Hodgman v. St. Paul & Chicago Ry. Co.

• Decision Date: 17 October 1876
• Citation: 23 Minn. 153
• Court: Minnesota Supreme Court
• Parties: JESSE M. HODGMAN <I>vs.</I> ST. PAUL & CHICAGO RAILWAY COMPANY, impleaded, etc.

23 Minn. 153

JESSE M. HODGMAN vs. ST. PAUL & CHICAGO RAILWAY COMPANY, impleaded, etc.

Supreme Court of Minnesota.

October 17, 1876.

Action to restrain the city of Red Wing, one of the defendants, from issuing to the defendant the St. Paul & Chicago Railway Company its municipal bonds, which, to the amount of $85,000, the city, under legislative authority, had contracted to issue to the company, on condition that its railway should be completed and put into successful operation between St. Paul and Winona, or some other point south of Red Wing having railway connection with Milwaukee and Chicago, on or before January 1, 1871. The principal of the breaches of this condition alleged in the complaint was the failure of the company to bridge the Mississippi river, between St. Paul and Red Wing, within the period limited in the contract. An order overruling the railway company's demurrer to the complaint was affirmed, on appeal, by this court, in Hodgman v. Chicago & St. Paul Railway Co., 20 Minn. 48. The company thereupon answered the complaint, and the action was tried in the district court for Goodhue county, before Crosby, J., who ordered judgment for the plaintiff, perpetually enjoining the issue of the bonds. A new trial was refused, and the railway company appealed.

The city of St. Paul being situate on the left bank, and the cities of Hastings, Red Wing, and Winona on the right bank of the Mississippi, a bridge across that river is, as was found by the court, indispensable to a continuous line of railway between St. Paul and those cities, the most feasible point for constructing such bridge being that between East Hastings and Hastings, which are opposite each other on the river, and where the company, toward the close of the year 1871, completed a bridge, and supplied the only break in its continuous line of railroad between St. Paul and Winona. Before the erection of this bridge, the gap between the company's tracks on the opposite banks of the river at and opposite Hastings was 3,524 feet. This gap was made up of the river, 604 feet in width at the ordinary stage of water, and bottom lands, 2,920 feet wide, timbered and subject to overflow in extreme high water, but dry for ten or eleven months in the year. The court found that this break, while it existed, caused serious inconvenience to passengers, and delays in the transportation of passengers and freight, and increased charges therefor, the passage of the river being effected by means of a boat in the season of navigation, and open wagons and sleighs when the river was frozen; and that the break prevented the transportation of any freight, except light packages, over the railway between St. Paul and Red Wing, all heavy freight being sent between St. Paul and Red Wing over other railroads operated by the lessor of the St. Paul & Chicago railway, over a route sixty-two miles in length, the distance between the two places by the latter road being but forty-two miles.

Bigelow, Flandrau & Clark, for appellant.

E. T. Wilder and J. C. McClure, for respondent.

CORNELL, J.

By an act of the legislature, passed March 5, 1868, entitled "An act to authorize the city of Red Wing to issue bonds to aid in the construction of the St. Paul and Chicago railway through said city," (Sp. Laws 1868, c. 14,) the city was authorized, by its council, subject to a vote of the people, at any time prior to the first day of August, 1870, to issue its bonds to the extent of $100,000 in aid of such enterprise, and to enter into any agreement with said company, in relation to the terms, time, and conditions of such issue, as might be agreed upon. On February 8, 1869, this act was amended by removing the restriction as to the time when such authority conferred upon the city should be exercised, empowering it to issue the bonds "to aid in the construction of the St. Paul and Chicago railway," with this proviso, "that no such bonds shall be issued until so much of said railway as is or shall be located between the city of St. Paul and said city of Red Wing shall have been fully constructed, equipped, and put into successful operation for the transit of passengers and freight." Sp. Laws 1869, c. 35. By the amended act the authority was given to the city council to enter into any agreement with any company having the right to construct such railway, in relation to the time, terms, and conditions of the bonds, and the issuance thereof, and to provide for their issue by an ordinance specifying such time, terms, and conditions, provided, among other things, that such agreement and ordinance should not take effect or be in force until ratified and approved by the qualified voters of the city, as therein provided.

Under this authority a contract was duly entered into between the city and the defendant company, on or about May 8, 1869, by an agreement and ordinance duly passed and ratified, the stipulations, terms, and conditions of which are, so far as material to this case, as follows: "It is mutually understood by and between the parties hereto that no portion of said bonds shall be issued until said railroad shall have been fully constructed, equipped, and put into successful operation for the transit of freight and passengers from the city of St. Paul, in the state of Minnesota, to the city of Winona, in said state, or to some point south of Red Wing connecting with some railway, so as to afford, in conjunction therewith and with other railways, direct railway transportation with Milwaukee and Chicago; and said bonds, when so issued, shall each bear date subsequent to the completion, as above expressed, of said railway; and that no such bonds shall be issued unless said railway shall be fully constructed, equipped, and put into successful operation for the transit of freight and passengers from St. Paul to said Red Wing, on or before the first day of January, A. D. 1871;" and the said company "covenants and agrees to construct, equip, and put into successful operation said railway, for the transit of freight and passengers from the city of St. Paul aforesaid to the city of Winona, in said state, or to some point south of Red Wing connecting with some railroad, so as to afford, in conjunction therewith and with other railroads, direct railroad transportation with Milwaukee and Chicago; and the said party of the second part (the company) further agrees to fully construct and equip the said railway, and put the same into successful operation for the transit of freight and passengers from St. Paul aforesaid to said Red Wing, on or before the first day of January, A. D. 1871."

The ordinance, in terms, provides for the issuance of the bonds of the city, to an amount, etc., therein specified, "to aid the St. Paul and Chicago Railway Company in the construction of its railway" between St. Paul and the point or points therein stated, and contains these provisions: "Provided, that no such bonds shall be issued until said railway shall have been fully constructed, equipped, and put into successful operation for the transit of freight and passengers from the city of St. Paul, in the state of Minnesota, to the city of Winona, in said state, or to some other point south of Red Wing connecting with some railroad, so as to afford, in conjunction therewith and with other railroads, direct railway transportation with Milwaukee and Chicago; and said bonds, when so issued, shall bear date of a day subsequent to the completion, as above expressed, of said railway; and provided, further, that no such bonds shall be issued unless said railway shall be fully constructed, equipped, and put into successful operation for the transit of freight and passengers from St. Paul to said Red Wing, on or before the first day of January, A. D. 1871."

The first question of controlling importance to be considered in this case is whether, in the construction of defendant's railway, a bridge was required to be erected across the Mississippi river, by the terms of the contract between it and the city, as embodied in the written agreement and ordinance. No express mention is made of any bridge, either in the agreement or ordinance; and if its construction is required by the contract, it is because it is a necessary and essential part of the railway which the company undertook "fully to construct, equip, and put into successful operation for the transit of freight and passengers," and without which said road would be incomplete and insufficient to answer the ends for which it was authorized to be built. Both the written agreement and the ordinance refer to the specific line of railway which the company had undertaken to construct, under and in pursuance of its charter, as the one to which aid was to be given, and which was to be constructed and put into operation. It is fair to assume that the kind and character of railway which the parties had in contemplation in making their agreement was that which the company had undertaken to build, under and in compliance with the provisions and requirements of its charter. This line of road had its origin in the act incorporating the Minnesota & Pacific Railroad Company, passed May 22, 1857, (Laws 1857, ex. sess., c. 1,) which authorized that company "to locate, construct, and operate a railroad, with one or more tracks, from Winona up the valley of the Mississippi river to St. Paul," (§ 25,) without designating any particular location of the road along said valley, or any place for crossing said river. On March 6, 1863, a grant of swamp lands was made in aid of the enterprise, "lying and...