Kansas City Southern Railway Company v. Kaw Valley Drainage District of Wyandotte County, Kansas No 313 Kansas City Terminal Railway Company v. Kaw Valley Drainage District of Wyandotte County, Kansas No 314

• Citation: 233 U.S. 75,34 S.Ct. 564,58 L.Ed. 857
• Decision Date: 06 April 1914
• Docket Number: Nos. 313,314,s. 313
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY, Piff. in Err., v. KAW VALLEY DRAINAGE DISTRICT OF WYANDOTTE COUNTY, KANSAS. NO 313. KANSAS CITY TERMINAL RAILWAY COMPANY, Piff. in Err., v. KAW VALLEY DRAINAGE DISTRICT OF WYANDOTTE COUNTY, KANSAS. NO 314
• Court: United States Supreme Court

233 U.S. 75

34 S.Ct. 564

58 L.Ed. 857

KANSAS CITY SOUTHERN RAILWAY COMPANY, Piff. in Err.,

v KAW VALLEY DRAINAGE DISTRICT OF WYANDOTTE COUNTY, KANSAS.

NO 313.

KANSAS CITY TERMINAL RAILWAY COMPANY, Piff. in Err.,

v. KAW VALLEY DRAINAGE DISTRICT OF WYANDOTTE COUNTY, KANSAS.

NO 314.

Nos. 313, 314.

Argued March 19 and 20, 1914.

Decided April 6, 1914.

Messrs. Samuel W. Moore, Samuel W. Sawyer, and James M. Souby for plaintiffs in error.

Mr. Thomas A. Pollock for defendant in error.

Mr. Justice Holmes delivered the opinion of the court:

These cases arise upon petitions for mandamus filed by the defendant in error, the Kaw Valley Drainage District. The allegations are that the Kansas river flows through the district, is a navigable stream, and in 1903 overflowed its banks, flooded a large part of Kansas City, Kansas, and caused great loss; that the harbor lines established by the United States and the lines for a levee along the banks established by the plaintiff substantially coincide; that the defendants respectively own bridges across the river, which, at their present elevation, cause it to overflow; and that the plaintiff, in pursuance of the power given to it by the state, has ordered the defendants respectively to raise these bridges to specified heights and to remove the old ones, which the defendants have refused to do. On these petitions alternative writs issued, and thereupon the defendants made return, each making a general denial and setting up that its railway tracks across the bridge were used in commerce among the states, and that such commerce would be cut off and destroyed by enforcement of the order, and claiming the protection of the Constitution, art. 1, § 8 (cl. 3). They each alleged also that to raise the bridges would require a raising of the grades of the streets for the approaches, and that the right to raise them depended on the consent of Kansas City, which the city refused to give; that the raising would cut in two inter- secting tracks of other roads, that this could not be done without the consent of such roads, which they also refused; that the raising would do permanent damage to private property abutting on the streets that would have to be raised, and that the plaintiff had taken no steps to compensate the owners; that the damage to the defendant would exceed large sums mentioned; and that the plans for the new bridges have not been approved by the Secretary of War. Act of March 3, 1899, chap. 425, § 9, 30 Stat. at L. 1151, U. S. Comp. Stat. 1901, p. 3540. Each defendant relied upon the 14th Amendment. The Terminal Company also alleged a contract with the drainage district which was thought to preclude its present requirement, and to be protected by the Constitution, article 1, § 10. The cases were heard on the alternative writs and the returns, and the supreme court of the state issued peremptory writs requiring the defendants to clear the channel to specified heights. 87 Kan. 272, 123 Pac. 991.

Motions to dismiss were presented at the last term, but were denied, as the record shows not only that rights under the Constitution and laws of the United States were specially set up and claimed, but that the questions concerning them are not of a kind to be dismissed.

The supreme court recognized that it could not order the bridges to be raised to the required height without the authority of the Secretary of War. Therefore we may lay on one side the somewhat surprising answer made to the allegations that the consent of the city and other railroads was necessary and was refused,—the suggestion, namely, that if the defendants wanted to do it they would find some way of reaching their end. See Louisville & N. R. Co. v. Central Stock Yards Co. 212 U. S. 132, 144, 53 L. ed. 441, 446, 29 Sup. Ct. Rep. 246. It was not suggested that the railroads had the power to reach the result by eminent domain. See Atlantic Coast Line R. Co. v. North Carolina Corp. Commission, 206 U. S. 1, 27, 51 L. ed. 933, 945, 27 Sup. Ct. Rep. 585, 11 Ann. Cas. 398. We lay on one side also various over-refined objections to the defendants' pleadings made in the argument here, saying only that we read them as alleging what they fairly would convey to an ordinarily intelligent lawyer by a fairly exact use of English speech. Swift & Co. v. United States, 196 U. S. 375, 395, 49 L. ed. 518, 523, 25 Sup. Ct. Rep. 276. But the court went on, on the assumption that it would lead to the elevation of the bridges, and seemingly for the purpose of accomplishing indirectly what it admitted that it could not do directly, to make an unqualified absolute order, as we have said, that the defendants should clear the channel of all obstructions on their lines up to the specified heights,—in other words, to remove the bridges as they stand.

These judgments must be taken as they read upon their face. They are not conditional orders to raise the bridge if the defendants can obtain the consent of parties not before ...