But where the course and conduct of the officers are such as to show a set- . tied purpose not to perform the imposed duty, the' writ may be awarded without any formal demand. The action of the officers before and since the commencement of this action clearly shows that a formal demand would have been unavailing. The commencement of this proceeding was at least a sufficient demand, and the defendants, instead of indicating a willingness to execute the bonds, expressly denied the right of the plaintiff to the bonds, and denied the existence of any obligation or duty to issue and deliver them. Having distinctly manifested their purpose not to perform this duty, the question of a formal demand is no longer important. It appears that it would have been useless and foolish, and the law rarely requires the doing of a useless act. (Shoemaker v. Simpson, 16 Kas. 43; Hall v. Draper, 20 id. 137; Raper v. Harrison, 37 id. 243; Chinn v. Bretches, 42 id. 316; The State v. Common Council of Rahway, 33 N. J. L. 110; Cleveland v. Board of Finance, 38 id. 259; Tracy v. Irwin, 85 U. S. 549; Dill. Mun. Corp. [4th ed.], §867, and cases cited.)

We think the judgment should be for the plaintiff, and, therefore, the peremptory writ of mandamus will be allowed.

All the Justices concurring.