State v. East Fifth St. Ry. Co.

• Decision Date: 06 July 1897
• Citation: 140 Mo. 539,41 S.W. 955
• Parties: STATE ex rel. KANSAS CITY v. EAST FIFTH ST. RY. CO. et al.
• Court: Missouri Supreme Court

41 S.W. 955

140 Mo. 539

STATE ex rel. KANSAS CITY v. EAST FIFTH ST. RY. CO. et al.

Supreme Court of Missouri, Division No. 2.

July 6, 1897.

STREET RAILROADS — FRANCHISES — FORFEITURE — PROCEEDINGS TO ENFORCE — NONUSER — EXCUSE — CONTRACT AGAINST FORFEITURE — VALIDITY — WAIVER OF FORFEITURE.

1. The privilege of laying its tracks on designated streets, to run cars thereon, and to receive fares, are franchises of a street-railroad company, though derived directly from the city under ordinances passed under the grant of power contained in the city charter.

2. The fact that such franchises are, in a sense, contractual in nature, is not a barrier to a proceeding by the state by quo warranto on the relation of the city to oust the company of its franchises, though there is an ordinance provision that, in case of default by the company, a forfeiture of its franchises may be had by proceeding instituted by the city in its own name.

3. A proceeding in equity is not the proper remedy to enforce the forfeiture of a franchise.

4. There is such a nonuser of its franchises as warrants a judgment of forfeiture where a street-railway company, required by ordinance to run its cars 16 hours every day, totally neglects its duty, and runs no cars for 3 years.

5. Such nonuser is not excused by the fact that the city prevented the company from laying a small portion of its track, where, had it not interfered, the road could not have been operated without acquiring a right to use a portion of another company's track, and this could not be acquired.

6. The nonuser was not excused by the fact that the city had passed an ordinance attempting to repeal the franchises granted to the company.

7. A city cannot contract with a street-railroad company, by ordinance or otherwise, that nonuser of its tracks for a specified period shall not operate as a forfeiture of its franchises.

8. Nor can the city take away the state's right to proceed by quo warranto for ouster of the company's franchises on the ground of forfeiture, by providing by ordinance that if proceedings by the city are not begun within six months after a forfeiture has accrued, the city shall be deemed to waive the effect of such forfeiture.

Appeal from circuit court, Jackson county; J. H. Slover, Judge.

Quo warranto at the relation of Kansas City against the East Fifth Street Railway Company and others. From a judgment in favor of relator, defendants appeal. Affirmed.

Johnson & Lucas, for appellants. H. C. McDougal and C. O. Tichenor, for respondent.

BURGESS, J.

This is a proceeding by the state at the relation of Kansas City, Mo., by Marcy K. Brown, prosecuting attorney of Jackson county, Mo., by quo warranto to oust defendants of their corporate franchises granted to them by said city by ordinances to construct, maintain, and operate a street railway on certain streets in said city upon the ground of their failure to comply with said ordinance, and the consequent forfeiture of their franchise rights under said ordinance. The petition alleges: That the relator was, on the 9th day of May, 1889, and ever since has been, a municipal corporation under the laws of the state of Missouri, having full power and control over its streets. That defendants are corporations under the laws of this state, except defendant Thornton, who is trustee in a deed of trust executed by the East Fifth Street Railway Company on the 1st day of November, 1890, on the franchises hereinafter described. That by certain ordinances passed by said city the right was given, and accepted by said defendant railway company, to construct, maintain, and operate a street railway on certain of its streets. That by reason of said ordinances the defendant railway company claims the right to maintain and operate a street railway over certain streets named in said ordinance, and had in fact laid its tracks on said streets; but that said railway company had failed for 18 months prior to November 12, 1892, to run cars over said streets, and had never complied with the provisions of said ordinances, although notice was given by relator to said company to run cars over said streets, but that it refused, and still refuses, so to do. That said railway company has failed and neglected for more than 18 months prior to November 12, 1892, to keep in repair its tracks and roadbed, and permitted its tracks to become a nuisance, and has abandoned the rights granted in said ordinances. The answer admits the acceptance of the ordinances by the railway company, and alleges that said ordinances constitute valid and subsisting contracts between said city and defendant railway company. The answer also admits that defendant railway company and defendant trust company are now, and were during the dates mentioned in said information, corporations organized under the laws of the state of Missouri, and that the deed of trust mentioned in the information has not been released or satisfied, and that defendants, by reason of said ordinances, claim the right to run, maintain, and operate a street railway over the streets named in said ordinances. It then alleges that section 17 of ordinance No. 42,389 requires an action for forfeiture to be brought within six months after cause of forfeiture has arisen, and that causes are alleged in the information to have arisen 18 months prior to the filing of the information; that defendant railway company was unlawfully prevented by the police of the city of Kansas from constructing its railway on Fifth street from Grand avenue to Main street, and was harassed by litigation, whereby its credit was impaired, and its financial operations so embarrassed that it was unable to procure funds necessary to complete its railway, and was compelled to mortgage the same in its uncompleted condition to pay the loss sustained by reason of the acts of the city of Kansas, and to cease, temporarily, the operation of its cars, but intends to resume such operation at the earliest moment the financial condition of the public and itself will permit. It appears from the record that in December, 1881, by an ordinance of Kansas City, a franchise was granted to certain persons named in said ordinance, to construct and operate a street railway on certain streets in that city. The franchise was to continue for 20 years. The company was to keep the tracks in repair, and the spaces between the tracks and for 18 inches on the outside well paved. Cars were to be regularly run for not less than 16 hours per day "during each and every day of the entire year." With the consent of the grantees of the franchise, a subsequent order was passed, whereby the franchise was extended for 30 years from September 1, 1885, and the starting point fixed at Fifth street and Grand avenue, instead of Fifth and Main streets. In June, 1888, another ordinance was passed by said city, which recites in its preamble the following: "Whereas, the East Fifth Street Railway Company is the successor and owner of all franchises and ordinances above granted." This ordinance then, among other things, regulates the paving of spaces between the tracks, and the keeping of them in good condition and repair. Section 12 of this ordinance provides for the equipment of the road, and the running of the cars, and gave defendant the right to collect a fare of five cents for each passenger. By a still later ordinance, passed also in June, 1888, defendant was granted a franchise to extend its road to the eastern limits of the city. It had the right to operate its cars on this portion of its route by endless cable or noiseless steam power, with smokeless fuel. Section 17 of this ordinance reads as follows: "If the said railway company shall at any time fail, neglect, or refuse to obey and comply with any one of the provisions of this ordinance, then said company shall forfeit all rights, powers, and privileges by this ordinance granted and conferred, and this ordinance shall be null and void. Such forfeiture and such annulling of this ordinance may be had by proceedings instituted by the city of Kansas, in its own name, and against said company, in a court of record in Jackson county, Mo.; and on proof of such failure, neglect, or refusal on the part of the said company; provided, that if any such proceedings be not commenced within six months after such failure, refusal, or neglect of said company to comply with any one of the provisions of this ordinance, then as to such failure, refusal, or neglect the city shall be deemed to waive the effect thereof under this section of this ordinance." From the date of the original ordinance — December, 1881 — to the time of the trial in the court below, the road was only operated for two or three months, and then by electric cars. The company then suspended operating the road from 18 months to 2 years, after which they ran some steam cars from 1½ to 2 years. For about 3 years before the time of the trial of this cause, they ran no cars at all, and did nothing towards the operation of the road. Some time prior to the bringing of this proceeding, they sold their cars to some company in Texas, and paid the proceeds upon a mortgage upon the road, upon which was due about $110,000. The company is insolvent, but some of its officers testified that they expect to run it again. They seemed to have no idea when the company will operate the road again. The evidence on the part of defendant railway company showed that defendant was prevented by the Kansas City police force from laying its tracks on Fifth street between Grand Avenue and Main street; that the company was harassed by litigation by the city and property owners, which greatly depreciated the value of its property. It also tended to show that said company had not abandoned its rights under said ordinances. No notice was ever given by Kansas City to defendant railway company to run its cars. Nor was the information filed for more than six months after the alleged grounds for...