St. Louis & M. R. R. Co. v. City of Kirkwood

• Decision Date: 18 December 1900
• Citation: 60 S.W. 110,159 Mo. 239
• Parties: ST. LOUIS & M. R. R. CO. v. CITY OF KIRKWOOD.
• Court: Missouri Supreme Court

60 S.W. 110

159 Mo. 239

ST. LOUIS & M. R. R. CO. v. CITY OF KIRKWOOD.

Supreme Court of Missouri.

December 18, 1900.

STREET RAILROADS—FRANCHISES—CONTROL OF CITY—CARRIAGE OF FREIGHT—ORDINANCE —REASONABLENESS.

1. Const. 1875, art. 12, § 20, prohibits the construction and operation of a street railway within any city or town without the consent of the local authorities. A corporation was organized for the purpose of operating a railroad for the conveyance of passengers and property, as authorized by Rev. St. 1889, c. 42, art. 2, which also provided that it did not authorize the use of the streets of cities and towns without the consent of the local authorities. The corporation obtained a franchise from an incorporated town to construct and operate an electric road on its streets for the carriage of passengers. Thereafter the company commenced to operate freight cars on its line, and the city passed an ordinance making it a misdemeanor for any railroad corporation to operate cars not authorized by its franchise. Held, that the ordinance was not invalid, as prohibiting the carriage of freight by the company, on the ground that the condition of the franchise limiting it to the carriage of passengers was invalid, as a limitation of the powers conferred on the corporation by the state, since the town could place such conditions on the use of its streets as it deemed proper.

2. A city ordinance making it a misdemeanor for any corporation to operate any car on its lines which is not authorized by its franchise, and prescribing a fine of not more than $100 nor less than $95 for a violation thereof, is not void for unreasonableness, when it is passed after a corporation has been notified that it is violating its franchise, since the operation of a railroad without authority is a nuisance.

In banc. Appeal from circuit court, St. Louis county; Rudolph Hirzel, Judge.

Injunction by the St. Louis & Meramec River Railroad Company against the city of Kirkwood. From a decree in favor of plaintiff, defendant appeals. Reversed.

Geo. L. Edwards, for appellant. Dawson & Garvin, for respondent.

GANTT, C. J.

This is a suit by the plaintiff to enjoin the city of Kirkwood and its officers from harassing it by a multiplicity of prosecutions for the violation of an ordinance of said city known as "Ordinance No. 31," which prohibits any corporation from running or operating any street-railroad car or cars upon or over any route in the city of Kirkwood not authorized by the franchise granted to said corporation by the town or city of Kirkwood and making a violation thereof a misdemeanor punishable by a fine not less than $95 nor more than $100, or by imprisonment in the city prison for not less than two months nor more than three months, or by both such fine and imprisonment. The defendant city was duly served and answered, and upon trial in the circuit court of St. Louis county a perpetual injunction was granted, from which judgment the city has appealed to this court. The appeal is brought to this court because the constitutionality of the ordinance mentioned is challenged.

Plaintiff's petition charges that it is a railroad corporation duly organized and existing under and by virtue of the provisions of article 2 of chapter 42 of the Revised Statutes of Missouri of 1889, for the purpose of constructing, maintaining, and operating a railroad in the city and county of St. Louis for public use in the conveyance of persons and property from a point within the said city, thence in a general southwestwardly direction through or near the villages and towns of Old Orchard, Kirkwood, etc.; that it has constructed, and is now and for some time past has been operating, its said railroad; that a portion of its line of railroad lies within the limits of the city of Kirkwood; that it is authorized to convey persons and property over its said railroad, and to receive compensation therefor; that, before constructing its said railroad within limits of the said city of Kirkwood, it obtained the assent of said town to said construction, expressed by an ordinance of said town duly enacted May 21, 1897, and numbered 238, and thereafter amended by other ordinances of said city; that neither of said ordinances contains any provisions against the carrying of mails or express matter or light freights, or freights of any character; that plaintiff has never operated its said railroad within the city of Kirkwood for any purpose other or different from the purpose for which it has operated its entire line of railroad, and has never transported on its cars any other or different kind of property than that transported by it throughout the entire length of its said railroad; that its said railroad is a post route, and it is engaged in carrying the United States mails thereon, and for some time past has been, from the city of St. Louis, and to and from the town of Kirkwood; that its said railroad is a public highway, and plaintiff a common carrier; that, at the time of the enactment of the ordinances assenting to the construction of plaintiff's railroad, the town of Kirkwood was organized under special acts of the legislature of the state of Missouri, in the petition referred to; that subsequently, and in 1899, said town became incorporated under the general laws of Missouri as a city of the fourth class; that thereafter, and on, to wit, the 20th day of November, 1899, the said defendant, arbitrarily and without any lawful authority so to do, and with the intent to harass and injure the plaintiff, and to interfere with the plaintiff in the lawful conduct of its business as a common carrier, and to deprive the plaintiff of the exercise and enjoyment of the franchises granted to it as aforesaid, passed a certain resolution, in said petition set out, requiring the plaintiff to cease running and operating over its road in the city of Kirkwood cars carrying freight, express, baggage, or mail, a copy of which said resolution was delivered to the plaintiff; that thereafter, for the purposes aforesaid, and on the 11th day of December, 1899, the said defendant enacted Ordinance No. 31, in said petition set out, whereby it is provided that "no corporation, company, copartnership, person or persons shall run, operate, use, or drive, or cause to be run, operated, used or driven, in the city of Kirkwood, Missouri, any street railroad car or cars, or other kind of railroad car or cars upon or over any route, or for any purpose or use whatever, not authorized by the franchise granted to said corporation, company, copartnership, person or persons by the town or city of Kirkwood, Missouri" (said ordinance provides a penalty for doing the prohibited acts), and that a copy of this ordinance was also delivered to defendant; that thereafter, and on the 19th and 22d days of December, 1899, the said defendant, still persevering in its said purposes aforesaid, caused to be filed with its police judge complaints against one Thomas M. Jenkins, the general manager of plaintiff, for violating said ordinance, upon which warrants were issued, and said Thomas M. Jenkins arrested and brought before the police judge of defendant to answer to said complaints, copies of which said complaints and warrants are set out in the petition; that, though requested, defendant refused to forego further prosecution of plaintiff's said general manager for violating said Ordinance No. 31 until the validity of the same might be tested in the courts, but threatened to continue the same. Plaintiff's petition then proceeds to charge that, for a great number of reasons therein enumerated, said Ordinance No. 31 is null and void and of no effect, and concludes as follows: "That if the defendant is permitted to continue the prosecutions already commenced against the plaintiff as aforesaid, and is permitted to carry out its threats to institute similar prosecutions against plaintiff from time to time and from day to day, and is permitted to prevent plaintiff from the performance of its public duties as a common carrier, and to prevent the plaintiff from the exercise and enjoyment of its franchises as aforesaid, it will occasion the plaintiff great and irreparable damage for which the plaintiff has no adequate remedy at law." Wherefore the plaintiff prays the court to decree said Ordinance No. 31 "illegal, null, and void, as against the plaintiff," and in the meantime to enjoin the defendant, its officers and agents and servants, from further prosecuting the actions already commenced against plaintiff as aforesaid, and from instituting or causing to be instituted any further actions against plaintiff, its officers, agents, or servants, for alleged violations of said Ordinance No. 31, or in any way interfering with the plaintiff in the discharge of its duties as a common carrier or in the exercise or enjoyment of its said franchise aforesaid, and for such further and other relief as to the court shall seem meet. In pursuance to the prayer of plaintiff's petition the judge of the circuit court of St. Louis county on the 26th day of December, 1899, in vacation of said court, and at chambers, issued a temporary injunction or restraining order against defendant, its officers, agents, and servants, prohibiting them from doing the acts complained of. The answer of defendant to plaintiff's petition is a general denial. After filing said answer, defendant filed a motion to dissolve said temporary injunction as aforesaid issued against it, assigning as reasons therefor that plaintiff's petition does not state facts sufficient to constitute a cause of action, or which warrant any equitable or other relief, and because the facts stated in plaintiff's petition are untrue.

The facts developed by the evidence in this case are few, and in the main uncontradicted. They are substantially as follows:

On the 31st day of May, 1895, plaintiff was duly organized "under and by virtue of the provisions of article 2, c. 42, of the...