City of Kansas v. Corrigan

• Decision Date: 08 June 1885
• Citation: 18 Mo.App. 206
• Parties: CITY OF KANSAS, Appellant, v. BERNARD CORRIGAN, Respondent.
• Court: Kansas Court of Appeals

18 Mo.App. 206

CITY OF KANSAS, Appellant, v. BERNARD CORRIGAN, Respondent.

Court of Appeals of Missouri, Kansas City.

June 8, 1885

APPEAL from Criminal Court of Jackson County, HON. HENRY P. WHITE J.

Reversed with directions as to judgment.

Statement of case by the court.

This is a case begun by the plaintiff against the defendant before the recorder of the City of Kansas upon the following information:

STATE OF MISSOURI,

)

) ss

County of Jackson )

On information, W. J. Strong, city attorney within and for the City of Kansas, county of Jackson and state of Missouri complains tat, on or about the fourth day of July, 1882, one Bernard Corrigan, being then and there an officer of the Jackson County Horse Railroad Company, to-wit, the superintendent thereof, within the corporate limits of said City of Kansas, did, unlawfully, in his capacity as superintendent of said Jackson County Horse Railroad Company, use and cause to be used a street railroad car for carrying of passengers within the City of Kansas aforesaid on a street railway and horse railroad, wholly and partly within said City of Kansas, without a license for said car and such use thereof from said City of Kansas.

All in violation of an ordinance of said city, entitled " An ordinance to license, tax, and regulate street railroad cars." Approved May 16, 1882.

W. J. STRONG, City Attorney.

Judgment was rendered against defendant by the recorder, from which judgment the defendant appealed to the criminal court of Jackson county.

The following are the material facts on which the criminal court tried the cause:

" For an agreed statement of fact in the above entitled cause it is admitted that the City of Kansas is a municipal corporation, and that on May 16, 1882, an ordinance was approved, entitled, ‘ An ordinance to license, tax, and regulate street railroad cars,’ and which is as follows, to-wit:

‘ An ordinance to license, tax, and regulate street railroad cars.

Be it ordained by the common council of the City of Kansas:

SECTION 1. No street railroad car shall be used for the carrying of passengers inside the City of Kansas on any street railway or horse railway, wholly or partly within the city, without a license for the car and such use thereof. The charge to be paid for each car shall be twenty-five dollars annually. Any one desiring a license to be granted and issued for any street railroad car shall, after the car has been numbered as directed by the city comptroller, or to his satisfaction, with a large figure or figures painted or securely fastened on each side of the car, pay to the city treasurer the charge for the license, and the treasurer shall give a receipt evidencing the payment and showing the number of the car to be licensed. The receipt shall be delivered to the city auditor who shall at once grant and issue the license, which shall show the number of the car covered by the license, and the date of the expiration of the license. Each license shall be signed by the city auditor and countersigned by the city comptroller, and shall not be valid till so signed and countersigned, and shall expire on May 1st, which date shall be the end of the year or part of the year for which the same shall be issued. There shall be a separate license for each car. The comptroller shall prescribe the form of the license. To enable the inspector of licenses, weights and measures to perform his duties without undue trouble and time, and drivers or others handling or using the car to know whether the same has been properly licensed, every license shall at all times while in force be kept hanging or fastened up conspicuously inside the car it covers. In case of loss or destruction of any license before it expires, a duplicate so marked shall, under the direction of the city comptroller, be issued and used in place of the original. The city auditor shall keep a proper register of all such licenses.

SEC. 2. Ten days shall be given from the time this ordinance takes effect for taking out licenses for cars now in use. The charge to be paid for a license of each such car from the taking effect of this ordinance to May 1, 1883, to bear the rate of twenty-five dollars per annum for such time. Street railroad cars, other than those now in use, shall not be used for carrying passengers within the city limits until licensed as aforesaid for the balance of the year in which the use is to commence, up to the next ensuing May 1st, the charge to be paid for any fraction of a year to be at the rate of twenty-five dollars per annum from the time the use is to commence to May 1st next ensuing.

SEC. 3. Every person who shall in any capacity, either as owner or lessee of a street railroad car, or as agent, officer, driver, or employe of the owner or lessee of a street railroad car, or otherwise, at any time after ten days from the approval of this ordinance by the mayor, or the time this ordinance takes effect, use or cause to be used in a street railroad car for the carrying of passengers within the City of Kansas, or any street railway or horse railroad, wholly or partly inside the city, without the car being licensed as aforesaid, or without a license therefor being, during such use, kept hanging or posted up in the car as aforesaid, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be fined not less than five dollars or more than fifty dollars, such use of any unlicensed car to be deemed a separate offence for every load of one or more passengers carried.'

Sec. 4. (Omitted.)

‘ Approved May 16th, 1882.’

That the cars used by the Jackson County Horse Railroad Company for the carrying of passengers on a street railway and a horse railroad, wholly or partly within the City of Kansas, have not paid a license to the said City of Kansas, as required by the said ordinance. That the defendant, Bernard Corrigan, on July 4, 1882, was and now is an officer of said Jackson County Horse Railroad Company and its superintendent, and in his capacity as such superintendent has caused to be used a car of said company in manner and form as charged in the complaint; that said Jackson County Horse Railroad Company is a corporation duly incorporated and organized, under the general law of Missouri pertaining to business corporations, in the year 1869; that the said railroad company occupies and uses these streets of the City of Kansas under and by virtue of the following ordinances of said city, to-wit:

‘ 7075. An ordinance authorizing the Jackson County Horse Railroad Company to construct their road along certain streets.

Approved March the 27th, 1869.'

(Which ordinance is omitted herefrom. It authorizes said company to construct its railroad along certain streets of Kansas City on certain conditions in reference only to the manner in which the track should be laid, and the condition in which it should be kept. The said ordinance also provided that said company should keep and maintain its vehicles, etc., in good order and repair, and should operate the same at all seasonable times for the use and accommodation of the public).

That the said Jackson County Horse Railroad Company has been regularly assessed and taxed by the city, as well as the state and county, upon all its property, including its cars, and which taxes have been paid; that this defendant does not personally use or operate any horse railroad car, but that he is the superintendent and manager for said corporation, which owns all its cars, and as such superintendent and manager, but not otherwise, he uses and causes to be used the cars of such corporation, and which cars have not paid any license to the City of Kansas."

Upon the agreed statement of facts the trial court found for the defendant, and judgment was accordingly rendered, from which the plaintiff has appealed to this court.

JOHN C. TARSNEY, for the respondent.

I. The ordinance of 1869 was a contract between the City and the Street Railroad Company within the protection of the federal constitution, and could not be impaired or changed by any subsequent legislation of said city without the assent of the company. The city had no power to impose any new burden or condition upon the company as a condition precedent to its right to operate the road. That the right to operate the road is a vested right, and the ordinance attempting to impose a license tax upon the company as a condition precedent to its right to run its cars imposes a new burden and condition on the company. Attempts to take away such vested right impair the obligation of the contract and are, therefore, void. Dartmouth College case. See Sheldon v. Chicago, 9 Wall. 50; Hovelman v. K. C. Horse R. R. Co., 79 Mo. 632; Dist. Col. v. Wash. R. Co., 4 Am. and Eng. R. R. Cases, 174; St. Louis v. Mo. P. Ry. Co., 13 Mo.App. 524; N. Y. v. 2nd Ave. R. R. Co., 32 N.Y. 261; N. Y. v. 3rd Ave. R. R. Co., 33 N.Y. 42; State ex rel. City of Kansas v. Corrigan Consolidated St. R. R. Co., Supreme Court of Missouri, March, 1885, unreported.

II. When a law or ordinance makes express exceptions or conditions to the enjoyment of its benefits, no others will be implied. This is a proper case for the application of the maxim, expressio unius est exclusio alterius. Lee v. Evans. 8 Cal. 429; Bird v. Dennison, 7 Cal. 297; Watkins v. Wassell, 20 Ark. 410; City of Kansas v. Corrigan Consol. St. R. R. Co., supra.

III. When the object of the city in requiring a license fee is to obtain revenue, the validity of such ordinances cannot be upheld under the " power to regulate. " Cooley Const. Lim., chapter 16.

IV. The defendant cannot be held criminally responsible for the failure of the company to pay the license fee. The general manager is not the company. In order...