Hook v. Bowden

128 S.W. 261, 144 Mo. App. 331, 1910 Mo. App. LEXIS 357

• Court: Missouri Court of Appeals
• Decided: May 2, 1910
• Status: Published

Opinion

NIXON, P. J.

I. As we have stated, Appleton City was organized under the charter laws' governing cities of the fourth class. By section 5957, Revised Statutes 1899, the board of aldermen of such cities have the care, management and control of the city and its finances. It has the power under its general welfare clause to enact and ordain any and all ordinances not repugnant to the Constitution or laws of the State or the United States, and such as they shall deem expedient for the good government of the city, the preservation of peace and good order, and the benefit of trade and commerce. By section 5960, they are given general care and control of the streets with power to protect the citizens from danger, to abate nuisances, and to regulate the proper use of the streets.

It has been often held in this State that the úse of a street in a municipality for the purpose of placing telephone poles and stringing wires thereon is a proper use of the street. [The Julia Building Ass’n v. The Bell Tel. Co., 88 Mo. 258; Schopp v. City of St. Louis, 117 Mo. 1. c. 136, 22 S. W. 898.]

Section 1251, Ann. Stats. 1906, in the article on telephone and telegraph companies, provides: “Companies organized under the provisions of this article, for the purpose of constructing and maintaining telephone or magnetic telegraph lines are authorized to set their poles, piers, abutments, wires and other fixtures along, across or under any of the public roads, streets and waters of this State, in such manner as not to incommode the public in the use of said roads, streets and waters: Provided, any telegraph or telephone company desiring to place their wires, poles and other fixtures in any city, they shall first obtain consent from said city through the municipal authorities thereof.”

It is claimed by the appellant that the ordinance purporting to grant to C. P. Bowden and his associates a right to construct and maintain a telephone system in Appleton City was never legally passed in the first instance. The two particular defects are:

(1) That under section 5955, Revised Statutes 1899, a majority of the members elected to the city council did not vote for the bill upon which said ordinance No. 64 purporting to grant the franchise was based, and that the ayes and nays were not entered as required by said section on the journal. The journal of the council was introduced in evidence on this question, containing the proceedings at the time of the purported adoption of the ordinance and shows the following entry: “Regular meeting called to order by the mayor, Mr. Pribble, and all members of the board present. Minutes of May 4th, May 7th and May 28th were read and accepted by the board. Motion made by Lutsinger, and seconded by Cbapin, that tbe telephone franchise of O. P. Bowden be read the third time and put on its passage. Vote as follows: Nation, yes; Chapin, yes; Edgerton, yes; Cole, yes; Lutsinger, yes; Wood-worth, yes. Six yesses; franchise carried.”

(2) That the ordinance was not read the third time.

The special objections raised by appellant to the validity of ordinance No. 64 are without merit. In the case of City of Rockville v. Merchant, 60 Mo. App. 365, the journal of the board of aldermen read as follows : “Ordinance No. 7, concerning butchers and meat wagons, passed to a third reading and put upon its passage,” with a recitation that all the members voted yes. It was held that this shows the ordinance was read a third time before final passage. It was also held that the validity of an ordinance will not be questioned because of a mere departure from the forms prescribed for its passage, unless the charter makes such formality vital.

The language of the record in that case is almost identical with the recdrd in the present case; at least in all material respects. The aye and nay vote is not necessary upon a motion to call up an ordinance for a third reading. So the fact that the aye and nay vote was taken and recorded in this case, together with the fact that the clerk recited the' passage of the ordinance and the mayor signed and approved it and it was spread upon the record together with the motion all tended to show that the council voted upon the passage of the ordinance, and the fact that at the same time it did so it was read the third time or was not read the third time was immaterial as effecting the validity of the ordinance. This record therefore sufficiently shows that the ordinance in question was read the third time and duly passed by the city council.

II. Section 8 of the ordinance granting the franchise to O. P. Bowden and his associates required that it was to become valid upon the “said grantee filing his acceptance with the city clerk or board of aldermen.” O. P. Bowden signed at the bottom of the ordinance in the journal as follows: “Accepted this July 2, 1908. O. P. Bowden.” The original ordinance was pasted in the journal with the minutes for June 1, 1908, with other ordinances pending at the time.

We think that the signature as shown on the journal entry was a sufficient compliance with the terms of the ordinance requiring the grantee to file his acceptance with the city clerk or board of aldermen. The statement of these facts and the legal conclusions drawn therefrom show that ordinance No. 64 by which the city .undertook to grant to the respondents a telephone franchise was legally enacted and became a contract between the city and the respondents. As has been'» said, if anything is guarded in the law more particularly than another, it is the inviolability of a contract, and all attempts to impair such obligations under whatever guise that may be made, whether directly or indirectly, should prove abortive. [State ex rel. v. Miller, 66 Mo. 329; State v. Miller, 50 Mo. 129; Hovelman v. K. C. Horse R. Co., 79 Mo. 632.]

III. The question of paramount importance in this case arises from that portion of section 8 of said ordinance No. 64 which is as follows: “This ordinance and grant shall be void unless the said C. P. Bowden; his successor or assigns, shall have said telephone exchange established and in operation within six months after its passage and-ratification by the board of aldermen, and the said grantee filing his acceptance with the city clerk or board of aldermen.”

It is contended by appellant that this is a condition precedent, that time is of the essence of the franchise contract, and that the ordinance, after the limitation of the six months therein prescribed for the establishment of the telephone exchange, became null and void, lapsed, and was a dead contract by its very terms; and, that the rights of the parties were the same as though the ordinance had never been passed.

The evidence is uncontradicted that prior to March 1, 1909, no steps had been taken by respondents to erect and establish a telephone system under its franchise. On that date, more than six months after the grant of the franchise, O. P. Bowden presented to the city council the following petition: “I respectfully ask that the time limit of the franchise granted for the erection of the telephone exchange in Appleton City be extended, so that it will expire July 1, 1909. Respectfully, C. P. Bowden.” This was spread upon the journal with the minutes of the meeting of said date and was marked with a lead pencil, “Granted.” The minutes of said meeting are in part as follows: “Called to order by the Honorable Mayor Pribble, Jr., and the following members were present: Edgerton, Chapin, Dewert and Nation; absent, Cole. Request of C. P. Bowden for continuance of a telephone franchise, July 1st, 1909, was read by Mr. Nation, and the vote stood as follows: Nation, yes; Dewert, yes; Chapin, yes; Edgerton, yes; four yesses and no noes; carried.”

The evidence further shows that prior to the 18th day of April, 1909, the respondents had commenced to erect and establish a telephone system under the ordinance; that they purchased a switchboard, poles, wires, and other material of the value of five or six hundred dollars; that immediately prior to the service of the writ of injunction, they erected a telephone pole on Fourth street and were in the act of installing their system in Appleton City. The members of the city council knew that respondents were erecting the poles and were proceeding to establish their system and made no objection to the putting in operation of said system.

It therefore becomes a material question in the determination of the issues in this case whether the provision in the respondents’ franchise that the system was to be erected and completed within six months was a condition precedent or a condition subsequent.

In the case of Knight v. K. C., St. J. & C. B. R. Co., 70 Mo. 231, the condition was contained in a city ordinance granting a railroad a right of way over a street, and provided that the grant should become null and void if the company should ever remove its machine shops from said city. It was held that this was a condition subsequent in which no one had any legal interest but the company and the city.

In his commentaries, volume 4, page 439, Chancellor Kent clearly stated the distinction as follows: “Words of limitation mark the period which is to determine the estate; but words of condition render the estate liable to be defeated in the intermediate time if the event expressed in the condition arises before the determination of the estate or completion of the period prescribed by the limitation.” Again, “The material distinction between a condition and a limitation consists in this, that a condition does not defeat the estate, although it be broken, until entry by the grantor or his heirs; and when the grantor enters, he is in as of his former estate. Conditions can only be reserved for the benefit of the grantor and his heirs. A stranger cannot take advantage of the breach of them.” See, also, Kennett v. Plummer, 28 Mo. 145; Atlantic & Pac. R. Co. v. St. Louis, 66 Mo. 251 and cases there cited; Holden v. Joy, 17 Wall. 251; Knight v. K. C., St. J. & C. B. R. Co., supra.

In the case of Hovelman v. K. C. Horse R. Co., 79 Mo. 632, the common council of a city had granted to a horse railroad company a right of way over certain streets named in the ordinances and it was provided in the ordinances that the road should be completed within twelve months from the acceptance of the grant by the company, and that in case of failure so to complete it, the council might take away the franchise. It was held that this condition was a condition subsequent, and that the right of way, when accepted by the company, vested at oncé,' subject to be defeated at the ’election of the city for a breach of the condition. The court say: “The forfeiture of the right of way which the city (if not estopped by its acts or acquiescence and encouragement) might have declared on a breach of the condition, cannot be taken advantage of by private parties, it being a matter of contract between the city and the corporation, for the breach of which the city alone can complain. This doctrine is distinctly stated in the cases of Knight v. K. C., St. J. & C. B. R. Co., supra, and A. & P. R. R. Co. v. St. Louis, 66 Mo. 228. In the case last cited, the rule laid down in the case of Brooklyn Central R. Co. v. Brooklyn City R. Co., 32 Barb. 364, was approvingly quoted, it being there said: ‘If the Central Company claim that the common council have the right to annul or impair the grant to the city company for the breach of the condition to complete the work in a given time, it encounters this impediment: The condition to complete within a given time is one of those distinguished in law as conditions subsequent. The effect of a deed with a condition subsequent is to vest the estate in the grantee subject to be defeated by his omission to perform the condition. The omission does not ipso faoto determine the estate, but exposes it to be determined at the election of the grantor.’ ”

These authorities and numerous others that might be cited illustrate and emphasize the language of Sherwood, J., in the case of The Conn. Mutual Life Ins. Co. v. Smith, 117 Mo. 1. c. 289, 22 S. W. 623, that in cases like the present, where a franchise is granted by a city with a time limit which is a condition subsequent, a collateral attack on the validity of such grant cannot be made by private persons: “The settled law of this State as illustrated by frequent instances in this court is that the capacity of a corporation to take a conveyance of land cannot, after the transfer has reached completion, be called in question in a collateral way, but by the State and not by a private suitor. . . . The only exception to the rule which prohibits collateral attack by private persons on such conveyances or other unauthorized acts of a corporation, is where such attack is authorized by express legislative permission.”

It had been further held that in cases of grants of franchises like the present, no person has any legal interest except the city and the contractor. “It was a matter of contract between them, and the city might have waived a compliance with the condition at any time, nor was an ordinance for such purpose necessary. The breach of the condition did not, therefore, ipso facto, terminate the right of way, and, as against everyone except the city, the right continued in the company. . . . That no one but the city could take advantage of the breach of the condition on which the right was granted is a doctrine well settled.” Knight v. K. C., St. J. & C. B. R. Co., 70 Mo. 1. c. 238.

In the case' of the present contract with the respondents, the city, instead of taking advantage of the condition, has recognized the continuing validity of the contract, and, by resolution of March 1, 1909, extended its operation and waived thereby any forfeiture of the franchise that had ensued. This fact, together with the actual commencement of the respondents to construct and establish their telephone system under the provisions of their franchise would constitute a waiver of the forfeiture. The condition in the ordinance as to the time in which the system was to be erected could not be collaterally attacked by the appellant in this case under the authorities cited.

Moreover, another insuperable difficulty in this case is that a court of equity cannot enforce a forfeiture and will not interfere in' such cases but will leave a party to his legal remedy, if any, even though the case may be one in which no equitable relief would be given to the defaulting party against the forfeiture. [State ex rel. v. East Fifth Street Ry. Co., 140 Mo. 1. c. 551, 41 S. W. 955, and cases cited.] These principles have lately received emphatic recognition by our Supreme Court in the case of Kavanaugh v. St. Louis, 220 Mo. 496, 119 S. W. 552. It was there said: “Courts of equity do not as a rule declare or determine forfeitures.”

Nothing in this opinion is taken as deciding as to any rights of appellant to pr.oteet the use of his system from injury from cross talk from one system to the other, or otherwise.

The judgment of the trial court is affirmed.

All concur.