State v. West Side St. Ry. Co.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtWilliams
Citation146 Mo. 155,47 S.W. 959
Decision Date16 November 1898
PartiesSTATE ex rel. CROW, Atty. Gen., v. WEST SIDE ST. RY. CO.
47 S.W. 959
146 Mo. 155
STATE ex rel. CROW, Atty. Gen.,
v.
WEST SIDE ST. RY. CO.
Supreme Court of Missouri.
November 16, 1898.

FRANCHISES — PUBLIC SALE — CONSTRUCTION OF STATUTE — VAGUENESS — IMPOSSIBILITY TO DETERMINE MEANING.

1. Act April 9, 1895, provides that the municipal authorities to whom application may be made for consent to the construction, extension, maintenance, occupation, or use of, inter alia, any street railway or railroad for the transportation of freight, passengers, or mails, must provide, as a condition precedent to the granting of such consent, that the franchise shall be sold at public auction to the responsible bidder who will give the largest percentage yearly of the gross receipts derived from such occupation and use, with adequate security for the payment thereof, and for the prompt construction and completion of the proposed plant, provided that such payment shall in no case be less than 2 per cent. of the gross earnings during the first five years of said occupation and use, and thereafter for each period of five years such percentage shall be increased to correspond with the increase in value of the land thus occupied and used. Held, that the act is void, in that its meaning cannot be determined by any known rules of construction, because, if it means that the company must pay at least 2 per cent. of its gross earnings for the first five years to each municipality over whose streets it may build, and to each county whose highways it may cross, the railway company may in many cases be compelled to pay more than its total receipts.

2. It is also void if it means that the percentage should be computed only on the gross receipts of that part of the road located on the streets of the city or across the highways, as the case may be, because there is no method provided by which the actual gross receipts of that particular part of the road can be ascertained.

3. A continued line of railroad cannot be subdivided so as to permit competition for the privilege of constructing and operating separately the portions thereof lying within the municipalities and across the highways on its route.

4. The act cannot be practically enforced, since, in the case of street railroads, there is nothing to show on what gross earnings the percentage is to be computed, the act evidently contemplating that the bid shall be a percentage only of the receipts derived from the use and occupation of the "public" property, and a portion of the earnings being attributable to the capital invested in power stations, machinery, etc.

5. The percentage is to be increased in "each period of five years to correspond with the increase in the value of the land thus occupied and used," but the act gives no intimation by whom or in what manner this increase is to be settled and determined.

6. If the provision for increased payment for the franchise after five years is meaningless, in the case of street railroads, the proviso is practically eliminated, so that it is highly improbable that the legislature would have passed the act with the clause increasing the percentage in each term of five years omitted.

In banc.

Original proceeding by information in the nature of a quo warranto by the state, on the relation of Edward C. Crow, attorney general, against the West Side Street-Railway Company. Judgment for respondent.

Edw. C. Crow, Atty. Gen., F. N. Judson, Sam B. Jeffries, Asst. Atty. Gen., and H. S. Julian, for information. Karnes, Holmes & Krauthoff, Frank Hagerman, John H. Overall, G. A. Finkelnburg, Henry Hitchcock, R. B. Middlebrook, S. S. Winn, and Clarence Palmer, for respondent.

WILLIAMS, J.


The attorney general has presented to this court an information charging that the respondent is unlawfully usurping the franchises of being a body corporate and politic, under the name of the "West Side Street-Railway Company," and, without legal

47 S.W. 960

warrant therefor, is operating and conducting an electric street railway over and along certain streets in Kansas City, and carrying passengers thereon for hire. A judgment of ouster is prayed.

The respondent, being called upon to show by what authority it is claiming, using, and exercising the rights and privileges above recited, filed an answer, setting out in detail the various steps leading up to its incorporation, under article 8 of chapter 42 of the Revised Statutes of this state, and, as its warrant for constructing and operating said street railway, pleading an ordinance of Kansas City, adopted October 5, 1896, granting it authority so to do. The attorney general demurs to this answer, on the ground that it does not allege that the ordinance relied upon by respondent was enacted in conformity with the act of the general assembly approved April 9, 1895, entitled "An act to secure to each county, city, village and other municipal or public corporation adequate compensation for the occupation or use of its streets or other public lands by private companies, co-partnerships, corporations, or individuals," and because it does not appear from said answer that said franchise was granted in the manner required by the above-mentioned act.

The first section of the act referred to is as follows:

"Section 1. The public authorities of every county, city, village, or other municipal or public corporation, to whom application may be made by any private company, co-partnership, corporation, individual or individuals for consent to the construction, extension, maintenance, occupation or use of any electric lighting plant, or plant for generating, transmission, sale, or use of electricity, gas lighting plant, street railway, or railroad for the transportation of either freight, passenger, or mails, telephone or telegraph plant, or plant for supplying water, above, across, along, beneath or through any highway, road, avenue, alley, park, square, street or other public lands, must provide, as a condition precedent to the granting of such consent, that the franchise, privilege and right-of-way for such occupation and use of any such public places for any such private purposes, shall be sold at public auction to the responsible bidder who will give the largest percentage yearly of the gross receipts derived from such occupation and use, with adequate security, as hereinafter provided, for the payment thereof and for the prompt construction and completion of the proposed plant: provided, that such payment shall in no case be less than two per cent. of the gross earnings during the first five years of said occupation and use and thereafter, for each period of five years, such percentage shall be increased to correspond with the increase in value of the land thus occupied and used."

The respondent makes no claim that the procedure pointed out in the section just quoted was pursued by the city authorities, or that the franchise conferred upon it was offered at public auction to the bidder who would pay the largest percentage of the gross receipts, as therein required. Upon the contrary, it is confidently asserted that this act of the legislature is of no force or effect, and that the city was not deprived by it of the power to grant, upon terms satisfactory to itself, the right to construct and operate street railways within its boundaries.

It is not, nor can it be, disputed that Kansas City, under its charter, had full power, unless restrained by the act above copied, to pass the ordinance relied upon in the answer, and to authorize the use of its streets for respondent's electric street railway, and to fix the terms upon which the city would give its consent for this to be done. The ordinance, in the absence of a valid and controlling statute to the contrary, is an all-sufficient warrant for the exercise by respondent of the franchise referred to in the information, so far, at least, as the use of the streets is concerned. In other words, the city had the power, under its charter, to pass the...

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55 practice notes
  • State v. Bixman
    • United States
    • United States State Supreme Court of Missouri
    • March 5, 1901
    ...an inspection of the mash, or of the beer while fermenting or while in the vats. In the case of State v. West Side St. Ry. Co., 146 Mo. 155, 47 S. W. 959, an act not nearly so imperfect as the one under consideration was held to be invalid for uncertainty, and that courts cannot supply or r......
  • Mississippi River Fuel Corp. v. Smith, No. 37831.
    • United States
    • United States State Supreme Court of Missouri
    • April 1, 1942
    ...seek out the meaning the Legislature intended the words to convey. Graves v. Purcell, 337 Mo. 574; State ex inf. Crow v. Street Ry. Co., 146 Mo. 155; Diemer v. Weiss, 343 Mo. 626; Decker v. Diemer, 229 Mo. 296. (e) A statute cannot be held void for uncertainty if any reasonable and practica......
  • Newman v. Watkins, No. 171.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • November 1, 1935
    ...266 111. 459, 107 N. E. 902, Ann. Cas. 1916B, 586; People v. Briggs, 193 N. Y. 457, 86 N. E. 522; State v. West Side Street Ry. Co, 146 Mo. 155, 47 S. W. 959. The general rule is well stated in 25 R. C. L. 810: "When an act of the Legislature is so vague, indefinite and uncertain that ......
  • State v. Armstrong., No. 2947.
    • United States
    • New Mexico Supreme Court of New Mexico
    • December 31, 1924
    ...force and effect to, every enactment of the General Assembly not obnoxious to constitional prohibitions.” State v. West Side Str. Ry. Co., 146 Mo. 155, 47 S. W. 959, quoted with approval in 1 Lewis' Suth. Stat. Constr. (2d Ed.) § 86. See, also, 25 R. C. L. 810, § 62, where it is said: “Wher......
  • Request a trial to view additional results
55 cases
  • State v. Bixman
    • United States
    • United States State Supreme Court of Missouri
    • March 5, 1901
    ...an inspection of the mash, or of the beer while fermenting or while in the vats. In the case of State v. West Side St. Ry. Co., 146 Mo. 155, 47 S. W. 959, an act not nearly so imperfect as the one under consideration was held to be invalid for uncertainty, and that courts cannot supply or r......
  • Mississippi River Fuel Corp. v. Smith, No. 37831.
    • United States
    • United States State Supreme Court of Missouri
    • April 1, 1942
    ...seek out the meaning the Legislature intended the words to convey. Graves v. Purcell, 337 Mo. 574; State ex inf. Crow v. Street Ry. Co., 146 Mo. 155; Diemer v. Weiss, 343 Mo. 626; Decker v. Diemer, 229 Mo. 296. (e) A statute cannot be held void for uncertainty if any reasonable and practica......
  • Newman v. Watkins, No. 171.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • November 1, 1935
    ...266 111. 459, 107 N. E. 902, Ann. Cas. 1916B, 586; People v. Briggs, 193 N. Y. 457, 86 N. E. 522; State v. West Side Street Ry. Co, 146 Mo. 155, 47 S. W. 959. The general rule is well stated in 25 R. C. L. 810: "When an act of the Legislature is so vague, indefinite and uncertain that ......
  • State v. Armstrong., No. 2947.
    • United States
    • New Mexico Supreme Court of New Mexico
    • December 31, 1924
    ...force and effect to, every enactment of the General Assembly not obnoxious to constitional prohibitions.” State v. West Side Str. Ry. Co., 146 Mo. 155, 47 S. W. 959, quoted with approval in 1 Lewis' Suth. Stat. Constr. (2d Ed.) § 86. See, also, 25 R. C. L. 810, § 62, where it is said: “Wher......
  • Request a trial to view additional results

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