Knight v. Kansas City, St. Joseph & Council Bluffs R.R. Co.

• Decision Date: 31 October 1879
• Citation: 70 Mo. 231
• Parties: KNIGHT v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

70 Mo. 231

KNIGHT

v.THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

REVERSED.

Willard P. Hall for appellant.

1. The stipulation between the city and appellant as to the location of appellant's machine shops is a condition subsequent, of which no one can avail himself except the city. Holden v. Joy, 17 Wall. 250; Kennett v. Plummer, 28 Mo. 145; Cooper v. Roberts, 18 How. 181; 4 Kent's Com., 127 to 130 (7 Ed.)

2. The ordinance was signed by the mayor. This is shown by its being recorded in the book of ordinances; by its having been printed in the official paper; by the acceptance of appellant filed in the city register's office; by appellant building its railroad in fifth street after said acceptance was so filed, without any objection on the part of the city; and by the oath of the mayor himself who signed the ordinance. The mere fact that the ordinance as signed by the mayor is not found in the register's office merely shows that it has been lost, mislaid or destroyed; but lost records can be supplied by parol or any other competent evidence. Hedrick v. Hughes, 15 Wall. 124; Welles v. Battelle, 11 Mass. 477; Kellar v. Savage, 17 Me. 444.

3. The fact that the scraps of paper, which it is supposed was the original ordinance, are not signed by the mayor, is no evidence at all. No person fit to be mayor would ever sign an ordinance in such a condition. It is usual and proper for a fair copy of all ordinances to be made out for the executive officer to examine and approve. He never signs a mutilated, erased or interlined paper. If he did, the grossest frauds might be perpetrated; inter, lineations and erasures could be made just as well after the mayor's approval as before. And in order to prevent this, the rule is as stated, and is believed to be uiversal.

4. The mayor signing the ordinance on the record book is of no significance, and gives no additional weight to said book as evidence. The validity of the ordinance depends upon his approving it before it is recorded. There is no law authorizing him to sign the record book of ordinances, and his doing so is without effect. It is the duty of the city register to record all ordinances in said record book after they are passed and approved; and when he so records an ordinance, with the word “approved,” or with the words “approved by the mayor,” underwritten, it is evidence both that the council passed the ordinance and that the mayor signed it, according to the maxim, omnia presumunter solenitur esse acta. Broom's Legal Maxims, 729 (3 Ed.)

5. It is notorious that city and town officers are careless with regard to preserving papers in their offices. Original petitions, motions and ordinances, after they are acted upon and recorded, are treated frequently as mere waste paper. Reliance is placed upon the record, and not upon the original papers.

Bennett Pike for respondent.

1. The validity of the ordinance granting the right to defendant is made to depend, by the provisions of the charter, upon the approval and signature of the mayor. The only evidence that can be adduced to show that the mayor approved an act is that he signed it. The signing is not merely directory; it is matter of substance--a part of the thing to be done--and, therefore, essential. Graham v. City of Carondelet, 33 Mo. 269; Kepner v. Comm., 40 Pa. St. 124; Conboy v. Iowa City, 2 Iowa 90, 95; Saxton v. Beach, 50 Mo. 488.

2. Even if the ordinance were valid, the grant of the right of way has ceased absolutely. The grant is not upon condition that they shall maintain their machine shops, &c., in said city, but the fact of the removal of said machine shops beyond the limits of said city is in itself the limit beyond which the estate granted no longer exists. In other words, the estate granted is not defeated, but determined by such removal. The 5th section may properly be regarded in connection with the duty of acceptance upon the part of the railroad company as an agreement that the removal of the machine shops should ipso facto constitute an absolute determination of the grant.

HENRY, J.

This was a suit for damages for an alleged unlawful entry by defendant upon Fifth street in the city of St. Joseph, and digging up and obstructing said street in front of plaintiff's premises, and constructing railroad tracks thereon, by means of which the street was obstructed and travel thereon impeded, and access to plaintiff's said premises destroyed. The petition also asked for an injunction. The defense relied upon was, that by an ordinance of the city council the defendant was granted a right of way over said street, and authorized to construct its said road along and upon said street at the point where plaintiff's premises are situated, upon certain conditions specified in said ordinance; provided the defendant accepted said grant in the manner in the ordinance specified; and it was alleged that it was so accepted by defendant. Plaintiff denied the existence of the ordmance. The court, after hearing the cause, found the issues for plaintiff, and rendered its judgment enjoining and restraining defendant as prayed in the petition, and the defendant has duly prosecuted his appeal.

The only questions presented which it is necessary to consider are: First, In regard to the validity of the ordinance in question; Second, If valid, did a breach of the conditions upon which the right of way was granted terminate the right of defendant to use and occupy the street for its rafiroad tracks? That the city authorities of St. Joseph had power to grant defendant the right of way for its railroad along the street is not controverted by respondent. If the ordinance in question was passed by the council and approved by the mayor, its acceptance by the company constituted a contract between the city and the company valid by the laws of this State, the obligation of which could not be impaired by any subsequent action of the State authorities. State v. Miller, 50 Mo. 133.

1. CITY ORDINANCE: evidence of approval by the mayor.

The first question, therefore, for solution is, whether the ordinance was approved by the mayor. That it was adopted by the council is not controverted, but if not approved by the mayor, it was of no force or validity. The evidence for defendant on that issue was a copy of a resolution adopted on the 14th day of August, 1873, by the board of directors of the defendant company, accepting the grant on the terms prescribed by the ordinance, a copy of which resolution was delivered by said company to the city of St. Joseph and filed and kept in the office of the register of said city; a copy of the...