Ash v. Gibson

• Decision Date: 11 December 1937
• Docket Number: 33338.
• Citation: 146 Kan. 756,74 P.2d 136
• Parties: ASH et al. v. GIBSON, Mayor, et al. [*]
• Court: Kansas Supreme Court

74 P.2d 136

146 Kan. 756

ASH et al. v. GIBSON, Mayor, et al. ^[*]

No. 33338.

Supreme Court of Kansas

December 11, 1937

Syllabus by the Court.

Where action was brought to enjoin enforcement of ordinance, and the Supreme Court on appeal held that city had authority to enact ordinance, but, while motion for rehearing was pending statute on which Supreme Court's holding was based was amended so as to take away city's authority to enact ordinance, Supreme Court would consider effect of amendment and make final disposition of case in accordance with law in effect at time of such disposition (Laws 1937, c. 283; Gen St.1935, 8-124, 8-125, 12-848, 14-401, 14-418, 14-421 14-432, 14-439, 68-155).

Ordinance of city of second class providing that it shall be unlawful to transport gasoline or other inflammable or explosive oil derivatives by means of motor truck along streets of city in quantities of over 600 gallons was superseded by subsequently enacted statute providing a uniform regulation of vehicular traffic throughout state (Laws 1937, c. 283).

1. Where an action was brought to enjoin the enforcement of a city ordinance and this court on appeal held that the city had authority to enact the ordinance, and while a motion for a rehearing was pending the statute upon which the holding of this court was based was amended so that the city no longer had authority to enact the ordinance in question, this court will consider the effect of the later statute and will make final disposition of the case in accordance with the law in effect when final disposition is made.

2. An ordinance of a city of the second class provided that it should be unlawful to transport gasoline or other inflammable or explosive oil derivatives by means of motor truck along the streets of the city in quantities of over 600 gallons. Certain persons engaged in transporting gasoline in truck tanks in amounts of from 2,000 to 5,000 gallons sought to enjoin the enforcement of this ordinance. After this ordinance was held valid and while the motion for a rehearing was pending, chapter 283 of the Laws of 1937 was enacted. Held, on a consideration of chapter 283, that the chapter covers all matters contained in the ordinance, and the ordinance is in conflict therewith, and therefore was abrogated and superseded by the statute.

Appeal from District Court, Franklin County; Hugh Means, Judge.

On rehearing.

Former judgment modified, and as modified affirmed.

For former opinion, see 145 Kan. 825, 67 P.2d 1101.

R. R Redmond, of Ottawa, for appellants.

Arthur L. Claussen and Richard B. McEntire, both of Topeka, for appellees.

E. K. Childers, R. R. McCornack, Albert Faulconer, Kirke W. Dale, C. L. Swarts, and Donald Hickman, all of Arkansas City, and Earle W. Evans, Joseph G. Carey, W. F. Lilleston, George C. Spradling, Henry V. Gott, George Stallwitz, Claude I. Depew, W. E. Stanley, Lawrence Weigand, and William C. Hook, all of Wichita, as amici curiae.

SMITH Justice.

This case is here on rehearing. See Ash v. Gibson, 145 Kan. 825, 67 P.2d 1101.

The facts are that the city of Ottawa enacted an ordinance providing that no truck should be driven through its streets carrying gasoline with a load in excess of 600 gallons. A company engaged in the business of transporting gasoline brought this action to enjoin the enforcement of the ordinance on the ground that the city did not have authority to enact it. The trial court held in favor of the plaintiff and enjoined the enforcement of the ordinance. The defendants appealed. This court held that the city did have authority to enact the ordinance and reversed the judgment of the trial court. The appeal was originally argued in this court on March 2, 1937. The opinion of reversal was filed May 8, 1937. The mandate did not go down to the trial court at once but was held the usual time for the filing of a motion for rehearing. This time was extended several times and permission was given various parties interested in the general outcome of the litigation to file briefs as friends of the court. These briefs were filed and have proven helpful.

At the time the case was originally considered by this court, the question of the power of the city to enact the ordinance in question was considered in view of the statutes in effect at that time.

On March 27, 1937, chapter 283 of the Laws of 1937 was approved. It took effect June 30, 1937. It was argued in the motions for a rehearing that this statute took away from the city authorities the right to enact the ordinance in question. When the motion for a rehearing was considered it appeared that two questions were involved: First, whether in considering an appeal from the district court this court should consider a statute which was not in force at the time the judgment in district court was entered; and, second, whether chapter 283 had the effect on the power of municipal corporations that was claimed for it. Both questions were seen to be so serious that it was deemed wise to allow a rehearing. Those two questions have now been presented to this court.

We shall consider the first question. It must be remembered that this is an injunction case. Our judgment operates in futuro. The ordinance with which we are concerned never did take effect. Its enforcement was enjoined first by the district court of Franklin county, and that injunction remained in force while the cause was pending in this court on the appeal and the motion for a rehearing. The basis of the judgment of this court reversing the judgment of the trial court was the statutes in relation to the power of city governing bodies in such matters. This was also the basis of the judgment of the trial court enjoining the enforcement. Since our judgment must operate in futuro and since the ordinance never did take effect, it would seem wise for this court to examine the question with the idea of ascertaining whether the statute upon which the judgment of this court was based has been repealed or amended so as to curtail the power of the city authorities as to the ordinance in question. The entire matter is still in the hands of this court, and but little would be gained should we take the position that we would consider only such statutes as were in effect when the trial court entered its judgment, or as were in effect when this court filed its first opinion. The only practical result would be that a new action would be filed immediately and the trial court would take such action at the trial, and this court would take such action on appeal, as we are asked to do now, that is, consider the effect of the enactment of chapter 283 of the Laws of 1937 on the power of the city to enact the ordinance in question.

In Duplex Printing Press Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172, 65 L.Ed. 349, 16 A.L.R. 196, the court considered the validity of a labor injunction that had been issued by the federal district court. After that action for an injunction had been brought, but while the appeal was pending in the trial court, the act of October 15, 1914, known as the Clayton Act (38 Stat. 730), was passed by Congress. This act modified somewhat the conditions under which labor injunctions might be allowed. The Supreme Court on this point held: "The Act of October 15, 1914, known as the Clayton Act, in so far as it grants relief by injunction to private suitors, or affixes conditions and otherwise modifies the Sherman Act, is applicable to a suit for an injunction pending at the time of its enactment."

The case of American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 42 S.Ct. 72, 75, 66 L.Ed. 189, 27 A.L.R. 360, was also a labor injunction case. There the Clayton Act was passed after the injunction had been granted and while the case was pending before the Circuit Court of Appeals. In considering the point with which we are interested the Supreme Court said: "The first question in the case is whether section 20 of the Clayton Act of October 15, 1914, chapter 323, 38 Stat. 738 [29 U.S.C.A. § 52], is to be applied in this case. The act was passed while this case was pending in the Circuit Court of Appeals. In Duplex Printing Press Co. v. Deering, 254 U.S. 443, 464, 41 S.Ct. 172, 65 L.Ed. 349 a suit to restrain a secondary boycott had been brought before the passage of the act, but did not come to hearing until after its passage. It was held that, because relief by injunction operates in futuro and the right to it must be determined as of the time of the hearing, section 20 of the act relating to injunctions was controlling in so far that decrees entered after its passage should conform to its provisions. The decree here appealed from in the District Court had been entered before the Clayton Act passed. But the whole cause was taken up by the appeal. The complainant had no vested right in the decree of the District Court while it was subject to review. Rafferty v. Smith, Bell & Co., 257 U.S. 226, 42 S.Ct. 71, 66 L.Ed. 208 this day announced. The Circuit Court of Appeals was called upon to approve or to change the decree and was obliged, therefore, to regard the new statute in its conclusion, and so are we."

Texas Co. v. Brown, 258 U.S. 466, 42 S.Ct. 375, 377, 66 L.Ed 721, was an action to enjoin the enforcement of a state statute providing for the inspection of gasoline and oil brought into Georgia by plaintiff from another state. The district court enjoined the enforcement of the statute in so far as it related to the collection of inspection fees in respect to kerosene products brought into the state from other states and intended to be sold in the original package, but the injunction was denied as to products brought into the state for indefinite storage within the state or for sale after breaking the...