Wheeling & E.G.R. Co. v. Town of Triadelphia

• Decision Date: 12 December 1905
• Citation: 52 S.E. 499,58 W.Va. 487
• Parties: WHEELING & E. G. R. CO. v. TOWN OF TRIADELPHIA et al.
• Court: West Virginia Supreme Court

52 S.E. 499

58 W.Va. 487

WHEELING & E. G. R. CO. v. TOWN OF TRIADELPHIA et al.

Supreme Court of Appeals of West Virginia.

December 12, 1905

Submitted September 14, 1905.

Syllabus by the Court.

An ordinance, passed by the council of a town, granting to a street railway company the right to lay its track and operate its railway in the streets of the town, and accepted by the railway company, constitutes a contract between the town and such company, vesting title to such right or easement in it unless the ordinance contains conditions precedent compliance with which is requisite to the vesting of title.

Such right may be forfeited and lost by failure to comply with subsequent conditions, and, if the ordinance expressly provides for forfeiture as the penalty of noncompliance with conditions specified in it, substantial performance of the contract as a whole constitutes no answer to a proceeding to forfeit for failure to comply with such conditions, however slight their relative importance may be. The question of materiality is, in such case, withdrawn from the courts by the stipulations of the contract.

A street railway license or privilege in a street may be forfeited for failure to lay planks of prescribed dimensions along the rails of its track in front of improved property if the ordinance expressly gives the right to forfeit it for such cause.

Equity will relieve from forfeitures for nonperformance of covenants other than those for the payment of money, arising out of accident, mistake, or surprise, and in the absence of willful and deliberate refusal to perform, when no pecuniary injury has resulted to the covenantee and the wrong done is easily remediable; but such power of relief is discretionary, and will not be exercised unless the delinquent covenantor is able and willing to immediately perform the covenant.

Equity will not permit the enforcement of a forfeiture in an inequitable and oppressive manner, nor a perversion thereof to purposes other than those for which the power of forfeiture has been reserved.

In the exercise of such power, under an ordinance of a municipal corporation prescribing notice and specification of cause as a necessary preliminary step, the officers of such corporation must deal fairly, openly, and frankly with the party whose rights they attempt to take away, and abstain from such conduct as will work a surprise upon him. Their conduct is governed by substantially the same rules and principles as apply to proceedings by private persons under similar circumstances. In order to be inequitable and oppressive, their conduct need not be actually fraudulent. If in equity and conscience it is oppressive or lacking in fairness, equity will relieve however honest and sincere the parties attempting to forfeit may have been.

The discretion of the court in such case is a sound legal discretion, subject to review, and the appellate court will reverse the action of the trial court when, in its opinion relief has been improperly denied.

A declaration of forfeiture of a street railway privilege in a street by the council of a town, effected by repeal of the ordinance by which the privilege was granted, pursuant to a reservation of power so to do, for cause and after notice, has not the force and effect of a judicial determination of the existence of cause for forfeiture, and does not preclude a resort to the courts by the railway company for vindication of its rights. After such repeal, pursuant to notice, the railway company may, by injunction, prevent the town authorities from removing or disturbing its track, if no cause of forfeiture existed, or the circumstances shown are such as to call for the exercise of equity jurisdiction to relieve from forfeiture. In so far as the decision in Town of Davis v. Davis, 21 S.E. 906, 40 W.Va. 464, imports the contrary of the foregoing proposition, it is reexamined and disapproved.

The action of municipal authorities in granting and revoking privileges and licenses in highways is the exercise of delegated police power, and is not judicial in character.

Only judicial action is reviewable by the writ of certiorari under sections 2 and 3 of chapter 110 of the Code of 1899. The scope of the writ is not altered by the statute in respect to the nature of the proceedings for the review of which it may be had. In this respect it remains as it was by the common law.

Consent of the board of commissioners of Ohio county to the operation of a street railway on and over the Cumberland Road in said county of Ohio does not confer authority upon the railway company holding such permit to construct and operate its railway on and over such portion of said road as lies within the limits of the town of Triadelphia, in said county, without the consent of the authorities of said town.

Appeal from Circuit Court, Ohio County.

Bill by the Wheeling & Elm Grove Railroad Company against the town of Triadelphia and others. Decree for defendants, and plaintiff appeals. Reversed.

Rehearing denied January 9, 1906.

Henry M. Russell and Howard & Handlan, for appellant.

Alfred Caldwell and Nelson C. Hubbard, for appellees.

POFFENBARGER J.

The council of the town of Triadelphia, in Ohio county, having repealed the ordinance under which the Wheeling & Elm Grove Railroad Company had been operating its street railway in said town, and caused a part of its track to be taken up, said railroad company obtained a temporary injunction, inhibiting the town, its officers, and agents from interfering with its road. Thereupon the town answered the bill, alleging forfeiture of the privileges granted by the ordinance, because of failure and refusal to observe and perform conditions, and praying, by way of affirmative relief, that the railroad company be enjoined and restrained from further operating its road in said town and compelled to remove from the streets thereof its poles, wires, rails, ties, etc., and restore the street and a certain bridge, mentioned in the bill, to the condition in which they were before the construction of the road, unless the consent of the town to the further occupation and use of the street for the purpose aforesaid should be obtained. On the hearing, the injunction was dissolved and the cross-relief asked for by the town granted. From this decree said company has appealed.

The ordinance was passed on the 31st day of March, 1896, granting to the Wheeling Suburban Railway Company, its successors and assigns, the privileges now in question, and that company subsequently assigned the same to said Wheeling & Elm Grove Railway Company. Under it, the road was constructed within the time required. The forfeiture is not for nonuser of the franchise or privilege, but for failure to comply with certain conditions imposed by section 4 of the ordinance in the following clauses thereof: "Said railway company shall so construct its tracks upon the roads or streets hereinbefore mentioned that at any place any of its tracks may cross any road or street within said town, the said railway company shall at every such place lay its track or tracks on a level with the surface or plane of said road or street at the place of such crossing and shall pave with white oak planks not less than two inches thick between all its rails crossing such road or street and shall at all times hereafter keep and maintain the said paving or planking in good order and repair to the satisfaction of the council of said town. Said company shall also lay and maintain a white oak plank two inches thick and eight inches wide on each side of each rail along its track in front of all improved property." To enforce compliance with these conditions and others inserted in the ordinance, section 15 of that instrument provided as follows: "Should the Wheeling Suburban Railway Company fail to fulfill and perform the conditions of this ordinance or comply with the requirements thereof upon them, or do those things they are by this ordinance prohibited from doing, the said town may give said Wheeling Suburban Railway Company notice of its intention to repeal this ordinance and revoke and annul all the rights powers and privileges by this ordinance given by said town to said Wheeling Suburban Railway Company, and stating in such notice in what respect said Wheeling Suburban Railway Company have failed to fulfill and perform the conditions of this ordinance or to comply with the requirements thereof upon them, or wherein they have done any of those things they are by this ordinance prohibited from doing. At any time after three months from the service of such notice upon the president or secretary of said Wheeling Suburban Railway Company the council of said town may repeal this ordinance and revoke and annul the rights, powers and privileges by this ordinance given by said town to said Wheeling Suburban Railway Company; Provided, however, That if the said Wheeling Suburban Railway Company before such repeal and revocation and annulling shall fulfill and perform the condition or conditions of this ordinance said notice alleges they have failed to fulfill and perform, and shall comply with the requirement or requirements of this ordinance said notice alleges they have failed to comply with, and shall cease at once on receipt of said notice to do any of those things that they are prohibited from doing by this ordinance which said notice states they have been doing, said council shall not have the power to repeal and revoke and annul the rights, powers and privileges thereby given by said town to said Wheeling Suburban Railway Company." Notice dated August 28, 1901, specifying, as breaches of conditions, elevation of the tracks above the level of the streets at the crossings of Monroe street and Clay street,...