Mahon v. Board of Mayor of Columbus

Chalmers, C. J., delivered the opinion of the court. The mayor and aldermen of Columbus leased to John Mahon, for a term of fifteen years, the water-works of the city.. The lessee bound himself by the terms of the written contract to keep and preserve all the machinery and appurtenances connected therewith in good condition and working order; always to keep the reservoir into which the water was by the machinery to be pumped, filled to a certain specified height; and immediately upon an alarm of fire being given, at once to put the pumps to work, with a view of insuring an ample supply of water. The city was to pay nothing to Mahon for these services, but he was to derive his compensation from the sums received from private persons for supplying them with water. The works seem to have been originally erected and principally used for furnishing water for the fire department of the city, and to have been utilized to a very limited extent by private citizens. The lessee, however, was authorized to supply them, provided he did not thereby diminish the quantity of water in the reservoir below the specified limit, and was in this way to receive his compensation. He gave bond, with security, for the faithful observance of his duties. He did not perform those duties. He was repeatedly, if not habitually, intoxicated, and there were very many periods at which there was a failure to keep the requisite quautity of water in the reservoir. Upon one occasion, during a fire, one of the fire-engines of the city was compelled to cease operations because of an insufficiency of water. Upon another occasion, while the county jail was in flames, Mahon was so intoxicated as to be unable to put his machinery in operation, and when another machinist was called in for the purpose, the pumps were found in such a condition that several hours elapsed before they could be started. Finally, by his igno [325] ranee, carlessness, or drunkenness, water was allowed to stand and congeal in the pipes and cylinders connected with the machinery, whereby they were burst, and the city forced to replace them at a heavy expense. Thereupon an action at law was instituted by the city in the Circuit Court upon his bond, to recover damages for the loss sustained, and this bill was filed in the Chancery Court to cancel and annul the lease. It was objected by plea that both suits could not be maintained at the same time, and it was asked that the city should be compelled to elect-.which remedy it would pursue, upon the ground that it could not recover damages upon a contract in one court which it was seeking to. annul in another. The motion was properly denied, as was the one subsequently made, to dismiss this bill after there had been a recovery in the action at law. Two inconsistent remedies cannot be sought for the same subject-matter — as, where a party seeks at the same time to recover upon a contract, and to have it declared null and void ab initio; but the principle does not apply where it is sought to recover damages for the breach of a contract, and to put an end to the contract because of such breach. In such case the ends sought are wholly different, and the remedies invoked not inconsistent. One demands indemnity for the past; the other, security for the future. In this case, the recovery at law, as shown by the record, was for the broken machinery; the suit in equity seeks to put an. end to a contract which the lessee has by his conduct demonstrated his inability or his unfitness to carry out. There is no stipulation in the lease that a failure upon the part of the lessee to comply with the obligations imposed upon him shall work a forfeiture of it; and this, ordinarily, would estop a court of chancery from declaring a forfeiture. It is quite clear, for instance, that a mere failure to pay rent at specified dates, or to erect buildings or make repairs, would not authorize a court to put an end to a lease, in the absence of a stipulation to this effect, because in such case each party must be supposed [326] to Have looked to his remedy at law to recover damages for a breach of the contract; and especially must this be so where a bond has been delivered'for the payment of such damages. But cases may arise, even between private persons, where the duty is of such continuing character, and where the failure to observe it is at once so destructive of the objects of the contract and so impossible of a forced observance by law, that the courts will put an end to it at the instance of the aggrieved party. The duty of the courts to grant such relief where the interest of the public is concerned becomes imperative, and it is • difficult to conceive a cause which could more urgently demand it than the present. The water-works of the city of Columbus belong, not to the mayor and aldermen of the city, but to the citizens. They were erected at heavy expense, out of the public treasury, for the purpose of furnishing a safeguard against fires and a means of supply for private persons. While there seems nothing in the city charter directly prohibitory of such a contract as was here made, we think, when made, it must be held subordinate to a right in the courts to put an end to it whenever it is shown that its continuance imperils the safety, and even the existence of the city. It would not be competent for the city authorities to cede away their right of control over these public works for a long period of time, and by express stipulation contract that neither they nor the courts should have the right to put an end to the lease, even though the lessee should tail to perform the public duties assumed by him. No pecuniary damages could compensate for the loss that might ensue from a single day’s failure to perform those duties ; and if the contract before us be given such a construction as would forbid relief, it would be clearly ultra vires the authority of the City Council.' It is only by holding that the city' has the right, under the facts shown here, to invoke the jurisdiction of the Chancery Court to put an end to the lease, that the contract can be held ever to have had any validity. It is insisted by couusel for the city that the contract was [327] invalid in its inception, because of a failure to stipulate that it should be revocable at the pleasure of the city authorities; the argument being that it was incompetent for the latter to abdicate, for themselves and their successors in office, that control over the water-works which was vested in them for the public good. We are not disposed to adopt this view. The mayor and aldermen were by the city charter authorized “ to provide the city with water for the use of the fire department or of the citizens, by water-works within or beyond the boundaries thereof.” The authority being general, and there being no specification as to the manner of operating the works after their erection, we see no reason why it might not be as well done by contract as by hiring employees or electing a manager; and while it would have been the part of wisdom to have stipulated for a removal of the contractor for cause by the city government, we cannot say that the absence of such a provision rendered the contract null. In such case, however, there must reside somewhere a power on behalf of the corporation, which is a constituent portion of the State, to put an end to a contract wholly unfulfilled by the contractor, under circumstances which render such failure eminently dangerous to the safety, the health, and the continued existence of the city. A construction that would deny the power of interference to the courts would render the contract void as being in excess of authority on the part of the city officials. Decree affirmed.