Wichita Transp. Co. v. People's Taxicab Co.

• Decision Date: 07 July 1934
• Docket Number: 31572.
• Citation: 140 Kan. 40,34 P.2d 550
• Parties: WICHITA TRANSP. CO. v. PEOPLE'S TAXICAB CO. [*]
• Court: Kansas Supreme Court

34 P.2d 550

140 Kan. 40

WICHITA TRANSP. CO. v. PEOPLE'S TAXICAB CO. ^[*]

No. 31572.

Supreme Court of Kansas

July 7, 1934

Syllabus by the Court.

Lawfully operating street car company which was suffering loss in business and which, if continued, would eventually cause bankruptcy, could maintain action to enjoin operation of taxicabs in violation of city ordinance.

Where by the unlawful operation of taxicabs on the streets of a city, the regular transportation company operating in the city is suffering loss of business which, if allowed to continue, will eventually lead to bankruptcy of the company the regular transportation company has a right to bring an action to enjoin the operation of the taxicabs in violation of a city ordinance.

Appeal from District Court, Sedgwick County; R. L. NeSmith, Judge.

Action by the Wichita Transportation Company against the People's Taxicab Company. Judgment for plaintiff, and defendant appeals.

C. A Matson, I. H. Stearns and E. P. Villepigue, all of Wichita for appellant.

Robert C. Foulston, George Siefkin, Sidney L. Foulston, Lester L. Morris, George B. Powers, Carl T. Smith, and C. H. Morris, all of Wichita, for appellee.

George W. Cox, Lawrence Weigand, and L. E. Curfman, all of Wichita, amici curiae.

SMITH Justice.

This is an action to enjoin the defendant from operating taxicabs in the city of Wichita without complying with the provisions of certain ordinances of the city. Judgment was for plaintiff. Defendant appeals.

The plaintiff is the regular street car company of the city. The petition recites on July 24, 1933, the present action was begun. In brief the petition recites the franchise of the plaintiff to operate street cars and busses, the value of its property, the unwarranted and illegal interference by the defendant with its business and intending passengers, the violations of the ordinances above referred to, and the prayer is for an injunction to restrain the defendant from operating in violation of the city ordinances and from causing loss and damage to the plaintiff. The ordinances in question are 11--252, 11--254, and 11--158. The two former ordinances are held to be valid in the case of People's Taxicab Co. v. City of Wichita (Kan.) 34 P.2d 545, this month decided. No. 11--254 prohibits taxicabs from soliciting or receiving passengers on certain streets where busses and street cars are operated. When the application for a temporary injunction was heard, the defendant was enjoined from

"(a) Soliciting or receiving passengers on streets where the busses and street cars were operated, except that passengers might be received where prior arrangements had been made, and

"(b) 'Cruising' as defined by Ordinance 11 --180."

When the case came on to be heard upon its merits, a permanent injunction was granted enjoining the defendant from

"(a) Operating taxicabs without a license, or

"(b) Without bond or insurance;

"(c) Soliciting passengers on streets where busses or street cars were operated, or

"(d) Receiving passengers on such streets except where prior arrangement was made therefor, and

"(e) From 'cruising."'

The first contention of defendant is that, on account of the pendency of the case of People's Taxicab Co. v. City of Wichita, in which case the enforcement of the ordinance in question was temporarily enjoined, the plaintiff had no right to maintain this action. As to this argument that case has been consolidated with this case for consideration in this court and will be considered on its merits.

Defendant next contends that, if the ordinances should be held valid, then plaintiff has an adequate remedy at law because, had the taxicab company violated the provisions of the ordinances, it would have been subject to arrest and punishment. The rule is that, where property rights are involved and the injured party does not stand in the same relationship to the enforcement of the ordinance as the general public, the mere fact that the injunction has the effect of enforcing penal provisions is no objection to the use of equity.

In this case the petition alleged operation of plaintiff company, its investment and heavy expense of operation, and: "That the defendant company, together with other and separate companies and individuals who are made parties to separate suits filed in this court at the time of the filing of this petition, have recently become engaged in operating what is commonly known as '10¢ taxi cabs' in competition with the transportation system of the plaintiff and depriving it of the business which it has builded over a period of years, destroying the earning capacity of the plaintiff, the value of its property and good will and impairing the ability of the company to pay taxes, wages and employees and other operating expenses. That as a result thereof, the plaintiff has been and is required to operate its busses and street cars at a loss, which losses due to the illegal and unlawful acts of the defendant, as hereinafter set forth, have been increased to the point where the plaintiff is in imminent danger of insolvency or bankruptcy which is liable to cause the total destruction of the property and property rights of the plaintiff and the abandonment of its system of transportation."

And: "That the failure and refusal of the defendant to comply with the terms and provisions of the Ordinances as set forth in the preceding two paragraphs enables the defendant to unfairly compete with the plaintiff herein, which is compelled to pay and has paid taxes, license fees and carrier's fees for the operation of its vehicles and whereas the defendant has been, and is operating taxi cabs without paying any license or occupation fee therefor or making any payment for a bond or insurance coverage on its taxi cabs."

Defendant met this with a general denial and the following allegation: "Defendant denies that it is in direct competition with the Plaintiff herein, and alleges that it renders a different service than is rendered by the Plaintiff; that it charges a higher rate than is charged by the Plaintiff for the transportation of passengers; that it is able to transport passengers to and from portions of the City of Wichita to which point or points the said Plaintiff's transportation facilities do not go; that the transportation facilities of Plaintiff are wholly inadequate to meet the conditions and needs of the citizens of Wichita, Kansas; and that said Plaintiff is unable to render adequate transportation facilities. That the said Plaintiff does not render any service from midnight to six o'clock A. M. of each day and that said defendant has day and night service."

With the pleadings thus framed, the judgment in favor of plaintiff carried with it a finding of fact that would support the judgment. Since that is the case, the rule announced in the case of Featherstone v. Independent Service Station Ass'n (Tex. Civ. App.) 10 S.W.2d 124, 127, is helpful. There the court said:

"When and under what circumstances will a court of equity exercise authority to prevent the commission of crimes? The general rule is that, except as conferred by statute, courts of equity have no criminal jurisdiction, and acts or omissions will not be enjoined merely on the ground that they constitute violations of penal statutes.

...