City of Springfield v. Smith

• Decision Date: 04 May 1897
• Citation: 138 Mo. 645,40 S.W. 757
• Parties: CITY OF SPRINGFIELD v. SMITH.
• Court: Missouri Supreme Court

40 S.W. 757

138 Mo. 645

CITY OF SPRINGFIELD v. SMITH.

Supreme Court of Missouri.

May 4, 1897.

STREET RAILROADS — FRANCHISE — LICENSE TAX — OBLIGATIONS OF CONTRACT.

Where a city ordinance authorized a street-railway company to change its motive power, and to operate its railway by electricity, for 35 years, with the right to collect fares at certain rates, and with the duty of keeping in repairs the street between the tracks and for two feet on each side, it was not thereby exempted expressly by implication from paying on its cars a license tax which the city was by statute authorized to impose; and hence a subsequent ordinance imposing such license, though it was imposed for revenue purposes, and not as a police regulation, was not void under Const. U. S. art. 1, § 10, as impairing the obligation of a contract.

In banc. Appeal from criminal court, Greene county; James J. Gideon, Judge.

Frank Smith was convicted before the recorder of the city of Springfield of violating an ordinance, and appealed to the Greene county criminal court, and, from a judgment of conviction therein, he appealed to the St. Louis court of appeals, by which court the cause is transferred to the supreme court. Affirmed.

Stewart, Cunningham & Eliot, for appellant. T. B. Love, Len Walker, and T. W. Silvers, for respondent.

BRACE, J.

The plaintiff is a city of the third class, with express power, by ordinance, to grant the right to any person or corporation to make and construct street railroads in any street in said city, and to regulate and control the use thereof (Rev. St. 1889, § 1576); to levy and collect a license tax on "street-railroad cars" operated by any corporation (Id. § 1506); and to levy and collect taxes for general revenue purposes on all mixed, personal, and real property within the limits of the city taxable according to the laws of the state (Id. § 1495). The defendant is the general manager and secretary of the Metropolitan Street-Railway Company, which by assignment succeeded to all the rights, privileges, and franchises granted by the city to the Citizens' Railway Company and the Woodland Heights Rapid-Transit & Improvement Company, and, under the direction and management of the defendant, was operating its street cars in said city at the time the complaint herein was filed, without license, as required by the ordinance of said city approved April 5, 1892 (chapter 15, art. 1, Rev. Ord. 1892), section 7 of which provides, inter alia, that "no person, corporation or company shall use, run or drive or cause to be used, run or driven, for hire, pay, profit or compensation, any street car, * * * without a license therefor from the city. The charges for such license shall be for each street-railroad car or coach of whatever kind ten dollars per year," — and section 21 of which imposes a fine of not less than $5 nor more than $100 for the violation of the requirements of section 7. The defendant was arrested upon a complaint for the violation of this ordinance, and fined $100 in the recorder's court, from which he appealed to the Greene county criminal court, where, upon a trial de novo, he was again found guilty, and his punishment assessed at a fine of $50; from the judgment of which court he appealed to the St. Louis court of appeals, by which court the cause was transferred to this court, on the ground "that the questions arising for decision involve the construction of certain provisions of the constitution of this state." The only defense made to the action is a claim of exemption by the Metropolitan Street-Railway Company from the operation of this ordinance by reason of the acceptance by it, and its assignors, of two prior ordinances of the city (approved October 3, 1889), the conditions of which have been duly performed by them. These ordinances were of like tenor and effect, one relating to the Citizens' Street-Railway Company and the other to the said Transit & Improvement Company. The former is as follows:

"Be it ordained by the city council of the city of Springfield as follows:

"Section 1. That the Citizens' Street-Railway Company be and is hereby permitted to change its motive power from horse and mule power to electricity motor power as provided for in the acts of the general assembly of the state of Missouri, approved March 18, 1887.

"Sec. 2. Said Citizens' Street-Railway Company shall in the change of its said motive power, do and perform all work upon its superstructure and tracks in a way and manner so as not to stop or materially interrupt ordinary traffic and travel upon the streets occupied by it until the grades of the streets are established; in all cases where improvements are provided for or contemplated, and all places of change, erection of poles and work necessary for such change of motive power shall be done under the supervision of the street committee of the city, to the end that said railway may be operated when said motive power is changed without damage to person or property, and in a way to impede ordinary traffic and travel on the streets as little as possible: provided, that said street-railroad company shall keep the street between their tracks and for two feet outside of the outside rail thereof in the same condition as the remainder of the street is kept by the city.

"Sec. 3. The said street-railroad company shall charge not more than 5 cents for a single trip one way, or $1 for 25 trip tickets, and not more than one-half the regular fare for children under 12 years of age, and nothing for children under 3 years of age.

"Sec. 4. That inasmuch as the contemplated change of motive power will be attended with expense, it is further provided that this privilege to operate said electric motor power on the streets now occupied by said Citizens' Street-Railway Company shall continue for 35 years from the publication of this ordinance. And said Citizens' Railway Company shall have the right and privilege within the present and future corporate limits of the city of Springfield, Missouri, and the additions thereto, of building, erecting, laying, operating, maintaining, repairing and using electric apparatus and appliances, electric machines, engines and apparatus, towers, masts, lamp posts, lamps, posts, poles, wires, pipes and all other machinery, apparatus and appliances necessary and convenient for the use and application of electricity for the purpose of lighting and of using, operating, renting and applying such electric machines, electric apparatus and...