State ex. rel. Silsbee v. Boyce.
Streets — Franchise to use— Whether forfeited by lapse of time occupied in litigation — Conditions precedent and subsequent — Time reckoned from end of litigation — Mandamus to compel action by board on approval of bond.
Where a city by ordinance grants permission to lay pipes in its streets and public places on certain conditions, among which are, that the grantee before commencing the work of laying pipes shall give a good and satisfactory bond, to be approved by the city solicitor and by a board, and that such work shall begin within one year from.the taking effect of the ordinance or it shall become void; and before it takes effect the city solicitor, claiming the ordinance is void, brings suit against the grantee and the city to enjoin both from acting under the ordinance ; and the injunction, after being allowed, is dissolved, and the case-is appealed, when on hearing the petition is dismissed, and then proceedings in error are prosecuted, and the final judgment sustains the ordinance and is in favor of the grantee; and by reason of the pendency of the action and proceedings the city solicitor and the board refuse to act in approval of a bond duly presented; and the city in no respect objects to such action, proceedings or refusal; and, within one year from-such final judgment but more than one year after the ordinance takes effect, the grantee duly presents another bond for approval, and action thereon is refused on the sole ground that the franchisees forfeited by lapse of time: Held, 1. Where the conditions of the ordinance do not clearly appear to be conditions precedent, they will be regarded as conditions subsequent.
2. The pendency of such action and proceedings may excuse such delay of the grantee and prevent a forfeiture, and may be regarded as postponing the beginning of the time prescribed for forfeiture until the date of such final judgment; and the time given by the ordinance may be reckoned from the date of such judgment.
3. A bond, duly presented for approval within one year from the date of such final judgment, should be acted upon by the city solicitor and by the board; and upon their refusal so to act they may be compelled by mandamus to take proper action thereon.
Error to the District Court of Hamilton county.
January 24, 1880, the city of Cincinnati passed an ordinance granting to Samuel Silsbee the right to lay pipes in the streets of the city for certain purposes, and this permission was upon certain conditions, among which were the *47following : That Silsbee “ shall furnish to the city of Cincinnati on the several streets, lanes, alleys, avenues, commons, etc., in which the main or lateral pipes for supplying the citizens with heat and power shall be laid and in use, heat for all public buildings belonging to and used by the city for public purposes, by any department of the city government, at a price, during each and every year hereafter, not to exceed eighty (80) per centum of the cost of such heating by the usual method to the city for and during the year 1878.
“ Sec. 3. That the board of city commissioners, or its successors, shall have the right to prescribe what portions of the streets shall be broken up at a time, and to direct at what and how many points the work shall be carried on.
“ Sec. 6. That no street, etc., shall be used or broken up for the purpose of laying or repairing pipes, by said Silsbee, his associates or assigns, without a permit from said board of city commissioners, or its successors, signed by its president and attested by its clerk.
“ Sec. 10. That the said Silsbee, his associates, their heirs, successors or assigns, shall begin the work of laying said steam pipes, under the privilege hereby granted, within one year from the taking effect of this ordinance, and within three years shall have laid one mile of main pipes, otherwise this ordinance shall become void and of no effect.
“ Sec. 9. That before commencing the work of laying said pipes, said Samuel Silsbee, his associates, or assigns, shall execute and deliver to the said city of Cincinnati a good and satisfactory bond, to be approved by the board of city commissioners, or its successors, and the city solicitor, in the sum of fifty thousand ($50,000) dollars, conditioned that they will restore the said streets, avenues, alleys, and public places, wherein the said pipes and steam heating system shall be laid or used, to as good condition as before, and to the satisfaction of the chief engineer of the board of city commissioners, or its successors; and also to indemnify and save the city harmless against any loss or damage that may accrue to it in consequence of said steam heating, or *48laying of said pipes, either directly or indirectly; and also that he and they shall, and will, well and truly observe and perform all that is required of him and them by this ordinance.
“ Sec. 14. This ordinance shall take effect and be in force from and after the earliest pei’iod allowed by law.”
January 29, 1880, Philip Kumlcr, as city solicitor, at the request of a tax-payer, filed his petition in the court of common pleas of Hamilton county, praying an injunction to restrain Silsbee and the city from doing any thing under said ordinance, claiming it was void, as being beyond the power of the city to grant such an ordinance.
A temporary injunction was granted.
February 10,1880, said ordinance became a law, it having been advertised the required length of time.
March 25, 1880, the legislature of the state passed an act ratifying said ordinance, and granting Samuel Silsbee said franchise.
June 18, 1880, final hearing was had and entry made refusing an injunction in the case wherein Philip Kumler, as solicitor, was plaintiff, and dismissing his petition, after he had amended his pleadings claiming the act of the legislature void as being retroactive.
The solicitor immediately gave bond, and appealed to. the district court of Hamilton county.
January 13, 1881, and within one year from the taking effect of the ordinance, Samuel Silsbee tendered to the city solicitor and the board of public works a good and sufficient bond, as is required by section 9 of the ordinance, which the solicitor refused to act upon, giving as his reason the pendency of said litigation, and so indorsed on the bond. The board of public works refused to act for the same reason, as alleged at the time. The bond remained on file invoking action. At the same time the board of public works was asked to designate the place at which to break ground, and for a permit so to do, as is required by section 6 of the ordinance.
January 29, 1881, the‘solicitor’s petition and cross-peti*49tion were dismissed by the district court, and a decree rendered in favor of Silsbee. The solicitor immediately filed his petition in error in this court.
May 4, 1881, the board of public works, after taking the advice of the city solicitor, who gave as his opinion that the ordinance was void, and that they ought not to act on account of the litigation then pending in the supreme court, refused to act on the bond, or to designate the place at which to break ground, or to give a permit so to do, giving as their reasons those above stated.
November 7, 1882, this court rendered final judgment in favor of Samuel Silsbee.
October 16, 1883, Samuel Silsbee tendered a seeond good and sufficient bond, as is required by section 9 of the ordinance, to the solicitor and board of public works, and within one year from the final decision in his favor. Both the solicitor and board of public works refused to act, claiming the franchise was forfeited under the conditions imposed by section 10 of the ordinance, requiring work to be begun within one year from the taking effect of the ordinance.
November 10, 1883, plaintiff made application to the district court for a mandamus to compel the solicitor' and board of public works to act in approval or disapproval of the bond; and on March 13, 1884, that court dismissed the petition; a bill of exceptions was taken, and the case is here on error for review.
Alfred B. Benedict; M. W. Oliver; Stallo, Kittredge $ Wilby; and Noyes 6¡ Fitzgerald, for plaintiff' in error.
Follett, Hyman Kelly; P. H. Kumler, and Dawson, McG-arry $ Overbeck, for defendants in error.
Follett, J.
The validity o.f this ordinance has been tested by the tax-payers of Cincinnati through their city solicitor, and this court has held (Kumler v. Silsbee, 38 Ohio St. 445) the ordinance valid ; and it does not appear *50that the legislative board of the city government has repealed the ordinance, or has sought to defeat the grant.
The ordinance does not contain a provision in express words that the grant or franchise shall take effect upon any act, event, or condition. There is nothing to contradict section 14 of the ordinance, which provides : “ This oi’dinanee shall take effect and be in force from and after the earliest period allowed by law;” and there is nothing that suspends the vesting of the grant or franchise. This ordinance grants certain privileges to individuals ; and such a grant or franchise is strictly construed; People v. Ferry Co., 68 N. Y. 71; and in a certain sense it is a contract with the public, Hard. St. L. Ch. 2, and it becomes void by force of the legislative declaration contained in the grant; Railroad Co. v. Railroad Co., 45 Cal. 365; Pom. Eq. Juris., § 458; Sedg. Stat. Law, 83.
But there is a difference between conditions precedent and conditions subsequent. “ In the former case equity ban give no relief. The failure to perform is an inevitable bar. No right can ever vest. The result is very different where the condition is subsequent.” Davis v. Gray, 16 Wall. 229, 230.
We may also apply the principle that the law strictly construes provisions working forfeitures: “ Such statutes are to reach no further in meaning than their words; no person is to be made subject to them by implication, and all doubts concerning their interpretation are to preponderate in favor of the accused. Only those transactions are covered by them which are within both their spirit and their letter.” Bish. Wr. L., §§ 192-194.
“ Stipulations in a contract providing for disabilities or forfeitures are to receive, when the intent is doubtful, a strict construction against those for whose benefit they are introduced.” West v. Citizen’s Ins. Co., 27 Ohio St. 1, 13.
The provisions of section 10 of the ordinance are that 'Silsbee shall begin the work “ within one year from the taking effect of the ordinance, and within three years shall have laid one mile of main pipes, otherwise the ordinance *51shall become void and of no effect;” and they may be regarded as conditions subsequent.
By the ordinance a good and satisfactory bond must be delivered to the city before commencing the work, and the board of public -works and the city solicitor are to determine whether the bond presented be such a bond. As they have refused to act in the matter, plaintiff brings his action to require them to proceed according to law and the requirements of the ordinance to take action in approval or disapproval of the bond.” The answer avers that the city solicitor “ approved the same as being in form such as required by the ordinance,” but that the solicitor gave his opinion to the board, “ that the permission, granted by said oi’dinance to the relator, had been lost and forfeited by him under the provisions of section 10 of the ordinance,” and thereupon the board “ refused to take action upon the alleged bond, or to investigate the sufficiency of the sureties thereon.”
Before commencing the work, Silsbee must not only execute and deliver a good and satisfactory bond, but he must have a permit from the board of public works. If there be no bond, the board may not graut a permit or direct at what point or points the work shall be carried on. And when the bond is approved as good and satisfactory, the permit and directions are still to be obtained before the work begins. Silsbee was to have one year from the taking effect of the ordinance to begin the work of laying steam pipes; and within that time he must have his bond approved, lie must give the city solicitor and the board a reasonable ti me to ascertain whether the offered bond be good and satisfactory — time to act on the sufficiency of the bond.
Before.the ordinance took effect, Kumler, as city solicitor, filed a petition against Silsbee and the city of Cincinnati, to enjoin Silsbee and the city from doing any thing under the ordinance, claiming that the ordinance was void. After the commencement of that action and within one year from the taking effect of the ordinance, Silsbee tendered a good and sufficient bond and asked for a proper permit ;.the solicitor and-the board refused to act because of the pend*52eney of that litigation. In that case the city, as well as Silsbee, was a party ; and it does not appear that the city, in any respect, objected to the action, or directed or requested the solicitor or the board to act as to either the bond or the permit. The city permitted the proceedings in that case to control it, and the city is bound by the judgment in that case.
The solicitor is a public officer elected by the people, and, when required so to do by resolution of the council he shall prosecute or defend for and in behalf of the corporation, except in certain cases (Rev. Stats., § 1774); and of his own will, or at the request of a tax-payer, he may bring suit for injunction to restrain the abuse of corporate powers.(Rev. Stats., § 1777). Kumler as solicitor seems to have brought .that suit at the request of a tax-payer. We need not determine the city’s responsibility for the solicitor’s acts in that suit, but the pendency of that suit prevented action in approval of the bond, as the solicitor and the board declined to act by reason of the suit, and Silsbee needed to have that suit ended before he asked for mandamus to compel action. Attorney-Gen. v. The Mayor, 128 Mass. 312; The State v. Patterson, 11 Neb. 266 ; Chicago v. C. § W. I. R. R. Co., 105 Ill. 73; High Ex. Rem., § 21. And Silsbee’s delay was excused by the law and by the acts of those to whom was given the special trust of approval, and which acts were acquiesced in by the grantor. And the permission granted by the ordinance to the relator was not lost by the enforced delay. In such circumstances the pending suit and the refusal of the city solicitor and of the board to act upon the bond, may be regarded as preventing “the taking effect of this ordinance,” or as postponing the terms of its conditions until the final judgment in that case. Chicago v. C. & W. I. R. R. Co., supra ; Thayer v. Boston, 19 Pick. 511 ; Davis v. Gray, supra, 204, 230, 231; Hubbard v. Norton, 28 Ohio St. 116, 127, 128.
The plaintiff, Silsbee, is entitled to an unobstructed year of time in which to begin the work of laying pipes, and some of that time yet remains. In Kumler’s case the final *53judgment in Silsbee’s favor was rendered November 7,1882; and within one year from that time, on October 16, 1883, Silsbee executed and delivered his bond to the proper city officers, the defendants, for their official action. They should have acted promptly upon the sufficiency of the bond, as they perform any other official act; but after delay they refused to act in approval or disapproval of the bond. The time the bond was unnecessarily detained should not be reckoned against Silsbee, neither the time spent in compelling action.
Silsbee did not present his bond for approval until his year for beginning the work had well nigh expired; and he must show a clear, legal right to have the remedy by mandamus that he seeks (High Ex. Rem., § 9); but there remained some three weeks oí his time, and he has shown his right to have the defendants act upon the bond and to have the remedy by mandamus, as prayed for in the> petition.
In refusing plaintiff's prayer, and in dismissing his petition, the district court erred.
Judgment reversed and cause remanded for peremptory mandamus.