Kavanaugh v. City of St. Louis

• Decision Date: 22 May 1909
• Parties: KAVANAUGH v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

119 S.W. 552

220 Mo. 496

KAVANAUGH v. CITY OF ST. LOUIS.

Supreme Court of Missouri.

May 22, 1909.

1. STREET RAILROADS (§ 48) — ALIENATION OF FRANCHISES.

A corporation cannot without statutory authority alienate its franchise to construct, maintain, and operate a street railroad.

2. STREET RAILROADS (§ 18) — FRANCHISES — CONSTRUCTIONS.

An ordinance granting to a street railway a franchise to construct, maintain, and operate a street railroad must be strictly construed.

3. CORPORATIONS (§ 440) — ALIENATION OF PROPERTY — MORTGAGES.

A corporation mortgaging its property alienates it, since the mortgage may culminate in the absolute alienation of the property.

4. STREET RAILROADS (§ 54) — ALIENATION OF PROPERTY — STATUTES.

Under Rev. St. 1879, § 706, providing that every corporation may hold, purchase, mortgage, or otherwise convey such real and personal estate as the purposes of the corporation shall require, etc., a street railroad company may mortgage its property, including its franchise.

5. PLEADING (§ 367) — PETITION — MOTION TO MAKE MORE CERTAIN.

Where the petition charged that plaintiff was a trustee of an express trust, without stating who had and held the beneficial interest, defendant was entitled to move to make the petition more specific by requiring plaintiff to state who held the beneficial interest.

6. APPEAL AND ERROR (§ 169) — REVIEW.

Where the powers of a corporation called a ferry company were neither pleaded nor shown, the court on appeal could not determine that it did not possess the power to operate a street railroad.

7. CONSTITUTIONAL LAW (§ 48) — CONSTRUCTION.

Statutes must be construed in the light of the Constitution.

8. STREET RAILROADS (§ 54) — MORTGAGES — REQUISITES — MUNICIPAL CONSENT — POWERS.

Rev. St. 1879, § 706, authorizing every corporation to hold, purchase, mortgage, or otherwise convey its real and personal property, when construed in connection with Const. 1875, art. 12, § 20 (Ann. St. 1906, p. 309), prohibiting the Legislature from granting the right to operate a street railroad in a city without acquiring the consent of the local authorities, and providing that the franchise so granted shall not be transferred without similar assent first obtained, prohibits a street railway company from mortgaging its franchise obtained from a city without first obtaining the assent of the city.

9. PLEADING (§ 372) — ISSUES RAISED.

Where plaintiff, in a suit against a city, pleaded an ordinance granting a street railway franchise, the mortgaging of the franchise by the street railway company, and the city only pleaded and proved an abandonment of the franchise, the question of the invalidity of the mortgage for want of the assent of the city thereto did not arise.

10. EVIDENCE (§ 73) — PRESUMPTION.

It will be presumed that a street railway company mortgaging its franchise obtained the necessary assent of the city granting the franchise.

11. STREET RAILROADS (§ 22) — FRANCHISES.

A street railway franchise is granted by the state through the agency of the city granting it.

12. QUO WARRANTO (§ 19) — STREET RAILROADS (§ 61) — FORFEITURE OF FRANCHISES — REMEDY.

The forfeiture of a street railway franchise granted by a city can only be taken advantage of in quo warranto, and neither the city nor its officers can declare a forfeiture.

13. STREET RAILROADS (§ 61) — FRANCHISES — ABANDONMENT — EQUITABLE REMEDY.

Equity in a suit to restrain a city from removing from a street the poles, wires, etc., of a street railway company having a franchise to operate a street railroad, has no jurisdiction to declare a forfeiture of the franchise on a cross-bill alleging an abandonment.

Valliant, C. J., dissenting.

In Banc. Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by William K. Kavanaugh, trustee, against the city of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

The opinion of Graves, J., in division No. 1, is as follows:

"This is an action for injunction tried in the city of St. Louis. The plaintiff, William K. Kavanaugh, claims to be the trustee of an express trust for the Wiggins Ferry Company, an Illinois corporation. The suit is against the city of St. Louis and its street commissioner and its superintendent of city lighting. The facts pleaded and proven by plaintiff are these:

"Prior to April 13, 1888, the Fourth Street & Arsenal Railway Company was a duly incorporated street railway company under laws of Missouri. By city ordinance No. 14,485, passed on said last-mentioned date, the said city of St. Louis authorized said street railway company to build a street railway in and along certain streets in said city. Said ordinance was accepted and the railway built. Said street railway company executed later, but very shortly thereafter, a deed of trust covering all of its said property, including its franchise, in which deed Charles Parsons was made trustee. This instrument was to secure the payment of $50,000 in bonds at the time issued by the company. Under this deed, owing to default having been made, a sale was had in September, 1898, and said property was bought by John H. Overall, to whom a trustee's deed was made. Very shortly thereafter, within a few days, Overall and wife conveyed the property to John Scullin, who in September, 1903, being joined therein by his wife, conveyed to the present plaintiff. Upon the receipt of his deed Mr. Kavanaugh made and executed a trust agreement with the Wiggins Ferry Company, of which he was at the time president. In said instrument it is recited that the consideration was paid by the said ferry company, and not by Kavanaugh, together with other proper recitals for such an instrument. It is averred that on January 30, 1905, the said Kavanaugh intended to immediately run street cars upon said streets, and that he so intends to do still. It is averred and shown that on said last-named date the city, through its said officers, threatened to remove its poles, wires, and rails from the streets, and the evidence so shows. In fact the city did remove a quantity of the wires. A temporary injunction was granted, which upon trial was made permanent.

"By answer the defendants charged: (1) That by section 6 of ordinance 14,485 the railway company was required to run cars at intervals of five minutes between 6 o'clock a. m. to 12 o'clock p. m. each and every day of the year. (2) That it was by section 5 of the city ordinance required to keep the space between the tracks and for 12 inches on each side in complete repair and condition with the same or better material than that used upon the remainder of the street. (3) That by ordinance No. 21,113, April 6, 1903, it was required to operate its cars as in ordinance specified on each and every day. (4) That since 1896 the said railway company wholly failed to run any cars upon said streets over its said lines, or otherwise exercise any rights, privileges, or franchises theretofore granted. That it failed to take out license so to do as required by ordinance. (5) That since 1896, although frequently notified, said railway company and all of its assigns wholly failed to keep in repair the space between its rails and on the sides thereof as required by ordinance. (6) That said company and assigns paid no attention to the roadbed, poles, wires, or apparatus, and neglected and refused to attend to same, or repair the same, and allowed such to fall into decay, disuse, and dilapidation, which made the streets dangerous and unsafe to the public and for public use and travel. (7) That said company and assigns refused and failed to take or claim said tracks, rails, poles, and wires when notified by the city that they were a menace to the safety of the people and property along the streets, although informed that the city would have to remove them. (8) That, owing to the failure of said company and its assigns, the city was compelled to and did macadamize said streets and did cover up the tracks, and this without protest from either the company or its assigns. (9) That, instead of using the trolley wires for street railway purposes, they were permitted to be used by the Edison Electrical Illumination Company of Carondelet for distributing electricity for illuminating purposes, and thereby permitted the same to become a nuisance and a danger to the lives of persons traveling on the street. The answer then thus concludes: `Defendants aver that by reason of the premises the said company and its alleged successors and assigns including the plaintiff, have long ago abandoned and lost all rights, privileges, and franchises obtained under said ordinances, and have repudiated all obligations thereunder, and have abandoned and lost all its tracks, wires, poles, and other apparatus pertaining to its former street railway, and have repudiated all obligations thereunder, and have not now, and have not had for years, any property of any kind or nature necessary for the operation of a street railway. Defendant further avers that neither the plaintiff nor said railway company, or its assigns, now have, or for the past eight years have had, any intention, nor have they or any of them made any efforts, to operate a street car railroad over the streets mentioned in plaintiff's petition. Wherefore the defendants pray that the relief prayed for by plaintiff be denied. And for cross-bill defendants herein, alleging all the matters and things by them alleged in their defense above set forth, and incorporating the same herein as a cross-bill, and as a basis for affirmative relief, pray the court to decree that said railway company and its assigns, the plaintiff, and those for whom the plaintiff holds, have abandoned all their rights, privileges, and franchises granted said Fourth Street & Arsenal Railway Company, and all the tracks, wires, poles, and other apparatus now or formerly on said streets of the city of St. Louis.'

"By way of reply and answer to the cross-bill, the...