Missouri Pacific Railroad Company v. Kohler

• Decision Date: 06 November 1920
• Docket Number: 22,844
• Citation: 193 P. 323,107 Kan. 673
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. DAVID KOHLER et al., Appellees
• Court: Kansas Supreme Court

193 P. 323

107 Kan. 673

MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. DAVID KOHLER et al., Appellees

No. 22,844

Supreme Court of Kansas

November 6, 1920

Decided July, 1920

Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.

Judgment ordered.

SYLLABUS

SYLLABUS BY THE COURT.

RAILROADS--Right to Control Use of Its Private Property--Validity of Grant of Special Privilege to Certain Cabmen to the Exclusion of Others. A railway company by contract may grant to a firm of cab and baggage men an exclusive privilege to board its passenger trains to solicit the patronage of passengers and to arrange for their safe and expeditious transportation to other railroad stations; and may also grant to such firm an exclusive right to stand its vehicles on a portion of the property owned by the railway company when the space so granted is not required for the necessary and convenient use of the public having business with the railway company; and in the absence of valid statutory authority a city may not authorize its police officers to interfere with the reasonable exercise of the exclusive privileges so granted.

W. P Waggener, J. M. Challis, both of Atchison, and S. H. Piper, of Independence, for the appellant.

A. M. Etchen, of Coffeyville, for the appellees.

OPINION

DAWSON, J.:

This action questions the validity of a contract for certain exclusive privileges granted by a railway company to a firm of cab and baggage men in and about the railway company's station grounds and trains at Coffeyville.

The city of Coffeyville has railway service supplied by three railroads, the Missouri Pacific, the Katy, and the Santa Fe. Each of these has its separate depot. In 1914 the Missouri Pacific, plaintiff, conceived the idea of providing transportation service from its own depot to those of the other railroads operating in and out of Coffeyville, so that passengers, express and baggage might be furnished through service over its own lines and connecting carriers at Coffeyville. To that end it made a contract with defendants which, in part, reads:

"Whereas, it is mutually desired by the parties hereto that all such passengers, and their baggage, including property checked as baggage, as well, be promptly transported from the depot of the company to the depot of the carrier at said junction point upon and under those certain terms and conditions hereinafter set forth.

. . . .

"1. The contractor shall promptly and safely transport, by proper and safe conveyance, any and all baggage, including property checked as baggage, as well as passengers, immediately following arrival of same at depot of the company at said junction point, and free of cost to the company or to said passengers, respectively, to the depot of the carrier, thereat, if and when the company shall have transported same to its said depot on a through ticket or tickets reading to any place or places on or reached via the line of the carrier. . . . The contractor shall pay to the company monthly, in advance, on or before the 1st day of each calendar month of the full term hereof, compensation computed at the rate of one hundred twenty dollars ($ 120.00) per annum; and, also the contractor shall, when and as requested so to do by the superintendent of the company or his authorized representative, transfer any and all supplies, including stationery and small office equipment, for the company between each depot and the general offices of the company in said city of Coffeyville.

"(3) A. The company also hereby grants to the contractor, during the full term of this agreement, the right and privilege of soliciting patronage, for the contractor's cab and baggage service, on the passenger trains of the company entering the city of Coffeyville, said solicitation to include the taking up and re-checking of passengers' baggage by duly authorized representatives of the contractor, such representatives, when and while engaged in such solicitation, to be transported, as one of the considerations of this agreement and without further charge, . . . provided, however, that each and all of said things, so to be done by the contractor as well as by said representatives under this paragraph, shall be done at such time or times and in such manner as may be designated by and be satisfactory to the superintendent of the company or his authorized representatives, and as may be required by ordinances of said city of Coffeyville and the laws of the state of Kansas, as well as the state of Oklahoma.

"B. The contractor, at its sole cost and risk, shall provide uniformed solicitors to canvass such of said passenger trains as may be designated by said superintendent, . . . and shall require said employee at all times to be courteous and polite to its patrons, both upon the premises of the company . . .

"4. This agreement shall be held to grant unto the contractor the privilege, exclusive as against all other and different persons as well as corporations so far as the company may lawfully so contract (a) to bring and stand busses, carriages, motors and other and different vehicles at such place or places, on as well as adjacent to the company's station premises in Coffeyville. . . ."

The defendant's contractor, David Kohler, failed to pay the monthly sums stipulated in the contract, and this action was begun by the railway company for their collection. Defendant answered, admitting the execution of the contract, but set up as his principal defense an ordinance of the city of Coffeyville, which among other matters regulating the standing and running of hacks, carriages and omnibuses in Coffeyville, provided:

"SECTION 3. That the owner, driver, or person in charge of any hack, omnibus or carriage for hire, shall be under the control and direction of the chief of police, or police, while at any railroad depots in said city for the purpose of delivering passengers or baggage and attending trains, and such owners, drivers or persons in charge shall occupy such place and stands at such depots as may be ordered and fixed by the chief of police or police and as may be most convenient for the public. It shall be unlawful for any owner, driver or person in charge of any hack, omnibus, or carriage for hire to willfully disobey any such orders and directions made by the chief of police or the police."

Defendant alleged that pursuant to this ordinance the chief of police had designated certain places upon the company's depot grounds mentioned in the contract to others than himself, thereby depriving him of the exclusive right attempted to be granted to him by the contract, and that the contract was without consideration, and in violation of the said ordinance, against public policy, lacked mutuality, and was void. He further answered that upon several occasions subsequent to the execution of such contract, he had attempted to exercise the rights and privileges granted and was prevented from so doing by the chief of police, and that such prevention operated as a discharge of the contract. He also alleged that certain places had been designated by the agent of the railroad company upon the station grounds where he was permitted to maintain exclusive cab-stand privileges by the railroad company, which places had not been so designated by the chief of police, and that he was forcibly prevented from so exclusively occupying and using such depot grounds by the chief of police.

The other defendants were sureties on Kohler's bond and their answers were to the same effect.

The case was tried upon an agreed statement of facts to which was attached a plat of the depot grounds. The execution of the contract was conceded; also that Kohler had been arrested and fined $ 10 in the police court for standing his cab on the depot grounds as privileged by the contract but at a place not designated by the chief of police, and that no appeal had been taken from the police court judgment. It was also stipulated that the plaintiff had permitted the general public to use its grounds for receiving, discharging and taking up passengers and baggage and had permitted vehicles to be driven thereon by the public. It was further admitted--

"That said defendant Kohler has been denied the exclusive right to occupy said depot grounds by the chief of police of the city of Coffeyville, but such denial on the part of the authorities of the city of Coffeyville was not acquiesced in or agreed to by the plaintiff in this case."

Laying aside for the moment the consideration of the Coffeyville city ordinance and the interference of the chief of police, the contract between the plaintiff and defendant was one to facilitate the transportation of passengers and baggage between the different...