City of California v. The Bunceton Telephone Co.

• Citation: 87 S.W. 604,112 Mo.App. 722
• Parties: CITY OF CALIFORNIA, Respondent, v. THE BUNCETON TELEPHONE CO., Appellant
• Decision Date: 22 May 1905
• Court: Court of Appeals of Kansas

87 S.W. 604

112 Mo.App. 722

CITY OF CALIFORNIA, Respondent, v. THE BUNCETON TELEPHONE CO., Appellant

Court of Appeals of Missouri, Kansas City

May 22, 1905

Appeal from Moniteau Circuit Court.--Hon. James E. Hazell, Judge.

AFFIRMED.

Judgment affirmed.

C. M Gordon and S. C. Gill for appellant.

(1) "No city . . . or other municipal corporation shall make any contract unless the same shall be within the scope of its powers or be expressly authorized by law, . . . and such contract including the consideration, shall be in writing dated when made and shall be subscribed by the parties thereto or their agents, authorized in writing." R. S 1899. sec 6759; Kirkwood v. Meramec Highlands Co., 94 Mo.App. 637; Savage v. Springfield, 83 Mo.App 323; Keating v. Kansas City, 84 Mo. 419; Crutchfield v. Warrensburg, 30 Mo.App. 456; Perkins v. School District, 99 Mo.App. 483; Green v. Cole, 103 Mo. 70; Cockrell v. McIntyre, 161 Mo. 59; Taylor v. Van Schraeder, 107 Mo. 206. (2) Either party may repudiate contract when not legal. Kirkwood v. Meramec Highlands Co., 94 Mo.App. 637. Void contract with municipal corporation can not be ratified. Savage v. Springfield, 83 Mo.App. 323; Crutchfield v. Warrensburg, 30 Mo.App. 456; Keating v. Kansas City, 84 Mo. 419; Perkins v. School District, 99 Mo.App. 483; Schell City v. Mfg. Co., 39 Mo.App. 264. Estoppel cannot be invoked. Wheeler v. Poplar Bluff, 149 Mo. 36; City to use v. Eddy, 123 Mo. 546. (3) Municipal corporations can contract only by ordinance, and their acts can only be evidenced by ordinance duly passed. Hisey v. Charleston, 62 Mo.App. 381; Mfg. Co. v. Schell City, 21 Mo.App. 175; Thrush v. Cameron, 21 Mo.App. 394; Wheeler v. Poplar Bluff, 149 Mo. 45; Reed v. Mexico, 101 Mo.App. 161; R. S. 1899, sec. 5955; Graham v. Carondelet, 33 Mo. 268; Light & Water Co. v. Lebanon, 163 Mo. 254; (4) Telephone companies, incorporated under provisions of article 6, of Revised Statutes of 1899, had a right to set poles, piers, abutments and fixtures, along or across public roads and streets, prior to amendment of section 1251, Revised Statutes of 1899, by Session Acts of 1903, page 138, without the grant of a franchise from city. R. S. 1899. sec. 1251; State ex rel. v. Flad, 23 Mo.App. 185. (5) A bond given to secure performance of contract which city had no authority to make, is without consideration, and void. Kirkwood v. Meramec Highlands Co., 94 Mo.App. 637. (6) Attempting to charge one company a certain per cent for use of its streets, and permit another company to use same without charge is a discrimination, and against public policy. Rothschild v. Railway, 15 Mo.App. 245; Wire Co. v. Bridge & Tunnel Co., 38 Mo.App. 191; Christie v. Railway, 94 Mo. 458.

N. C. Hickcox, City Counselor, with Moore & Williams for respondent.

(1) There was a valid sale of the telephone franchise to defendant company. Plattsburg v. Telephone Co., 88 Mo.App. 306, and citations. (2) Whether or not there was a written contract in a single instrument, as the evidence of Mr. Cramer seems to indicate, we do not know, but without such separate instrument the contract was complete when the defendant filed its bond, which was an acceptance of the terms of the ordinance, providing for the sale of the telephone exchange franchise by the city. Water Co. v. Aurora, 129 Mo. 578, and citations; Fry, Spec. Per. (3 Ed.), sec. 520; Ib. sec. 270, 529; Salens v. Neosho, 127 Mo. 637; Stephens v. City, 36, L. R. A. 777. (3) This contract required no tax to be levied, and under the special charter, the city council could contract to sell the franchise without any vote of the electors. It had full control of its streets. Plattsburg v. Telephone Co., supra, and citations; St. Louis v. Telephone Co., 148 U.S. 92, 149 U.S. 465. (4) The written contract may be made out by referring to several writings. Varnish Co. v. Lenick, 2 L. R. A. 212 and citations; Freeland v. Ritz, 12 L. R. A. 561. (5) The defendant company having accepted the benefits and emoluments of the California telephone exchange franchise, is now estopped from claiming the grant as invalid on technical grounds as to alleged defects in the making of the contract as to it. It is an executed contract. St. Louis v. Davidson, 102 Mo. 157; Goodland v. Bank, 74 Mo.App. 365. "A man who has enjoyed a privilege has no right to say, that because he ought not to have enjoyed it, he will not pay for it."

OPINION

ELLISON, J.

This is an action for five per cent of the gross receipts of the defendant telephone company. The judgment in the trial court was for the plaintiff city. The cause was tried by the court without the aid of a jury and as the finding made by the court contains a clear statement of the facts upon which the cause of action is based, we herewith produce it, to-wit:

"The court finds that the plaintiff is a municipal corporation located in Moniteau county, Missouri, by an act of the General Assembly of said State, duly passed and approved February 2, 1872; that the defendant is a private corporation duly organized under the laws of said State, and has its principal business office at Bunceton, Cooper county Missouri, and that it has no office in Moniteau county, Missouri, that plaintiff corporation has control of its streets, and the right to regulate the use thereof; that it has the control and right to sell and dispose of franchises used in said plaintiff city, which includes telephone franchises.

"That plaintiff, through its officers and agents, on the 7th day of June, 1898, passed an ordinance, which was thereafter duly approved by the mayor of plaintiff, granted a franchise of fifteen years to the company that purchased same, and therewith the right to construct a telephone exchange in said city and to place poles and wires in the streets and alleys of said plaintiff city, and operating and conducting said exchange and telephone system; that notice of sale of such franchise was given on the 14th day of July, 1898, the defendant purchased said franchise by and through its agent, A. B. McDavid, and at said sale agreed to pay five per cent of the gross receipts of said telephone exchange after the same should be in operation in said city, for the privilege and franchise aforesaid, the plaintiff accepted the bid of five per cent of such gross receipts and awarded the said franchise to the Bunceton Telephone Company aforesaid: that defendant thereupon entered into a good and sufficient bond in the sum of two thousand and five hundred dollars payable to said plaintiff if said telephone lines and exchange were not placed in said city in accordance with the terms of said ordinance and purchase; that said defendant put up the poles and wires and put in said telephone exchange, and caused the same to be operated and telephone service thereby to be rendered in said plaintiff city.

"That defendant after the construction of said exchange and telephone system in said city leased same to one A. B McDavid; that the five per cent gross receipts of said exchange were paid by defendant to said city up to the first day of January, 1903; that defendant received thirty-five per cent of such gross ...