City of Westport v. Mulholland

• Decision Date: 18 December 1900
• Citation: 60 S.W. 77,159 Mo. 86
• Parties: CITY OF WESTPORT v. MULHOLLAND.
• Court: Missouri Supreme Court

60 S.W. 77

159 Mo. 86

CITY OF WESTPORT v. MULHOLLAND.

Supreme Court of Missouri.

December 18, 1900.

MUNICIPAL CORPORATIONS — TEARING UP STREET—CONSENT OF CITY COUNCIL—ORDINANCE—CONSTITUTIONALITY — OBLIGATION OF CONTRACT—POLICE POWER.

Defendant, in accordance with a grant from the county court, constructed a street railway on a county road; and subsequently the plaintiff city extended its territory so as to include such road within its limits, but prior to such extension had passed an ordinance providing that no person or persons should tear up or otherwise interfere with any of the streets of said city without first obtaining permission from the aldermen. The defendant tore up the streets, in reconstructing a switch, without first obtaining the required consent. Held, that the ordinance was not unconstitutional, as impairing the obligation of defendant's contract with the county court, but constituted a valid exercise of the police power of the city, and defendant was liable for its violation.

In banc. Appeal from criminal court, Jackson county; John W. Wofford, Judge.

Action by the city of Westport against J. W. Mulholland. From a judgment of the criminal court reversing a judgment of the police court in favor of plaintiff, plaintiff appeals. Reversed.

The following is the opinion in division No. 1 (VALLIANT, J.):

"Defendant was convicted and fined in the police court of the city of Westport upon a charge of violation of a city ordinance, of which the first section is, `No person or persons shall tear up, dig up or ditch or otherwise interfere with any of the streets or alleys within the limits of the city of Westport without the permission first obtained from the board of aldermen of said city.' The second section prescribed the penalty for the violation. Upon appeal to the criminal court of Jackson county the cause was tried on an agreed statement of facts, upon which there was a judgment of acquittal, and the city appealed to the Kansas City court of appeals. The cause was transferred to this court because it involves a construction of the constition. The facts are that in 1887 the county court of Jackson county granted the Grand Avenue Railway Company the right to construct and maintain its street railway on Rosedale avenue, then a county road under the jurisdiction of the county court, and under that grant the railway company constructed, and has since maintained and operated, its railway. In April, 1891, the city of Westport extended its limits, and took in Rosedale avenue, and with it the railroad. Afterwards, in November, 1891, the defendant, in the service of the railway company, without permission of the board of aldermen, dug and tore up the street, in reconstructing a switch that was necessary for the operation of the railroad; and that is the offense for which he was tried. The city ordinance was passed several years before the city extended its limits, and was in force at the time of the alleged violation by defendant. The whole defense in the case is that the county court, when it had the authority to do so, in 1887, having granted the railroad company the right to lay and maintain its railroad on the public road, which grant included the right to do what the defendant in this instance did, the railroad company could not, under that provision of the constitution which forbids laws impairing the obligation of contracts, be deprived of that right or limited in its exercise. That is the only proposition in the case.

"That the city could not by its ordinance deprive the railroad company of its franchise, or impair the obligation of its contract with the county court, treating the grant of the franchise and its acceptance as a contract, is a proposition of law that has not been gainsaid in this country since the decision in the Dartmouth College Case in 1819, 4 Wheat. 518, 4 L. Ed. 629. But that, in the exercise of a franchise affecting the safety or well-being of the public, the grantee is under the control of the police powers of the state, is a proposition equally well settled. The question then is, is the authority of the municipality asserted under that ordinance the impairment of the contract, or only a reasonable regulation of its exercise? In construing the ordinance for the purpose of testing its validity under the constitution, we must accord to it a reasonable and lawful purpose, if it is susceptible of such, and must assume that in its exercise a wise discretion will be used by the city officials, either of their own will, or under compulsion of the courts. It is undoubtedly true that, in maintaining and operating its railroad, repairs will be required which will necessitate the digging and tearing up of the street, more or less, and the right to do this, under reasonable police regulations is implied in the grant of the franchise; and if this ordinance is construed to mean that it is left with the city officers to say, arbitrarily, whether or not the railroad company may tear up the streets to make repairs, it would be equivalent to subjecting the existence of the franchise to the will of the board of aldermen, and would be in violation of the constitution. But if it means that when repairs of the railroad become necessary, requiring the tearing up of the street, and rendering it for the time being unsafe or inconvenient for travel, the railroad people must, before doing so, report to the city authorities, and proceed in the matter under such reasonable police restrictions as they may prescribe, then it impairs no contract and violates no provision of the constitution; and we may add that, if that is what it means, the courts will hold the city to it, if it should attempt to use it to impair the railroad company's rights. It will not do for the railroad company to say that it has now the same rights that it had before it was taken into the city, for that is so only under conditions. The rights are the same, but they are to be adjusted to the changed situation, just as by the same rule are the rights of the people whose homes are embraced in the new city limits. Their vested titles are not violated, but in the...