City of Potwin Place v. Topeka Ry. Co.

• Decision Date: 10 June 1893
• Citation: 51 Kan. 609,33 P. 309
• Parties: THE CITY OF POTWIN PLACE v. THE TOPEKA RAILWAY COMPANY
• Court: Kansas Supreme Court

33 P. 309

51 Kan. 609

THE CITY OF POTWIN PLACE v. THE TOPEKA RAILWAY COMPANY

Supreme Court of Kansas

June 10, 1893

Original Proceeding in Mandamus.

THE City of Potwin Place, a city of the third class, brings this action against the Topeka Railway Company to compel it to operate its line of street railway in the city of Potwin Place, which it acquired by purchase from the Topeka Rapid Transit Railway Company by deed dated April 5, 1892. The line in question was constructed by the Topeka Rapid Transit Railway Company under ordinance number 25, passed by the mayor and councilmen of the city of Potwin Place on May 10 1889, by which the last-named company was granted the right to construct and operate a road for a term of 20 years along Willow avenue from the east to the west line of the city, on Elmwood avenue from Laurel avenue south to the city limits and on Laurel avenue from the east to the west line of the city. The line was constructed soon after the passage of said ordinance along Willow and Elmwood avenues, and on Laurel avenue from Elmwood east to Greenwood avenue, and was operated by that company until the execution of the deed before mentioned. By this deed the Rapid Transit company conveyed to the Topeka company all its lines of road in the city of Topeka and this line in Potwin Place, which is particularly described in the deed. The defendant soon thereafter proceeded to operate the line of road located in the plaintiff city in connection with its lines in Topeka substantially as it had been before operated by the Rapid Transit company, and continued to so operate it up to about the 27th day of October, 1892, when it ceased to operate its line in Potwin Place, and it has failed to operate it ever since. Since the construction of said road, the city of Potwin Place has been enlarged by the addition of what was before termed Auburndale, so that in territorial extent it has been more than doubled, and largely increased in population. Said ordinance 25 gave the Topeka Rapid Transit Railway Company the right to construct its track and operate by electricity its road. It provides that "the cars of said company shall at all times be entitled to the track, and the driver of every other vehicle on the track or by the side thereof shall turn such vehicle out when any car comes up, so as to leave the track unobstructed for the free passage of the cars," and requires that "said railway shall be so operated that a car shall pass any given point each way on the route at least every 20 minutes for 12 hours, and at least once every 30 minutes for four hours, during that part of the day the road shall be operated." On the 2d day of May, 1892, the defendant also acquired by deed the property of the Topeka City Railway Company, which was operating horse-car lines in Topeka, one of which extends into Auburndale and is still operated by horse power. An alternative writ of mandamus was issued in this case on the 21st of November, 1892. The defendant filed a motion to quash, which was overruled at the April session, but no opinion was filed or announced on the legal questions involved. Afterward the defendant answered, and the case was tried on its merits at the May session.

John W. Day, city attorney, N. H. Loomis, and J. B. Larimer, for plaintiff.

Rossington, Smith & Dallas, for defendant.

ALLEN J. All the Justices concurring.

OPINION

ALLEN, J.:

Various questions are discussed in the briefs which it will be unnecessary for us to consider at length, because the defendant company asserts that it desires to operate a line of road through the city of Potwin Place, but it objects to operating the line already constructed, because it claims that a better route could be selected both for the company and for the people of Potwin Place. The defendant claims that it desires, and has asked the passage of, an ordinance which will permit it to operate a line of road on a different route through the old city of Potwin Place, through the addition of Auburndale, in the direction of the insane asylum, and that it would be willing to construct and operate such route on what counsel term "any direct route," but the city and the company have failed to agree on a new line, and the defendant has refused to operate the old one. It is not seriously contended that the old line is unprofitable, but it is claimed that both the interests of the defendant and of the people of Potwin Place, and especially of those living in the western part, known as Auburndale, require that the electric-car service should be extended to the neighborhood of the insane asylum, as the people of Auburndale are now dependent entirely on a horse-car line for street-car facilities. The plaintiff asserts a willingness to grant defendant company a right to construct its line into Auburndale, as desired by the defendant, but insists on the operation of the line already constructed, and that no other route could be selected which would so well accommodate the people of the original city.

Defendant challenges the power of the court to compel it by mandamus to operate its road in Potwin Place. Counsel concede that a railroad corporation can be compelled to perform its charter obligations, but insist that it is not bound by ordinance number 25, and that mainly for two reasons: First, that a city ordinance does not confer rights and create obligations which can be enforced by mandamus in the same manner as charter obligations can be; second, because it is not a party to the ordinance, and has not assumed the obligations imposed by its terms. Much is said in the briefs on the question whether the privileges granted to and the duties imposed upon the Rapid Transit company by ordinance 25 constitute a franchise, a contract, or a mere license, the defendant contending that they amount to but a license. The term "franchise" seems to be used by the courts with much laxity. In Morgan v. Louisiana, 93 U.S. 217, 23 L.Ed. 860, it is said:

"Much confusion of thought has arisen in this case, and in similar cases, from attaching a vague and undefined meaning to the term 'franchise.' It is often used as synonymous with 'rights, privileges, and immunities,' though of a personal and temporary character; so that, if any one of these exists, it is loosely termed a 'franchise,' and is supposed to pass upon a transfer of the franchises of the company. But the term must always be considered in connection with the corporation or property to which it is alleged to appertain. The franchises of a railroad corporation are rights or privileges which are essential to the operations of the corporation, and without which its road and works would be of little value; such as the franchise to run cars, to take tolls, to appropriate earth and gravel for the bed of its road, or water for its engines, and the like."

In Sioux City Street Rly. Co. v. Sioux City, 138 U.S 98, 34 L.Ed. 898, 11 S.Ct. 226, it...