Kansas City Terminal Ry. Co. v. Kansas City Transit, Inc., 49234

• Decision Date: 16 July 1962
• Docket Number: No. 49234,49234
• Citation: 359 S.W.2d 698
• Parties: KANSAS CITY TERMINAL RAILWAY CO., a Corporation, Plaintiff-Respondent, v. KANSAS CITY TRANSIT, INC., a Corporation, Defendant-Appellant, Kansas City, Missouri, a Municipal Corporation, Defendant.
• Court: Missouri Supreme Court

Page 698

359 S.W.2d 698

KANSAS CITY TERMINAL RAILWAY CO., a Corporation, Plaintiff-Respondent, v. KANSAS CITY TRANSIT, INC., a Corporation, Defendant-Appellant Kansas City, Missouri, a Municipal Corporation, Defendant.

No. 49234.

Supreme Court of Missouri, En Banc.

July 16, 1962.

Rehearing Denied Sept. 10, 1962.

Powell C. Groner, Hale Houts, Hogsett, Houts, James, Randall & Hogsett, Kansas City, for defendant-appellant.

Sam D. Parker, William M. Stapleton, Kansas City, for plaintiff-respondent. Lathrop, Righter, Gordon & Parker, Kansas City, of counsel.

HYDE, Judge.

Action for declaratory judgment and other relief including a money judgment for plaintiff, the Kansas City Terminal Railway Co. (hereinafter called 'Terminal') against defendant Kansas City Transit, Inc. (hereinafter called 'Transit'). The trial court's judgment gave Terminal the declaratory relief sought and a judgment against Transit for $5,613.30. Defendant City of Kansas City (hereinafter called 'City') was given judgment on a counterclaim against Terminal for $5,884.22 from which Terminal did not appeal. Because the amount in dispute was insufficient to give this court jurisdiction, we transferred this case to the Kansas City Court of Appeals. After hearing there, the Court of Appeals reversed the judgment of the trial court without ordering any declaratory judgment on the issues involved. For proper procedure see Smith v. Pettis County, 345 Mo. 839, 136 S.W.2d 282; Kingston v. St. Louis Union Trust Co., 348 Mo. 448, 154 S.W.2d 39; Strype v. Lewis, 352 Mo. 1004, 180 S.W.2d 688, 155 A.L.R. 99; King v. Priest, 357 Mo. 68, 206 S.W.2d 547; Preisler v. Doherty, 365 Mo. 460, 284 S.W.2d 427, 440; Evans v. Brussel, Mo.Sup., 300 S.W.2d 442; Mayor, Councilmen and Citizens of City of Liberty v. Dealers Transport Co., Mo.Sup., 343 S.W.2d 40. The previous opinions in this case are Kansas City Terminal Railway Co. v. Kansas City Transit, Inc., Mo.Sup., 339 S.W.2d 766, Mo.App., 350 S.W.2d 828. On application of Terminal, we transferred the case here. See Sec. 10, Art. V, Const., V.A.M.S. and Rule 84.05, V.A.M.R.

The issues for decision herein are whether, under ordinances of City and contracts between Terminal and Transit relating thereto, Transit is required to pay a portion of the maintenance cost of certain viaducts and subways after abandoning the use of streetcars using tracks and substituting motorbuses and trolley buses therefor. Transit is the successor of previous companies which made the contracts, and are named in the ordinances but we will use the term 'Transit' as designating all of them as it has assumed the obligations of its predecessors.

Terminal's petition was in two counts. Court 1 sought a declaration that Transit was obligated by certain ordinances of 1909 and 1911 (No. 2336 and No. 9701) to pay Terminal one-half of the cost of maintenance of certain viaducts, subways and approaches thereto for such time as Transit had operated or would operate buses thereon and sought a money judgment for one-half of the cost of maintenance expended thereon by Terminal. Count 2 sought a declaration that a 1917 contract between Terminal and Transit and ordinances in connection therewith required Transit to pay Terminal one-third of the maintenance cost of the viaducts, subways and approaches mentioned therein and sought a money judgment for one-third of the cost of maintenance expended thereon by Terminal. The parties have made a stipulation of facts and much of the evidence is documentary but there were also interrogatories and answers, a deposition and some oral evidence. (Terminal had oral testimony that the use of buses required more maintenance expense on viaducts than streetcars.) The trial court made findings of fact, stated its conclusions of law and entered a decree declaring that:

'1. The use of the viaducts and subways and approaches thereto in Kansas City, Missouri, which are subject to the provisions of Ordinances of Kansas City No. 2336 and 9701, by Kansas City Public Service Company for the transportation of passengers by bus or by means other than streetcar is the same use contemplated by and within Ordinances of Kansas City No. 2336, 9701 and 54217.

'2. The 1917 contract between Kansas City Terminal Railway Company and Kansas City Railways Company, adopted by Kansas City Public Service Company, is in full force and effect, and Kansas City Public Service Company has been, is now, and will in the future be obligated to pay to Kansas City Terminal Railway Company, during such times as it has in the past used, is now using, or may in the future use said viaducts and subways for the transportation of passengers, one-third of the cost of maintenance or repair of the following viaducts and subways and the approaches thereto: The viaducts at Grand Avenue, Charlotte Street, Troost Avenue, Vine Street, Brooklyn Avenue, Prospect Avenue, 18th Street, and The Extension of Main Street south of 23rd Street (270 feet), and the subways at 15th Street, 9th Street, 12th Street, Jackson Avenue, Southwest Boulevard, and Summit Street.

'3. Kansas City Public Service Company is obligated to pay to Kansas City Terminal Railway Company one-half of the cost of maintenance and repair of all viaducts and subways and the approaches thereto which are subject to the provisions of Ordinances of Kansas City No. 2336 and 9701 and not included in the above described 1917 contract, during the time or times when said viaducts or subways were or are now being, or may in the future be used by Kansas City Public Service Company for the transportation of passengers by bus or any means other than streetcar.' (Transit is the successor of Kansas City Public Service Co.)

The 1909 ordinance (No. 2336) gave Terminal its franchise and the 1911 ordinance (No. 9701) was supplemental to it. Terminal's franchise was for 200 years and it was required to build and maintain viaducts or subways for the City streets it crossed. Sec. 19(a) of Ordinance 2336 provided that before City shall permit any company to 'operate a streetcar line or lines over or upon any of the viaducts' constructed by Terminal it shall require payment of one-half the cost to Terminal and 'to enter into a suitable undertaking to pay * * * Terminal * * * one-half of the subsequent maintenance of * * * viaducts during the period of such use.' Sec. 19(b) contained similar provisions concerning subways. Ordinance 9701 made provisions for substitution of viaducts for certain designated subways and subways for certain designated viaducts made necessary by change of grade of streets. Transit's latest franchise ordinance of 1927 (No. 54217) granted it the right to 'own, construct, reconstruct, improve, maintain and operate as a common carrier of passengers for hire * * * the certain street railway lines now existing * * * and also such additions thereto and extensions thereof as shall be hereafter made or required in accordance with the terms and provisions of this Ordinance.' It further provided that 'if the City is legally bound by any franchise contract with' Terminal to require any predecessor of Transit to pay to Terminal 'any sum towards the construction or maintenance of viaducts or subways or approaches thereto upon any route to be used for streetcar traffic under this contract, the company shall be required to pay the same, otherwise not.' It further stated: 'The purpose is to leave in the Terminal Company every legal right it has, if any, under its franchise with the City, and to have the Company (Transit) pay for the use and maintenance of said viaducts, subways and approaches, if legally required by said Terminal Company's franchise.'

Ordinance 54217 was amended in 1937 to provide: 'To the end that modernization, improvement and expansion of the street railway system * * * operated * * * pursuant to Ordinance No. 54217 be continued in the public interest, said company * * * is hereby authorized * * * to install from time to time and operate trolley bus and motor bus lines * * * (a) as substituted lines for existing facilities, (b) as feeder lines * * * and (c) as special service lines (such as trunk and express lines, etc.) additional to existing facilities.' Authorization by the City and the Public Service Commission of Missouri was required. Thereafter, substitution of trolley buses and motorbuses was authorized by the Missouri Public Service Commission at various times without formal objection by City; and the present use of all of the viaducts and subways involved is by such buses only. Transit is now operating under the jurisdiction of the Public Service Commission without a new franchise from the City.

The 1917 contract between Terminal and Transit stated it was intended to settle all differences between them 'with respect to all viaducts and subways mentioned * * * and be in substitution of all rights, however, arising, that are or could be claimed by either party against the other.' It further stated that 'as to all other viaducts and subways * * * the rights and remedies of the parties remain as they now exist.' It stated in paragraphs 2 and 3 the amount Transit was to pay Terminal for the construction cost of certain designated subways and viaducts; and in paragraph 3 provided for paving to be done and maintained by Transit between and for 18 inches outside its tracks. Paragraph 4 was as follows: 'The cost of future maintenance (except of paving, provision for which is above provided) of each viaduct and subway mentioned in paragraph 2 and 3 hereof, and the approaches thereto, shall be paid one-third by the Railways and two-thirds by the Terminal.' Other paragraphs required City's approval of this contract by ordinance, including the right of Transit to construct and operate certain additional 'street railway lines.' This contract was approved by ordinance No. 30355. It was stated that ten viaducts and six subways are now used by Transit and that of these seven viaducts and five...