City of Wyandotte v. Corrigan

35 Kan. 21 | Kan. | 1886

The opinion of the court was delivered by

Johnston, J.:

2. Grants to corporations, strictly construed. The mayor and council of the city of Wyandotte, by an ordinance adopted in 1871, which was amended in 1881, authorized the Kansas City & Wyandotte Street Eailway Company, of which the appellant is general, manager, to construct and operate a street railway upon and along certain streets and avenues within the city. In the ordinances granting the franchise, it was provided that it should be constructed and maintained as a double-track railway; that the tracks should be laid flush with the streets and with flat rails, so as not to interfere with public travel, and should be kept in good repair; also that the company should operate its railway in connection with one in Missouri, so that cars should be run over both lines without change, making a through line on which cars should be run at all reasonable hours and times, and further providing a maximum fare which should be charged for transportation over the company’s line. From the record presented in this case, it does not appear that any other duties or obligations were imposed upon the company by the ordinance granting the franchise, nor does it appear that it contained any express exemption from municipal regulation or control, nor from the liability of others doing business within the city. The defendant urges that the granting of the franchise and its acceptance by the company constituted a contract within the protection of the federal constitution, which could not be impaired by any subsequent legislation of the city without the assent of the company; and he contends that no other or different conditions or burdens could be imposed than those mentioned in th'e ordinances, and therefore that the license tax could not be enforced against the company, or any of its agents. It may be conceded that the grant and its acceptance constitute a contract the obligation of which comes within the protection invoked; but the extent of the contract is not what is claimed. It does not involve any conditions or exemptions beyond those which are clearly expressed or necessarily implied. It is well settled that grants of this class are not to be extended by construction beyond the plain terms in which they are conferred, but should be construed strictly against the corpo-. ration, or those claiming under the grant, and in favor of the public. It has been said in respect to grants of special privileges, that—

“Nothing is to be taken as conceded, but what is given in unmistakable terms, or by an implication equally clear. The affirmative must be shown; silence is negative, and doubt is fatal to the claim.” (Fertilizing Co. v. Hyde Park, 97 U. S. 659.)

regulation by The application of this rule will overthrow the contention of the appellant. As has been seen, the ordinance conferring the grant provided only for the manner of constructing, main-taining and operating the road. Nothiug in the letter or spirit of the ordinance indicates any intention on the part ot the city to relinquish municipal regulation and control of the company,- if, indeed, it can be done, nor to relieve it from taxation, or the ordinary burdens to which other corporations and natural persons within the city are subject. The company must be held to have taken the franchise knowing that the business of operating the road must be conducted under such reasonable rules and regulations as the municipality might impose, and subject to its share of the burdens incident to the conduct of the municipal government. The requirements mentioned in the ordinance do not embrace, and are- not in any sense inconsistent with, the one now made, and of which the appellant com- . plains. Express authority is conferred upon cities of the second class to levy and collect a license tax upon the business of operating a street railroad,' (Laws of 1871, ch. 40, § 3,) and the validity of such legislation has been considered and sustained. (City of Newton v. Atchison, 31 Kas. 151.)

We have examined the authorities cited by plaintiff in error, but in them we find nothing in conflict with the conclusion which we have reached. There has been..considerable discussion in regard to whether the imposition of the license tax is an exercise of the police power, or of the power of taxation, but this is a matter of indifference in this case, as it is manifest from the contract made that it was not intended by the parties that either should be bargained away or surrendered. We conclude, then, that the conditions stated in the charter, providing how and when the road shall be constructed, and the manner in which it shall be maintained and operated, will not exempt the company from reasonable regulation in other respects, or from bearing its share of the public burdens. (San Jose v. S. J. & S. C. Rld. Co. 53 Cal. 475; Frankford &c. Rld. Co. v. Philadelphia, 58 Pa. St. 119; Johnson v. Philadelphia, 60 id. 445; City of St. Louis v. Manufacturers’ Savings Bank, 49 Mo. 574; City of St. Louis v. Mo. R. Co., 13 Mo. App. 524; Wiggins Ferry Co. v. E. St. Louis, 107 U. S. 365; Union Passenger Rly. Co. v. City of Philadelphia, 83 Pa. St 429.)

3 Agent of cor p?Scuraniicensetax. The appellant further contends that he cannot be held criminally responsible for the failure of the company to pay the license tax, claiming that the ordinance did not impose the duty of paying such tax upon any officer, servant or employé of the company. This contention has no ground upon which to rest. A corporation can only act through its agents, and by the agreed facts it is shown that the appellant is the general manager of the company, and that he was actually engaged in running cars and operating a street railway at the time charged when the license tax provided by the ordinance, was unpaid. The ordinance makes it unlawful for any person or firm, as we^ as a corporation, to engage in any of the occupations or classes of business mentioned, withou^ procuring a license and paying the tax, and provides further that whoever shall engage in such business in violation of such ordinance shall be convicted.and punished. It is immaterial whether the appellant was acting for himself or for the company. He was engaged in the business of operating a street railway within the city while the tax was unpaid, and must therefore suffer the penalty.

The judgment of the district court will be affirmed.

All the Justices concurring.