85 Kan. 649 | Kan. | 1911
Lead Opinion
The opinion of the court was delivered by
Early in 1910 complaints by the mayor and council of Oberlin, the mayor and council of Norcatur, and petitions signed by various persons and firms were presented to the board of railroad commissioners praying that a switch connection be made between the tracks of the defendant roads at Norton,- Kan., one complaint suggesting that it be located at or near Norton and another, signed by persons and firms, that it be ordered placed at Norton or some convenient place. These documents set forth at length the alleged needs of a large territory in .northwestern Kansas traversed by the roads and the supposed necessity for a connection so that better shipping facilities might be enjoyed by the territory referred to. In the Burlington’s answer to the complaints it was alleged, among other things, that the amount of business which would be handled would be insufficient to’ warrant the board in ordering the connection. Similar contention was made in the answer of the Rock Island. After notice given hearing was had at Norton on February 9, and two days thereafter the board at Topeka ordered the connection made on or before ninety days, at Calvert, seven and one-half miles east of Norton.. The findings and order of the board recite that upon a hearing had, and after the introduction of evidence and argument of the counsel, it was found that the amount of business afforded
It is urged that the attorney for the board had no authority to maintain the action in the name of the state, and that such right rests alone with the attorney-general. Section 7182 of the General Statutes of 1909 (Laws 1907, ch. 268, § 11) makes it the duty of the attorney for the board of railroad commissioners “to prosecute and defend all suits and proceedings in behalf of the state, in the name of the state, in connection with the acts of. the said board.” Section 7228 of the General Statutes of 1909 (Laws 1907, ch. 268, § 8) also indicates an intention on the part of the legislature to authorize such action to be brought by the attorney for the board, and we hold that this action was brought by the proper officer.
The action is said to have been prematurely brought for the reason that the defendants had eighty-seven days remaining in which to comply, and that hence it was impossible for them to have already failed to obey. Section 716 of the code provides that the alternative writ must state concisely the facts, “showing the obligation of the defendant to perform the act, and his omission to perform it.” Here the obligation was to perform within ninety days, and it is argued that until the expiration of that time there could not be an omission to perform the required duty. But the allegations of the petition fairly showed a present determination not to perform, and the defendants expressed no willingness to obey the order when sued, but contested its validity, and under the circumstances the action was not premature. (C. K. & W. Rld. Co. v. Comm’rs of Chase Co., 49 Kan. 399, 414, 30 Pac. 456.)
In The State, ex rel. Price, v. Carney and others, 3 Kan. 88, it was said, in effect, that even an alternative
[The plaintiff] “having made his demand, concerning which no doubt exists in this case, if the auditor [the defendant] did not express a willingness to comply therewith, it was proper to institute this proceeding, when, if defendant intended to comply with the demand, he might have disclosed such intention and have avoided any judgment for disbursements. But having answered and contested the relator’s right, he can not be heard to say that he would or might have complied with the relator’s demand.” (p. 416.)
In the present case the ninety days allowed by the statute for compliance with the order of the board of railroad commissioners has now long since passed, and the defendants still refuse performance, and undertake to justify their course by the contention that the order is invalid. A peremptory writ commanding such compliance at this time ought not to be withheld on the ground that when the matter was first brought to the attention of the court it was still possible for the de
Even an ordinary civil action brought before the plaintiff’s right has fully matured may be proceeded with, in the discretion of the court, upon the filing of a supplemental pleading. (Smith v. Smith, 22 Kan. 699, 703; King v. Hyatt, 51 Kan. 504, 32 Pac. 1105.) And an action for damages for breach of contract may be maintained before the arrival of the time for its performance, where its obligation is denied. (Caley v. Mills, 79 Kan. 418, 100 Pac. 69.) Mandamus is a special remedy, somewhat summary in character. In a clear case a peremptory writ may issue .in the first instance. Often the benefits of an act will be lessened or lost unless it is performed by the stated time, and there can be no opportunity for the full presentation and consideration of the legal questions involved unless the action of a court is invoked before that time has arrived.
The statute under which the board apparently acted (Gen. Stat. 1909, § 7195, Laws 1901, ch. 286, § 17) provides that upon complaint and application by the mayor and council of any city, or the trustee of any township, requesting an order to require any railroad company to construct any depots, sidetracks, switches or other facilities at any point on the line of such railroad, the board, after notice and investigation or examination, shall make such orders as it shall deem necessary and proper in relation to the construction and maintenance of such depots, connections, switches or sidetracks as in the judgment of the board shall be necessary. Section 7191 (Laws 1901, ch. 286, § 13) has more specific relation to connecting tracks of different roads, and provides for an order without previous notice or hearing, a certified copy of the board’s findings and decision to be served upon the companies whose roads it is deemed necessary to connect. The complaints and petitions to which the defendants answered sufficiently advised them that the hearing was
The argument that the prima facie reasonableness of the order is destroyed because it departs from the place requested is not meritorious.
It is urged that the order is unreasonable because it will require the cars of the Burlington to go beyond its own rails without provision for their return, and that it is unreasonable because it will require an agent at Calvert. Section 7287 of the General Statutes of 1909 (Laws 1905, ch. 351, § 4) makes the order prima facie evidence as to every fact found, which includes the finding that the business afforded the roads warranted the connection, and prima facie reasonable and just. We find nothing in the evidence sufficient to overcome this presumptive reasonableness, the evidence going mainly to the cost of the connection and showing nothing as to whether the income and profits would be increased or diminished.
Again, it is suggested that the statute does not contemplate that the city of Oberlin shall by complaint of its mayor and council affect conditions many miles away. But the manifest object of the statute is to provide better shipping facilities for regions needing them, and the cities and villages mentioned in the complaints and petitions are all within a territory deemed by the board to be entitled to the relief ¿prayed for, and the order in effect, if not in terms, includes a finding to this effect.
The contention that the order directly affects interstate commerce is without support in the evidence, and
Finally, it is said that no duty arising out of their charters rests upon these companies to build new lines of road, long or short, and that the power here sought to be enforced on the part of the board would, if sustained, mean that these defendants might be compelled to build new lines into regions wherever the board deemed it of advantage to the inhabitants. Not going beyond the case in hand, the matter involved here, and the one we decide, is that the order requiring these roads, the centers of whose tracks are about 162 feet apart at the place in question, to connect such tracks is within the power of the board and presumptively reasonable.
The defendants having shown no good cause why they have not complied with the order, the peremptory writ is allowed.
Dissenting Opinion
(dissenting) : The duty and the time were coextensive. It was held in The State, ex rel. Price, v. Carney and others, 3 Kan. 88, that no previous threat or predetermination not to perform a legal duty can amount to a fault or omission, even though the showing be sufficient to convince the court that the respondents will omit to perform their duty. This was followed in The State ex rel. v. Wyandotte, 4 Kan. 430, in Dobbs v. Stauffer, 24 Kan. 127, and quoted with approval in Rosenthal v. State Board of Canvassers, 50 Kan. 129, 32 Pac. 129, and is in accord with the mandatory requirement' of the statute. A present omission to do a future duty is a legal impossibility. The first time when it could be definitely known that the order had been disobeyed was nearly ninety days in the future, and I think an action before that time must have been premature.
I dissent from the second paragraph of the syllabus and the corresponding portion of the opinion.