Chicago, Kansas & Western Railroad v. Board of Commissioners

1. Case, Followed. The ruling in H. & S. Bid. Co. v. Comm'rs of King-man Co., 18 Kas. 70; same case, 28 Pac. Rep. 1078, followed, and the principle of estoppel as therein stated applied. 2. Railboad Company, Entitled to Bonds. The testimony examined, and found to be sufficient to show that the plaintiff has complied with the conditions of the proposition and agreement made between it and the county of Chase, and that it is entitled to the execution of the bonds in accordance with the terms of such proposition and agreement. 3. Mandamus — Demand Before Application. In a proceeding of mandamus, to compel the performance of a public duty, no formal demand upon the defendants is necessary where their course and conduct manifest a settled purpose not to perform the duty, and where it dearly appears that a formal demand would be useless and unavailing.

Original Proceeding in Mandamus. All the material facts of this case appear in the opinion herein, handed down July 8, 1892. The admissions made by the pleadings and the evidence offered in behalf of plaintiff, make a prima facie case, entitling the plaintiff to a peremptory writ. In view of the recent decision of this court in H. & S. Rid. Co. v. Comm’rs of Kingman Co. (48 Kas. 70), we deem it wholly unnecessary to discuss the almost innumerable questions that must arise upon the evidence concerning the sufficiency of the petition, for the reason that in this case it must be deemed and held that the defendants are estopped from raising that question. We take it for granted that the decision in the above case has finally established the law upon that question, and we need not devote any further time to its consideration. The defendants have announced in court that they would urge that the doctrine of estoppel should not be applied in this case, for the reason, a3 they claim, that the plaintiff company was instrumental in procuring the petition to be circulated and signed, and that the plaintiff, in fact, caused the petition to be presented. This contention is unsound, both in fact and in law. It cannot be contended by the defendants, under this branch of the case, that the plaintiff or any of its officers or agents knew that the petition was insufficient; there is not a scintilla of evidence tending to show such a state of facts. Furthermore, the evidence does not even tend to show that the plaintiff caused the petition to be circulated and presented to the board. We may concede the fact to be that the new road to be built by the Chicago, Kansas & Western was intended to cooperate as a branch line with the Atchison, Topeka & Santa Fé, although this fact is only hinted at throughout the case, and is nowhere distinctly shown. But the fact that one railroad company cooperates with another does not make one the agent of the other, or responsible for its acts. See A. T. & 8. F. Rid. Co. v. Davis, 34 Kas. 209. The acceptance of the subscription is clearly shown by the fact that the agreement of subscription was delivered to the treasurer of the plaintiff company and retained by him, and produced in evidence by the plaintiff in this case, as the foundation for its cause of action. The acceptance of the contract is further shown by the fact (hat the railroad company immediately proceeded with the construction of the road upon the exact terms and conditions called for by the contract of subscription. It is not true that no demand was made for the bonds. The evidence of E. W. Mulvane shows conclusively that after the completion of the road he went before the three county commissioners and the county clerk, who were all assembled in the county clerk’s office, and there presented them with a draft of the bonds, and demanded their execution, which was refused. Á formal demand would be wholly unnecessary to the plaintiff’s right of action, in a case of this character, where the defendants, upon what are claimed to be substantial grounds, have denied the right of the plaintiff to the bonds. The State v. Rahway, S3 N. J. L. Ill; Hall v. Draper, 20 Kas. 140; Shoemaker v. Simpson, 16 id. 43. The requirement that the company “shall establish and maintain a división terminus” is not a condition precedent. The previous provision of the proposition requires that the road shall be built and completed and in operation on or before the 1st day of June, 1887, and there is no doubt that the building of the railroad within the time limited is a condition precedent, and that time is of the essence of the contract. But the provision in regard to the division terminus, while it constituted. a binding agreement on the part of the railroad company, does not by its terms, nor by any fair construction of it, constitute a condition precedent. Swartwout v. Railroad Go., 24 Mich. 389; Chamberlain v. Railroad Co., 15 Ohio St. 225; Miller v. Railroad Co., 40 Pa. St. 237; Townsend v. Lamb, 14 Neb. 324. Not only has there been a substantial compliance with the terms of the subscription, but the conditions imposed upon the railroad company have been strictly and literally fulfilled. Even if only a substantial rather than a strict and exact performance of the conditions were shown, the plaintiff would still be entitled to the bonds. See S. K. & R. Rid. Co. v. Towner, 41 Kas. 72. If the defendants had proven all they claim in regard to the completion of the road, it would still remain true that the company had in good faith substantially constructed the road as called for, and had it ready for the operation of trains on the 1st day of June, 1887, and has continued to operate trains regularly ever since, and did, moreover, follow up the first construction of the road by making such alterations and repairs as experience showed to be necessary to make a first-class road. Moreover, as further showing the good faith of the company, it did not stop building the road at the north line of Chase county, as it might have done, but proceeded to extend the road further in the state of Kansas, to the city of Abilene. If a demand is yet necessary as a condition precedent to bringing an action in mandamus, this suit must fail. The testimony of four witnesses proves beyond all doubt that Mr. Mulvane was mistaken in testifying that he was before the board at its regular July meeting, 1887. The board of county commissioners was not in session the day that Mr. Mulvane was attempting to demand the execution of the bonds in controversy. The casual meeting of the persons composing the board of county commissioners does not constitute them a board; a demand upon such an assembly is not a demand upon the county. This is so, or the reasoning and law announced in P. & F. R. Rly. Go. v. Comm’rs of Anderson Co., 16 Kas. 302, are unsound.. Another reason, and one that we regard as absolutely conclusive, is, that plaintiff has not complied with § 1292, General Statutes of Kansas, 1889. Plaintiff can have no right to the bonds in controversy, either in law or equity, without first complying with this statute. That plaintiff recognizes that fact is shown, in that the stock was once deposited in accordance therewith, but voluntarily withdrawn. Since that stock was withdrawn, there has never been a day that the board of county commissioners of Chase county had any right or duty to execute and deliver the bonds in controversy. Herein is an essential distinction between the case at bar and the case of H. & 8. Rid. Go. v. Gomm’rs of Kingman Go. (48 Kas. 70), upon which plaintiff relies. As the cases cited by plaintiff— The State v. Rahway, 33 N. J. L. Ill; Hall v. Draper, 20 Kas. 140; Shoemaker v.. Simpson, 16 id. 43 — have no application to the matter at issue herein, we shall not devote any time to discussing them; but we will ask the court to examine the case of Magie v. Township of Union, 42 N. J. L. 531, and note that the members of the board in the case at bar proposed to dispose of the matter of issuing these bonds at the regular meeting in July.. By the evidence of Joab Mulvane and of D. W. Mulvane,; the alleged contract of subscription originated with plaintiff' company, and brings the construction of the proposition with which plaintiff claims to have complied within the rule laidl down in M. K. & C. Rly. Go. v. Thompson, 24 Kas. 181, et seq., that a proposition is to be construed most strongly against the one who proposes it. Plaintiff concedes that the conditions that the road should be built and completed and in operation are conditions precedent, but claims they were complied with on or before the time required, the 1st day of June, 1887. We then claim that the plaintiff failed to complete its road in time, in this : There was no good and sufficient bridge across Fox creek; there was an absolutely unsafe bridge across the Cottonwood at Cottonwood Falls; the necessary side-tracks and connections with the Ellinor extension were not completed. Sidetracks are as much a part of the road as the main line. A. G. & P. Rid. Go. v. Gomm’rs of Phillips Go., 25 Kas. 274. Mr. Earl, witness for plaintiff, says the C. K. & W. track was-very rough for a new track. There is no competent evidence,, in fact none whatever, to prove that the plaintiff owned any right-of-way for its road in Chase county. Plaintiff does not prove, or attempt to prove, that its road was fenced; that crossings at public highways had been put in, and signs erected at the crossings of highways or public roads. It rests-entirely upon the naked statement that it had down a track and commenced to operate a passenger train over it on the last of May. That the evidence before this court does not warrant a judgment that the plaintiff’s road was complete on June 1, 1887, we refer to Parsons v. Tilden, 59 N. Y. 640, a decision approved by this court in M. K. & C. Rly. Co. v. Thompson, 24 Kas. 183. Another condition in this proposition under consideration is, that plaintiff “ shall establish and maintain a division terminus, with such division facilities as may be necessary for the operation of the C. K. & W. Rid. Co., at a point situated between the city of Strong City and the city of Cottonwood Falls, Chase county, Kansas.” Plaintiff has not offered a syllable of evidence to prove that it has ever established a division terminus any place in Chase county. It has attempted to prove the existence of certain division facilities. But division facilities do not constitute a division terminus. There is no reason why the improvements claimed by plaintiff could not be in the middle of a division. A division is a thing required in the operation of a road; a division is that part of a road between which train crews run. The division facilities may be anywhere along the line. Plaintiff attempts to interpolate into this proposition, that these facilities were to be at a point on the line of road between the two places named. But such is not the wording of the proposition. It is plain; there is no chance to misunderstand it; it needs no interpretation. Both maps — the one offered by plaintiff and the one offered by defendants — show that plaintiff ran its line of road off east of both towns, and then turned back upon itself for the purpose of avoiding this part of the proposition; built several hundred feet of extra track in order to reach a point not between the two towns named. As to the location of these facilities, see V. & T. Rid. Co. v. Comm’rs of Ryon Go., 6 Nev. 68, et seq., approved by this court in M. K. & C. Rly. Co. v. Thompson, 24 Kas. 183. Plaintiff attempts to get out of its dilemma by claiming that this is a condition subsequent, and amounts to nothing, any way. But this division terminus and facilities, and their location, are a part of the consideration' involved. Plaintiff insists that the Kingman county case effectually disposes of this case. It appears to assume that “ask, and ye shall receive,” was written wholly for the benefit of railroad companies. If this court should hold that the decision in that case must stand as good law, there is the further question : Does the doctrine therein announced apply to the case at bar? That the estoppel does not apply if plaintiff has not complied with the contract of subscription, will not be denied; and does not apply if plaintiff bad notice of the alleged defects in the petition presented to the board of county, commissioners of Chase county, Kansas, on October 12,1886, or an equal opportunity of knowing the facts. Hendricks v. Kelly, 64 Ala. 388; Marco v. Fond du Lac Co., 63 Wis. 212; Steel v. Smelting Co., 106 U. S. 455, 456; Dorlarque v. Cress, 71 111. 382; Bales v. Perry, 51 Mo. 453; Hill v. Epley, 31 Pa. St. 333, 334; Buck v. Milford, 90 Ind. 293. If the conduct supposed to have created the estoppel was brought about or directly encouraged by the party claiming the estoppel, then no estoppel is created. Gallagher v. The People, 91 111. 582, et seq. It will be conceded that the party claiming the estoppel must, relying upon the representations of the party complained of, have done something by which he would be prejudiced were the estoppel not allowed. Bigelow, Estop. (5th ed.), 628, 629, n. 1. That plaintiff cannot claim an estoppel at all, defendants maintain, because the plaintiff has never complied with the alleged contract of subscription, as shown by analysis of evidence showing want of compliance therewith; and that the estoppel is not at issue herein, and all evidence relating thereto is incompetent and not within the issues. Conduct, to work an estoppel, must have been made with the intention, actual or virtual, that the other party should act upon it. Bigelow, Estop., p. 570. The plaintiff has parted with nothing. It has its road, if it ever had one; it has its stock. It voluntarily withdrew its stock from the custody of the county treasurer. It certainly has its division terminus. It does not claim that we ever got that; and its own evidence shows that it still has its division facilities. The plaintiff has lost nothing. M. K. & G. Ely. Go. v. Thompson, 24 Kas. 183. Therein this case differs materially from the Kingman county case. In that case the railroad company had done all the contract called for, and had delivered its stock to the township, which stock was retained by the township. Nothing of that kind exists in this case. The defendants cite the case of M. K. & G. Ely. Go. v. Thompson, 24 Kas. 181, in support of the proposition that a ■conditional subscription for stock by a municipal corporation is to be s.trictly construed against the railroad company. That ■case is not in point. The distinction drawn between that ease and a case like the one at bar by this court, in the case of 8. K. & P. Eld. Go. v. Towner, 41 Kas. 72, and G. K. & W. Eld. Co. v. Makepeace, 44 id. 680, renders the case in 24 Kas. totally inapplicable. In that case the' railroad company had already entered' into a contract with other parties for the construction of a certain road according to certain plans and •specifications, which provided exactly and minutely.how the road should be built, and just what would be deemed a completion of it; the contract for subscriptions provided that, if the road were built according to those plans and specifications by a certain date, the company should be entitled to the bonds; otherwise not. The court merely held, in that case, that the road must be completed in accordance with such plans and specifications in order to earn the bonds. Now, the contract for subscription in the case at bar is almost identical with the proposition in 41 Kas. and 44 id., the roads in both cases being constructed as extensions of the Santa Fé system, and the propositions having been drawn in a very similar manner. Now, we submit that even if all that the defendants contend for in regard to the completion of the road were fully established, nevertheless the road in- this case was on the date in question in a far more finished condition than either of the roads considered in the cases in 41 Kas. and 44 id. It seems perfectly absurd to say that there has not been a refusal to issue the bonds, when the defendants have in fact refrained from issuing them for a period of nearly five years after they were demanded; and yet that is precisely the contention of the defendants’ counsel upon this point. It is true that, before mandamus proceedings can be instituted, a proper demand should be made upon the public officers, and either a refusal should be shown, or such circumstances as would lead to the inference that there was no intention to perform the duty required. But if it appears, either from circumstances occurring before the issuing of the writ, or from the return to the writ itself, that there was no intention to perform, then a demand need not be made. The State v. Board of Finance, 38 N. J. L. 259; Palmer v. Stacy, 44 Iowa, 340; Dill. Mun. Corp., § 696. In general, neither the tender of the performance by one party, nor demand' for performance to be made upon the other, will be required when it would be useless and foolish. Ghinn v. Bretches, 42 Kas. 316; Thompson v. Warner, 31 id. 533; Paper v. Harrison, 37 id. 243; Tracy v. Irwin, 18 Wall. 549.