Edwards Hotel & City Street Railroad Co. v. City of Jackson

Decision Date14 March 1910
Docket Number14267
PartiesEDWARDS HOTEL & CITY STREET RAILROAD COMPANY v. CITY OF JACKSON
CourtMississippi Supreme Court

FROM the chancery court of, first district, Hinds county, HON. G GARLAND LYELL, chancellor.

The city of Jackson, appellee, was complainant in the court below; the street railroad company, appellant, was defendant there. From a decree in complainant's favor the defendant appealed to the supreme court.

In 1909 the city began this suit praying for a mandatory injunction to compel the street railroad company to pave its tracks on certain streets designated in an ordinance of the city. The railroad company claimed exemption from so doing under a contractual ordinance passed in 1906, by the terms of which it was agreed that upon compliance with certain requirements stipulated by the city the railroad company should not be required to do paving for a period of ten years. This ordinance was passed as a compromise of a suit then pending to collect from the railroad company the cost of other paving done by the city on a street along which the tracks of the railway were laid, and which suit was defended by the railroad company on the ground that its franchise granted by the city exempted it from paving. The franchise contains the following among other sections, to wit:

"Sec 7. That all tracks laid by said company, its associates successors, and assigns, in said streets, are to be laid on the present customary and established grades thereof, except upon consent of the mayor, and all equipments, appliances fixtures, and appurtenances erected for the operation of said railroad, shall be erected and constructed with reference to said customary established grades, subject, however, to be at all times temporarily taken up, removed, replaced, and relaid, at the expense of the city, whenever deemed necessary by the board of mayor and aldermen to temporarily take up and remove the same, for the purpose of grading, regrading paving, making any public or private improvement, or otherwise improve said street, or any part thereof."

"Sec. 15. That whenever the city determines to make any improvement or repair, such as the repair or construction of sewers, or water pipe, or other public work, or in grading and repairing or paving of any of its streets, avenues, alleys, public grounds or highways, or in the changing of the present established, customary grade or grades, and in making such improvement or repairs, it becomes necessary to temporarily take up, remove, or interfere with any of the tracks, poles, wires, turnouts, turn-tables, connections or any part or parcel of said railroad, that the city shall pay all the costs and expenses incident thereto or in connection therewith, including the cost of replacing and refitting such equipment as has been interfered with.

"Sec. 16. The city of Jackson shall and will, at all times, maintain its streets, highways, and bridges in good and proper condition and repair so as to enable the said company, its associates, successors and assigns, to use, operate and maintain its railroad and other rights and property, and whenever any bridge over which said company, its associates, successors, and assigns, operates its railroad, becomes unsafe for the operation of said railroad thereon, said city shall and will repair or reconstruct the same at its own expense, provided said company, its associates, successors, and assigns, pays in cash to said city, a sum equal to one-fourth the actual construction of all that portion of such bridge or bridges, above the abutments or bents thereof, except said company, its associates, successors, and assigns, shall not be required to pay any part of the cost of the construction of the bridge over Town creek on Capitol street."

Reversed and bill dismissed.

Williamson & Wells, for appellant.

It is well settled that an ordinance granted by the city to a street railroad company to construct and operate a street railroad within the corporate limits of a city, constitutes a contract between such railroad company and the city. Chicago v. Sheldon, 76 U.S. 50; Coastline R. Co. v. Savannah, 30 F. 646; State v. Corrigan, C. S. R. Co., 85 Mo. 263; Dist. of Columbia v. Washington & G. R. Co., 4 Am. & Eng. R. Cas. 174; Farrar v. St. Louis, 80 Mo. 379; N. O. Gaslight Co. v. La. L. & H. Co., 115 U.S. 660; Greenwood v. Union, etc., R. Co., 105 U.S. 13; New Jersey v. Yard, 95 U.S. 104; Birmingham, etc., St. R. Co. v. Birmingham, 79 Ala. 465, 58 Am. Rep. 615; City R. Co. v. Citizens' St. R. Co., 52 N.E. 157; E. La. R. Co. v. New Orleans, 15 So. 157; Browne v. Turner, 56 N.E. 969; Davidge v. Binghampton, 71 N.Y.S. 225; Cleveland v. Cleveland Elec. R. Co., 1 Ohio N. P. 413; City R. Co. v. Citizens, 166 U.S. 557; Sioux City St. R. Co. v. Sioux City, 138 U.S. 98; Shreveport v. Shreveport, 47 So. 40.

After reading and considering the ordinance of the city passed on April 5, 1898, it can scarcely be doubted by the court that it was the purpose and intention of the city of Jackson to relieve the street railroad company of any obligation to pave or repair the streets at any time in the future. In fact, it is generally known that at the time of the passage of this ordinance, it was distinctly understood that the street railroad would not have been built except upon the insertion in the ordinance of a provision which would exempt it from any obligation to pave the streets, and therefore the several provisions were so inserted. It was the intense desire of the municipality to secure the construction of this railroad, and at the time it was thought to be a losing venture and the city was willing to make almost any sort of contract which would result in the building and equipment of the street railroad. The provisions of the ordinance as to the paving of the streets may not have been wise provisions, but, as to the fact that these ordinances did in fact undertake to exempt the street railroad company from any obligation to ever pave the streets, or to keep them in repair there is not now, and never has been any doubt.

In the absence of the stipulation that the city would always keep the streets in repair it would seem that the law would have imposed upon the company the duty to repair, but not to improve.

The law upon this subject, supported by a long list of authorities is thus stated by Judge Elliott, in his valuable work on Roads and Streets, at page 594:

"As much as can be safely affirmed in the present state of the decided cases is that private corporations are bound to repair, but not bound to improve. They are bound to restore, but not to change. * * * It would not, as we interpret the rule sustained by the weight of authority, be compelled to make a new pavement, but it would be its duty, in making repairs after the new pavement was laid, to made them correspond to the new pavement."

In the instant case, even the duty to repair was undertaken and assumed by the city.

The city was desirous of having this street railroad built on account of the benefits to accrue therefrom to the inhabitants of the city, and so anxious was the city that the street railroad should be built and maintained, that it required the company to enter into a contract obligation to the effect that it should not have any right to maintain an electric lighting system except upon the condition that the street railroad was also maintained and operated.

The company complied with all of the stipulations and conditions of the ordinances and its full and complete compliance was duly recognized by the city in a resolution of the mayor and board of aldermen, and there is no pretense that the company has ever at any time forfeited any of the rights or franchises conferred upon it by the passage of the ordinances.

Under these conditions the city could not, by subsequent ordinance impose on the company without its consent, the additional obligation to pave the streets as is clearly held by the authorities cited supra.

In the leading case of Chicago v. Sheldon, 76 U.S. 9 Wall. 50, 19 L.Ed. 594, it was held by the supreme court of the United States, the court of last resort upon questions of this kind, that the company could not be held liable for improvements made on the streets occupied by its railroad and that its obligation could only be extended to the duty of repairing the streets after they had been improved by the city.

The passage of that portion of the paving ordinances of 1902 which had reference to the street railroad company was a patent attempt upon the part of the city to repudiate its contract with the company, upon the faith of which the company had expended a very large sum of money not only in the erection of the street railroad plant and street railroad, but also a large electric lighting plant and system, which it cannot lawfully run except upon the condition that it also operate at the same time the street railroad in the city.

A small part of the street paving which was attempted to be required of the company was done by the city and a suit was instituted to test the right of the city to recover for the amount expended in so doing, which suit the company defended upon all of the grounds set out in its answer to the bill which is made exhibit hereto, and by reference to this answer the court will observe that the company not only resisted this suit upon the ground of its contract obligations with the city, but also brought into question the validity and binding effect of the paving ordinances, and the lack of sufficient notice, and many other defenses which are set forth in the answer.

While this suit was pending and undetermined, negotiations were begun between the representatives of the city and the company looking to a compromise settlement of the...

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