State ex rel. City of Kansas v. Corrigan Consol. St. Ry. Co.

• Decision Date: 31 October 1884
• Citation: 85 Mo. 263
• Parties: THE STATE ex rel. THE CITY OF KANSAS v. THE CORRIGAN CONSOLIDATED STREET RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

85 Mo. 263

THE STATE ex rel. THE CITY OF KANSAS

v.THE CORRIGAN CONSOLIDATED STREET RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Jackson Circuit Court.

REVERSED.

John C. Tarsney for appellant.

(1) Mandamus is not the proper remedy in this case, even if the City of Kansas has the right to require appellant to pave its street as claimed by it. State ex rel. v. McAuliffe, 48 Mo. 113; Mansfield v. Fuller, 50 Mo. 338; State, etc., v. Bank, 76 Mo. 370; State, etc., v. Ry., 43 N. J. 505; State ex rel. v. Newark, 6 Vroom 396; State ex rel., etc., v. Township of Union, 8 Vroom 84; Queen v. Hull, etc., Ry., 6 Q. B. 70; State ex rel. v. Ry., 14 Vroom 524; 2 Dillon Mun. Corp., secs. 665 and 686; Moses on Mandamus. (2) Under the provisions of the charter of Kansas City and the ordinance of March 27, 1869, under which appellant is operating its road on the street of the city, there was no obligation on its part to pave any portion of the street in any manner. The delegation of power by the legislature to a municipal corporation to authorize the laying down of street railroad tracks in the streets need not be in express terms, but may be implied or inferred. Dillon on Mun. Corp., secs. 550, 558, 538, and 578; 58 Ia. 153; City of St. Louis v. Boffinger, 19 Mo. 15; Taylor v. City of Carondelet, 21 Mo. 110; Gray v. Crockett, 31 Kan. ____; B. & H. FerryCo. v. Daviess, 58 Ia. 133. (3) Neither the legislature nor the common council of Kansas City, could, by any law or ordinance enacted or passed subsequently to the granting of the right of way to appellant's grantor by the ordidance of March 27, 1869, and the acceptance of the same, change the terms of said grant so as to impose on appellant the obligation of paving its street, such obligation not being made a condition of such grant. St. Louis v. Ry., 13 Mo. App. 524; New York v. Ry., 32 N. Y. 261; New York v. Ry., 33 N. Y. 42. An obligation to keep in repair a street is not one to lay down or construct thereon an entirely new pavement. District, etc., v. Ry., 4 Am. and Eng. Railroad Cases, 174; Baltimore v. Scharf, 54 Md. 499; Sheldon v. Chicago, 9 Wallace 50. (4) Nowhere, in the ordinance of June 29, 1880, is it made the duty of any officer, servant, or employe of the railroad company to pave the street, nor is it made the duty of the company to so pave. By the ordinance of May, 1884, the duty of paving the streets is attempted to be imposed upon the railroad companies, but the information in this cause is not drawn under this last ordinance, but charges an offence in violation of the ordinance of June 29, 1880. It would seem that a mere statement of facts would be sufficient as showing that a conviction in this cause cannot be sustained.

Wash Adams, John J. Campbell and R. H. Field for respondent.

(1) The evidence wholly fails to show that any franchise of the horse or street railway company was amended, or in any manner interfered with by the ordidances of 1880 and 1884. The ordinance of 1869 is certainly not a franchise. While the franchises of a corporation may be called a contract, every contract of a corporation is not a franchise. A franchise is some privilege or right created and granted by the state, and by no other person. People's Ry. v. Memphis Ry.,10 Wall. 51, and cases there cited. (2) Nor does appellant show that the obligation of any contract has been impaired by the ordinances of 1880 and 1884. The ordinance of March 27, 1869, was not a contract, because the city authorities had not then the power to make or pass the same to have that effect. Dillon on Mun. Corp. (3 Ed.) secs. 715, 716, 685; People's Ry. v. Memphis, etc., 10 Wall. 50; Kreigh v. City of Chicago, 86 Ill. 407; Hoboken, etc., v. Mayor, etc., 36 N. J. Law 540; Norfolk v. Chamberlaine, 29 Gratt. 534; Pettis v. Johnson, 56 Ind. 139; 76 N. Y. 108; Gozzler v. Georgetown, 6 Wheat. 597; Matthews v. Alexandria, 68 Mo. 115. Of course the obligations of a valid contract cannot be impaired by a mere license (which was all that the council had power in 1869 to grant). Hence, the argument and authorities of appellant against the right to impair the obligations of a contract are irrelevant and unimportant in this case. Metropolitan Board v. Barrie, 34 N. Y. 657; Columbus v. Catcump, 61 Ia. 672; Freleigh v. State, 8 Ia. 606; Cooley's Const. Lim. (5 Ed.) 343. (3) But if the ordinance of 1869 had been then expressly authorized, and, therefore, a contract and not a mere license, section four of that ordinance here relied upon by appellant must be held void if it means, or was intended to mean what appellant claims it means, because that would be a surrender of the police power of the state, which, not only the council, but the legislature of the state itself, could not do. Cooley's Const. Lim., side page 283; State v. Matthews, 44 Mo. 523; Moore v. State, 48 Miss. 147; Butchers' Union Co. v. Crescent City Co., 111 U. S. 746, and cases cited; Cooley on Const. Lim. (5 Ed.) top page 710. The ordinances under which these proceedings are prosecuted are expressly authorized by the legislature and are police regulations. As another ordinance shows the street railroad companies are given the perferred, and if necessary, the exclusive use of that part of the street occupied by them for the running of their cars. This space is all of the street that they are required to pave. Compulsory pavement of that much is clearly within the police power, because of the peculiar interest and situation of the street railroad company in and to that part of the street, and the special benefit it derived therefrom. Desty on Taxation, 1364, 1376, 1374, et seq.; Macon v. Patty, 57 Miss. 378-408; Cooley on Taxation, 398, 399, 400, 401, and 402; Dillon Mun. Corp. (3 Ed.) sec. 394; North Chicago Co. v. Lake View, 105 Ill. 183; Union Ry. Co. v. Mayor, etc., of Cambridge, 11 Allen 287; Cooley on Const. Lim. (5 Ed.) top page 710; Thorpe v. Ry. Co., 27 Vt. 140; People v. Ry., 70 N. Y. 569; Frankford v. City of Philadelphia,58 Pa. St. 119; Johnson v. Philadelphia,60 Pa. St. 445; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365. (4) The ordinance of 1869 does not purport to exempt appellant from the duty of paving the portion of the street occupied by it, and even if it did create such exemption, it does not fully appear that its assignee could take advantage of it. Morgan v. Louisiana, 93 U. S. 217; Stewart v. Jones, 40 Mo. 141. (5) The ordinance of 1880 and that of 1884 certainly made it the duty of the Corrigan Consolidated Street Railway Company to pave the space between its tracks and eighteen inches on the outside thereof as the balance of the roadway was paved. These ordinances, being expressly authorized in the charter, have the same force, dignity, and effect as if they were statutes enacted by the legislature of the state. Dillon on Mun. Corp. (3 Ed.) sec. 308; Taylor v. Carondelet, 22 Mo. 105, 106. And with such power from the legislature to pass such ordinances, the courts are not at liberty to inquire into their reasonableness. Dillon on Mun. Corp. (3 Ed.) sec. 328. (6) The duty of the street railway company to pave as aforesaid can be enforced by mandamus. Rex v. Ry. Co., 2 Barn. & Ald. 646; State v. Ry. Co., 37 Conn. 154; People ex rel. Kimball v. B. & A. Ry. Co., 70 N. Y. 569; People v. Ry. Co., 76 N. Y. 294; People v. D. & C. Ry. Co., 58 N. Y. 153; Rorer on Railroads, 617; 63 Me. 269. (7) And the provision of the ordinance imposing a fine upon the officers and agents of any street railroad company for operating such railroad, when the space between the rails and eighteen inches on the outside thereof are not paved, as the balance of the street is paved, is a valid provision and enforceable by prosecution. Goddard, Petitioner, 16 Pickering 504; North Chicago City Ry Co. v. Lake View, 105 Ill. 183; Ex Parte Hollwedell, 74 Mo. 395; St. Louis v. Steinberg, 69 Mo. 289; City of Kansas v. Flanders, 71 Mo. 284; Charter of Kansas City, Laws 1875, page 209, sec. 8; also page 207, Id., paragraph thirty-third; also, page 208, Id., paragraph thirty-ninth.

George W. McCrary also for respondent.

(1) The common council of Kansas City had, in 1869, no power to enter into an irrevocable contract, binding for twenty years, and granting to a street railway company a vested right to operate a street railway in the streets of the city. Dillon on Mun. Corp., secs. 715, 716, and 717; Davis v. The Mayor, etc., 14 N. Y. 506; People v. Ry., 10 Wall. 38. (2) The power of Kansas City to contract for the construction and operation of horse railways in the streets, even if conceded, does not include the power to alienate the control of the streets, and of street improvement vested in the council by the charter. Cooley's Const. Lim. 251; East Hartford v. Bridge Co., 10 How. (U. S.) 511; Brick Pres. Church v. City of New York, 5 Cow. 538; Milhan v. Sharp, 17 Barb. 435; Canal Co. v. St. Louis, 2 Dillon 87; Fertilizing Co. v. Hyde Park, 97 U. S. 659; Slaughter House Cases, 30 Alb. L. J. 152. (3) If it were conceded that the ordinance of 1869, by reason of its amendments, falls under the provisions of the charter of 1870, then it follows that the grant is subject to the power of the common council to regulate and control the street railway and the use thereof. (4) The ordinance of 1869, so far from exempting the street railway company from obeying the ordinances of 1880 and 1884, respecting paving between the rails, etc., by its terms requires such obedience. (5) Even if section four of the ordinance of 1869 be considered as amounting to a contract, it does not by its terms exempt the street railway from the duty of paving as required by the ordinances of 1880 and 1884. (6) The ordinances of 1880 and 1884 are a proper exercise of the police power of the city. Cooley's Const. Lim. 706; Commonwealth v. Alger, 7 Cush. 53; Thorp v. Ry. Co., 27 Vt. 140; Macon v. Latty, 57 Miss. 378; Beer Co. v. Mass., 97 U. S. 33; Benson v. Mayor,...