The City of Westport v. Mulholland
| Decision Date | 18 December 1900 |
| Citation | 60 S.W. 77,159 Mo. 86 |
| Parties | THE CITY OF WESTPORT, Appellant, v. MULHOLLAND |
| Court | Missouri Supreme Court |
Transferred from Kansas City Court of Appeals.
Reversed and remanded.
R. B Middlebrook and A. S. Marley for appellant.
(1) When one devotes his property to a use in which the public has an interest, he in effect grants to the public an interest in that use, and must submit to be controlled by the public for the common good to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use, but so long as he maintains the use, he must submit to the control. Railroad v. Iowa, 94 U.S. 155; Peck v. Railroad, 94 U.S. 164; Railroad Commission Cases, 116 U.S. 307; Munn v. Illinois, 94 U.S. 113; State to use v. Railroad, 83 Mo. 149. (2) The ordinance is a proper exercise of the police power of the city. Railroad v. Chicago, 140 Ill. 317. In New York, it has been held that a statute authorizing the construction of highways across railroad tracks, without compensation, does not violate the constitutional provision against taking private property for public use, or impair the obligation of contracts. Railroad v. Brownell, 24 N.Y. 345; Railroad v. Boston, 5 Lansing 561; Railroad v. Sharpe, 38 Ohio St. 150; Railroad v Railroad, 20 Id. 604; Thorpe v. Railroad, 27 Vt. 140; Railroad v. Milwaukee, 97 Wis. 422; Beer Co. v. Massachusetts, 97 U.S. 25; Lancaster Co. v. Railroad, 29 Neb. 417; Railroad v. Co. Commrs., 79 Me. 386; People ex rel. v. Railroad, 70 N.Y. 569; Minnesota ex rel. v. Dist. Ct., 42 Minn. 247; Kansas v. Railroad, 33 Kan. 176; Railroad v. Smith, 91 Ind. 119; Railroad v. Nebraska, 170 U.S. 74; Beer Co. v. Massachusetts, 97 U.S. 25; Fertilizing Co. v. Hyde Park, 97 U.S. 659; Gas Co. v. Light Co., 115 U.S. 650; Mugler v. Kansas, 123 U.S. 623; Railroad v. Defiance, 167 U.S. 88; State to use v. Railroad, 83 Mo. 144; Railroad v. State, 37 Ind. 489; Railroad v. Claire, 6 Ind.App. 390; 33 N.E. 918; Railroad v. Crist, 116 Ind. 446; 19 N.E. 310. (3) Grants of rights and privileges in streets are construed strictly against grantees, and liberally in favor of the public. State ex rel. v. Payne, 129 Mo. 468; Ransom v. Railroad, 104 Mo. 375; St. Louis v. Railroad, 13 Mo.App. 524; 87 Mo. 151.
Karnes, Holmes & Krauthoff for respondent.
(1) When the city of Westport so extended its corporate boundaries as to include within the same a part of the county road known as Rosedale avenue, over which the Grand Avenue Railway Company had previously acquired from the county court the right to construct, maintain and operate its railroad, the rights of the railway company over the public highway remained the same after the extension of the city's limits as before. Under the constitution and laws of the land, the municipality was powerless to abridge, interfere with or in any way affect those rights. Detroit v. Railroad, 12 Mich. 333; Quinn v. City of Paterson, 27 N. J. L. 35; People v. Detroit, etc., Co., 37 Mich. 195; St. Catherines v. Gardner, 20 U. C. C. P. 107. "Obviously, upon the clearest consideration of law and justice, the grant of authority to the company, when accepted and acted upon, became an irrevocable contract, and the city is powerless to set it aside or to interpolate new and more onerous conditions therein." Dartmouth College Case, 4 Wheat. 518; St. Louis v. Western Union Tel. Co., 148 U.S. 92; Baltimore Trust Co. v. Baltimore, 64 F. 153; Wire Co. v. Baltimore, 66 F. 140; Rhodes v. Mummery, 48 Ind. 216; Railroad v. Railroad, 11 Ch. D. 625; Hickman v. Kansas City, 120 Mo. 110. (2) The only justification suggested by counsel for appellant is that the city has the right to require such permission from the board of aldermen as an exercise of its police power. But it is clear enough that the contention can not be sustained on any such ground. "As applied to the control of street railways, the police power is the continuing and paramount authority of the legislature, within its constitutional prerogatives, and of municipal corporations, under their delegated powers, to establish regulations which promote the public welfare and do not unreasonably interfere with the franchise, management or business of the company or violate the obligations of any valid contract." Booth on Street Railway Law, sec. 220, p. 302; Sloan v. Railroad, 61 Mo. 24.
Daniel B. Holmes, Frank Hagerman and Willard P. Hall also for respondent.
(1) The thing prohibited is the tearing up or otherwise interfering with the streets of said city without the consent of the board of aldermen. The meaning is plain and clear: Without the consent, the act prohibited must not be done, but with the consent it may be done. It is the consent, therefore, that controls. If it exists the act is lawful. The street railway company had the consent of Westport for doing the act complained of; defendant was in the employment of the railway company, was doing the act for it, and therefore the act was lawful and not in violation of the ordinance. The railway company had the consent of Westport because its franchise authorized the act; its franchise had the same force and effect as if granted by Westport, and, therefore, the act was authorized by Westport. And, of course, an act authorized by Westport was consented to by its board of aldermen. (2) If the ordinance be construed to prohibit an interference with the streets previously authorized by Westport in said franchise, then to that extent it is unconstitutional. We again refer to the facts conceded by opposing counsel and by Division One in its opinion, that the act complained of was authorized by its franchise, and that said franchise was as effectual as if granted by Westport itself. The act complained of, therefore, was authorized by Westport. Now, then, if the franchise be considered as if granted by Westport, if the act be treated as authorized by Westport, Westport afterwards could not prohibit the act legally. Having granted the franchise, Westport lost the power of prohibition and retained only that of regulation. We concede now, and always have conceded, that she retained the power of regulation. But the trouble is that the ordinance is not one of regulation; it is one of absolute prohibition. Confined to the acts within its terms, acts to which Westport has not consented, the ordinance is all right and its prohibition legal. But extend the prohibition to acts to which Westport has given its legal and valid consent, and then another question arises, i. e., the legal power of Westport to violate its contract giving the consent. We may put it in still another way: As to all acts authorized by the franchise, Westport possessed only the power of regulation; now the power of regulation does not include the power to prohibit. Municipal Police Ordinances (Horn and Bemis), sec. 30; McCormick v. Mayor, 39 N. J. L. 38; Brown v. Oberlin, 41 Ohio St. 476. For a city council to require a permit from themselves for the doing of a certain thing is to prohibit said thing. Austin v. Murray, 16 Pick. 121. This is also true of a license. Duckwall v. New Albany, 25 Ind. 283. The ordinance prohibits and does not regulate, and therefore is void if it violates the franchise.
OPINIONIn Banc
Defendant was convicted and fined in the police court of the city of Westport upon a charge of violation of a city ordinance of which the first section is: "No person or persons shall tear up, dig up or ditch or otherwise interfere with any of the streets or alleys within the limits of the city of Westport without the permission first obtained from the board of aldermen of said city."
The second section prescribed the penalty for the violation.
Upon appeal to the criminal court of Jackson county, the cause was tried on an agreed statement of facts, upon which there was a judgment of acquittal, and the city appealed to the Kansas City Court of Appeals. The cause was transferred to this court because it involves a construction of the Constitution.
The facts are that in 1887 the county court of Jackson county granted the Grand Avenue Railway Company the right to construct and maintain its street railway on Rosedale avenue, then a county road under the jurisdiction of the county court, and under that grant the company constructed and has since maintained and operated its railway; in April, 1891, the city of Westport extended its limits and took in Rosedale avenue, and with it the railroad; afterwards, in November, 1891, the defendant, in the service of the railway company, without permission of the board of aldermen, dug up and tore up the street in reconstructing a switch that was necessary for the operation of the railroad, and that is the offense for which he was tried. The city ordinance was passed several years before the city extended its limits and was in force at the time of the alleged violation by defendant. The whole defense in the case is that the county court, when it had the authority to do so in 1887, having granted the railroad company the right to lay and maintain its railroad on the public road, which grant included the right to do what the defendant in this instance did, the railroad company could not, under that provision of the Constitution which forbids laws impairing the obligation of contracts, be deprived of that right or limited in its exercise. That is the only proposition in the case.
That the city could not by its ordinance deprive the railroad company of its franchise or impair the obligation of its contract with the county court, treating the grant of the franchise and its acceptance as a contract, is a proposition of law that has not been gainsaid in this country since the decision in the Dartmouth College case in 1819. But that in the exercise of...
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