The City of Olathe v. The Missouri and Kansas Interurban Railway Company

• Decision Date: 09 May 1908
• Docket Number: 15,825
• Citation: 96 P. 42,78 Kan. 193
• Parties: THE CITY OF OLATHE v. THE MISSOURI AND KANSAS INTERURBAN RAILWAY COMPANY
• Court: Kansas Supreme Court

96 P. 42

78 Kan. 193

THE CITY OF OLATHE v. THE MISSOURI AND KANSAS INTERURBAN RAILWAY COMPANY

No. 15,825

Supreme Court of Kansas

May 9, 1908

Decided January, 1908.

Original proceeding in quo warranto.

Case dismissed.

SYLLABUS

SYLLABUS BY THE COURT.

1. QUO WARRANTO--Annulment of a Franchise. A right granted by ordinance to a corporation to operate an interurban railway upon the streets of a city is a "franchise" within the meaning of the word as used in the statute relating to quo warranto, and for proper cause may be annulled in an action of that character.

2. QUO WARRANTO--Parties. The city granting such right is a proper plaintiff in such an action, in virtue of the statute (Civ. Code, § 654) authorizing it to be brought by a person claiming an interest adverse to the franchise which is its subject.

3. QUO WARRANTO--Forfeiture of a Right to Operate a Railway on a City's Streets. Upon the facts alleged held, that it does not appear that other remedies are so inadequate as to warrant the court, in the exercise of a sound discretion, in imposing the extreme penalty of forfeiture.

C. L. Randall, for plaintiff.

Ogg & Scott, S. T. Seaton, and Frank Doster, for defendant.

OPINION

MASON, J.:

This is an original proceeding in quo warranto, brought by the city of Olathe against the Missouri and Kansas Interurban Railway Company, seeking to forfeit the rights granted by ordinance to that corporation to operate its road in certain streets of the city. The defendant has filed a demurrer and a motion to dismiss, based upon these three contentions: (1) The controversy indicated by the petition relates to a mere matter of contractual rights between the city and the company, and is not triable in quo warranto proceedings. (2) The city is not a proper plaintiff in such an action. (3) Upon the facts alleged the court ought not to take jurisdiction.

There is some conflict in the authorities upon the first proposition. The two views are thus stated in volume 23 of the American and English Encyclopaedia of Law, at page 643, the cases being collected in notes to the text:

"The right under a municipal ordinance or contract to operate a street-railway or to lay pipes or string wires in or along a public street or highway has been held not a franchise and not triable by quo warranto. Any unlawful user must be redressed as other ordinary wrongs or breaches of contract. But a contrary view has been taken, and it has been held that a grant by a city, by authority of its charter, of the right to use its streets and highways for the purpose of laying pipes, etc., is a franchise for which quo warranto will lie."

The question has been so fully and satisfactorily treated in the recent case of State v. Railway Co., 135 Iowa 694, 109 N.W. 867, that there is no occasion to say more than that this court without hesitation adopts the conclusion there stated in these words:

"The first objection raised in argument by appellant is based upon the vital proposition that the controversy indicated by the pleadings involves a mere matter of contractual rights and obligations between the railway company and the city in which neither the state nor the general public has any interest and is therefore not triable in proceedings of this kind, whether instituted upon the relation of the county attorney or of private citizens. This position finds support in the decisions of the courts of Illinois and Michigan [citing cases]. But, as we read the books and consider the principles involved, the rule thus announced is not supported by the weight of authority or by the better reason. Of course, if the term 'franchise' is to be limited to the mere right to corporate existence, then without doubt rights obtained subsequent to the incorporation and based upon grants from or contracts with a municipality would not come within the definition, and it would be at least questionable whether an action under the statute to test corporate rights would lie for their abuse or usurpation. But it is a thoroughly well-established proposition that rights granted to a corporation, either directly or by the state indirectly through the act of a minor municipality authorized by the state, are to be regarded as franchises no less than is the right to be a corporation. Both classes of rights are derived mediately or immediately from the state, and both are subject to the inherent power of the state to guard against their abuse by the grantee or usurpation by a wrong-doer. The occupation of the public street for railway purposes is not a matter of common right, and without a legislative grant therefor the construction or maintenance of such a railway would expose the party responsible therefor to punishment as for a nuisance. The municipality to which is given authority to grant such a privilege exercises a...