The weekly times-record. (Valley City, N.D.) 1912-1922, 1922-02-02

STRANGE. Indeed, it has not only fully
recognized the binding force and va
lidity of the contract which it has
been pleased to designate as its fran
chise in this city, but it has in no
way, by act or omission, questioned
the obligations incumbent upon it to
discharge by virtue of the terms
thereof until very recently.
Its position now assumed is that
the contract is no longer a charter
Of it's rights, and that while it is en-
titled to continue to use and enjoy the
city's streets, alleys and public
grounds for the purpose of carrying
on its business as public service COR
poration for profit, it is in no sense
obligated by the terms os said con-
tract to observe it's provisions con-
cerning the rates it may charge for
such service. Now, am of the opin-
ion that this attitude is unsound and
that it ought not to be recognized and
sustained by the courts in this liti-
cation because Of the doctrine Of es-
toppel
1t is possible that this company,
after having received all of these
benefits, acquiesced in the terms Of
the contract afforded it and received
whatever profits it has obtained from
the operation Of it's business, if any,
recognized the city's rights under the
contract by complying with its terms
in many particulars, especially con-
cerning the rates to be charged, and
at one time to my personal recollec-
tion sought and obtained the permis-
sion of the Council itself to raise the
rates by presenting petition signed
by many citizens and patrons Of the
company asking the Council to con-
cede the raise requested, can now ig-
more all these acts and omissions Of
recognition of the validity of the con-
tract and repudiate the same with the
sophistical claim that SO far as it is
concerned the contract never enjoin-
ed it with any obligations, and if it
did so the same has been abrogated
by the act of the legislature mention
ed?
We must also keep in mind the fact
that there has never been a judicial
determination of the claims of Mr..
Bangs concerning the validity and
binding obligations of the contract in
volved. This question was neither
raised nor considered in either pro-
ceedings before the Railroad Com
mission Of this state, or in the ap-
peal or action to review these pro-
ceedings had in the Federal Court,
as cited and read by Mr.. Bangs. In
deed, l have searched the record in
vain to find a single reference to the
contract upon which the city relies
in this litigation in the trial before
the Railroad Commission and in the
proceedings had and the judgment or
order entered in the Federal Court
case.
Suffice it to say that there is moth
ing in either record tending to show
that the questions or rights of this
city under the contract upon which it
depends was either considered or de-
termined. The question Of the valid
ity of and rights under the contract
as effecting both parties to this con-
troversy has been raised for the first
time in this litigation that we are
now considering.
The plaintiffs complaint pleads the
contract and claims that it's terms and
conditions are binding. on the COM
pany and that because of the fact
that the contract fixes the maximum
rate which the company may charge
for service, it's action in charging and
collecting a greater rate is contrary
to the terms of the contract and there
fore unlawful.
The defendant answers admitting
the passage Of this ordinance, deny
ing that it contains binding con-
tract as alleged in plaintiffs COM
plant, and further AYERS the necessi-
ty of an increase in rates for service
to be rendered at Valley City if it is
to make money in it's enterprise.
think, therefore, that these plead
ings raise question of law, a deter
mination of which will set both par
ties right in the litigation. That ques-
ton is whether the city's contract is
valid and binding on this company so
far as it effects the company's right
to increase it's rates in the city and
for local service over the maximum
amount stated in the contract.
Lastly, and with this view Of the
issues involved, l do not think that
we are interested in the complicated