Atchison Street Ry. Co. v. Missouri Pac. Ry. Co.

• Decision Date: 06 March 1884
• Citation: 31 Kan. 660,3 P. 284
• Parties: THE ATCHISON STREET RAILWAY COMPANY v. THE MISSOURI PACIFIC RAILWAY COMPANY
• Court: Kansas Supreme Court

3 P. 284

31 Kan. 660

THE ATCHISON STREET RAILWAY COMPANY v. THE MISSOURI PACIFIC RAILWAY COMPANY

Supreme Court of Kansas

March 6, 1884

Error from Atchison District Court.

ACTION by The Atchison Street Railway Company against The Missouri Pacific Railway Company. The plaintiff prayed the court--

"To enjoin and restrain the defendant, its officers and agents and all and every person acting by, through or under it, or its officers, from in any manner cutting the rails forming plaintiff's track, or in any manner interfering with or obstructing the crossing, taking up or removing plaintiff's track or any part thereof, or the rails or timber of said track or any part thereof, or causing the same to be done in any manner whatever; and that upon the final hearing hereof, such injunction may be made perpetual; and that the plaintiff recover its costs herein, and for all relief herein to which it may be entitled."

June 7 1883, a temporary restraining order was made by the probate judge of Atchison county. At the June Term, 1883, of the district court, plaintiff's application for a temporary injunction was heard, and the court stated its conclusions of fact and of law, and thereon adjudged that the plaintiff is not entitled to a temporary injunction in the case, nor to any relief therein as prayed for in its petition. The plaintiff brings this order and judgment to this court for review.

Order affirmed.

H. M Jackson, for plaintiff in error.

Everest & Waggener, for defendant in error.

BREWER J. All the Justices concurring.

OPINION

BREWER, J.:

In October, 1880, the city council of Atchison by ordinance gave to J. H. Beeson & Co. their successors and assigns, the right to construct a street railway upon certain streets in the city of Atchison. In November, 1880, plaintiff in error was incorporated as a street railway company, and in the same month, by ordinance plaintiff was accepted as the successor of Beeson & Co., and as such given all the rights theretofore granted to said Beeson & Co. Among the streets named was Fifth street, and the right given was to lay a track and operate cars upon, but lengthwise, upon said Fifth street. In pursuance of this authority, the plaintiff constructed its track and operated its cars on said street. Subsequently the defendant was given the right to cross said street with its track. On June 7, 1883, defendant was about to cut the rails forming plaintiff's track and lay down common steam railroad rails, so that in the operation of plaintiff's cars they would necessarily drop into the space where its rails were cut and then rise over the rails about to be laid by defendant, and drop again on the opposite side. Defendant was about to put in three such tracks, so that each pair of wheels under each of plaintiff's cars would drop and rise again six times while crossing such space, within much less than the length of one lot. Thereupon the plaintiff sought to enjoin the defendant from so cutting its rails and obstructing the same. A restraining order was granted by the probate judge of Atchison county. Afterward, and on due notice, the parties respectively appeared in the district court, and plaintiff's application for a temporary injunction was heard and denied. Plaintiff made and served a case-made for the supreme court, which contains the conclusions of fact and of law stated by the court, and also a part of the evidence offered on the trial.

Upon these facts several questions of importance and difficulty have been discussed by counsel. Plaintiff states three, which it claims are involved, as follows:

"(1.) Could the legislature confer upon the mayor and council of the city of Atchison the authority to pass the ordinances under which plaintiff laid its tracks? (2.) Was the right to lay down tracks and operate cars thereon, as given by such ordinance, the granting of a special privilege within the meaning of § 2 of bill of rights? (3.) Had the legislature, before the passage of such ordinances, authorized the mayor and council to pass ordinances authorizing the laying down of tracks and the operating of street cars thereon?"

The first two questions may be considered together, and they present a matter of great moment. If the claim of defendant is sustained, it establishes a wide departure from the recognized method of procedure in other states; and it abridges largely the control over the streets and other internal affairs of the city, which elsewhere it has been settled the legislature may grant to municipal corporations. The inhibition of such legislation is based upon § 2, bill of rights, which is as follows:

"All political power is inherent in the people, and all free governments are founded upon their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency."

It is claimed by defendant that the inhibition is contained in the last clause, and the argument is that the right granted by the ordinances was a special privilege; that it was granted by the mayor and council of Atchison, which was another tribunal or agency than the legislature, which alone could exercise that power under said § 2.

We have been unable to find a provision like this in the constitution or bill of rights of any other state. The nearest approach thereto is in the second section of the bill of rights of the constitution of 1851 of the state of Ohio, which reads as follows:

"All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary; and no special privileges or immunities shall ever be granted that may not be altered, revoked, or repealed by the general assembly."

It will be remembered that the framers of our constitution expressly selected that constitution as a model. (Proceedings of Wyandotte Constitutional Convention, pp. 16 to 20.) And our bill of rights is in many respects an exact copy of the one in that constitution. In this particular section some expressions, as will be seen, are copied verbatim; but an important and significant change is made by the addition of the last clause of the last sentence, and upon this clause hinges the present question. One contention of counsel for plaintiff is, that the bill of rights is not to be considered as containing precise limitations upon power, but rather only comprehensive statements of general truths; that it is more in the nature of a guide to the legislature, than a test for the courts. We quote from his brief:

"'Bills of Rights,' as is said in Sedgwick on Statutory and Constitutional Law, (pp. 179, 180,) 'must be regarded rather as guides for the political conscience of the legislature than as texts of judicial duty;' and further: 'The landmarks of the legislative and judicial authority are rather to be found in the division of power, contained in the constitution, among the three great branches of the government, and the specific limitation imposed by the instrument on the lawmaking branch, than in these general declarations of political truths.' Again, Judge Cooley has said of bills of rights: 'They are declared rather as guides to legislative judgment, than as marking an absolute limitation of power.' (Cooley's Const. Lim., p. 176.) 'A formal and public declaration of popular rights and liberties.' (Bouvier's Law Dict.) 'And so little importance was given to the bill of rights in the convention which framed the federal constitution, that the original constitution contained none, and it was afterward adopted as an amendment; though the question was presented on September 12, 1787, and on the motion of Mr. Gerry for a committee to prepare a bill of rights, which motion did not prevail.' (Madison Papers, pp. 1565-6.) The supreme court of the state of Michigan, upon this subject, has said: 'Declarations of rights, or bills of rights, are the enumeration of certain great political truths essential to the existence of free government.' (30 Mich. 201.)"

In short, counsel seems to look upon it as but little more than a compilation of glittering generalities. From this, as broadly as it is stated, we dissent. Many of its sections are clear, precise and definite limitations upon the powers of the legislature, and every other officer and agency of the people. Section 5 reads: "The right of trial by jury shall be inviolate." Section 16: "No person shall be imprisoned for debt except in cases of fraud." The meaning and extent of these are clear. They limit the power of the legislature, and no act of that body can be sustained which conflicts with them. Indeed, all of them may be considered, generally speaking, as conditions and limitations upon legislative action; and no law can be sustained which trenches upon the rights guaranteed by them, or which conflicts with any limitation expressed in them. It is true many of them are largely mere affirmations of political truths; and yet as to those, it may safely be asserted that the political truths affirmed cannot be ignored in any valid enactment. See upon the general scope and effect of bills of rights, Story on the Const., ch. 44; 2 Kent's Com., Lect. 24.

What then is the precise scope and meaning of § 2 of the bill of rights? It may be remarked certainly as to all the other sections, that each refers to one particular subject; some it is true, containing several provisions, but all bearing upon the one subject. This fact is important in determining the scope of this section. From the uniformity in respect to the other sections, it may...