159 Mo. 239 | Mo. | 1900
This is a suit by the plaintiff to enjoin
The appeal is brought to this court because the constitutionality of the ordinance mentioned is challenged.
Plaintiff’s petition charges that it is a railroad corporation duly organized and existing under and by virtue of the provisions of article, 2, chapter 42, of the Kevised Statutes of Missouri of 1889, for the purpose of constructing, maintaining and operating a railroad in the city and county of St. Louis for public use in the conveyance of persons and property from a point within the said city, thence in a general southwestwardly direction through, or near the village and towns of Old Orchard, Kirkwood, etc.; that it has constructed, and is now, and for some time past, has been operating its said railroad; that a portion of its line of railroad lies within the limits of the city of Kirkwood; that it is authorized to convey persons and property over its said railroad and to receive compensation therefor; that before constructing its said railroad within limits of the said city of Kirkwood it obtained the assent of said town to said construction, ex
“No corporation, company, copartnership, person or persons shall run, operate, use, or drive, or cause to be run, operated, used or driven, in the city of Kirkwood, Missouri, any street railroad car or cars, or other kind of railroad car or cars upon or over any route, or for any purpose or use whatever, not authorized.by the franchise granted to said corporation, company, copartnership, person or persons by the town or city of Kirkwood, Missouri.”
(Said' ordinance provides a penalty for doing the prohibited acts).
That a copy of this ordinance was also delivered to defendant; that thereafter, and on the nineteenth and twenty-second days of December, 1899, the said defendant, still persevering in its said purpose aforesaid, caused to be filed with its police judge complaints against one Thomas M. Jenkins, the general manager of plaintiff, for violating said ordinance, upon which warrants were issued and said Thomas M. Jenkins arrested and brought before the police judge of defendant to answer to said complaints, copies of which said complaints and warrants are set out in the petition; that, though requested, defendant refused to forego further prosecution of plaintiff’s said general manager for violating said ordinance number 31 until the validity of the same might be tested in the courts, but threatened to continue the same.
Plaintiff’s petition then proceeds to charge that for a great number of reasons therein enumerated, said ordinance number 31 is null and void and of no effect and concludes as follows:
“That if the defendant is permitted to continue the prosecutions already commenced against the plaintiff, as*246 aforesaid, and is permitted to carry out its threats to institute similar prosecutions against plaintiff from time to time, and from day to day, and is permitted to prevent plaintiff from the performance of its public duties, as a common carrier, and to prevent the plaintiff from the exercise and enjoyment of its franchises as aforesaid it will occasion the plaintiff great and irreparable damage, for which the plaintiff has no adequate remedy at law.”
Wherefore the plaintiff prays the court to decree said ordinance number 31 “illegal, null and void as against the plaintiff,” and in the meantime to enjoin the defendant, its officers, and agents and servants from further prosecuting the actions already commenced against plaintiff as aforesaid, and from instituting or causing to be instituted any further actions against plaintiff, its officers, agents, or servants, for alleged violations of said ordinance number 31, or in any way interfering with the plaintiff in the discharge of its duties as a common carrier or in the exercise or enjoyment of its said franchise aforesaid and for such further and other relief as to the court shall seem meet.
In pursuance to the prayer'of plaintiff’s petition the judge of the circuit court of St. Louis county on the twenty-sixth day of December, 1899, in vacation of said court, and at chambers, issued a temporary injunction or restraining order against defendant, its officers, agents and servants, prohibiting them from doing the acts complained of.
The answer of defendant to plaintiff’s petition is a general denial. After filing said answer, defendant filed a motion to dissolve said temporary injunction as aforesaid issued against it, assigning as reasons therefor, that plaintiff’s petition does not state, facts sufficient to constitute a cause of action or which warrant any equitable or other relief, and because the facts stated in plaintiff’s petition are untrue.
On the thirty-first day of May, 1895, plaintiff was duly organized “under and by virtue of the provisions of article 2, chapter 42, of the Revised Statutes of Missouri of 1889, for the purpose of constructing, maintaining and operating a standard gauge railroad, for public use in the conveyance of persons and property.” On the twenty-first day of May, 1897, the defendant, by ordinance duly enacted, granted to the plaintiff, its successors and assigns, a franchise “to construct, maintain and operate “an electric railroad for the transportation of passengers, on, along, over and upon” certain streets of defendant. “This franchise to continue in full force and effect for a period of fifty years.”
(This ordinance was thereafter twice amended during the year 1897, but these amendments are not material to the questions here presented for decision.)
After obtaining this franchise the plaintiff constructed along, across, over and upon the streets of defendants, by the franchise authorized, an electric railroad. Eor a period 'of some six months or more after the construction of its said railroad the plaintiff operated thereon only cars conveying passengers. Plaintiff then commenced to run and operate thereon a mail and freight car which carries no passengers but is wholly given up to a traffic in mail, express, baggage and freight. This car is labeled “United States Mail Oar,” but is in fact engaged in the business aforesaid. The exclusive privilege of shipping freight, express or baggage on this car is contracted to The Walton-Knost Express Company for a number of years at a stipulated sum per annum. Plaintiff makes two trips per day with this car over its road, stopping to load and unload the same at the corner of Adams and Clay
“Sec. 1. No corporation, company, copartnership, person or persons shall run, operate, use or drive, cause to be -run, operated, used or driven in the city of Kirkwood, Missouri, any street railroad car or cars, or other kind of railroad car or cars, upon or over any route, or for any purpose or use whatever, not authorized by the franchise granted to said corporation, company, copartnership, person or persons by the town of Kirkwood, Missouri. And violations of the provisions of this section shall be deemed a misdemeanor, and upon conviction, the offender shall be punished by a fine of not less than ninety-five dollars, nor more than one hundred dollars, or by imprisonment in the city prison for not less*249 than two months nor more than three months or by both such fine and imprisonment.
“Sec. 2. Any officer of any street railway company or other railway company, or person managing or operating the same, who shall rnn or operate the same or cause the same to be run or operated in a manner or for any use or purpose whatever prohibited by section 1 of this ordinance shall be deemed guilty of a misdemeanor, and, upon conviction, shall be punished by a fine of not less than ninety-five dollars nor more than one hundred dollars, or by imprisonment in the city prison for not less than two months nor more than three months or by both such fine and imprisonment.”
On the fourteenth day of December, 1899, the defendant caused a copy of this ordinance to be delivered to the plaintiff. Its provisions were not minded by the plaintiff, and on the nineteenth and twenty-second days of December, 1899, to enforce obedience thereto the defendant caused to be commenced against the general manager of the plaintiff, suits numbered 1601 and 1602, the files in which cases were offered in evidence by plaintiff and are copied into the record. "Whereupon, on the twenty-sixth day of December, 1899, plaintiff commenced this suit against defendant.
A correct understanding of the issues involved necessitates a statement of certain provisions of the Constitution of Missouri and of our statutes in force when the plaintiff obtained permission to lay its tracks and oj>erate its railroad in the streets of Kirkwood.
Section 20 of «article 12 of the Constitution erf Missouri, 1815, provides: “No law shall be passed by the General Assembly granting the right to construct and operate a street railroad within any city, town, village, or on any public highway, without first acquiring the consent of the local authorities having control of the street or highway proposed to be
Section 2543 of the Nevised Statutes of Missouri, 1889, article 2, chapter 42, provides: “Nothing herein contained shall be construed to authorize the erection of any. bridge or other obstruction across or over any stream navigated by steamboats, at the place where any bridge or other obstruction may be proposed to be placed, so. as to prevent the navigation of such stream, nor to authorize the construction of any railroad not already located in, upon or across any street in a city or road of any county, without the assent of the corporate authorities of said city, or the county court of said county.”
The plaintiff railroad company was organized under the provisions of article 2, chapter 42, Nevised Statutes 1889, of which section 2543 constitutes a part.
On the twentieth of May, 1897, the plaintiff applied to the board of aldermen of Kirkwood to grant it a franchise to construct, maintain and operate an electric railroad upon and across certain streets of said town.
Kirkwood was organized as'a town by special act of the Legislature approved February 20, 1865. By said act it was empowered “to open, establish, widen, extend, contract, abolish, build and repair streets, avenues, alleys, lanes, public squares, drains and sewers, and keep the same clear and in order” and “to regulate, grade, pave and improve the streets in said town and to pass all ordinances to carry into effect the object of said act and the powers therein granted.” Said charter was amended by another special act approved February 27, 1869, containing the above powers and some others not necessary now to mention. In 1899 Kirkwood duly accepted the provisions of the act entitled “Cities of the
Sections 1 and 14 of the franchise granted plaintiff by the town of Kirkwood through its board of aldermen on the twenty-first of May, 1897, were as follows:
“Sec. 1. Authority is hereby given to the St. Louis and Meramee River Railroad Company, its successors and assigns, to construct, maintain, and operate an electric railroad for the transportation of passengers on, along and upon the following route within the town of Kirkwood, to>-wit,” (naming the streets, etc.).
“Sec. 14. It is expressly understood by the acceptance of the provisions of this ordinance by the S't. Louis and Meramee River Railroad Company, the railroad company agrees and binds itself, its successors and assigns, to conform to all general ordinances now existing or hereafter to be enacted by the town of Kirkwood respecting and governing street railroads.”
The contention of the city of Kirkwood under the foregoing statement of facts is that under the Constitution and statutes quoted, the town, now city, of Kirkwood, had the right to consent or refuse to permit the plaintiff to construct, maintain and operate its railroad along the streets of said town, and if it consented, it had the right to prescribe the terms and conditions upon which it would permit said railroad to occupy its streets, and having permitted plaintiff to occupy its streets solely for the purpose of transporting passengers, plaintiff has no right to use its streets for the carriage of freight. "Whereas, plaintiff insists that while it is true, that under our laws it had no right to construct and maintain its railroad in a city, town or village without first acquvrmg the consent of the authorities of said city, the plaintiff railroad company
It would be difficult to conceive of a more positive and unequivocal veto than that conferred upon the cities, towns and villages of this State by section 20 of article 12 of the Constitution, and section 2543, supra, to prevent the construction and operation of railroads upon their streets and highways, without their consent. When such power is given to cities and towns it is not limited to a mere “yes” or “no,” but they may impose such conditions upon their consent as they see fit. [Grand Ave. Ry. v. Lindell Ry., 148 Mo. 637; Grand Ave. Ry. v. Citizens Ry., 148 Mo. 665; Union Depot Ry. v. Southern Ry., 105 Mo. 571.]
Judge Elliott in his work on Railroads (volume 3, section 1081), says: “When a municipal corporation Ras the power to grant or refuse a railroad company the right to use its streets as it sees fit, or when its consent is required before any company can so use them, it has, as we think, the authority to prescribe the terms and conditions upon which the company shall have the right to construct and operate a railroad in its streets.”
Judge Dillon in his work on Municipal Corporations, (volume 2, section 706), says: “Where, under the general statutes of a State, a railroad company was forbidden to construct and operate its road upon the streets of an incorporated city, 'without the assent of the corporate authorities,’ these are not limited to a simple granting or denial of the right of way,
It does not admit of doubt, in our opinion, that the city of Kirkwood could have altogether denied' plaintiff the right to operate its road in said city, and it would have been utterly powerless to have forced its way into said city without its consent.
But, says the plaintiff, while we concede this, we insist that if it did give its consent and attached to it the condition that -the company should only use the street as a carrier of passengers, the consent must stand, and the condition be rejected because unreasonable, as by so doing, it required the railroad company to waive the performance of a duty which its charter imposed upon it, viz., to carry freight.
As this city gave its consent solely on this condition, we think it very clear that if this condition was illegal then plaintiff is entirely without right in the streets of Kirkwood.
As was said by the Supreme Court of Pennsylvania, 159 Pa. St. 411, Alleghany City Railway: “The man who can give the whole, can give a part, or who can grant absolutely, can grant with a reservation of rent or other condition. He who can consent or refuse without reason does not make his consent or his refusal either better or worse by a good or bad reason.” It is plain that the Constitution and the statute cited give the absolute power to the city, and it does not lie in the mouth of plaintiff who obtained this consent, to urge that the condition limiting it to a carriage of passengers is unreasonable.
If so unreasonable as to make it void, the consent obtained upon that consideration is also void. But we opine plaintiff does not desire this court to go to this extremity, nor is it necessary.
It must be remembered that the State is not here complaining of non-user, of its chartered powers, but it is the plaintiff which obtained this consent to use the streets by contracting to carry only passengers on its cars and thus to deny it itself merely one of its powers.
If the plaintiff is correct, that it now has the right to haul freight in the streets of Kirkwood, without its consent, then there is nothing to prevent its running freight trains of ten or twenty cars and stopping its trains where it pleases. We are clear that its acceptance of the condition imposed in the franchise granted it estops it from now grasping the benefits of that contract with one eager hand, while thrusting aside its burdens with the other.
We think the facts in evidence constituted plaintiff, so far as the city of Kirkwood is concerned, a street railway with the right to transport passengers only, and that, in operating mail and express cars, it exceeded the consent granted by the city, and thus made itself amenable to prose
Ordinance No. 31 of Kirkwood is not void by reason of being so unreasonable that this court will declare it void. The exclusive control over its streets is given the city and after notifying plaintiff that it was violating its franchise and after plaintiff ignored its demand to conform to its privilege, the ordinance was justified. The city seeks not to oust plaintiff of its franchise, but requires it merely to conform to the conditions upon which it is permitted to use the streets.
A street railroad laid in the streets* without authority is a nuisance, and so is the operation of a railroad of any kind in a city without authority of law. [Com. v. Railroad, 11 Gray, 93; Railroad v. Com., 101 Pa. St. 192.]
As the ordinance only made that an offense which is everywhere regarded as a nuisance, it was in no sense in excess of the city’s power.
It may be well to add that as the franchise granted by the town of Kirkwood to plaintiff was simply “for the transportation of passengers,” the grant must be construed in favor of the public and against the railroad company, and this enumeration excluded the transportation of freight. [Carroll v. Campbell, 109 Mo. 550; State ex rel. v. Murphy, 130 Mo. 24.]
It becomes unnecessary to discuss at length the various other propositions urged arguendo by the respective coixnsel. The decree of the circuit court granting a perpetual injunction against the city of Kirkwood and its officers restraining it from prosecuting plaintiff and its officers and servants for