Kansas City Cable Ry. Co. v. Kansas City

• Decision Date: 06 February 1888
• Parties: KANSAS CITY CABLE RAILWAY COMPANY, Appellant, v. CITY OF KANSAS et al., Respondents.
• Court: Kansas Court of Appeals

29 Mo.App. 89

KANSAS CITY CABLE RAILWAY COMPANY, Appellant, v. CITY OF KANSAS et al., Respondents.

Court of Appeals of Missouri, Kansas City.

February 6, 1888

APPEAL from Jackson Circuit Court, HON. JAMES H. SLOVER, Judge.

Affirmed.

The case is stated in the opinion.

JOHNSON & LUCAS, for the appellant.

I. The ordinance complained of violates the contract between plaintiff and defendant in section 5, ordinance 24, 154, that " all alterations or amendments be general and binding on all other street railways in the city and those owning and operating the same, whether corporation or natural person." Const. Mo., art. 2, sec. 15; State v Miller, 66 Mo. 342. In Cooley's Constitutional Limitations, page 677, section 577, the author uses this language: " The regulations must have reference to the comfort, safety, or welfare of society; they must not be in conflict with any of the provisions of the charter. And they must not, under pretense of regulation, take from the corporation any of the essential rights and privileges which the charter confers." Tested by the above rule appellant contends that one of the rights and privileges guaranteed to it, in its charter, was, that all alterations should be general and binding on all street railroads, which the ordinance in question does not do, but applies only to appellant and imposes unjust and unfair burdens on it for the benefit of other corporations. And again, page 678, section 578, the same author: " And even a provision in a corporate charter * * * to modify or repeal it would not authorize a subsequent act which would have the effect to appropriate a portion of the corporate property to public use." See also: Tiedeman's Limitations Police Power 574; Miller v. Railroad, 21 Barb. [N. Y.] 513.

II. The ordinance also violates the provision of the constitution that no private property shall be taken for private use. Const. of Mo., art. 2, sec. 20. The plaintiff is compelled to keep watchmen, and no other road is required to do so. The expense should, at least, be apportioned. River Co. v. Beler, 77 Mo. 91; Cooley's Const. Lim., sec. 580; Railroad v. Railroad, 1 Allen [[[[[[Mass.] 552; 4 Allen [Mass.] 198.

III. The ordinance is void as being subversive of the guarantee that private property shall not be taken for public use without just compensation. Const. of Mo., art. 2, sec. 21. The effect of the ordinance is to compel plaintiff, at its own expense, to police the city, and is a taking of private property for public use without just compensation. Miller v. Railroad, supra.

IV. The ordinance is in conflict with the constitutional guarantee that no person shall be deprived of his property without due process of law. Const. of Mo., art. 2, sec. 30. The effect of the ordinance is to deprive plaintiff of its property by requiring plaintiff to keep a watchman for the benefit of the property of rival corporations. In all cases of like character the ordinance applies to all persons engaged in the same business, and provides for apportionment of expense.

V. The ordinance is void. It makes special and unjust discrimination against plaintiff. Dillon Mun. Corp. [2 Ed.] p. 370, secs. 256 and 637; White v. Mayor, 2 Swan [Tenn.] 364; St. Louis v. Spiegel, 90 Mo. 592; New Orleans v. Bleneau, 3 La. 688; De Ben v. Gerard, 4 La. 30; Chicago v. Rumpff, 45 Ill. 90; Mayor v. Thorn, 7 Paige [N. Y.] 263; Paxton v. Sweet, 1 Green [N. J. Law] 200.

VI. Injunction will lie. The defendants were threatening to arrest each and every employe of plaintiff, and thereby to compel plaintiff to obey such ordinance, or submit to a stoppage of its business until the legality of the ordinance could be finally tested in the courts, and thereby greatly discommode the traveling public, and prevent plaintiff from the discharge of the duties incumbent on it as a common carrier. The rule is, that on a proper showing the courts will prevent the enforcement of a void ordinance. High on Injunctions, p. 465, sec. 787; Railroad v. Springfield, 85 Mo. 674, and cases cited. The execution of a void judgment by a justice will be restrained by injunction. Bornscheim v. Finck, 13 Mo.App. 120; Ins. Co. v. Cummins, 90 Mo. 267. One of the offices of an injunction is to prevent a multiplicity of suits where the whole question can be determined by one and the same proceeding. Damschroeder v. Thias, 51 Mo. 100; Bank v. Kercheval, 65 Mo. 682. Where an ordinance is void any person whose interests are affected thereby may enjoin enforcement of the same. Baltimore v. Scharf, 10 Am. and Eng. R. R. Cases, 259; Whitney v. Mayor, 28 Barb. [N. Y.] 238; Mayor v. Radecke, 49 Md. 231.

R. W. QUARLES and W. A. ALDERSON, for the respondents.

I. The appeal in this case, having been taken from an order of the court, refusing the temporary writ of injunction, is premature and should be dismissed. Marble v. Bonhotel, 35 Ill. 240; Hilbish v. Catherman, 60 Pa.St. 444; Glass v. Clark, 41 Ga. 544; Rarmond v. Conger, 51 Va. 536; Tanner v. Irwin, 1 Mo. 65; Johnson v. Board of Education, 65 Mo. 47; Witthaus v. Bank, 18 Mo.App. 181; Harrison v. Rush, 15 Mo. 175.

II. The appellant contends that it has the right to resort to the writ of injunction to prevent a municipality enforcing a quasi -criminal or penal ordinance, and this without the least show or contention that the ordinance has been declared invalid in the proper judicial proceeding. The appellant's petition is an extraordinary invocation of the use of the writ of injunction, and is without merit; the writ should not be prostituted to the purpose for which it is asked. Sparkhawk v. Railroad, 54 Pa.St. 401; Gault v. Wallis, 53 Ga. 675; Joseph v. Burk, 46 Ind. 59; Moses v. Mobile, 52 Ala. 198; Kerr v. Preston, 6 Ch. Div. 463; Davis v. American Society, 75 N.Y. 362; Halderstaffe v. Saunders, 6 Mod. 16; West v. Mayor, 10 Paige 539; Cohen v. Commissioners, 77 N.C. 2; Barnett v. Municipality, 4 La. An. 620; Levy v. Shreveport, 27 La. An. 620; Gartside v. East St. Louis, 43 Ill. 47; Davis v. Society, 6 Daly 81; Funcke v. Commissioners, 66 How. Pr. 318; S. C., 15 U. S. Dig. [N. S.] 397-7; Patterson v. Seaton, 64 Ia. 115; Snider v. Marks, 10 U.S. 189; Oil Co. v. Little Rock, 39 Ark. 412; Garrison v. Atlanta, 68 Ga. 64; Phillips v. Stone Mountain, 61 Ga. 386; Chicago v. Wright, 64 Ill. 318; Rogers v. Cincinnati, 5 McLean 337.

III. The ordinance is purely a police regulation, and in its enactment the city exercised its power of police. Police power cannot be bargained or bartered away, nor can its exercise be hindered or embarrassed. The ordinance is valid. Railroad v. Orange, 41 N.J.L. 127; Allerton v. Chicago, 6 F. 555; Railroad v. Philadelphia, 101 U.S. 528; Water Works v. Kansas City, 28 F. 921; Railroad v. Philadelphia, 5 Pa.St. 119; Stone v. Mississippi, 101 U.S. 814; Merz v. Railroad, 88 Mo. 672; S. C., 14 Mo.App. 459; Butchers Co. v. Crescent City Co., 111 U.S. 746; Thorpe v. Railroad, 27 Vt. 140; Railroad v. McClellan, 27 Ill. 140; Railroad v. Railroad, 30 Ohio St. 604; Railroad v. Springfield, 85 Mo. 674; Kincaid's Appeal, 66 Pa.St. 411; Railroad v. Jacksonville, 67 Ill. 11, 37; State to use v. Railroad, 83 Mo. 144; Commissioners v. Portland, 63 Me. 269; State v. Railroad, 17 Neb. 647; 2 Redfield on Railroads, 577, 578; Cooley's Const. Lim. 251, 339, 342, 343, 710, 715, 717; Rorer on Railroads, 557, 558; Tiedeman's Lim. Pol. Pow. 576, 580, 582, 602; Water Works Co. v. City of Kansas, 20 Mo.App. 237; Metropolitan Board v. Barrie, 34 N.Y. 657; City of Kansas v. Corrigan, 18 Mo.App. 206.

PHILIPS P. J.

This is a proceeding by injunction to restrain the defendants from enforcing against the plaintiff a certain ordinance of the defendant city. The substance of the petition is, that the City of Kansas is a municipal corporation under the laws of the state, and the defendant, Henry C. Kumpf, is the mayor and the defendant, Thomas M. Speers, is the chief of police, of said city; and that the plaintiff is a railroad corporation, under the laws of the state, for the purpose of constructing and operating endless cable-line railways in said city; and that it has constructed and is operating such lines over and along certain named streets in said city; that its said road intersects and crosses certain streets in said city; that plaintiff's cars are run over said road every few minutes in the day, and is a great public convenience, carrying more than ten thousand people daily. The petition then sets out the ordinances of said city under which it built and is operating said road. It then alleges that, while, under the grant from the city, it was made subject to a certain named ordinance respecting the existing police regulations of the city, which did not contain the requirement hereinafter named, and that the grant expressly stipulated that, while it was subject to the right of amendment, etc., by the city, it provided that any change in the same, to be binding on the plaintiff, should affect all street railways in said city in the same manner. It is then alleged that, on the second day of October, 1886, after the grants aforesaid, and the construction of the plaintiff's road, the common council of said city passed an ordinance requiring the plaintiff to keep flagmen or watchmen at certain points along the line of its road, where it crosses certain streets, and at certain curves, during certain hours of the day and night; which said ordinance imposes certain heavy penalties, in the way of fines, on its officers and servants for any and every car it permits to run over said points without such watchman; that its said road is crossed by various other street railway car lines at said street crossings, and that other roads have on their lines like curves, and there is no provision of like character requiring said...