THIS is
an original proceeding in the nature of quo warranto, brought
in the name of the state by the attorney general, questioning
the right of the Union Terminal Railway Company and the other
defendants to use and enjoy the powers, privileges and
franchises of a railway corporation, and for an ouster from
the exercise of such powers, privileges, and franchises. In
his petition, the attorney general alleges that
"1.
On December 29, 1891, the defendants, Edward L. Martin
Arthur E. Stilwell, Arthur A. Mosher, and James H. Pickering
of Kansas City, Mo., and Omar D. Hall, Wm. Thompson, and J
Jay Spencer, of Kansas City, Kan., associated themselves
together with a view of filing a charter and forming a
corporation under the laws of the state of Kansas, and on
said day they caused to be filed in the office of the
secretary of state of the state of Kansas an instrument
intended as a charter, in which they named as directors for
the first year themselves, and also Edward P. Merwin, of New
York city, and William S. Taylor, then of Philadelphia, Pa
but now of Kansas City, Mo., and the name of the proposed
corporation was therein stated to be 'The Union Terminal
Railroad Company,' with an authorized capital stock of $
2,000,000, divided into shares of $ 100 each, and its
declared purpose was as follows, to wit: 'This company is
formed to acquire by purchase or lease, or to construct,
maintain, and operate, a standard-gauge railroad for the
transportation of persons and property, by the use of steam
or other motive power, from a point on the north side of the
Kansas river opposite the city of Argentine, in the county of
Wyandotte, in the state of Kansas, in a northwesterly
direction, by the most convenient and practicable route, to a
point at or near the Missouri river; thence along and down
the valley of the Missouri, and up the valley of the Kansas
river, to the place of beginning; so as to substantially
encircle the city of Kansas City, Kan., in said county of
Wyandotte. Also, to acquire, by purchase or lease, or to
construct, maintain and operate such branch or branches, or
spur or spurs, as may be necessary for the business of said
company, to enable it to make connection with the
Consolidated Terminal Railway Company, now constructing a
road in the state of Missouri, at or near the state line
between Missouri and Kansas, where said Consolidated Terminal
railway intersects the state line, at or near the confluence
of the Kansas and Missouri rivers; or with any other railroad
or roads with which it may desire to connect. The main line
of the company's road will be about 22 miles in length,
and the main spur will run from a point at or near where the
Consolidated Terminal railway intersects the state line, up
the valley of the Missouri and Kansas, to a point where Ohio
avenue (old Second street) extended would intersect the
river; thence across the Kansas river, and by the shortest
and most practicable route, to this company's main
line.' The route of said proposed road was not defined
otherwise than as above shown, and the places from and to
which the road was intended to be run were not named, and
they did not and do not appear, unless it be by the
designation of a circle around a single city and a spur
therefrom to the state line.
"2.
Soon after the filing of said instrument, the defendant
Edward L. Martin was, in some manner to the relator unknown,
designated as president, and the said William S. Taylor in
like manner as secretary, and they have ever since assumed to
act as such.
"3.
Although the declared purpose of the proposed corporation was
to build a circular railroad around Kansas City, Kan., yet
such was not and is not the real purpose of the defendants;
but the said Edward L. Martin and William S. Taylor were and
are president and secretary, respectively, of the
Consolidated Terminal Railway Company, a Missouri
corporation, and the said Edward L. Martin was and is
president of the Kansas City Suburban Belt Railway Company, a
Missouri corporation; both of said Missouri corporations
being managed by the persons named as defendants as one
interest, owning railroad tracks not exceeding 12 miles in
length and partly encircling Kansas City, Mo., which is
contiguous to Kansas City, Kan.; and said Missouri
corporations desired and intended only to build a spur from
the proposed end of their track at the state line, westerly a
short distance in the direction of Argentine, Kan., about
five miles from said starting point, to be used in connection
with said tracks in Missouri, and for that purpose the
persons named as defendants caused said instrument called a
charter to be filed in the office of the secretary of state
of the state of Kansas.
"4.
The said Missouri corporations were organized for the purpose
of doing a general switching and transfer business in
car-load lots from one railroad to another, at Kansas City,
Mo., and transferring cars from elevators and other
industries to railroad companies for transportation, and in
delivering cars for railroad companies received on their
respective lines to such elevators and industries, and for
the purpose of leasing certain parts of their tracks to
railroad companies for terminal facilities, and said Missouri
corporations are doing such business exclusively, all
compensation for such switching business being paid by the
several railroad companies employing them; and said Missouri
corporations, although they have been transacting business
for several years, have no route, nor tracks, nor stations,
nor depots, nor rolling stock, nor facilities for transacting
the usual and ordinary business of a railroad corporation as
a common carrier in transporting passengers and property from
place to place, nor for transporting property for all persons
indifferently, in quantities great or small, at certain rates
based upon tonnage and distance; and said Missouri
corporations are not adapted nor intended for carrying on
such usual and ordinary business of railroad corporations,
but only for doing a switching business for railroad
companies, at certain rates per car as a switching charge,
and for leasing certain parts of their tracks to railroad
companies for terminal facilities; and the railroad track
proposed by said so-called 'Union Terminal Railroad
Company' was and is intended to form a part of said
Missouri system for switching and terminals, and for no other
purpose, and if such track shall be completed, it will be
adapted to no other use or purpose.
"5.
The said The Union Terminal Railroad Company is not a
duly-chartered and organized railway corporation, and,
although stock has been issued for the full amount named in
said instrument called a charter, yet no share thereof has
ever been legitimately issued nor paid for, but the same has
been donated to certain persons and corporations expected to
take first-mortgage bonds, which have already been issued to
the amount of $ 2,000,000 on the proposed railroad, although
such bonds have not been paid for; and the association of
such persons named as defendants, and the said proposed
corporation as a railway corporation, were and are
unauthorized by law, and the organization of said persons as
a railway corporation is fraudulent and void.
"6.
Notwithstanding the foregoing facts, said persons named as
defendants, without being legally incorporated, have acted
within the county of Wyandotte and state of Kansas as a
railway corporation, under the name of 'The Union
Terminal Railroad Company' aforesaid, and under that name
have usurped and assumed to and are exercising the power of
eminent domain by the condemnation of real property in
Wyandotte county for a right-of-way for a proposed railroad
track, and by the crossing in Kansas of rights-of-way and
tracks of railroad corporations, although said power has not
been conferred by law upon said persons nor upon the said
pretended railway corporation designated as 'The Union
Terminal Railroad Company.'"
The
prayer of the petition is, that the defendants be required to
answer
"By
what warrant they claim to have, use and enjoy the powers,
liberties, privileges and franchises of a railway
corporation, and especially the transcendent power of eminent
domain, and that they be forever ousted from the exercise of
such usurped powers, liberties, privileges, and franchises,
and for such other relief as may be proper in the
premises."
