Canary Taxicab Company v. Terminal Railroad Association of St. Louis

• Decision Date: 15 February 1927
• Docket Number: 27022
• Citation: 294 S.W. 88,316 Mo. 709
• Parties: Canary Taxicab Company v. Terminal Railroad Association of St. Louis, Appellant
• Court: Missouri Supreme Court

294 S.W. 88

316 Mo. 709

Canary Taxicab Company v. Terminal Railroad Association of St. Louis, Appellant

No. 27022

Supreme Court of Missouri

February 15, 1927

Appeal from Circuit Court of City of St. Louis; Hon. Victor H Falkenhainer, Judge.

Reversed.

T M. Pierce and Samuel H. Liberman for appellant J. L. Howell and R. E. Blodgett of counsel.

(1) The discrimination inhibited by Section 23, Article XII, of the Constitution, and Sections 9975 and 9985, Revised Statutes 1919, refers and applies only to facilities in transportation that a railroad company is required by law to provide in its capacity as a common carrier. Christie v. Railroad, 94 Mo. 453; Atchison Co. v. Denver Railroad Co., 110 U.S. 667; The Express Cases, 117 U.S. 1; Railroad v. Pullman Co., 139 U.S. 79; Donovan v. Pennsylvania Co., 199 U.S. 279; Skaggs v. Kansas City Term. Ry. Co., 233 F. 827; Old Colony Railroad Co. v. Tripp, 147 Mass. 35; N. Y. Central Ry. Co. v. Sheeley, 27 N.Y.S. 185; Oregon Short Line Ry. Co. v. Davidson, 33 Utah 370; Norfolk & Western Ry. Co. v. Old Dominion Baggage Co., 99 Va. 111. (2) A railroad company may confer upon one taxicab company the exclusive right to use a portion of its premises for taxicabs in the solicitation of business. Wiggins Ferry Co. v. Railroad, 73 Mo. 389, 128 Mo. 224; Home Tel. Co. v. Sarcoxie Tel. Co., 236 Mo. 144; Cab Co. v. Term. Railroad Assn., 6 Mo. P. S. C. 19; The Express Cases, 117 U.S. 1; Railroad Co v. Pullman Co., 139 U.S. 79; Donovan v. Pennsylvania Co., 199 U.S. 279; Depot Carriage Co. v. Kansas City Term. Ry. Co., 190 F. 212; Skaggs v. Kansas Term. Ry. Co., 233 F. 827; Kates v. Atlanta Baggage Co., 107 Ga. 636; Old Colony Railroad Co. v. Tripp, 137 Mass. 35; New York Railroad Co. v. Scovill, 71 Conn. 146; Hedding v. Gallagher, 72 N.H. 377; Thompson's Express Co. v. Whitemore, 102 A. 692; State ex rel. Sheets v. Union Depot Co., 71 Ohio St. 379; Baggage Co. v. City of Portland, 84 Ore. 343; N. Y. Cent. Ry. Co. v. Sheeley, 27 N.Y.S. 185; New York Railroad Co. v. Bork, 23 R. I. 219; Oregon Short Line v. Davidson, 33 Utah 370; Kenyon Co. v. Oregon Short Line, 220 Pac. (Utah), 382; Rose v. Pub. Serv. Comm., 75 West Va. 1: N. & W. Ry. Co. v. Old Dominion Baggage Co., 99 Va. 111.

Thomas L. Anderson for respondent.

No discrimination in charges or facilities in transportation shall be made between transportation companies and individuals or in favor of either. Constitution, Sec. 23, Art. XII; Kansas City Term. Ry. Co. v. James, 251 S.W. 55; Cravens v. Rogers, 101 Mo. 252; R. S. 1919, secs. 9975, 9985; Penn. Co. v. Chicago, 181 Ill. 289; Montana Ry. Co. v. Langlois, 9 Mont. 419; McConnell v. Pedigo, 92 Ky. 465; Lucas v. Herbert, 148 Ind. 64; Indianapolis Union Ry. Co. v. Dohn, 153 Ind. 10.

Atwood, J. All concur, except Gantt, J., not sitting, and Graves, J., who is absent.

OPINION

ATWOOD

This is a proceeding for injunctive relief and damages commenced in the Circuit Court of the City of St. Louis, where plaintiff received judgment. The petition alleged that plaintiff was a corporation engaged in the taxicab business in the city of St. Louis and a common carrier of passengers and baggage; that defendant was a railroad corporation, owning and operating the Union Station in the city of St. Louis, located between Eighteenth and Twentieth Streets, fronting on Market Street; that Nineteenth Street was an open public street crossing Market Street and entering Union Station at a place in the station known as the Concourse; that defendant was a common carrier, and in violation of Section 23, Article XII, of the Constitution of the State of Missouri, defendant closed the Concourse to all taxicab companies except the Brown Cab Company, a competitor of plaintiff, and entered into a contract with the Brown Cab Company whereby, for a consideration of three hundred dollars a month, the latter was given the exclusive use of the Concourse; that defendant thereby discriminated in its facilities for transportation in favor of the Brown Cab Company and against plaintiff, and thus created a monopoly, in violation of the statutes of the State of Missouri and of the Constitution of the State, particularly Sections 9975 and 9985, Revised Statutes Missouri, 1919. In addition to damages plaintiff sought relief by injunctive orders, restraining defendant from interfering with plaintiff in the use of the Concourse in receiving and delivering passengers and baggage, and a mandatory injunction compelling defendant to open the Concourse to the free and unstrained enjoyment thereof by plaintiff in the transaction of its taxicab business.

Defendant's return consists of a general denial and averments that the Concourse was part of the Union Station, wholly upon property owned and in the possession of defendant, and that since the erection of the station in 1894 defendant has owned, maintained, operated and controlled the Concourse as its own private property; that no part of the Concourse was on or in or upon any open public street, or any part of any public street; that Nineteenth Street does not extend to, in, upon or on any portion of the Concourse; that the Concourse has never been open to the public; that in the ordinary conduct of its business defendant is required to designate and select a single responsible agency through which passengers coming into the Concourse might receive attention and accomodation; that if competitive solicitation by plaintiff and other cabmen were permitted on the Concourse the travelling public would be subjected to annoyance and inconvenience as a result of the confusion and riot resulting from such unrestrained competitive solicitation, and that the selection of a responsible agency was necessary in order to prevent a nuisance upon defendant's property; that defendant's contract with the Brown Cab Company does not violate any of the statutory or constitutional provisions of the State of Missouri; and that if Section 23, Article XII, of the Constitution, and Sections 9975 and 9985, Revised Statutes 1919, were so construed as to prevent defendant from leasing the Concourse to one responsible agency the said constitutional provision and statutory provisions, and any order, decree or judgment of the court so construing them, would deprive the defendant of its property without due process of law, deny to the defendant the equal protection of the laws and impair the obligation of defendant's contract with the Brown Cab Company, in violation of the State Constitution forbidding the taking of private property for a public use.

Plaintiff's reply consisted of a general denial of the averments contained in defendant's answer and return.

On behalf of plaintiff there was testimony that immediately prior to October 1, 1925, the Concourse was closed, and it was the custom of taxicab companies to pull up to the outside of the Union Station, the cabs taking their turns, first come first served; that the Union Station extends from Eighteenth to Twentieth Streets on the south side of Market Street, and the Concourse is directly even with Nineteenth Street, which stops right at the Concourse; that about eighteen cabs could get into the Concourse; that at no time prior to October 1, 1925, had the Concourse ever been used by plaintiff or by any other cab company except the Columbia Taxicab Company and Marshall Bros., licensees of the defendant; and that since the making of the present contract no cab company, other than the Brown Cab Company, was permitted to get into the Concourse. Plaintiff introduced in evidence the contract entered into between defendant and Brown Cab Company on October 1, 1925. By its terms defendant granted to the Brown Cab Company the right to use its Concourse in the Union Station, at a rental of three hundred dollars a month, and the Brown Cab Company in return agreed to hold the defendant free and harmless from any claims or liability arising out of its use of the Concourse, and further agreed that it would furnish adequate facilities for serving the public with taxicabs and to subject itself to the rules and regulations of defendant.

Plaintiff and defendant stipulated and agreed that the case be submitted on the pleadings, it being admitted that evidence had been submitted to sustain the allegations in the petition and the answer. It is further stipulated and agreed that defendant offers three witnesses who if present would testify that "if the competitive solicitation by the plaintiff and all other cabmen and hackmen were permitted upon and within said Concourse located on its private premises, the traveling public would be subjected to annoyance, confusion would arise, riot would be engendered and general conditions would become intolerable;" and that in rebuttal plaintiff offers three witnesses who if present would testify that "if the Concourse was thrown open to the taxicab companies, that no confusion, disorder or riot would occur; that on the other hand, they would say that the traveling public would be fully protected in a careful and in an orderly manner and that there would be no confusion or disturbance of any kind and that they would subject themselves to any regulations furnished by the Traffic Council of the City of St. Louis, or the Terminal Railroad Association, the defendant herein, and that the traveling public would receive better terms, better service and be better pleased by conditions that would arise under the circumstances set out heretofore."

On January 18, 1926, the trial judge filed a written memorandum in the case reciting, among other things, that "in granting a permanent injunction in this case, the court does so relying entirely upon the case of K. C. Terminal Ry Co. v. James et al., 251 S.W. 53, together with cases therein cited to support the...