Warsop v. City of Hastings

• Decision Date: 22 March 1876
• Citation: 22 Minn. 437
• Parties: ANDREW WARSOP <I>vs.</I> CITY OF HASTINGS.
• Court: Minnesota Supreme Court

22 Minn. 437

ANDREW WARSOPvs.

CITY OF HASTINGS.

Supreme Court of Minnesota.

March 22, 1876.

The plaintiff, a resident and tax payer in the city of Hastings, brought this action in the district court for Dakota county to restrain the proposed issue of the bonds of the city to the Saint Paul & Chicago Railway Company. A demurrer to the complaint was sustained by Crosby, J., and the plaintiff appealed.

Clagett & Searles, for appellant.

Bigelow, Flandrau & Clark, for respondent.

CORNELL, J.

Assuming the city ordinance to have been duly and legally passed and ratified, in conformity with the act of the legislature of May 15, 1869, (Sp. Laws 1869, ch. 34,) it cannot be doubted that an acceptance of its terms and conditions, and full compliance therewith, on the part of the company, in the construction of its road, constituted a valid and binding contract between it and the city.

It is well settled that, in all cases where equitable relief is sought through the extraordinary remedy of an injunction, the facts entitling the party to such relief must be clearly and positively alleged and shown. It is not enough that their existence may be inferred or spelt out from the averments in the complaint. If, in this case, the relief sought was intended to be based upon the fact that no contract existed between the company and the city, growing out of the passage of the ordinance and its acceptance by the company, that fact should have been distinctly stated, or made clearly to appear, in the complaint.

Instead, however, the ordinance is alleged to have been passed by the council, and voted upon by the people, and approved by them, at an election held for that purpose. It is averred that "said railway company has fully constructed and completed its said road, and is operating the same, as in said ordinance required," and "that said common council of the city of Hastings has made no agreement with said railway company for, or relating to, the disposal of said bonds, or the proceeds thereof, in aid of said railway." These several averments must all stand together, if possible, and be construed accordingly. Hence the last cannot be held as negativing the existence of an agreement between the city and the company, such as is necessarily implied from the passage of the ordinance by the former and its acceptance by the latter. It does not negative the expressly averred fact "that the company has constructed and completed its road as in said ordinance required;" and the fair implication from this is that the terms and conditions of the ordinance have been fully complied with on the part of the company — a fact necessarily presupposing an acceptance on its part. This conclusion is strengthened by the fact that the complaint particularly specifies the grounds of objection to the issuance of the bonds to be an alleged irregularity in the publication of the ordinance, and an insufficient notice of the election at which it was ratified, and not the want of an agreement between the city and company.

From this view of the complaint it must be assumed that a valid and binding obligation rests upon the city to issue its bonds, as provided in the ordinance, unless the ordinance itself is invalid by reason of a want of requisite authority in the council to pass it, or of a failure on the part of the voters of the city legally to ratify it within the prescribed time.

The ordinance rests for its authority upon Sp. Laws 1869, ch. 34. The object of this act, as expressed in its title, was "to authorize the city of Hastings to aid in the construction of the Saint Paul & Chicago Railway." Section 1 enacts that "the city of Hastings may, at any time prior to August 1, 1870, by a vote of a majority of its common council, subject to the ratification of the legal voters of said city, as hereinafter provided, create and issue its...