The State ex rel. Mulholland v. Smith

• Decision Date: 06 July 1897
• Citation: 41 S.W. 906,141 Mo. 1
• Parties: The State ex rel. Mulholland v. Smith et al., Judges
• Court: Missouri Supreme Court

41 S.W. 906

141 Mo. 1

The State ex rel. Mulholland v. Smith et al., Judges

Supreme Court of Missouri

July 6, 1897

By this action, original here, relator endeavors to obtain a peremptory mandamus against the judges of the Kansas City Court of Appeals to compel the transfer of a cause to the Supreme Court.

In response to an alternative writ the defendants filed a return, to which relator made reply. Relator then prayed a peremptory writ on the facts admitted.

There is no controversy as to the facts. The substance of the case is as follows:

November 25, 1891, a complaint was filed before Judge Hunter, police judge of the city of Westport, in a cause entitled "City of Westport v. J. W. Mulholland," wherein the marshal of that city charged defendant, Mr. Mulholland, with having "dug up, and into, and obstructed and defaced one of the public streets" of said city, without first obtaining permission from the board of aldermen. The defendant appeared, pleaded "not guilty," and had a trial before the police judge. The result of the trial was that he was fined $ 25 and costs. He then appealed to the criminal court of Jackson county, where another trial was had before the court, a jury having been waived. On that occasion the case was submitted on an agreed statement, which (omitting only the caption and signatures) is as follows:

"The following facts are agreed to between the parties to the above entitled cause:

"1. In 1887 the county court of Jackson county, Missouri, duly granted its assent to the Grand Avenue Railway Company, its successors and assigns, a railroad corporation, for the construction and maintenance of its railroad on the then road known as Rosedale avenue, near the Missouri and Kansas state line, and that immediately thereafter said Grand Avenue Railway Company constructed its railroad on said Rosedale avenue and has ever since operated the same thereon.

"2. That afterward, to wit, April, 1891, the said city of Westport extended its corporate limits westward to the Missouri and Kansas state line, so that thereafter said part of Rosedale avenue, upon which said railroad was constructed was and is in the corporate limits of the said city of Westport.

"3. On the twenty-fifth day of November, 1891, the defendant in this case was a servant in the employ of said Grand Avenue Railway Company, and as such servant was then and there engaged in digging in, and tearing up, said Rosedale avenue in reconstructing a switch therein near said Darragh avenue for the purpose of switching the cars, operated upon said road; said Darragh avenue being substantially the western terminus of said railroad, and said switch being necessary for the operation of said railroad.

"4. That neither said Grand Avenue Railway Company nor said defendant had any authority for doing the work as aforesaid except the said assent of said county court of Jackson county, Missouri, granted and made of record as aforesaid and that no other or additional authority for so doing was obtained from the board of aldermen of the city of Westport, or from any other person or persons.

"5. That on said twenty-fifth day of November, 1891, there was in force in said city of Westport an ordinance, a certified copy of which is hereto attached and made part hereof.

"6. It is further agreed by and between the parties to this cause that the other cases, five in number, now pending in this court, in which the said city of Westport is plaintiff, and employees of said railway company are defendants, shall abide the determination of the issues of this case, and the same judgment shall be rendered therein as may be finally rendered in this cause."

The ordinance annexed to the foregoing statement was the one which defendant was charged with violating. The gist of it is that no person shall tear up, dig up, or otherwise interfere with, any of the streets or alleys of the said city, without permission first obtained from the board of aldermen, under penalty of being convicted of a misdemeanor and fined not less than $ 25 nor more than $ 500.

The agreed statement was signed by counsel for the city and by counsel for defendant. The cause was then submitted.

No instructions or declarations of law were asked by either party, or given by the court.

Thereupon the court found for the defendant, and adjudged that he be discharged. The plaintiff city moved for a new trial, and its motion was overruled in due time. Then the city appealed to the Kansas City Court of Appeals, where the cause was fully heard, and a conclusion was reached which can perhaps be best described by quoting the last lines of the learned opinion of that court:

"We are of the opinion that the defendant should have been convicted, and we will reverse the judgment and remand the cause that such judgment may be entered, and such punishment fixed as may be determined by the trial court. All concur."

In the brief filed on behalf of the defendant (Mulholland) in the Kansas City Court of Appeals appear the following passages, in connection with other arguments presented to that court:

"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 highways 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." . . . . "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. Such has been the well recognized doctrine of the authorities since the Dartmouth College case. . . . It seems to be a contradiction in terms to speak of a contract revocable at the will of one of the contracting parties. . . . The obligation of a contract, made between parties competent to contract, can not be impaired at the option of one of the contracting parties. . . .

"If it be necessary for the street railway company to obtain such permission from the board of aldermen, it necessarily follows that such permission might be refused, the power to grant necessarily including the power to refuse, and such power to refuse would obviously nullify the right which was granted by the county court to the street railway company to construct, maintain and operate its railway, and would consequently be a violation of the obligations of the contract made between the street railway company and the county court, which were necessarily assumed by the city when it extended its corporate limits and took jurisdiction over the former county road. . . .

"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. . . . The ordinance in question . . . thus . . . violates the obligations of a valid contract." . . . .

"Except in accordance with the view of the ordinance above taken, the same can not be upheld, because it would be subversive of the constitutional inhibition against the passage of any law impairing the obligation of contracts. In fact, we contend that, as against the street railway company, and hence as against this defendant who was acting only as its servant in the work referred to, the ordinance is unconstitutional and void, and inasmuch as cases involving such questions are only cognizable by the Supreme Court, we suggest the propriety of this case being transferred to that tribunal, unless this court should be of the opinion that the view of the ordinance presented under the third subdivision of this brief renders the decision of the constitutional question unnecessary.

"It is respectfully submitted that, whether this case be finally determined by this court or by the Supreme Court, the judgment of the criminal court ought to be affirmed."

After the judgment of reversal in the Kansas City Court of Appeals and the overruling of Mulholland's motion for rehearing, he made at the same term a formal application for a transfer of the case to the Supreme Court because of the constitutional questions involved, and because of alleged want of jurisdiction in the court of appeals.

Then the pending application for mandamus was made.

All the other essential facts appear in the opinion of the court in banc.

Peremptory writ awarded.

Karnes, Holmes & Krauthoff for relator.

(1) Prosecutions by municipal corporations against offenders for violations of city ordinances imposing a fine or penalty therefor are civil actions and not criminal proceedings. City v. Smith, 10 Mo. 440; City v. Knox, 74 Mo. 81; City v. Clark, 68 Mo. 588; City v Vert, 84 Mo. 204; City v. Ford, 40 Mo.App. 586; City v. Brown, 44 Mo.App. 148; City v. Neal, 49 Mo.App. 72. (2) Where an action is submitted to the trial court without a jury on an agreed statement of facts, no instructions or declarations of law are necessary in order to raise any question whatsoever which might arise on the state of facts agreed to. Munford v. Wilson, 15 Mo. 558; Stone v. Corbett, 20 Mo. 352; State v. Mackey, 55 Mo. 55; Shaw v. Padley, 64 Mo. 521; Gage v. Gates, 62 Mo. 412; Walter v. Ford,...