National Subway Company v. City of St. Louis

• Decision Date: 18 June 1902
• Citation: 69 S.W. 290,169 Mo. 319
• Parties: NATIONAL SUBWAY COMPANY v. CITY OF ST. LOUIS, Appellant
• Court: Missouri Supreme Court

69 S.W. 290

169 Mo. 319

NATIONAL SUBWAY COMPANY v. CITY OF ST. LOUIS, Appellant

Supreme Court of Missouri, First Division

June 18, 1902

Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.

Affirmed.

Chas W. Bates and Wm. F. Woerner for appellant.

(1) The city of St. Louis had a right to contract by ordinance for the payment of the sum plaintiff agreed to pay in order to obtain the necessary consent of the city to the use of its streets, and, hence, the contract so entered is binding. Charter St. Louis, art. 3, sec. 26, clause 2; State ex rel. v. St. Louis, 145 Mo. 551; St. Louis v. Tel Co., 148 U.S. 105; St. Louis v. Tel. Co., 149 U.S. 468. (2) The provision for the payment to the city of the amount in question, provided for in the ordinance and accepted by respondent, being a valid provision, could be abrogated or modified only by the city by ordinance, speaking through its municipal assembly and mayor. The action or non-action of a department or member of a department can not make a new law, or operate to withdraw the consent of the city conferred by the ordinance. The action or duty of the street department was ministerial (145 Mo. 577, 592). The city never having enacted any further legislation, it follows that the ordinance always remained in force. The decision in State ex rel. v. St. Louis, 145 Mo. 551, upholding the ordinance, and overruling State ex rel. v Murphy, 134 Mo. 548, wherein it had been pronounced void, did not in legal contemplation make a change in the existing law, but decided that the law always had been as therein held. The respondent, therefore, had the right in law, at any time since obtaining the consent of the city, to the laying of its subways, to enforce its rights (if unjustly withheld) by mandamus, just as it did do in the last case. That it was misled by the first decision, or delayed exercising its privileges pending that decision, can not operate to exonerate it from its obligations. The fact of this obligation and its observance by the company, was one of the reasons moving this court to issue the mandamus (145 Mo. 564).

Boyle, Priest & Lehmann and Geo. W. Easley for respondent.

The sole consideration for the payment of the $ 3,000 in controversy, was the consent of the city to respondent's occupation of the streets for the purposes named in the ordinance. The city, by the refusal of its officer to grant the necessary permits, withheld the consent it had given. The $ 3,000 being paid for that consent, and that consent being thus withdrawn and withheld, there was an entire failure of consideration, and if the appellant were suing to recover that sum, such failure of consideration would be a good defense; or, under the general rule of the law that an action of assumpsit for money had and received is an equitable remedy that lies in favor of one person against another, when that other person has received money from the plaintiff, under such circumstances that in equity and good conscience he ought not to retain the same, and which ex aequo et bono, belongs to the plaintiff, the respondent might have sued and recovered in assumpsit. Tamm v. Kellogg, 49 Mo. 118; 4 Wait's Actions and Defenses, p. 469, sec. 1. Or, might recover the same because the consideration for which it was paid has failed. 4 Wait's Actions and Defenses, p. 500, sec. 22.

OPINION

MARSHALL, J.

This is a controversy submitted without action under section 793, Revised Statutes 1899. The agreed facts are as follows:

"It is hereby stipulated and agreed by and between the plaintiff and defendant herein, as follows:

"1. Ordinance No. 15953 of the city of St. Louis is as follows:

"'An ordinance amendatory of ordinance numbered 14798 of the city of St. Louis, approved February 15, 1889, entitled: "An ordinance to provide for the laying of electric wires under ground."

"'Be it ordained by the municipal assembly of the city of St. Louis, as follows:

"'Section 1. Ordinance numbered 14798 of the city of St. Louis, entitled: "An ordinance to provide for the laying of electric wires under ground," approved February 15, 1889, is hereby amended by striking out all of sections six and ten, and by striking out sections one, four and five, and inserting in lieu thereof the following, viz.:

"'Section 1. Permission and authority is hereby granted to and duly vested in the National Subway Company of Missouri, and its successors and assigns, to construct, maintain and operate conduits, pipes, mains, conductors, manholes and service and supply-pipes in any of the streets, alleys, squares, avenues and public highways of the city of St. Louis, for and during the period of fifty consecutive years, from February 15, 1889, for the purpose of distributing and maintaining a line or lines of electric, telegraph, telephone, and other wires, together with all necessary feeders, outlets and service wire or other electrical conductors to be used for the transmission of electricity for any and all purposes; provided, that before the said company, its successors or assigns shall lay any conduits or pipes in any of the streets and alleys of the city, it shall submit to the board of public improvements, detailed drawings and statements showing the plan of the work proposed to be done in said streets and alleys, including the route to be followed, and the size and dimensions of the structure, and it shall not proceed with the laying thereof until such drawings, statements and plans, and route and size and dimensions of the structure, have been approved and indorsed by the said board.

"Section 4. In order to insure a faithful compliance of section three of this ordinance, said company shall be required within ten days from the acceptance of this ordinance, to pay into the city treasury the sum of one thousand dollars, as a special fund, to be used by the street commissioner in making necessary repairs and changes which the said company may be liable to make under the provisions of this ordinance. Whenever, in the opinion of the street commissioner, any street, alley or highway, upon which pipes and appurtenances have been laid by said company, is out of repair in consequence of the use thereof by it, or whenever it becomes necessary to take up any pipe or appurtenances, on account of the construction or reconstruction to streets, alleys, sewers, or any other improvements, the street commissioner shall notify the said company by mail or otherwise, to cause the same to be repaired, or cause such changes or removals to be made as are necessary; and if the said company shall fail or refuse to obey such notice within the time prescribed therein, then the street commissioner shall cause the repairs to be made or work to be done and paid for out of the special fund hereinbefore provided; whenever a part or the whole of said one thousand dollars shall have been expended for the purpose hereinbefore mentioned, the street commissioner shall notify the president, manager or superintendent of the National Subway Company of Missouri (and its successors or assigns), in writing or otherwise, to pay so much more money into the city treasury as will bring the fund up again to the amount of one thousand dollars, within ten days thereafter; and if said president, manager or superintendent of said company, and its successors or assigns, fail to pay into the city treasury the amount so specified within the time stated, then the said president, manager or superintendent shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined not less than fifty dollars, nor more than one hundred dollars, for each and every offense, and every and each day thereafter that said deposit is not made good shall be considered a distinct and separate offense.

"'Section 5. Such corporation (or its successors or assigns), shall be a common carrier, and shall have and enjoy such rights, privileges and immunities as are usually had and enjoyed by such companies, and shall pay to the city of St. Louis for the above rights and franchises, semiannually in advance, the sum of five hundred dollars, commencing on the day this ordinance is approved.

"'Approved February 6, 1891.'

"2. That on or about December 20, 1894, the board of public improvements, having approved its plans and specifications for a subway, the St. Louis Underground Service Company made application to the street commissioner of the city of St. Louis under the provisions of section 1303, article 5, chapter 32, and section 568, chapter 15, article 1, Revised Ordinances of 1887, made part hereof, at that time Michael J. Murphy, for excavation permits to lay and construct conduits under said ordinance 15953, which permits, so applied for, the said street commissioner refused to issue, at or about the date last aforesaid. Pursuant to the resolutions of the city council, which are hereto attached and marked exhibits 'A' and 'B,' respectively.

"3. That thereupon, to-wit, on or about January 14, 1895, upon the petition of the St. Louis Underground Service Company, an alternative writ of mandamus issued out of Division No. 1 of the Supreme Court of Missouri, directed to said Murphy street commissioner as aforesaid, returnable for January 24, 1895, said mandamus proceeding being known as and numbered 7446 of said Supreme Court. That such action was had in said proceeding that said Division No. 1 of said court, on or about June 25, 1895, denied a peremptory writ of mandamus therein. That thereafter, on July 2, 1895, a motion for rehearing was filed by said St. Louis Underground Service Company, which motion was, by the court, on July 9, 1895, overruled, but at the same time the judgment theretofore rendered was modified, and said St. Louis Underground Service Company was allowed thirty days...