Town of Kirkwood v. Meramec Highlands Company
| Decision Date | 27 May 1902 |
| Citation | 68 S.W. 761,94 Mo.App. 637 |
| Parties | TOWN OF KIRKWOOD, Appellant, v. MERAMEC HIGHLANDS COMPANY et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. D. D. Fisher, Judge.
AFFIRMED.
Judgment affirmed.
O. J. & R. Lee Mudd for appellant.
(1) The attempt of the town to grant respondents an exclusive privilege to build waterworks does not invalidate the ordinance, nor the first section thereof. The exclusive feature alone is void. The ordinance without this feature is good, and is sufficient consideration for the bond. Carroll v. Campbell, 108 Mo. 559; Gas Co. v Parkersburg, 30 W.Va. 435; Grant v. City of Davenport, 36 Iowa 396; Grand Rapids E. L. & P. Co v. G. R. E. E. L. & F. G. Co., 33 Fed.Rep 659, l. c 679; Packet Co. v. Keokuk, 95 U.S. 80; Rand v. Mather, 11 Cush. 1; City of Linneus v. Dusky, 19 Mo.App. 20. (2) The act of the Legislature (Laws 1895, pp. 53-54, the so-called Julian Law) is, and has been by this court declared to be unconstitutional, null and void, and the town was not bound to sell the franchise at public auction or to do any act required by that act. State ex inf. v. Railway, 146 Mo. 155. (3) It was not incumbent upon plaintiff to make proof of specific damages sustained by the town through the failure of the Highlands company to build the waterworks. The bond is for liquidated damages and upon breach, the amount of the bond is forthwith due and demandable. 1 Sutherland on Damages (2 Ed.), sec. 285, pp. 584-5; Tinkham v. Sartori, 44 Mo.App. 659; Hamaker Adm'r v. Schroers, 49 Mo. 406; Cochran v. Railway, 113 Mo. 359.
Noble & Shields for respondents.
(1) Ordinances Ultra Vires. 2 Dillon on Municipal Corporations (4 Ed.), secs. 692, 695; Milhan v. Sharp, 27 N.Y. 611; Gale v. Kalamazoo, 23 Mich. 344; Des Moines Gas Co. v. Des Moines, 47 Iowa 505; Norwich Gas Co. v. Norwich, 25 Conn. 19; Cape Girardeau v. Riley, 72 Mo. 220; City of St. Louis v. Bell Telephone Co., 96 Mo. 623; City to use v. Eddy, 123 Mo. 546, 557; Union Depot v. Railway, 105 Mo. 562; Trenton v. Clayton, 50 Mo.App. 535; Knapp v. Kansas City, 48 Mo.App. 485; Carroll v. Campbell, 108 Mo. 550; State ex rel. v. Cramer, 96 Mo. 75; Beach on Municipal Corporations, sec. 622; Trust Co. v. Dayton, 59 F. 327. (2) Bond is not for liquidated damages. Bayse v. Ambrose, 28 Mo. 39; May v. Crawford, 150 Mo. 504; Long v. Tall, 42 Mo. 545; Morse v. Rathburn, 42 Mo. 594; Hammer v. Breidenbach, 31 Mo. 49.
--This is an action for damages, in the sum of fifteen hundred dollars, for breach of the conditions of a bond executed to the plaintiff by the defendant company as principal, and by the other defendant as surety. The bond was conditioned for the faithful performance by the defendant company of the stipulations contained in an ordinance of the town of Kirkwood touching the construction of waterworks for the benefit of the citizens of plaintiff.
The controlling facts are not disputed. The plaintiff is a municipal corporation, governed by a special charter enacted before the Missouri Constitution of 1875. The charter empowers the board of trustees "to provide the supply of water" in said town, and to make such ordinances, not inconsistent with the laws of this State, as may be deemed necessary by the board for the good government and welfare of the town. Laws 1869, p. 125, sec. 3.
No express authority is given by the town charter to grant any exclusive right or franchise for the supply of water.
In September, 1895, the plaintiff town duly enacted an ordinance (No. 195) "providing for a supply of water to the town of Kirkwood."
The first section of said ordinance is important in its bearing on the issues of this litigation. Its terms are as follows:
"That in consideration of the public benefits to be derived from the erection and maintenance of a system of waterworks, the exclusive right and privilege is granted to the Meramec Highlands Company, its successors and assigns, for the period of thirty years from and after the passage of said ordinance, and for such further renewals and extensions of time thereafter as is provided for and by said ordinance, to erect, maintain and operate waterworks within the town of Kirkwood for supplying the said town and the inhabitants thereof with water, and for that purpose to use the streets, alleys, sidewalks and public grounds of the said town within its present and future corporate limits, for placing, taking up or repairing mains, hydrants, and other constructions and devices necessary to the construction or operation of the said waterworks."
All features of the ordinance need not be mentioned. Some of them noteworthy are these:
By section 4, it was provided that the Highlands company should commence the construction of the waterworks provided for by the ordinance, within a given time after its formal acceptance, and should have the waterworks in complete working order within a longer period defined, after the commencement of construction (with certain exceptions touching strikes, injunctions, etc., not necessary to particularize).
It was further provided that, while the ordinance was in force, the town would rent fire-hydrants of the company and pay a yearly rental of fifty dollars for each of (at least) thirty-five hydrants.
The ordinance then authorized the Highlands company to charge consumers of water supplied by the company, at a schedule of prices fully set out in the ordinance.
It was then provided that the written acceptance of the ordinance should have the effect of a contract between the town and the Highlands company, and that within a given time the Highlands company should enter into a bond in the penal sum of ten thousand dollars, with two sureties to be approved by the board of trustees, conditioned for the faithful performance of all of the terms of the ordinance.
Subsequently the ordinance was amended in certain particulars, which exetended the time for complying with the terms of the ordinance. The Highlands company was also required, before accepting the ordinance, to file a bond in the sum of fifteen hundred dollars, with at least two sureties to be approved by the board of trustees, conditioned for the performance by said company of all the provisions of said ordinance.
It does not seem to be necessary to give all the particulars of the local legislation involved. Its substance is that the bond sued upon in this case by its terms secured the performance by the Highlands company of the preliminary conditions on which were granted the franchises defined by the ordinance. One of those conditions was the giving of another bond by the company in the penal sum of ten thousand dollars with security for the proper execution of the work and of those features of the project which were to be performed in the future by the company when the enterprise was fully launched.
The preliminary bond sued upon provided, among other things, that the said sum of fifteen hundred dollars should "be taken and held as liquidated damages, to be forthwith due and owing to the said town of Kirkwood upon breach of said bond, without further inquiry or admeasurement of damages, and not as a penal sum for the payment of such damages as may be ascertained by inquiry independent of said bond."
The breaches of the bond alleged in this action are that the Highlands company did not at any time execute and file with the clerk of the town board a penal bond in the sum of ten thousand dollars as required by the amended ordinance; and that said Highlands company did not begin and complete the construction of the said waterworks within the time mentioned in the ordinance on the subject.
The amendments of the original ordinance extended the time for the commencement of the work to May 24, 1897, and declared that the work should be fully completed within seven months after the date of the commencement of the construction thereof.
The petition exhibited the foregoing facts clearly, and prayed judgment for fifteen hundred dollars and interest.
The answer was a general denial (except as to the execution of the bond) and it contained certain special defenses, including that of want of consideration by reason of the illegality of the original ordinance.
It will not be requisite to make any further reference to the answer than to say that it set up the defenses which are considered in this opinion.
There was a reply filed, putting in issue the new matter of the answer.
The petition was filed September 8, 1897, and service upon the defendant was made on the fourteenth day of that month.
The bond in suit is dated December 9, 1896.
The case was tried by Judge FISHER, a jury having been waived.
At the close of the evidence, the learned trial judge declared the law to be that plaintiff, on his "own showing in this case, is not entitled to recover against the defendants."
After the usual moves for a review, plaintiff saved its exceptions and took its appeal to the Supreme Court.
1. The Supreme Court transferred this cause to the St. Louis Court of Appeals for hearing, thereby holding that the jurisdiction to determine this appeal is here.
One of the features of the answer is that the franchise conferred by the ordinance was not put up and sold at public auction to the best bidder as contemplated by the act of the General Assembly of Missouri, commonly called the Julian Law (Laws 1895, p. 53; R. S. 1899, secs. 6497-6500). By the reply the plaintiff averred that said act was unconstitutional and void. The trial court found in favor of the defendants on other grounds than those involving the constitutional question. Moreover, that...
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